or equal in severity any listed impairment, and she noted that there was no evidence from any treating source to contradict Dr. Kohn's conclusion. Id. On this basis, she found that Ms. Wachter could not be considered disabled under the meaning of the Act, the regulations and Kier at any time prior to August 1, 1990. A.R. 31-34. As discussed below, this conclusion cannot be upheld under Kier, because there is no indication that Dr. Kohn considered residual functional capacity in making his determination, or that the ALJ gave any consideration to the April 6, 1989, hearing testimony given by Ms. Wachter and her housekeeper, Ms. Harvey, concerning the limitations on Ms. Wachter's ability to function.
At the April 6, 1989, hearing, Ms. Wachter testified that she would get so tired that she would have to lie down four or five times per day, for as much as two or three hours at a time; that her legs and feet would swell a great deal every day; that she could not stand for more than half an hour to an hour; that she would lie down, rather than sit, so as to keep her feet up; and that she was greatly limited in the extent to which she could walk, perform a variety of physical activities, and do her household chores. Her statements strongly suggest that she did not possess the residual functional capacity to perform any gainful activity in April 1989. This view is supported by the testimony of Ms. Harvey.
Following the April 6, 1989, hearing, Dr. Kohn was asked to review Ms. Wachter's file and to provide the ALJ with a determination of whether Ms. Wachter's condition met or equalled any listed medical impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1, § 4.00, based upon the administrative record through April 1989. A.R. 30-31, 161-162. He made his report in July 1989, three months before the Second Circuit issued its decision in Kier. At that time, the Secretary was relying on Social Security Ruling 83-19, which forbade adjudicators from considering a widow's residual functional capacity in determining medical equivalence. Kier v. Sullivan, 888 F.2d at 247. Thus, under the Secretary's view of the law at the time, it was not necessary for Dr. Kohn to consider Ms. Wachter's residual functional capacity in reaching his determination. There is no indication that he did so. A.R. 161, P 2. He did comment that Ms. Wachter was "able to do sedentary or light physical activity, since she apparently does much around the house such as her laundry, bed changing and similar activity." A.R. 162. But he clearly did not take this into account in reaching his conclusion that Ms. Wachter's condition did not meet or equal any listed impairment. And indeed, had he done so there would have been good reason to discount his opinion, because his impression that Ms. Wachter was able to do "much around the house" was in direct conflict with Ms. Wachter's and Ms. Harvey's hearing testimony and Dr. Furr's April 28, 1989, report. Dr. Kohn's comment appears to have been based on Dr. Furr's February 1, 1989, description of Ms. Wachter's functional abilities in March, 1987.
In her May 6, 1991, decision, the ALJ relied heavily on Dr. Kohn's report to establish that Ms. Wachter's condition was not equivalent to any listed impairment, A.R. 31, and to reach her determination that Ms. Wachter could not be considered disabled under the Act prior to August 1, 1990. A.R. 31-34. She failed to note that Dr. Kohn had not considered Ms. Wachter's residual functional capacity in reaching his determination of lack of medical equivalence. Her reliance on his report was therefore misplaced.
The ALJ stated that she had considered the hearing testimony, and had applied Kier, in concluding that Ms. Wachter did not suffer from an impairment equal in severity to a listed impairment. A.R. 29. However, her reliance on Dr. Kohn's pre-Kier determination, coupled with her failure to actually discuss the testimony of Ms. Wachter and Ms. Harvey, indicates that she did not, in fact, properly consider residual functional capacity in reaching this determination. At the least, her failure to discuss the hearing testimony represents a failure to articulate reasons for accepting or rejecting an important line of relevant evidence. See Herron v. Shalala, 19 F.3d at 333. But further, it indicates that her determination was not, in fact, based upon consideration of all evidence of pertinent weight. Cf. New York ex rel. Bodnar v. Secretary of Health and Human Services, 903 F.2d at 126-127.
For purposes of determining whether Ms. Wachter was entitled to benefits payable as of January 1, 1991, the ALJ found that as of August 1, 1990, Ms. Wachter retained the residual functional capacity to perform the full range of sedentary work as described under 20 C.F.R § 404.1567. A.R. 31-33. This finding, if correct, would provide support for a determination that on August 1, 1990, and prior to that time, Ms. Wachter was not disabled under the pre-1991 language of the Act and Kier. The finding was based on the reports of treating physicians Dr. Furr and Dr. Davis. A.R. 31-32. Again, however, the ALJ's analysis is devoid of any discussion of Ms. Wachter's and Ms. Harvey's hearing testimony, which strongly suggests that Ms. Wachter would have had great difficulty in performing any gainful activity.
There is sufficient evidence in the record to support the conclusion that Ms. Wachter was capable of performing gainful activity from March 25, 1987, the date of her application for widow's benefits, until October 12, 1988, when she was examined by Dr. Edward Davis. However, the Secretary's determination that Ms. Wachter was not disabled under the meaning of the Act between October 12, 1988, and August 1, 1990, and that she was therefore not entitled to benefits until January 1, 1991, cannot be upheld. In determining that Ms. Wachter's condition was not equivalent to a listed impairment, the ALJ improperly relied upon Dr. Kohn's pre-Kier opinion, and she failed to discuss, and apparently failed to consider, Ms. Wachter's and Ms. Harvey's descriptions of Ms. Wachter's severe physical limitations. Ms. Wachter was entitled to consideration of those descriptions under Kier and 20 C.F.R. § 404.1545(a). Accordingly, the court remands this case for full reevaluation of Ms. Wachter's capacity to engage in gainful activity in the period from October 12, 1988, to December 31, 1990, and for reconsideration of her eligibility for widow's benefits during that period.
JOHN T. CURTIN
United States District Judge
Dated: June 30, 1994