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July 17, 1991


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


This Court has received and reviewed the Report and Recommendation (the "Report") issued by Magistrate Judge Michael H. Dolinger on June 25, 1991 in the above-captioned action. No timely objections to the Report have been made by the parties to this petition. The Court has considered the Report and agrees with its recommendations. Accordingly, it is hereby

    ORDERED that the Report and Recommendation
  issued by Magistrate Dolinger on June 25, 1991 is
  accepted in accordance with 28 U.S.C. § 636(b).
  Accordingly, it is further
    ORDERED that plaintiff's motion for judgment on
  the pleadings is granted, that defendant's motion
  for judgment on the pleadings is denied, and that
  the case is remanded to the Secretary solely to
  calculate benefits.


Plaintiff Dolores Rivera seeks review of the decision of the Secretary of Health and Human Services denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff originally applied for benefits on September 27, 1984, claiming that she was disabled due to the effects of rheumatic heart disease, seizures and epilepsy. (Tr. 26-27.)*fn1 In subsequent filings and in her testimony, plaintiff also referred to left side weakness and numbness in her left hand resulting from an August 1984 stroke, back pain, chest pain, right leg pain, heart problems, and dizziness from her various medications. (E.g., Tr. 52, 61, 62, 257, 259, 261.) After an initial remand from this court to the Secretary for further administrative findings, plaintiff seeks review of the Secretary's second denial of her application. Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons that follow, I recommend that plaintiff's motion be granted, that defendant's motion be denied, and that the case be remanded to the Secretary solely for the calculation of benefits.

Prior Proceedings

Plaintiff's application was denied initially (Tr. 36-37) and on reconsideration. (Tr. 40.) Plaintiff thereafter requested and received an evidentiary hearing before Administrative Law Judge ("ALJ") Irwin Bernstein on September 5, 1985, at which she appeared pro se. The ALJ issued a decision on September 25, 1985 denying plaintiff's application for SSI benefits, since he found that she could perform her past relevant work as a "floor girl" in a towel factory. (Tr. 14.) Plaintiff appealed this decision to the Appeals Council and submitted additional medical evidence in support of her application. Notwithstanding her additional evidentiary submission, the Appeals Council affirmed the decision of the ALJ on March 24, 1986. (Tr. 4-5.)

On June 23, 1986, plaintiff filed a pro se suit challenging the Secretary's decision. Rivera v. Bowen, 86 Civ. 4928 (PKL). On February 5, 1988 I issued a Report and Recommendation urging a remand to the Secretary for clarification and supplementation of the record. The court adopted the Report and remanded the case to the Secretary for further administrative proceedings. (See Order dated May 24, 1988.)

Plaintiff commenced this action to set aside the Secretary's denial of benefits on August 15, 1990.

The Evidence of Record

1.  Plaintiff's Testimony

Ms. Rivera was born in Puerto Rico on February 10, 1940. She was therefore forty-four years and seven months old at the time of her application. Although she is a high school graduate, she speaks no English and can understand only a little. (Tr. 19, 20, 247.) Plaintiff held several different jobs between 1970 and 1981, the details of which she could not recall (Tr. 55), except for her brief sojourn in a plastics factory. At that job, "I would be where the plastic things were coming out of a machine, and I would take them from where they are and put them into what they call a basket." (Tr. 248.) That job involved light lifting and an undetermined amount of standing and sitting. (Tr. 248-49.)

Plaintiff held her last job from 1981 to 1982, working as a "floor girl" in a towel factory. (Tr. 247.) In describing her responsibilities as a "floor girl," plaintiff testified:

  They sometimes give me the towels to put on the
  prices, to check them out to see whether there was
  any kind of defect, to take out the towel. This is
  what I understand. Put some kind of a mark on a
  little ribbon that went on the towel.

(Tr. 247.) Although plaintiff's testimony was not a model of clarity, she appeared to describe at least three functions that she performed at the towel factory. First, she was required to use a staple gun to put price tags on the towels. To do so, she held the staple gun in her right hand and held the towel and a price tag in her left hand. Apparently, she then aligned the price tag in the proper place and stapled it to the towel. Second, plaintiff was required to use a ruler to check whether all of the markings on the towel were straight and in accordance with the towel design. Finally, after undertaking these tasks, plaintiff folded the towel and placed it in a plastic bag. (Tr. 56, 248, 262.)

In her original disability application, plaintiff — obviously in error — described her job as involving six hours of walking, eight hours of standing and six hours of sitting. (Tr. 52.) In a vocational report filed in June 1985, however, she clarified the physical requirements of her former job, stating that it required two hours of walking, four hours of standing, and two hours of sitting. (Tr. 56.) Finally, at the hearing Ms. Rivera indicated that she could perform the various tasks required of her at her job either standing or sitting, although "sometimes I had to stand because I had to walk, but not too far, just near the table where I was working." (Tr. 248.) Plaintiff also testified that her job involved frequent bending, although it did not require any lifting and carrying. (Tr. 86, 248.)

Plaintiff testified that she had stopped working in 1982 when she began having epileptic seizures. (Tr. 249.) She stated at the hearing that her last seizure had been in 1988, and that she takes phenobarbital to control this condition. (Tr. 249-50.)

On August 19, 1984, plaintiff was admitted to St. Barnabas Hospital with a diagnosis of a cerebrovascular accident, commonly known as a stroke. (Tr. 150-51, 249.) Plaintiff testified that as a result of the stroke, she has had recurring problems with her left side and her non-dominant left hand. In particular, plaintiff claimed that she could not grab or hold onto any objects with her left hand because of a lack of sensation in the hand. (Tr. 249, 252.)

Plaintiff also testified regarding a number of additional physical ailments and limitations. First, she claimed that she could stand for only one hour at most, and that she suffers from a painful swelling in her right ankle if she stands for too long. (Tr. 250, 263.) At the initial hearing, plaintiff had testified that she could sit for only half an hour continuously, and that she was not able to kneel or bend at all. (Tr. 21.) At the second hearing, however, she indicated merely that she would not be able to sit for four hours out of an eight hour day. (Tr. 264.) Plaintiff also stated that she could walk only about four blocks at a time, that she must walk slowly and stop frequently, and that sitting in a certain type of chair or in a certain position is painful. (Tr. 251-52, 259.) In addition, plaintiff testified that she suffers from pains on the left side of her chest about twice a month, and has had pain in the middle of her chest two or three times. (Tr. 257-58.) Plaintiff also claimed that she is easily fatigued and has recently been suffering more serious and frequent back pain, and that she takes Lanoxin for a heart valve "that doesn't work right." (Tr. 259, 261.)

Plaintiff further testified that she is unable to use stairs because of her physical limitations. She claimed that as a result, she cannot use public transportation and always gets a ride or takes a taxi whenever she goes out of her apartment. (Tr. 246.) She spends her time reading, watching television and observing street life from her window. (Tr. 22, 24, 276.) Sometimes she has trouble dressing because of her inability to use her left hand. Since she cannot button the right sleeve of her shirts, she generally wears either pull-on or zippered clothes. (Tr. 23, 255, 277.) Her son and daughter currently live with her and have done her housework and have taken care of her since she suffered her stroke in 1984. (Tr. 24, 254-55.)

2.  Plaintiff's Daughter's Testimony

Carmen Rivera testified that she had lived with her mother since the end of 1987. (Tr. 275-76.) She stated that she generally does the shopping and laundry for her mother, while her brother does the house cleaning. (Tr. 277-78.) She further claimed that she and her brother do all the cooking for their mother, although plaintiff testified that she does occasional light cooking on her own. (Tr. 255, 277.) Carmen described her mother's complaints of headaches, back pain, tightness in the chest, chest pain, leg pain and loss of balance. To her knowledge, her mother had had a number of seizures in 1986, 1987, and 1988, three of which she had witnessed. (Tr. 279.) She stated that since her mother could not use the stairs, if the elevator in her building was not working she could not leave her apartment. (Tr. 280.) Carmen testified that plaintiff occasionally visits her neighbor's home, but friends residing further away must come and pick her up at her apartment. (Id.)

3.  The Medical Evidence

The record contains a number of medical files and reports from both treating and non-treating physicians. The earliest entry in plaintiff's medical file, dating from 1967, is from the Dr. Martin Luther King, Jr. Health Center, and reflects a history of acute rheumatic fever. (Tr. 69.) No other serious problems are described in her medical file until October 1977, when it is noted that she suffered from moderately severe mitral stenosis, or the narrowing of a ventricular valve. (Tr. 92.) In 1982, plaintiff experienced her first epileptic seizure, and then in August 1984 she was hospitalized for a stroke, with signs of left hemiparesis and slurred speech. A CT scan revealed a "large area of recent infarction of right mid and posterior parietal lobes with mass effect." (Tr. 150.) Her discharge diagnosis stated "rheumatic heart disease with mitral stenosis, episode of cardiac arrhythmia, CVA, right, seizure disorder." (Tr. 151.)

Dr. Phillips reassessed plaintiff's residual functional capacity in January 1989 without having reexamined plaintiff since preparing his original report. He stated that plaintiff's mitral stenosis caused shortness of breath, an inability to climb stairs and marked intolerance to exercise, and that plaintiff's stroke had left her incapable of using her hands, squatting, bending or turning. (Tr. 370.) He concluded that unless plaintiff's condition had improved since he had last seen her, she was disabled and unable to work an eight-hour day. (Tr. 375.)

Dr. Gerald Smarth, plaintiff's regular treating physician, prepared his first RFC report on plaintiff in September 1984, with results comparable to those of Dr. Phillips. Dr. Smarth also gave a "fair" prognosis to plaintiff and reported that her impairment would last for at least a year. He indicated that plaintiff could stand for up to one hour and could sit and alternately sit and stand without limitation. Like Dr. Phillips, he estimated that plaintiff could walk for only one to two blocks without stopping, and could lift and carry only up to ten pounds. Dr. Smarth reported similar limitations on plaintiff's ability to use her hands and to bend, squat, kneel and turn because of her left-side weakness following her stroke. (Tr. 155-57.)

Dr. Smarth reassessed plaintiff's residual functional capacity on November 13, 1985. In this report, Dr. Smarth gave a diagnosis of rheumatic heart disease, mitral stenosis, supra-ventricular arrythmia, congestive heart failure, "embolic stroke[,] c.v.a. with left side weakness" and a seizure disorder. (Tr. 208.) Dr. Smarth's new prognosis was "guarded," due to plaintiff's ongoing problems with fatigue, shortness of breath after walking only several blocks, left side weakness, and limitations in the use of her left arm and hand. In his second RFC report, Dr. Smarth stated that plaintiff could walk two to three blocks without stopping, rather than one to two blocks as originally reported, but that she could stand for only twenty minutes at a time rather than one hour. In this report, Dr. Smarth did not indicate any limitation on plaintiff's ability to bend, squat, kneel, or turn, although he did state that she could not use public transportation. (Tr. 209.)

Dr. Smarth prepared a third RFC report on plaintiff in February 1989. Dr. Smarth noted that plaintiff could sit for eight hours at a time, stand for twenty minutes continuously and up to two hours in an eight-hour day, and walk up to fifteen minutes continuously. (Tr. 381.) In addition, plaintiff could frequently lift up to five pounds, occasionally carry six to ten pounds,*fn2 and occasionally bend, squat, crawl, climb and reach. (Id.) Dr. Smarth indicated that plaintiff could do simple grasping with her right hand, but not her left hand, and that she could not engage in pushing and pulling of arm controls or fine manipulation with either hand. (Tr. 382.) Dr. Smarth also noted plaintiff's total restriction with respect to activities involving unprotected heights, exposure to marked changes in temperature and humidity, and exposure to dust, fumes and gases, and her moderate restriction with respect to moving machinery. (Id.) He also stated that plaintiff could not travel alone by either bus or subway. (Tr. 383.) Dr. Smarth concluded:

  Ms. Rivera has moderately severe mitral stenosis
  — she has had probably episodes of arrythmia
  causing cerebral emboli with left hemiparesis and
  she also has seizure disorder. She is on digoxin
  and anticoagulant therapy to prevent further
  episodes of emboli. She is incapacitated [and]
  unable to work due to above conditions.

(Tr. 382.)

Dr. Cesar A. Vera, who has also served as plaintiff's treating physician since October 1986, submitted his own RFC report dated January 24, 1989. Dr. Vera's assessment was somewhat different from that indicated in Dr. Smarth's most recent report. Dr. Vera opined that plaintiff's prognosis was "fair," that she could sit continuously for two hours and up to four hours in an eight-hour day, stand continuously for 30 to 60 minutes and up to two hours in an eight-hour day, and walk continuously for 10 to 15 minutes and up to one hour in an eight-hour day. (Tr. 387.) Dr. Vera stated that plaintiff could occasionally lift and carry up to five pounds, and could occasionally bend, squat and climb. In his view, plaintiff could not crawl, but could frequently reach, and could also do simple grasping and fine manipulation with both hands. Dr. Vera noted that plaintiff had total restrictions with respect to unprotected heights, moving machinery and driving, and that she had moderate restrictions regarding exposure to marked changes in temperature and humidity, as well as dust, fumes and gases. (Tr. 388.)

Additional reports in the record prepared by the Secretary's consultative physicians did not provide any RFC assessment of plaintiff. A Dr. Henriquez examined plaintiff on December 28, 1984 and noted that she suffered from rheumatic heart disease and shortness of breath on moderate exercise. (Tr. 178.) Dr. Henriquez concluded that she had a history of mitral stenosis and epilepsy and a history of cerebrovascular accidents "with no residual damage." (Tr. 181.) A Dr. C. Sharma performed a neurological examination of plaintiff on January 7, 1985 and found normal muscle strength in both her upper and lower extremities, with no atrophy, normal reflexes and coordination and no sensory deficits. He concluded that plaintiff did not suffer from any neurological deficit or disability. (Tr. 186.) Finally, Dr. Dae Sik Roh conducted an orthopedic examination of plaintiff on April 24, 1985. Dr. Rho reported a full range of motion in both the upper and lower extremities, with normal sensation and no evidence of atrophy. (Tr. 196-97.)

The only additional RFC report, dated January 31, 1985, was provided by a Dr. L. Marasigan. Although the record is unclear, it appears that Dr. Marasigan did not examine plaintiff and simply relied on unspecified medical records made available to him by the SSA. Dr. Marasigan concluded that plaintiff could lift up to fifty pounds, could frequently lift and carry twenty-five pounds, could stand and/or walk for six hours as well as sit for six hours in an eight-hour day, and had no limitations on her ability to push or pull with either her feet or her hands. (Tr. 187.) He also stated that plaintiff could occasionally balance, stoop, kneel, crouch or crawl, but could not climb, presumably because of her history of seizures. (Id.) Dr. Marasigan did not provide the basis for any of his conclusions that differed from the statements made by the plaintiff or the evaluations reported by the treating physicians, merely noting that "[c]laimant has history of mitral valve stenosis. Heavy lifting & etc [sic] should be avoided." (Tr. 188.)

The record also contains the opinion testimony of a Dr. Richard J. Wagman, who was called to testify as an "expert" medical advisor by the Secretary. Dr. Wagman, who apparently had also not examined plaintiff, disagreed with certain of the findings of plaintiff's treating physicians. He opined that plaintiff's mitral stenosis was relatively mild, that her seizures were infrequent, and that he viewed the medical record as inconsistent with the symptoms to which plaintiff and her daughter had testified. (Tr. 285-87.) In addition, Dr. Wagman disagreed with the treating physicians' assessment of plaintiff's residual functional capacity, arguing that, based on his review of the medical record, she could sit and stand normally without any restrictions, and that she could occasionally lift up to twenty-five pounds. (Tr. 289-91.) Dr. Wagman claimed that the results of plaintiff's stroke had completely cleared up by 1985, as evidenced by the reports of the consultative ...

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