Opinion
Case 02-CV-765 (FB) (RML)
May 2, 2003
DOUGLAS C.J. BRIGANDI, ESQ., Bayside, NY, For the Plaintiff
LESLIE A. RAMIREZ-FISHER, ESQ., ROSLYNN R. MAUSKOPF, ESQ., Brooklyn, NY, For the Respondent
MEMORANDUM AND ORDER
Plaintiff John Renna ("Renna") challenges two decisions issued by the defendant Commission of the Social Security Administration ("Commissioner") denying him disability benefits. The Commissioner moves for judgment on the pleadings with respect to the first decision, see Fed.R.Civ.P. 12(c), and moves for dismissal for lack of subject matter jurisdiction with respect to the second decision. See Fed.R.Civ.P. 12(b)(1). Renna cross-moves, pursuant to Rule 12(c), seeking reversal or, alternatively, remand for further development of the record.
BACKGROUND
On November 3, 1992, Renna, an auto mechanic for over twenty-five years, was injured when an engine manifold fell on his right wrist. Tr. at 49. He received treatment for this injury, including arthroscopic surgery in October 1994. Tr. at 229. The surgery led to some improvement in Renna's condition, although one physician noted in 1997 that "[h]e continues to have pain with use and has difficulty making a good hand grip. He also has difficulty in picking up heavy objects, and sometimes in doing fine movements with his hand." Tr. at 253. His treating physician opined in 1997 that "[t]he patient has moderate improvement. He continues with weakness, reduced endurance although pain is markedly improved compared to preoperatively." Tr. at 267.
"Tr." refers to the administrative record filed with the Commissioner's answer.
Renna's treating and consulting physicians concluded that he was disabled from performing his prior line of work. Tr. at 267, 332, 336. However, he was told at various times that he should attempt to engage in light work, so long as he did not lift more than five to ten pounds. Tr. at 50, 240, 241, 336. His ability to sit, stand, and walk were unaffected by his wrist injury. Tr. at 257-258.
Renna, who is right handed, Tr. at 252, complained of some numbness in his left wrist beginning in 1997. Tr. at 93-94. In an August 14, 1998 report, his treating physician opined that "carpal tunnel syndrome is evident on today's history and examination on the right [hand], questionable on the left." Tr. at 268. However, two consulting physician's medical reports from March 19, 1997 and September 1, 1998 showed that Renna's left-hand grip remained normal. Tr. at 252, 333.
This report was issued after Renna's date of last insured, June 30, 1998. Tr. at 52.
A. Hearings Before the First ALJ
On April 17, 1996, Renna applied for disability insurance benefits claiming a disability as of November 3, 1992. Tr. at 168-171. After his application was denied initially and again upon reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). Tr. at 145-150, 153-155. The request was granted, and Renna appeared with counsel at the June 11, 1997 hearing, where he testified and presented medical evidence as to his right wrist injury. On August 14, 1997, the ALJ determined that Renna was "unable to perform his past relevant work as a mechanic" in light of his right wrist injury, but "[b]ased on an exertional capacity for sedentary work," the Social Security regulations "direct[ed] a conclusion of `not disabled.'" Tr. at 79.
Renna appealed, and on September 28, 1998, the Appeals Council concluded that the ALJ did not adequately examine Renna's non-exertional limitations. Tr. at 161. The case was remanded with directions that the ALJ "[r]eevaluate the claimant's maximum residual functional capacity [("RFC")] and the weight to be accorded any medical source opinions, especially those concerning the functional use of the right upper extremity," and "[i]f necessary, obtain evidence from a vocational expert [("VE")]." Tr. at 162.
The rehearing was held on December 16, 1998. Tr. at 91-117. At the hearing, Renna, again represented by counsel, presented medical evidence as to the extent of his right wrist injury. He also testified that he suffered pain and numbness in his right wrist, Tr. at 103-04, and, for the first time, testified to some numbness in his left wrist:
[ALJ] Has your condition changed at all [since the first hearing], or is it about the same?
[Renna]: Oh, my hands start to go numb now. . . .
[ALJ]: Your — both hands?
[Renna]: Yes, sir.
Tr. at 93-94.
A VE was called as a witness, and the ALJ asked him one hypothetical concerning whether a person with "an RFC . . . which limits him to the point where he's unable to use his right hand" could find employment. Tr. at 105-06. The VE testified that Renna could perform various light and sedentary jobs, which included work as a security guard (48,650 jobs in the New York metropolitan area), usher or guide (4,730 in the New York metropolitan area), and dispatcher (4,180 jobs in the New York metropolitan area). Tr. at 107-108.
On cross-examination, Renna's counsel questioned the VE as to whether someone with limited use of one hand would have trouble securing doors, lifting gates, or apprehending people, and if these activities would eliminate the possibility of Renna's working as a security guard. Tr. at 110. The VE responded that "there might be some slight erosion for certain positions that would require [lifting heavy gates or apprehending people] but very few." Tr. at 110. The VE also testified that "the bulk of [security guard] jobs . . . do not require bimanual dexterity." Tr. at 111. The VE was not questioned as to left hand impairment.
In his decision, rendered February 10, 1999, the ALJ analyzed all the medical evidence and considered Renna' s subjective complaints of left and right hand numbness. Tr. 46, 48, 52. He determined that "[d]espite the severity of the claimant's subjective complaints, there are reasons to doubt his allegation of a complete inability to work. Most significant is probably the many references to the claimant's continued ability to perform work-related and other activities. . . . While these activities often resulted in reports of renewed symptoms, it is significant that the claimant felt able to attempt them." Tr. at 49-50. The ALJ concluded that "[a]fter carefully considering the entire record, including the claimant's subjective complaints of disabling symptoms and limitations, a finding is warranted that the claimant's impairments preclude only using the right arm/hand for any significant purpose other than assisting the other arm in lifting objects and minimal manipulative functions." Tr. at 46. According to the ALJ, these limitations disabled Renna from his past relevant work, but he retained the residual functional capacity for a "limited range of light work." Tr. at 51. The ALJ credited the VE's testimony, stating in that respect that Renna was not disabled because he could perform "jobs existing in significant numbers in the economy," Tr. at 53, and, therefore, Renna was "not under a `disability' as defined in the Social Security Act." Tr. at 53.
Renna appealed again to the Appeals Council, which denied his request for review on December 19, 2001, finalizing the ALJ's determination. Tr. at 5-6.
B. Hearing Before the Second ALJ
On May 14, 1998, while the first application was proceeding, Renna filed a second application based on the same set of facts. Tr. at 284-286. The case was brought before a second ALJ on May 18, 1999, who agreed to hear the case only with respect to evidence after the time period covered by the first ALJ's August 14, 1997 decision. Tr. at 24-26. A decision was reached on the merits, unfavorable to Renna. Tr. at 30-32. Renna appealed, but on December 20, 2001 his request was dismissed by the Appeals Council on the grounds of res judicata. Tr. at 3-4. The Council determined that the first ALJ's decision of February 10, 1999 covered the same time period and same issues presented to the second ALJ at the May 18, 1999 hearing. Tr. at 3-4.
Renna claims that in his second hearing he presented additional evidence about numbness in his left hand. See Mem. at 6-7. However, the record shows he raised the issue before the first ALJ on remand. See Tr. 93-94.
DISCUSSION
As to the first ALJ's decision, Renna contends that the Commissioner failed to carry her burden at step five because the single hypothetical situation presented to the VE by the ALJ was "deficient to the extent that it failed to incorporate plaintiff's pain and tenderness [in his right hand]. More important, it failed to pose the problem of the reduced functions of the other hand." Mem. at 24. Renna amplifies this claim by asserting that the hypothetical "ignore[d] the plaintiff's pain levels between the trauma and subsequent surgery." Id. at 12.
The standard of judicial review is whether the Commissioner's determination is "supported by substantial evidence in the record as a whole or [is] based on an erroneous legal standard." Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citations omitted). Substantial evidence exists when there is "more than a mere scintilla," and can be defined as, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citations omitted).
The Social Security Administration has developed a five-step procedure for evaluating disability claims, see 20 C.F.R. § 404.1520. The burden is on the claimant in the first four steps to prove he lacks the "residual functional capacity to perform his past work"; once established, the burden shifts to the Commissioner to establish whether there is "other work that the claimant could perform." Curry, 209 F.3d at 122. At step five, the Commissioner must obtain a VE's expert testimony where the "claimant's nonexertional impairments significantly diminish his ability to work — over and above any incapacity caused solely from exertional limitations — so that he is unable to perform the full range of employment indicated by the medical vocational guidelines." Bapp v. Bowen, 802 F.2d 60, 603 (2d Cir. 1986). A VE's testimony should be credited when "there is substantial record evidence to support the assumption [underlying the hypothetical] upon which the vocational expert based his opinion." Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983); see also Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981) ("The vocational expert's testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job.").
The ALJ's hypothetical posited that Renna had an RFC which prevented him from using his right hand, Tr. at 105-06, and presumed that Renna had normal functional capacity in his left hand. Renna, however, testified to numbness in his left hand, bolstered by his treating physician's diagnosis of the "questionable" presence of carpal tunnel syndrome. Cf. Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) (subjective experience of pain may support finding of disability). Such symptoms could have affected Renna' s ability to work in light duty or sedentary jobs. The ALJ dismissed the subjective complaints as insufficient to support Renna's assertion of a " complete inability to work," without considering whether those complaints imposed any meaningful limitation on his functioning. Tr. at 49 (emphasis added).
The Court orders that the case be remanded for an ALJ to properly develop evidence regarding the limitations caused by Renna's left-hand numbness prior June 30, 1998, his date of last insured, and to pose hypotheticals to a VE based upon the reassessment of Renna' s RFC. The Court further orders the ALJ to bring the record current by considering complaints raised by Renna during his hearing before the second ALJ. In light of the Court's disposition of this matter, consideration the parties' motions regarding the second ALJ's decision is rendered moot.
CONCLUSION
Renna's Rule 12(c) motion is granted insofar as the Court orders remand for additional development of the record.
SO ORDERED.
JUDGMENT
A Memorandum and Order of Honorable Frederic Block, United States District Judge, having been filed on May 6, 2003, remanding the case for an Administrative Law Judge to properly develop evidence regarding the limitations caused by Renna's left-hand numbness prior to June 30, 1998, his date of last insured, and to pose hypotheticals to a Vocational Expert based upon the reassessment of Renna's Residual Functional Capacity; and further ordering the Administrative Law Judge to bring the record current by considering complaints raised by Renna during his hearing before the Second Administrative Law Judge; ordering the parties' motions regarding the Second Administrative Law Judge's decision are rendered moot; and ordering plaintiff, John Renna's Rule 12(c) motion for judgment on the pleadings is granted insofar as the Court orders remand for additional development of the record; it isORDERED and ADJUDGED that the case is remanded to the ALJ to properly develop evidence regarding limitations caused by plaintiff, John Renna's left-hand numbness prior to June 30, 1998, his date of last insured, and to pose hypotheticals to a Vocational Expert based upon the reassessment of Renna' s Residual Functional Capacity; that the Court further orders the ALJ to bring the record current by considering complaints raised by Renna during his hearing before the second ALJ; the second Administrative Law's decision is rendered moot; and that Renna's Rule 12(c) motion for judgment on the pleadings is granted insofar as the case is remanded for additional development of the record.