Appeal from a judgment of the United States District Court for the Southern District of New York, Lee P. Gagliardi, Judge, granting appellee's cross-motion for judgment on the pleadings dismissing appellant's appeal of a decision by the Secretary of Health and Human Services denying him disability benefits under the Social Security Act. REMANDED.
BEFORE: OAKES and WINTER, Circuit Judges, and CLARIE, District Judge.*fn*
Alfred Mimms appeals from the judgment of the United States District Court for the Southern District of New York, Gagliardi, J., upholding the denial by the Secretary of Health and Human Services of Mimms' application for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-31. Having found that the Administrative Law Judge failed to adequately develop the record and that the Secretary failed to adequately develop the record and that the Secretary failed to establish the existence of substantial gainful employment which the claimant is capable of performing, we remand this matter to the Administrative Law Judge, so that he may make a redetermination of appellant's eligibility for disability benefits consistent with this opinion.
Mimms was born in West Virginia on May 16, 1929, and advanced through the ninth grade. Prior to 1960, his employment history is somewhat sketchy. From 1960 to 1970, Mimms had worked primarily as a truck driver and pipe layer for a construction company. From 1970 to 1978, he was employed as a truck driver for a different employer. After leaving that position, the appellant worked for U-Haul, for approximately two years, as a truck mechanic. On June 9, 1981, he was fired by U-Haul for failing to perform his duties in a satisfactory manner. He then obtained employment at a Shell service station, which employment lasted but two days. Mimms alleges that he was fired when his employer learned that he was a diabetic.
On June 19, 1981, appellant filed his present application for Social Security benefits claiming disability due to diabetes, rheumatism and arthritis. The application was denied, both initially and upon reconsideration. On April 5, 1982, a hearing de novo was held before an Administrative Law Judge (ALJ). Mimms, unrepresented by counsel, appeared in person to present his case. He testified about the nature of his work experience as set forth above, about his reasons for stopping work in 1981, and about his health since 1981. The record included the reports of four physicians, two treating physicians and two physicians who examined the appellant at the request of the Bureau of Disability Determination.
In a report dated July 13, 1981, Dr. Applebaum, Mimms' former treating physician, diagnosed him as suffering from diabetes mellitus and arthritis, indicating that all of the major joints were involved and that Mimms had moderate loss of mobility. Evaluating Mimms' residual functional capacity, Dr. Applebaum opined that in an eight-hour work day, the appellant could sit for four hours, stand for two hours and walk for less than one hour. He further noted that Mimms could occasionally lift up to ten pounds and that he could use his hands for repetitive actions such as grasping, pushing and pulling, but not for fine manipulations. The doctor also indicated that the appellant could not be exposed to dust, fumes and marked changes in temperature and humidity.
Mimms began treatment with Dr. Donald Cunningham in 1980 and continued visiting him for a period of two years. Dr. Cunningham noted the presence of scattered rhonchi in Mimms' lung fields and that the appellant experienced pain upon palpation of the knees, with slight swelling and increased warmth. The doctor diagnosed arteriosclerotic cardiovascular disease, angina pectoris, polyarthritis, vascular insufficiency, claudication, diabetes mellitus and bronchitis.
In a February 22, 1982, physical capacities evaluation, Dr. Cunningham opined that in an eight-hour work day, the appellant could sit for a total of four hours, stand for a total of two hours and walk for a total of two hours. He found that at any one time, the appellant could sit for one hour, stand for one hour and walk for a half hour. The doctor also asserted that Mimms could frequently lift and carry ten pounds and could occasionally lift and carry twenty pounds. The claimant was found capable of using his hands for repetitive actions such as grasping, pushing and pulling of arm controls, but not fine manipulations; nor could he use his feet for repetitive movements. He could occasionally bend and reach. Dr. Cunningham indicated that Mimms should be totally restricted from activities involving unprotected heights, proximity to moving machinery, driving automotive equipment and exposure to dust, fumes and gases.
On July 22, 1981, Dr. Sovi Joseph examined the appellant at the request of the Bureau of Disability Determination. The doctor found Mimms' blood pressure was normal, a heart examination revealed no pathology, appellant's lungs were clear. Dr. Joseph reported that his extremities show no evidence of atrophy, swelling or active arthritis and found that Mimms' movements were not limited in any of the joints and that there was no evidence of peripheral neuropathology. Evaluating Mimms' history of diabetes, the doctor observed that he did not adhere to a strict diet, nor did he take medication for the condition consistently. At the behest of the Bureau of Disability of Determination, the appellant was also given an eye examination by Dr. Victor Goodride on August 4, 1981. Dr. Goodride noted no significant findings.
At the hearing before the ALJ, the appellant testified that he had difficulty walking any distance, that he suffered from tingling sensations and numbness in both legs which extended to his toes. He indicated that he suffers pain in his right shoulder and that he experienced dizzy spells. He stated that he was hospitalized for eight or nine days in early 1982, for treatment of his diabetes and for vision problems. Mimms represented that he can see reasonably well with eyeglasses. He also stated that he suffers from severe headaches every other day or every two or three days, that he has a good appetite and is following a special, hospital-prescribed diet. He suffers from insomnia two or three nights of the week and is often drowsy during the day.
In the "Disability Report" Mimms submitted to the Department of Health and Human Services dated June 19, 1981, the appellant stated that he had previously received Social Security benefits from June, 1977 to September, 1980, because of his arthritis. He returned to work on his own initiative but was subsequently laid off because he was unable to cope with the pressures of the job. He also stated that he could perform simple ...