Opinion
01 Civ. 2483 (RWS)
March 22, 2002
Stanley F. Meltzer, Esq., New York, NY, for Plaintiff.
Honorable James B. Comey, United States Attorney for the Southern District of New York, Lorraine S. Novinski, Esq., Assistant U.S. Attorney, New York, NY, for Defendant.
O P I N I O N
Plaintiff Robert O'Brien ("O'Brien") brought this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of defendant Jo Anne B. Barnhart, the Commissioner of the Social Security Administration (the "Commissioner"), denying O'Brien's request for disability insurance benefits. The defendant has moved for a remand for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Plaintiff contends that the decision should be reversed.
For the reasons discussed below, the plaintiff's motion is granted and the defendant's motion is denied.
Background
O'Brien filed an application for disability insurance on April 2, 1997 pursuant to 42 U.S.C. § 416(I) and 423, respectively, alleging onset of disability on December 5, 1996. He alleged that the basis of his disability was "Pulmonary disease and 4 knee surgeries." As a result of his injuries, O'Brien was ingesting a number of medications, including Darvon, Serevent, Ventelin, Azmacort, Percoset, Antibiotics, and Zimcort. His application was denied initially and on reconsideration.
At a hearing held before Administrative Law Judge Allan T. O'Sullivan (the "ALJ") on September 8, 1998, the ALJ considered the case de novo and on December 24, 1998, found that O'Brien was not under a disability. Plaintiff's counsel requested review by the Social Security Administration Appeals Council ("Appeals Council") on February 17, 1999.
Twenty-three months later, on January 19, 2001, the Appeals Council declined to review the decision. This action was then timely commenced. The defendant submitted her motion for remand to this Court on December 26, 2001. Plaintiff filed his opposition on January 24, 2002, moving for outright reversal.
O'Brien was born on March 29, 1957, and completed two years of college. He was a police officer for a short period, and then served as a New York City firefighter from June 3, 1983 to December 5, 1996. He has specialized training as a rescue expert and dealing with hazardous materials. O'Brien retired for two reasons: damages to his lungs as a result of the 1993 bombing of the World Trade Center and injury to his knees.
O'Brien suffers from chronic obstructive pulmonary disease ("C.O.P.D."). For that condition, he daily takes four to five different medications and undergoes an hour of nebulizer treatment. He also loses his breath frequently and sometime has difficulty walking approximately half a block.
O'Brien originally injured his knee in 1989, when a stairwell collapsed. He had three knee surgeries between 1990 and 1993. He underwent a fourth operation on January 20, 1997. On June 16, 1998, O'Brien underwent a fifth surgical procedure to reconstruct a torn ligament in his knee. O'Brien states that the pain is sharp, biting, and omnipresent. He applies ice to the leg and elevates it to ease the pain; he also attends physical therapy sessions. He has developed back problems as a result of extensive crutch usage.
O'Brien estimates he can sit or stand for a few moments at a time. He can lift about five pounds. He attends physical therapy thrice weekly. He no longer has any hobbies, nor does he go visit. O'Brien requires assistance in dressing, and does no household chores.
Medical Evidence
O'Brien's treating source for his pulmonary problems is Dr. Berman, a pulmonologist. O'Brien's treating sources for his knee injury are Dr. I. Martin Levy, an orthopedic specialist, and Dr. Windsor. O'Brien was also seen by consulting physicians, Dr. Grossman and Dr. Soo Park.
Dr. Windsor, who treated O'Brien from January 1991 to February 1997, indicated that plaintiff could lift, carry, push and pull up to twenty pounds; stand or walk for up to six hours a day and sit without limitation.
Dr. Levy treated O'Brien for his knee condition in 1990 and then resumed treating him in 1998. In a letter dated April 29, 1998, Dr. Levy stated that O'Brien is unable to stand or walk for long periods of time and is unable to carry any kind of weight.
O'Brien cannot walk on his left leg with confidence. Dr. Levy's assessment of O'Brien is, as defendant points out, difficult to interpret. He stated that O'Brien could stand or walk for one hour without interruption but that the total such activity that he could perform was "unreliable." He also reported that O'Brien could sit for a total of four hours a day, and that his ability to sit without interruption was "unaffected." Dr. Berman completed a medical assessment on May 1, 1998.
He indicated that O'Brien was limited to lifting five pounds as a result of a February 1998 injury to his knee. Dr. Berman stated O'Brien could walk for a total of up to six hours a day and could sit for a total of two hours.
Dr. Grossman examined O'Brien on May 2, 1997. He indicated that O'Brien was impaired with respect to prolonged or rapid walking, climbing, bending, stooping, crouching and exposure to noxious inhalants. Dr. Grossman stated O'Brien in his opinion had no impairment with respect to standing, sitting, lifting, carrying, and using hand and foot controls.
A second consulting physician, Dr. Park, examined O'Brien on August 22, 1997. He indicated that plaintiff was moderately limited with respect to lifting, bending, walking, and standing.
In a medical assessment completed on September 9, 1998, Dr. Levy reported that O'Brien could lift up to four pounds, stand or walk a total of two hours a day, and sit a total of two hours a day.
The Scope of Judicial Review/Standard of Judicial Review
Section 205(g) of the Social Security Act provides that "the Court shall have the power to enter upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the [Commissioner] with or without remanding the case for a rehearing." 42 U.S.C. § 405(g). In reviewing the record, the "propriety of agency action must be evaluated on the basis of stated reasons." Treadwell v. Schweiker, 698, F.2d 137, 142 (2d Cir. 1983).
The Commissioner's Decision
The ALJ found that plaintiff was unable to perform his past work as a fireman, but that he retained the ability to perform sedentary work. Sedentary work involves occasional lifting of such items as docket files, ledgers, and small tools. It never requires lifting more than ten pounds at a time. 20 C.F.R. § 404.1567(a). Such work is typically performed sitting down, but may require occasional walking or standing.
The ALJ acknowledged the assessments of Drs. Levy and Berman, but he found that they were entitled to little weight because they were not supported by medical evidence in the record.
The Finding is Reversed The ALJ rejected the opinions of two treating physicians on the ground that the opinions were not sufficiently supported by medical evidence. The Second Circuit, however, has held that it is legal error for an ALJ to reject a treating physician's opinion on this ground without first attempting to obtain additional information from the physician. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). Here, there is no evidence that the ALJ attempted to obtain such information. Accordingly, the only question before this Court is whether the case should be remanded to a different ALJ for further development of the evidence, or whether the finding below should be reversed and the case remanded only for a determination of benefits.
Plaintiff cites Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000) for the proposition that there should be outright reversals where the record warrants it, rather than a remand for a new hearing. In Curry, the Court of Appeals found that the Commissioner failed to carry his burden to demonstrate that the claimant could perform sedentary work. Id. at 124. As a result, the Court noted that it could vacate, and instruct the district court to remand to the Commissioner for further consideration.
Instead, however, the Court relied on the fact that Curry's application had been pending for six years and that a remand for further evidentiary proceedings could result in a substantial, additional delay. Id. The Court decided to remand for the sole purpose of calculating disability benefits. Id. See also Balsamo v. Chater, 142 F.3d 75 (2d Cir. 1998) (quoting Carroll v. Secretary of Health and Human Servs., 705 F.2d 638 (2d Cir. 1983).
The ALJ in this case found that O'Brien had met his burden of proving that his impairment prevents him from performing his past work. Thus, this case also boils down to whether the Commissioner introduced evidence sufficient to sustain her burden of proving that O'Brien could perform the exertional requirements of sedentary work. This Court finds that she did not.
As the Curry court explained:
Although "[s]edentary work is the least rigorous of the five categories of work recognized by SSA regulations" . . . "[b]y its very nature `sedentary' work requires a person to sit for long periods of time even though standing and walking are occasionally required." According to the SSA, sedentary work "generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day.". . . Sedentary work also involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools."
Id. at 123 (citations omitted).
Having reviewed this record in the light most favorable to the Commissioner, we find that the Commissioner failed to carry her burden of meeting the foregoing standard. The only evidence supporting the ALJ's conclusion that O'Brien retains the residual functional capacity to perform the exertional requirements of at least sedentary work comes from Dr. Windsor, who stopped treating O'Brien in February 1997. From the time that Dr. Windsor stopped treating O'Brien, O'Brien at the very least underwent another operation, to reconstruct a torn ligament in his knee, on June 16, 1998. In addition, Dr. Levy stated that a February 1998 injury resulted in O'Brien's being unable to lift more than five pounds.
Furthermore, the two consulting physicians who assessed O'Brien's capacity to work issued vague opinions that the ALJ was incapable of interpreting. The ALJ, "a layperson notwithstanding [his] considerable and constant exposure to medical evidence, [cannot] make the necessary inference that [the plaintiff] can perform the exertional requirements of sedentary work" based on such vague evidence. Curry, 209 F.3d at 123 (citing Balsamo, 142 F.3d at 81-82). Dr. Grossman stated that O'Brien could not perform "prolonged or rapid" walking. There is no gauge for whether "prolonged" is less than or more than the two hours that a sedentary job may require. Dr. Park's opinion of "moderate" impairment is even less helpful. It does not explain whether someone with moderate impairment could be expected to complete two hours of walking, or to lift up to ten pounds. The ALJ cannot interpret what the consulting physicians meant.
Plaintiff has also pointed to conflicts between the tests and x-rays of the consulting physicians and the treating physicians. The ALJ failed to reconcile these differences.
In sum, the opinions of Drs. Grossman, Park and Windsor do not constitute substantial evidence in support of the ALJ's determination that O'Brien retains the functional capacity to perform the exertional requirements of sedentary work.
For the foregoing reasons, the plaintiff's motion is granted. This case shall be remanded to the Commissioner solely for a calculation of disability benefits.
It is so ordered.