plaintiff has no mental impairment (T. 167). It is not clear what Dr. Kashin based his findings on or if this was a mistake. Dr. Kashin further indicated that plaintiff had limited ability to lift and carry objects, and to push and/or pull, but did not indicate the extent of this limitation (T. 171). The doctor also noted that plaintiff could stand for up to two hours a day. Plaintiff's ability to sit was unlimited and the doctor knew of no other limitations. At the bottom of the form the doctor indicated that plaintiff was not limited in her ability to understand and remember "based on reports made by my client as advised by OB/GYN." It is unclear what this means and these "reports" are not a part of the record. Id.
In a letter dated June 30, 1993, Dr. Ida M. Campagna indicated that she had provided plaintiff with prenatal care and had delivered her baby (T. 188). Plaintiff had no physical impairments of which the doctor was aware although the doctor did not comment on plaintiff's drug use. Dr. Campagna opined that plaintiff was capable of working.
Meanwhile, plaintiff filed for disability insurance on April 24, 1992 (T. 40). The application was denied initially (T. 44-7) and upon reconsideration (T. 74-77). Plaintiff then requested a hearing which was held on September 22, 1993, before Administrative Law Judge ("ALJ") Nicholas Haragos (T. 192-240). Plaintiff testified at the hearing and was represented by Krista McDonald, a paralegal from Neighborhood Legal Services.
At the hearing plaintiff explained that she had taken college classes in computers, word processing, and accounting for a year (T. 201-3). She had left school to start her own day care center when she was hit by the car in 1992 (T. 206, 223). Plaintiff was not working at the time of the hearing due to her drug problem (T. 216).
Plaintiff testified that she was still attending drug counselling sessions at the LSCMHC, but her attendance is inconsistent because of drug use (T. 213, 217). Despite this program, plaintiff continues to drink alcohol two or three times a week (T. 224), use marijuana (two or three joints a week), and uses cocaine five or six days a week, "whenever it is available" (T. 214, 220). Plaintiff's friends and family will no longer associate with her because of her drug problem. Plaintiff's mother has reported plaintiff to the Department of Social Services twice but plaintiff is trying to keep her children in her home (T. 230-32).
Plaintiff explained that although her legs cause her extreme pain she is no longer seeing a doctor because she is under the influence of drugs so often she has trouble keeping her appointments (T. 216). She claims to have tried to stop using drugs, without success "because of the pain in [her] legs and [the fact that her] life isn't correct since the accident" (T. 221). The longest period of sobriety she could recall was one and one-half months in the latter part of her last pregnancy (T. 234).
Plaintiff testified that she has difficulty taking care of the cooking, cleaning and shopping. Her former boyfriend's twelve year old daughter, who is in plaintiff's care, helps her with these chores (T. 218-220). Plaintiff does not have a drivers license and uses public transportation (T. 200-1). She has trouble remembering things due to her drug problem. Carrying her children, who weigh fifty and fifteen pounds respectively, exacerbates her leg pain (T. 229).
Plaintiff stood up several time during the hearing due to discomfort in her legs (T. 202, 208, 216). She cried frequently, especially when testifying about her drug problem and her alienation from family and friends (T. 217, 220, 235).
On October 19, 1993, the ALJ found that plaintiff did not have a disability (T. 14-25). The ALJ's decision became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review on March 4, 1994 (T. 3-4). This action followed.
The parameter for judicial review by this court is well established. The district court will not conduct a de novo review of the Secretary's findings but, rather, "is limited to an assessment of whether the findings of fact are supported by substantial evidence; if they are supported by such evidence, they are conclusive." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980)(citing 42 U.S.C. § 405(g) (1991)). Substantial evidence is defined as, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971 )(quoting Consolidated Edison Co. v. National Labor Relation Bd., 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938); Jones v. Sullivan, 949 F.2d 57 (2d Cir. 1991)). The Secretary's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
The Social Security Act defines disability as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A) (1991). The Secretary has established a five-step process to evaluate disability:
1. An individual who is working and engaging in substantial gainful activity will not be found to be disabled regardless of medical findings;