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ARMSTEAD v. CHATER

July 20, 1995

BRAD ARMSTEAD, Petitioner, against SHIRLEY S. CHATER, Commissioner of Social Security, Respondent.


The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 Petitioner Brad Armstead brings this action under 42 U.S.C. § 405(g) challenging a final determination of the Commissioner of Social Security [alternately, the "Commissioner" or the "Secretary"] which denied his application for disability insurance benefits under the Social Security Act [the "Act"]. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Petitioner argues that the Administrative Law Judge [the "ALJ"] failed to evaluate properly the medical evidence and the testimony of the petitioner and a vocational expert. According to the petitioner, these errors require the reversal of the Commissioner's decision. The respondent, in turn, argues that the ALJ's decision is supported by substantial evidence, and that therefore the Commissioner's denial of disability benefits must be affirmed. Because the Court finds that the ALJ has not clearly articulated his reasons for concluding that the petitioner did not suffer from a "listed" impairment, and moreover, has failed to analyze fully in his written decision the consequences of the petitioner's allegations of pain upon his ability to be gainfully employed, this matter is remanded to the Commissioner for further appropriate proceedings.

 BACKGROUND

 Petitioner, a thirty-one year old male, filed an application for disability insurance benefits on January 28, 1992, alleging that the fracture of his left humerus rendered him incapable of engaging in any substantial gainful activity. Administrative Record ["R."] at 47-50, 148. His application was denied both initially, R. at 51, 60-61, and upon his request for reconsideration. R. at 64, 73-75. In a hearing held on August 19, 1993, R. at 145-74, the ALJ reopened petitioner's prior application filed on June 6, 1991, in accordance with 20 C.F.R. § 404.988(a). R. at 15, 173. Petitioner was represented by an attorney at the hearing. R. at 145.

 Petitioner was injured while playing football on September 8, 1989. He was treated immediately by Dr. Harvey Fishman at the Mary Immaculate Hospital emergency room, where it was determined that he had sustained a fracture of his left humerus. R. at 109, 155. Dr. Fishman placed petitioner's left arm in a cast. R. at 133, 135. Subsequent to his initial consultation with Dr. Fishman, petitioner continued to see Dr. Fishman every four weeks, until April 17, 1990. R. at 109, 156.

 On June 24, 1991, based upon his treatment of the petitioner from September 19, 1989 until April 17, 1990, Dr. Fishman completed a musculoskeletal report for the New York State Department of Social Services [DSS]. R. at 109-13. Dr. Fishman opined that as of April 17, 1990, petitioner was able to lift and carry a range of weight from five to ten pounds "occasionally," and from forty to fifty pounds "frequently." *fn1" Petitioner had no limitations on his leg control or on his ability to sit, stand, or walk. R. at 113. Dr. Fishman also referred petitioner to an orthopedist for open reduction, internal fixation and bone grafting. R. at 109.

 Petitioner saw Dr. Michael Katz on December 27, 1990 to obtain a second opinion. R. at 104. In a musculoskeletal medical report completed for the DSS, Dr. Katz diagnosed a malrotated atrophic non-union of the left humerus. Petitioner's range of motion at left elbow was 0-120 degrees, and he felt pain and tenderness at the fracture site. Dr. Katz assessed that petitioner was in need of open reduction, internal fixation and a bone graft. R. at 104. On March 4, 1991, Dr. Katz completed a disability form in which he checked boxes indicating that petitioner was house-confined, totally disabled for any occupation, and that his disability was indefinite. R. at 129.

 Dr. K. Seo of the New York Diagnostic Centers performed a consultative examination of the petitioner on August 16, 1991. R. at 115-17. Dr. Seo noted that petitioner had no difficulty standing up from the sitting position on or off the examination table, and that his fine motor coordination of both hands was normal. Petitioner's left shoulder, elbow and wrist all displayed a normal range of motion. Muscle strength in petitioner's left hand rated four out of five. R. at 115. Dr. Seo noted that functionally, petitioner may have difficulty using his left arm. R. at 116.

 On November 6, 1991, Dr. Katherine Gearity performed a consultative examination of the petitioner. R. at 119-23. Dr. Gearity observed no range of motion in the petitioner's left shoulder muscles, biceps, triceps, deltoids, or latissimus dorsi muscles. R. at 119. She opined that functionally, petitioner was unable to lift or carry any weight with his left arm. Petitioner's ability to push and/or pull was limited as a result of improper healing of the fracture. Dr. Gearity also noted that petitioner was emotionally and socially traumatized by the condition of his shoulder, which he had not used since his injury. R. at 123.

 On December 16, 1992, Dr. Michelle Gerwin examined the petitioner at the Hospital for Special Surgery in Manhattan. R. at 133-34. X-rays demonstrated an "oblique non-union of the junction of the middle and distal thirds of the humerus." Dr. Gerwin scheduled petitioner for an internal fixation and bone grafting, and prescribed a well-fashioned Sarmiento cast for the petitioner to wear until surgery. R. at 133.

 On February 1, 1993, petitioner underwent surgery on his left humerus in a procedure that included an open reduction, and an internal fixation with a bone graft. R. at 135-41. Petitioner was in stable condition following surgery. R. at 138. Post-operative x-rays showed satisfactory alignment. R. at 139, 141. Occupational therapists instructed petitioner in active and active-assisted range of motion exercises of the left shoulder, elbow, and hand. Petitioner was discharged with an uninfected wound, and was given Vicodin for pain. R. at 136.

 Petitioner returned to the Hospital for Special Surgery on February 17, 1993 complaining of pain. Dr. Gerwin and her colleagues found a fracture present in the mid-to-distal third of the diaphysis of the left humerus. Sclerotic margins were present at the fracture site, suggestive of a non-union. R. at 143.

 Following a monthly visit to the clinic at the Hospital for Special Surgery on April 21, 1993, Dr. Edmund Kwan reported that petitioner had done well following his surgery. Petitioner's wound had completely healed, his range of motion of the elbows showed full flexion and full extension, and he had a full range of motion at the shoulder. X-rays showed the humerus was in good position and there was some evidence of union with the plate in place. Dr. Kwan recommended that petitioner return to the clinic in six weeks for further x-rays, and that he should continue to wear the Sarmiento brace. R. at 144.

 Petitioner has completed two years of college, and received training in micro-assembly. R. at 91, 151-53. Petitioner's last job was as a meter reader from 1988 to 1989, in which capacity he entered meter readings into a hand-held computer. This job entailed constant standing and walking. R. at 91-92. Prior to that time, petitioner worked as a packer for a pharmaceutical company, a micro-assembler for an airplane manufacturer, and as a sorter for a shipping company. R. at 91, 151-54.

 Since his injury in September 1989, petitioner has experienced considerable pain and discomfort. He initially used pain-killers, including codeine, but later resorted to aspirin. R. at 158. Petitioner testified that his doctor advised against doing work that involved any lifting. R. at 155. Though petitioner was unable to raise or lift anything with his left arm, he was able to grasp objects in his left hand. R. at 159. Petitioner has no problems with his right, dominant hand. R. at 148, 159-60. His injury did not affect his ability to walk, stand or climb stairs. R. at 159.

 At the hearing before the ALJ, Lynn Mizzy Jonas, M.S. testified as a vocational expert. R. at 131-32, 165-72. Ms. Jonas classified petitioner's past employment as a meter reader as light, low-range, semi-skilled work. R. at 165-66. Petitioner's employment as a packer and sorter entailed heavy, unskilled work. R. at 166. Ms. Jonas testified that petitioner had no transferable skills. The most ...


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