Opinion
99 Civ. 4985 (SAS)
May 5, 2000
Plaintiff (Pro Se) Jamie Martell Bronx, N.Y.
Attorney for Defendant Linda A. Rifkin, Esq. Assistant United States Attorney New York, N.Y.
OPINION AND ORDER
Pro se plaintiff Jaime Martell seeks review, pursuant to Section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405 (g), of the final determination by defendant Kenneth S. Apfel, the Commissioner of Social Security ("Commissioner"), terminating Martell's Social Security Disability Insurance ("SSDI") benefits. Martell requests that this Court reverse the Commissioner's decision and remand the case on the grounds that: (1) he never received notice of the Commissioner's re-evaluation of his disability status; (2) he was not afforded an opportunity to furnish his entire medical file to the Commissioner; and (3) the Commissioner's decision was erroneous, and not supported by substantial evidence. See Complaint at 1; Letter to Appeals Council ("Plaintiff's Letter") attached to Complaint at 1. The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Commissioner's motion is granted.
I. BACKGROUND
A. Procedural History
By a determination dated March 18, 1991, Martell was found to be disabled as of August 31, 1990, due to a stab wound to the right chest and subsequent partial removal of his right lung. See Tr. at 15, 70. Thereafter, in November 1996, Martell's condition was re-evaluated by the Commissioner under the medical improvement standard provided for in 20 C.F.R. § 404.1594(b)(7). Initially, the Social Security Administration ("SSA") determined that Martell's disability ceased in April 1997 due to his failure to provide current evidence of his disability. Tr. at 78. Martell appealed that decision, and on September 3, 1997, an SSA Hearing Officer heard testimony from Martell. Id. at 109. In addition to Martell's testimony, the Hearing Officer reviewed Martell's claim folder, including relevant medical and vocational reports. Id. at 108. Though given the opportunity, Martell did not submit any additional documentary evidence at the hearing. Id. In a written decision dated December 3, 1997, the Hearing Officer upheld the Commissioner's determination that Martell was no longer disabled, but changed the effective date to July, 1997. Id. at 110-112.
"Tr." refers to the transcript of the administrative record filed by the Commissioner as part of his answer in accordance with section 205(g) of the Act, 42 U.S.C. § 405 (g).
Martell appealed the decision and requested a hearing before an Administrative Law Judge ["ALJ"], which was held on June. 2, 1998. At the hearing, the ALJ identified all of the documents entered into evidence and reviewed them with Martell. Id. at 27. When asked, Martell agreed that the documents constituted a complete record, and failed to mention any missing medical reports or other pertinent evidence. Id. After hearing testimony from Martell, id. at 24-37, and considering the evidentiary record, the ALJ determined that Martell was not disabled.Id. at 8-17. That decision became final when, on April 12, 1999, the Appeals Council denied Martell's request for review. Id. at 3-4. This action timely followed.
B. Personal History
Martell is a fifty-one year old married man with three children. Id. at 29. He attended high school, but never graduated. Id. at 30. For twenty-five years Martell installed ceilings as an acoustical carpenter and job foreman. In that capacity he often worked on ladders and lifted scaffolding weighing up to 100 pounds. Id. at 31. He lost his job as a carpenter when the company he worked for went out of business. He then worked part-time at a seaport fixing locks and broken windows. Id. at 32. As a maintenance worker, Martell was required to lift and carry tools weighing thirty to forty pounds. Id. He stopped working for the seaport in 1989 and has not been employed since. Id. at 33.
C. Medical History
On August 30, 1990, Martell was admitted to Bellevue Hospital in Manhattan after suffering a stab wound to the right chest. Id. at 163. After doctors detected decreased breath sounds and hemorrhaging, a chest tube was inserted and a right pneumonectomy was performed. Martell was later discharged from Bellevue on September 14, 1990 in improved condition. Id. at 110.
A pneumonectomy refers to the excision of lung tissue. Attorney's Illustrated Medical Dictionary at 52 (1997).
On January 14, 1991, Martell was examined by Doctor B. Balinberg at the request of the Office of Disability Determinations. Id. at 176. Martell gave a history of multiple hospitalizations for respiratory problems, and reported becoming fatigued and short of breath upon walking one block. On examination, his blood pressure was 110/75, he measured sixty-four inches, and he weighed 123 pounds, though he indicated his normal weight was 140 pounds. Id. at 110. His respiration rate in a sitting position was eighteen beats per minute, but rose to twenty-two beats per minute after undressing. Id. at 171. Examination of the wound revealed a five centimeter surgical scar in the right fifth intercostal space, anterior aspect, and a surgical drain in the base of the right axillary area. A Pulmonary Function Test revealed decreased resonance and breath sounds in Martell's right hemithorax. Id. at 110. A chest X-ray showed right sided fluid in the pleural cavity, and pulmonary function studies performed without a bronchodilator were suggestive of restrictive reduction of pulmonary function. Id. Dr. Balinberg found Martell's musculoskeletal system to be within normal limits, except for a restricted range of motion and motor weakness in the right shoulder. Id. at 172. Martell's motor strength was graded at three out of five. Id. Dr. Balinberg recommended that Martell seek follow up treatment from his treating physician. Id. at 173.
On February 15, 1991, Martell was re-admitted to Bellevue Hospital and underwent a Bronchoscopy and Thoracoscopy in which the chest tube previously inserted for drainage was removed. Id. at 198. The procedure was successful and Martell was brought to the recovery room in stable condition. On March 1, 1991, and again on March 15, 1991, Martell underwent two follow up surgeries for a right broncho-pleural fistula status post-pneumonectomy for trauma and was again returned to the recovery room in stable condition. Id. at 199-200.
Six years later, on July 17, 1997, Martell was examined by Dr. Stephen Rocker at the request of the Office of Disability Determinations. Id. at 207-208. At the exam, Martell reported that he took no prescription medications and gave up smoking four months earlier. Id. at 207. He measured sixty-three inches, and weighed 132 pounds. Id. His blood pressure, pulse, skin, and eyes were all normal. Id. With respect to the chest area, Dr. Rocker reported a midline sternotomy scar, a small right lateral chest wall scar, and an additional scar at the right anterior fifth intercostal space. Id. A lung exam revealed flatness to percussion in the entire right lung field and absent breath sounds in the lower three quarters of the right lung, with bronchial breath sounds in the upper one-quarter of the right lung. The left lung was resonant to percussion with normal breath sounds. Id. at 208. Dr. Rocker further reported that Martell had no difficulty getting up from a seated position, nor getting on and off the examination table. He had full use of both hands and arms, and all joints had a full range of motion. Id. In addition, a neurological exam revealed no irregularities. Id. Dr. Rocker concluded that Martell was capable of performing sedentary, light and moderate work activity. Id. at 208.
II. DISCUSSION
A. Due Process
A recipient of disability payments must have an impairment of such severity that he cannot perform his previous work or "engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). However, in deciding whether the Commissioner's findings are supported by substantial evidence, which is the applicable standard of review, see 42 U.S.C. § 1383 (c)(3), this Court must first determine whether Martell has had "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Gold v. Secretary of Health. Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972)).
1. Notice of Hearings
Martell claims that he was denied due process of law because he did not receive notice from the Commissioner of the impending review of his SSDI benefits eligibility. See Plaintiff's Letter at 1. Due process requires that a claimant receive timely notice of hearings so that the claimant has a meaningful opportunity to be heard. See Perales v. Reno, 48 F.3d 1305, 1313 (2d Cir. 1995). The notice must be "reasonably calculated to reach and inform the person entitled to be notified."Stieberger v. Apfel, 134 F.3d 37, 39 (2d Cir. 1997). Contrary to Martell's contention, the record indicates that he did receive adequate notice from the Commissioner, and in fact was present and testified at both hearings. See Tr. 27-34, 108. Moreover, the address to which the SSA sent its correspondence is the same mailing address Martell has used on his Complaint. See Complaint at 1. Specifically, the SSA sent Martell a notice dated April 11, 1997, informing him that his eligibility for SSDI benefits was being reviewed. See Tr. at 78-79.
Notice of all hearings and decisions were sent to Martell at his current address. See Tr. at 18, 19-22, 78, 90-92, 105. See also Randbre Corp. v. Ladney, 66 B.R. 482, 485 (S.D.N.Y. 1986) (citing Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 832 (1978)) (in insurance context, proof of office practice that notices are duly addressed and mailed supports presumption that those notices were received, and denial of receipt by insureds, standing alone, is insufficient to rebut the presumption). The record further indicates that Martell was in constant communication with the SSA, as evidenced by the fact that: (1) he was contacted for examinations by SSA doctors on multiple occasions, see Tr. at 171-177, 207-208, (2) he received monthly disability checks from SSA, Id. at 129-145, and (3) he timely answered and appealed all of the decisions made by the Commissioner. Id. at 18, 19-22, 78, 90-92, 105. Not only was there no due process violation here, but I fail to see how Martell could have participated more fully than he did.
2. Development of the Record
Where, as here, the claimant is unrepresented by counsel, the ALJ is under a heightened duty "to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980). A reviewing court must determine whether the ALJ "adequately protect[ed] the rights of [a] pro se litigant by ensuring that all of the relevant facts [are] sufficiently developed and considered." Id. See also Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (holding that reliance on medical records containing significant gaps was an insufficient basis for a decision). An ALJ has no obligation to obtain additional medical records, however, if the record is complete. See Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (holding that where ALJ had a two year medical history from plaintiff's primary treating physician, there was no obligation to request evidence of tests from other physicians)
Here, the ALJ fulfilled his obligation to fully develop the record. The ALJ considered Martell's original application for benefits, including disability and vocational reports filled out by Martell indicating his work background and details of his medical condition. See Tr. at 13. Bellevue Hospital records dating from August 30, 1990, through March 29, 1991, document the surgical and post-surgical treatment of Martell at the hospital. Id. at 179. An extensive medical examination report by Dr. Edmond B. Balinberg, dated January 14, 1991, is included as well. Martell testified that he had not seen a physician for regular treatment since September, 1992. Id. at 83. Then, on July 17, 1997, at the request of the SSA, Martell was again examined, and an extensive report was furnished by Dr. Steven Rocker. Id. at 207-208.
Martell has failed to specifically identify any pertinent medical reports absent from the record. On countless occasions, when requested to do so, he has declined to provide or even mention the existence of any such evidence. The SSA's initial determination to terminate benefits was made in light of Martell's failure to provide evidence of his continuing disability as of the date of the review. See Tr. at 79 (Explanation of Determination stating "we need information to decide whether you are still disabled. We asked you to furnish the information but is has not been received. Therefore, we have decided that your disability ended on 06/30/97"). Thereafter, in April 1997, Martell specifically indicated on his application for an appeal that he had no additional medical records to submit, and offered nothing at the appeal hearing. Id. at 80. Finally, on June 2, 1998, the ALJ asked Martell whether he had reviewed the documents in the record. He replied that he had, and indicated that he had no evidentiary objections. Id. at 27.
In his Response to the government's Rule 12(c) motion ("Response"), Martell argues that he has been "an in-patient and out-patient at Bellevue Hospital on three occasions during 1999. During one visit, [he] was hospitalized from 7/09/99-7/14/99" and is now taking daily prescription medication. Response at 1. Martell asserts that records of this latest hospitalization are crucial evidence of his continuing disability. This argument, however, has no merit because Martell's case was heard by the ALJ in June 1998, and the decision was made final by the Appeals Council in April 1999. Accordingly, the ALJ's duty to develop the record does not include records created more than one year after the ALJ's decision was rendered. As a result, the ALJ fulfilled his duty to develop the record. If, at some time in the future, plaintiff is able to prove that he has suffered a relapse, he may then reapply for SSDI benefits.
C. Substantial Evidence of Medical Improvement
A district court may not disturb an ALJ's decision if it is based on correct legal principles and supported by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). If this Court finds that there is substantial evidence supporting the Commissioner's determination, that decision must be upheld, even if there is also substantial evidence supporting the plaintiff's position. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)
The term "substantial evidence" has been defined by the Supreme Court as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Moreover, the Commissioner's findings of fact, as well as the inferences and conclusions drawn from those findings, are conclusive even in cases where a reviewing court's independent analysis of the evidence might differ from the commissioner's analysis. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)
For purposes of terminating benefits, a determination by the Commissioner that a recipient's disability has ceased must be supported by substantial evidence demonstrating: (1) there has been an improvement in the recipient's medical condition, relating to his ability to work,see 42 U.S.C. § 423 (f); and (2) that the recipient has regained his ability to engage in substantial gainful activity. Id.
With respect to the first part of this test, the regulations make clear that the relevant inquiry is whether there has been an objective decrease in the severity of the recipient's condition since the most recent medical determination that he was disabled or continued to be disabled.See 20 C.F.R. § 404.1594(b)(1), (b)(7), (c)(1); See also Fleming v. Sullivan, 806 F. Supp. 13, 15 (E.D.N.Y. 1992). In the present case, the ALJ observed that a pulmonary study conducted on January 14, 1991, had been suggestive of a restrictive reduction of pulmonary function, as the FVC was 1.28 (32% of the predicted value), and the FEV1 was 1.2 (37% of the predicted value). See Tr. at 13, 176. Based on that study, plaintiff was found to be disabled because his condition was equal to the criteria of Section 3.02B of the Listing of Impairments. Id. at 13. See also 20 C.F.R. § 404, Subpart P, Appendix 1 (the "Listings")
However, upon re-examination in 1997, follow-up pulmonary function tests revealed a significant improvement in FVC to 2.43 (75% of the predicted value), and in FVI1 to 1.88 (75% of the predicted value). Id. The ALJ further noted the examination report done by Dr. Rocker, which proved "unremarkable except for absent breath sounds in the lower three quarters of the lung" consistent with the prior surgery. Id. X-rays taken on that day revealed a clear and hyper-expanded left lung, and breath sounds in the upper quarter of the right lung. Id. Dr. Rocker concluded that Martell's condition indicated only "a slight restrictive deficit in pulmonary function". Id. In addition, the ALJ noted Martell's own testimony that he had not required any significant medical treatment since 1992, and that he uses no prescription medication or oxygen to assist with his breathing. Id. Based on the test results, physician reports, and Martell's own testimony, the ALJ determined that Martell's condition had significantly improved. Id.
FVC means forced vital capacity. FEV1 means forced expiratory volume in one second. See Attorney's Illustrated Medical Dictionary at App. A10 (1997)
Once medical improvement is found, the Commissioner must then determine whether the improvement relates to a claimant's ability to engage in substantial gainful employment. See 42 U.S.C. § 423 (f); 20 C.F.R. § 404.1594(b)(3). A medical improvement will be related to a claimant's ability to work if it results in an increase in the functional capacity to perform basic work activities, including walking, standing, pushing, pulling, reaching, carrying, hearing, speaking, remembering, and using judgement. See 20 C.F.R. § 404.1594(b)(4). Considering both the medical and other evidence in the record, the ALJ concluded that beginning in July 1997, Martell had regained the functional capacity to perform the full range of sedentary, light, and moderate work activity. Id. Dr. Rocker noted in his examination report that he found Martell to be capable of performing sedentary, light and moderate work activities. Id. at 208. In addition, Martell testified that he could, or would try, to perform a job requiring light work, including lifting and carrying up to twenty-five pounds, and walking for an extended period of time. Id. at 35. The ALJ concluded that although Martell had some physical limitations due to the removal of most of his right lung, he was capable of performing activities consistent with the ability to maintain employment requiring light work. Id. at 14.
Light work activity, as defined in the Act, consists of lifting and/or carrying up to twenty pounds occasionally and ten pounds frequently and/or a good deal of walking or standing. See 20 C.F.R. § 416.967 (b).
Medium, or moderate, work activity involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. Id.
Finally, the ALJ considered whether substantial gainful employment exists in the national economy that Martell can perform, considering not only his physical capacity but also his age, education, experience, and training. Id.; see also 20 C.F.R. § 404, Subpart P, Appendix 2 (the "Grids"). The Commissioner, under appropriate circumstances, may rely on the medical vocational guidelines contained in the Grids for disability determinations is SSDI benefits cases. See 20 C.F.R. § 416.969. Generally, the result listed in the Grids is dispositive on the issue of disability unless the claimant suffers from non-exertional limitations, such as blackouts or fatigue, that significantly diminish his capacity to work. See Pratts, 94 F.3d at 39; Ramos v. Apfel, 97 Civ. 6435, 1999 WL 13043, at *5 (S.D.N.Y. Jan. 12, 1999). Martell has not shown any such limitations.
After a thorough review of the record, the ALJ determined that Martell was fifty years old, and closely approaching advanced age, with a limited education. Together with his ability to perform light work, the ALJ determined that Medical-Vocational Rules 202.10 and 202.11 were applicable to Martell's case. See Tr. at 16. Those rules direct a finding of "not disabled", signifying that there are a significant number of jobs existing in the national economy that an individual such as Martell can perform. Because Martell lacked any significant non-exertional limitations, the result indicated by the Grid is dispositive on the issue of disability. Ramos, 1999 WL 13043, at *5. In addition, because the Grids are dispositive, there was no need for the ALJ to call a vocational expert to testify as to the number of jobs in the national economy which Martell is capable of performing. Cf. Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986) (whenever a non-exertional impairment is presented the Secretary must introduce a vocational expert to testify that jobs in the workplace exist for a person with that particular disability)
III. CONCLUSION
The Commissioner's decision to terminate Martell's benefits is supported by substantial evidence and is hereby affirmed. In addition, I find that Martell received proper notice of the SSA's re-evaluation proceedings, and was afforded a full and fair opportunity to present his case. For the reasons given above, the Commissioner's motion is granted. The Clerk of the Court is directed to close this case.