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FISHBURN v. SULLIVAN

April 14, 1992

ANNA L. FISHBURN, Plaintiff, against LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: SHARON E. GRUBIN

 SHARON E. GRUBIN, United States Magistrate Judge:

 This is an action brought under Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. ยง 405(g), to review a final decision of the Secretary of Health and Human Services ("the Secretary") denying plaintiff's application for disability insurance benefits. Defendant has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, I recommend that defendant's motion be denied and that the case be remanded to obtain additional evidence and to apply appropriate legal standards to the evidence.

 PROCEDURAL BACKGROUND

 FACTUAL BACKGROUND

 Plaintiff's Testimony

 At her administrative hearing, plaintiff appeared in person and was represented by her attorney, Davison F. Moore. Most of her testimony at the hearing was in response to questions from her attorney. Plaintiff testified that she was born on April 4, 1926 and lives with her husband and grandson in Poughkeepsie, New York. (R 21). She has a high school equivalency diploma. (R 32-33). Prior to 1961 she worked as a dietetic aide at a Veterans' Administration hospital in Albany, as a housecleaner, and as a nurse's aide at Vassar Brothers Hospital in Poughkeepsie. (R 22-23, 110). From 1961 to 1981 she was employed at the Hudson River State Hospital in Poughkeepsie as a mental hygiene therapy aide, for three of those years as a ward supervisor. (R 22, 67). There was no evidence at the hearing of the duties and requirements of that position, and neither the ALJ nor her attorney asked plaintiff any questions about them. *fn2" According to plaintiff's handwritten "Disability Report" dated January 8, 1987 (apparently submitted with her application), her duties as mental hygiene therapy aide included giving out medication; preparing patient charts; and assisting patients in bathing, feeding, dressing and such chores as making beds and cleaning rooms. Plaintiff estimated that the job entailed walking and standing up to five hours a day, occasional bending and reaching, and frequent lifting of weights up to 25 pounds (occasionally as much as 50 pounds), apparently in conjunction with assisting patients in and out of baths and beds and, if necessary, restraining them. (R 67-68).

 Neither plaintiff's attorney nor the ALJ asked plaintiff how her disorders came about. According to the report of a consultative physician who examined plaintiff in April 1987, plaintiff explained to him the background to her problems as follows. While she was at work on September 24, 1980, a patient took both her hands and swung her around, thereby twisting her neck and back and causing her severe pain. While she was at work on December 20, 1980, plaintiff was assaulted by another patient, who twisted her right wrist. Her right wrist and hand became "quite painful," and her right hand grip became weak. (R 99).

 Plaintiff testified that in April 1981 she ceased her employment at the hospital because she was unable to do the work. Specifically, she "couldn't do any lifting" and her apparent vulnerability from wearing a wrist band provoked attacks from patients. (R 24, 63). Around that time, plaintiff began to receive Workers' Compensation payments, and she was still receiving them in 1987 when she applied for Social Security disability insurance benefits. (R 24, 57-58).

 Plaintiff testified that, at some point in 1982 or 1983, she began to visit a local orthopaedic surgeon, Dr. Edward R. DeRamon (apparently for pain in the posterior neck and upper back), and, at the time of the hearing was seeing him once or twice a month or "sometimes maybe a week." (R 27). *fn3"

 Plaintiff testified that Dr. DeRamon had prescribed Dolobid, Feldene and Carisoprodol and had given her injections in her right shoulder. (R 27; see R 93-95, 99). For about a year in 1984 or 1985, plaintiff received physical therapy treatments, but she discontinued them when she stopped being reimbursed. (R 32).

 Plaintiff's statements about the restrictions her disabilities imposed on her activities were expressed in the present tense without explicit reference to the period 1981 through 1986. Plaintiff testified that she had back pain, had trouble bending and was able to do only "light" chores around the house; that she had pain in her wrist every day, whether using it or not; that driving longer than 20 miles caused "tingling" in her hand; that when she lifted an object, such as a dish, it could suddenly drop from her hand without warning; and that, although her medication relieved her pain, it made her sleepy. (R 28-31). Plaintiff also referred to pain in her knee if she walked too much. (R 30, 80).

 Treating Physicians' Reports

 Prior to reviewing the documentary evidence, it is important to note that, with the exception of a report of plaintiff's general physician, the reports and other documents in the record from treating physicians pertain only to plaintiff's condition and treatment in 1987. However, plaintiff is insured for purposes of entitlement to disability insurance benefits through December 31, 1986. (See R 9, 11, 27, 59-62). Under the Title II disability program, a claimant must show that she was disabled at the time she met the insured status requirements of the Act. At the hearing, the ALJ pointed out to plaintiff's attorney the "paucity" of evidence in the record pertaining to plaintiff's condition prior to December 31, 1986. (R 26). In particular, although plaintiff testified that she was treated on a regular basis since 1982 or 1983 by her orthopaedic surgeon, Dr. DeRamon, the record contained only reports regarding his 1987 examinations of plaintiff. (See R 93-95). Plaintiff's attorney stated that he was "familiar" with Dr. DeRamon's office and was "morally certain that within a day I can obtain serial notes for each of those visits [during the 1983-1986 period]." (R 27-28). The ALJ gave plaintiff's attorney 10 days to provide him with those records (R 27), but no further medical evidence was ever submitted and the ALJ rendered his decision in its absence. (R 10).

 The reports from Dr. DeRamon in the record are for five visits by plaintiff during the short and essentially irrelevant period from March 13, 1987 through May 29, 1987. *fn4" In his report dated March 13, 1987, Dr. DeRamon noted that plaintiff complained of "pain in her neck"; flexion and hyperextension each produced pain in the neck "down to the spinous process of C7"; head turning and head tilting to the left each produced pain in the right trapezius; head turning to the right was "free and painless"; and head tilting to the right produced "some pain in the right trapezius, much less so." Hyperextension and flexion in the last few degrees of motion produced pain in the right knee, and there was also pain on "MacMurray maneuver with the foot in external rotation and more with the foot in internal rotation" and on "palpation of the medial joint space." Dr. DeRamon also noted that plaintiff "states she has pain in the low back occasionally, but she has none today." His diagnosis was "Cervical derangement; internal derangement of the right knee, torn medial meniscus?" (R 95). In his report dated April 24, 1987, Dr. DeRamon noted that plaintiff "at this time has pain in the neck and radiation down the right upper extremity" and made notations similar to those on March 13, 1987 regarding pain caused by head turning and tilting. He also noted that "the elbow which I said was back to normal November 5th of 1985 is hurting once again." He noted that plaintiff had taken Carisoprodol and Dolobid for pain and Feldene, and he prescribed these medications again. He also requested authorization for 30 treatments of physical therapy for the cervical area.

 Dr. DeRamon's cursory reports on three follow-up visits indicate a favorable response to treatment. On May 1, 1987: plaintiff "is taking her medication and states that the pain is much less than it was." On May 15, 1987: "This patient is improving." On May 29, 1987: "This patient is doing well." (R 93).

 The record also contains a report dated February 22, 1987 for the New York State Office of Disability Determinations from Dr. Eugene L. Koloski (R 87-92), whom plaintiff listed as her general physician. (R 64). Dr. Koloski stated that he first treated plaintiff in 1960, that her last visit was on September 12, 1986, and that he treated her on a very "infrequent" basis during the intervening period. *fn5" Under "history and subsequent course," Dr. Koloski wrote "minor illness 1960-1986" and listed rhinitis, orthostatic edema of the legs, dizziness, and arthritis of the knees. He stated that plaintiff's "complete physical exam" on September 12, 1986 "revealed no apparent musculo-skeletal abnormalities"; that "the general physical exam was normal"; and that plaintiff was taking Dolobid for pain in her knees. Asked on the form to indicate "limitations of motion in involved joints," Dr. Koloski wrote "none seen." (R 91). He also noted "I have not been aware of significant musculo-skeletal disorder." (R 92).

 Consultative Physician's Report

 At the request of the New York State Department of Social Services Office of Disability Determinations, plaintiff was referred to Dr. Emilio Ejercito of Dutchess Physiatric Associates, a specialist in physical medicine and rehabilitation (R 102). In a report dictated on April 13, 1987 apparently based on an examination of plaintiff on April 8, 1987, *fn6" Dr. Ejercito noted tenderness and muscle spasm in the neck and upper back, full ranges of motion in the cervical spine, extremities and lower back, with "slightly tight" muscles and localized tenderness in the latter. Tinel's sign was positive on percussion of the right wrist, suggesting the possibility of carpal tunnel syndrome. *fn7" Dr. Ejercito also noted that X-rays of plaintiff's right hand "revealed degenerative ...


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