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Hidalgo v. Bowen

decided: June 26, 1987.


Appeal by Cecilio Hidalgo from a judgment of the United States District Court for the Eastern District of New York (Bramwell, J.) that confirmed the U.S. Secretary of Health and Human Services' denial of Supplemental Security Income benefits, 42 U.S.C. § § 1381-83(c), to claimant Hidalgo. This Circuit's treating physician rule was not applied. Reversed and remanded.

Author: Cardamone

CARDAMONE, Circuit Judge:

For 15 years when reviewing the grant or denial of disability benefit claims, we in this Circuit have consistently adhered to the treating physician rule. Yet, insofar as can be discerned from this record the Secretary of Health and Human Services has not heeded this message. Even though he avows that the administrative rule is in complete conformity with ours, the adjudicators -- who decide these disability benefit claims -- must live in an administrative "never-never" land because they appear never to have heard of the treating physician rule. Thus, because once again this rule was totally ignored by an administrative law judge when denying disability benefits to a claimant, we reverse the administrative decision.


The facts and proceedings below may be succinctly stated. Cecilio Hidalgo, a 56-year-old claimant, is a native of Puerto Rico who lives with his sister in Brooklyn, New York. With a limited education and speaking little English, he worked for 15 years until October 1982 as a wood cutter in a picture frame factory. Hidalgo states that he stopped working because of crippling arthritis in his left hand, shoulder, and knee. He filed an application on November 30, 1982 for Supplemental Security Income (SSI) benefits, pursuant to Title XVI of the Social Security Act, 42 U.S.C. § § 1381-83(c). After a hearing an administrative law judge (ALJ) denied his claim, finding that his impairments did not significantly limit his physical ability to perform basic work activities. The Appeals Council of the Social Security Administration denied review.

On January 24, 1984 claimant instituted the instant action in the United States District Court for the Eastern District of New York (Bramwell, J.) pursuant to 42 U.S.C. § 405(g). The district court remanded his case for a supplemental hearing based on the injunction in Dixon v. Heckler, 589 F. Supp. 1494 (S. D. N.Y. 1984), aff'd, 785 F.2d 1102 (2d Cir.), vacated, 482 U.S. 922, 107 S. Ct. 3203, 96 L. Ed. 2d 690 (July 15, 1986). After a hearing de novo, the same ALJ again found Hidalgo able to perform his past work and therefore not disabled. This decision was also adopted by the Appeal Council.

The Secretary thereafter moved in the district court for a judgment on the pleadings, and claimant cross-moved for a judgment reversing or, alternatively, remanding the Secretary's decision. Ruling from the bench on March 14, 1986, Judge Bramwell found the Secretary's decision supported by substantial evidence and free of legal error. Judgment was entered in favor of the Secretary and claimant's cross-motion was dismissed. From this judgment Hidalgo appeals.


We turn first to the medical record. In October 1981 claimant was admitted for a week to Bellevue Hospital diagnosed as having gout in the upper and lower left extremities. Six months later -- in April 1982 -- he entered Lutheran Medical Center complaining of asthma. Because he had filed a SSI claim in November 1982, the Department of Disability Services had Hidalgo examined in December 1982 by Dr. Harvey Shapiro. Dr. Shapiro, the Secretary's consultative physician, found that x-rays of claimant's left hand and both knees were negative, but concluded that claimant's impairment included "prolonged joint pain, probably secondary to degenerative arthritis."

In January 1983 Hidalgo consulted Dr. M. I. Contractor, his treating physician. Dr. Contractor diagnosed claimant as having arthritis of the knees and shoulder and a ten-year history of chronic bronchial asthma. Dr. Contractor found pain and stiffness in Hidalgo's shoulder and right knee. In a residual functional capacity report the treating doctor estimated that claimant can only continuously stand for one hour, sit for four hours, and lift and carry up to ten pounds. Dr. Contractor found that because of pain and stiffness in his knees and hands, Hidalgo has a limited range of motion and difficulty grasping, pushing, pulling, and doing fine manipulations with his hands. Beginning in March 1983 claimant was treated at the Sunset Park Family Health Center for pain in his hands, knees and ankles, although x-rays of these areas revealed no evidence at that time of any arthritic changes. On April 25, 1983 his left shoulder was x-rayed and found "normal".

About a year later in May 1984, x-rays taken of claimant's cervical and lumbosacral spine demonstrated narrowing of the C5-C6 intervertebral disc space. On May 28, 1984 he was admitted to Lutheran Medical Center for treatment of septic arthritis and aspiration of the right knee. He was discharged June 4, 1984 with a diagnosis of gouty arthritis.

In addition to Dr. Contractor, Hidalgo consulted another treating physician, Dr. Brigino, who examined him at least every two weeks and submitted clinical notes documenting his treatment during the period from October 3, 1983 through April 12, 1985. His October 3, 1983 report shows a diagnosis of bronchial asthma and arthritis and a finding of joint pains and bilateral wheezing. Dr. Brigino's clinical notes document the following findings: a three-week long episode of leg pain and swelling in the right knee and left wrist, a two day history of swelling, redness and warmth in the left wrist, high uric acid levels in the blood, and three acute asthma attacks.

Hospital records and clinical notes also reflect degenerative arthritis. Doctors at Lutheran Medical Center's Medical Clinic found that Hidalgo suffers from cervical and lumbosacral radiculopathy. As already noted, the May 1984 x-rays taken of Hidalgo's cervical spine show degenerative changes at C-5 and C-6 with narrowed neutral foramina (a nerve passage situated in the spinal axis). The x-rays also show a narrowing of the C-5 and C-6 intervertebral disc space with osteoarthritis bilaterally and paravetebral soft tissue swelling. X-rays of the lumbosacral spine show slight demineralization of the osseous structures and straightening of the lordotic curve in the lumbar spine. Doctors found tenderness in the C-7 and C-8 areas of the cervical spine, with pain in the middle back radiating to the lower spine. Hidalgo had no sensory response to pin-prick testing in the C-5, C-6, C-7 areas of his cervical spine, nor in the L-4, L-5 areas of his lumbosacral spine. The doctors also found that Hidalgo has weakness in his left upper and lower extremities with atrophied left forearm muscles and interosseous muscles and weakness in his hand flexors and extensors reflexes.

Examinations of Hidalgo's extremities revealed swollen, red, tender lateral feet, knees, and ankles with joint pain on motion and swollen hands and fingers, abnormally high uric acid content in blood samples; suprapatellar effusion of the right knees requiring aspiration; increased temperatures of his lower extremities, and pain in both knees on manipulation. Bilateral x-rays of his knees showed effusion. Hidalgo's medical treatment includes periodic aspiration of his right knee, prescription medication, bed rest, and elevation of affected extremities. Thus, treating physicians Contractor and Brigino's findings and diagnosis of claimant's degenerative arthritis of the left arm and wrist and the right knee were verified by x-rays and clinical hospital reports.

In the first hearing decision dated October 11, 1983 the ALJ found that Dr. Contractor's clinical findings revealed arthritis of the knees and shoulders. yet, the ALJ nonetheless found that claimant did not have an impairment sufficiently severe to preclude work-related activities. The Supplement Hearing held before the same ALJ on January 9, 1985 resulted in a decision dated April 10, 1985. The secretary's medical advisor, Dr. Richard Wagman, testified at this supplemental hearing, basing his opinion solely on the medical evidence in the record at that time. Dr. Wagman had neither Dr. Brigino's medical records, nor the Lutheran Hospital reports just recited, nor did he examine or see Hidalgo. His testimony is contrary to all the other medical opinions in the record. He disagreed with the treating doctors' diagnosis of arthritis, finding no evidence to support them. Dr. Wagman stated that Hidalgo had recovered from what Wagman termed gout, with no residual effects.

AT the time of the Supplemental Hearing, claimant was seeking Dr. Shaw (apparently in the same medical office as Dr. Brigino, twice a month for medication to obtain relief for arthritis pain. Nonetheless, crediting only Dr. Wagman's testimony, the ALJ found that claimant's many allegations of disability were not documented by objective medical findings and concluded that claimant could perform his previous work as an ...

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