Dr. Seo re-examined the petitioner on March 13, 1992. R. at 125-27. Petitioner wore an incomplete cylindrical cast (i.e., a long arm cast cut off above the elbow level). The cast was not functioning properly due to muscle atrophy. Muscle atrophy was diagnosed in the left deltoid area, left supraspinatus and infraspinatus areas, and left forearm. Petitioner's left elbow and wrist showed a normal range of motion. Functionally, Dr. Seo assessed the petitioner as not able to carry any weight with his left arm, or to use that arm at all. R. at 125-26.
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 sophisticated task he performed was micro-assembly, which required bi-manual dexterity. R. at 166-67.
The ALJ posed a hypothetical to Ms. Jonas concerning a young male similarly situated to the petitioner, with a 2-year college education, work background and training similar to that of the petitioner, and a non-union fractured humerus in the non-dominant left arm. The hypothetical person was unable to use the left arm, but was able to grasp with the left hand, and was fully able to use the right arm and hand. R. at 167. Ms. Jonas testified that such person would not be able to work in the jobs in which the petitioner was previously employed, but would be able to perform work which required use of only the dominant arm and hand. R. at 167-68. According to Ms. Jonas, such positions included: (1) information clerk, which position numbered 4,700 in the regional area and 14,800 nationally, R. at 168; (2) telemarketing salesperson, which position numbered over 5,000 in the region and over 15,000 nationally, R. at 168-69; (3) a security guard monitoring television screens at a control center, which position numbered 4,800 in the region and 87,000 nationally, R. at 169-70; and (4) a ticket taker, who using one arm could perform simple grasping with the restricted arm, which position numbered 3,000 regionally, and 27,000 nationally. R. at 170.
Petitioner's attorney expanded the hypothetical to include a restriction that the individual's pain caused sleepless nights and lack of alertness on the job. Ms. Jonas responded that someone with such a restriction would not be able to perform in any of the positions she previously listed. R. at 171-72.
In a written decision rendered on October 27, 1993, R. at 15-20, the ALJ found that, although petitioner had "severe pain in his upper left arm and shoulder secondary to status post fracture of the left humeral shaft with non-union of the fracture," R. at 19, he did not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. § 404, Subpart P, App. 1. Accordingly, while the ALJ found the claimant's subjective complaints of pain to be credible, he nevertheless determined that there were jobs in the national economy he was capable of performing notwithstanding his impairment. R. at 19. The ALJ concluded, therefore, that petitioner was "not under a 'disability' as defined in the Social Security Act, at any time through the date of this decision (20 C.F.R. § 404.1520(f))." R. at 20.
Petitioner's request for review of this decision was denied by the Appeals Council on March 4, 1994. R. at 2-3. The instant action followed.
The legal principles governing the Court's resolution of the instant motions are well settled. A claimant is entitled to disability benefits under the Act if he meets the insured status requirements of 42 U.S.C. § 423(c), and is unable 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 or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (emphasis added); see Wagner v. Secretary of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). The mere presence of an impairment, therefore, does not automatically direct a finding of a disability for purposes of the Act. See Spears v. Heckler, 625 F. Supp. 208, 210 (S.D.N.Y. 1985).
The Commissioner has promulgated regulations establishing a framework in which to evaluate disability claims. See 20 C.F.R. §§ 404.1520, 416.920 (1994). Essentially, a five-step analysis of the claimant's alleged disability is required:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a 'severe impairment' which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). "The claimant bears the burden of proof as to the first four steps, while the Secretary" bears the burden of proof as to the final one. Id. ; see Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984); Vasquez v. Secretary of Health and Human Servs., 632 F. Supp. 1560, 1563 (S.D.N.Y. 1986).
In evaluating the ALJ's ruling, the Court does not review the administrative record de novo, but rather considers whether the Commissioner's findings are supported by substantial evidence. See 42 U.S.C. § 405(g); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Wagner, 906 F.2d at 860; Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989). Substantial evidence is "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); see Wagner, 906 F.2d at 860 (quoting Richardson, 402 U.S. at 401, 91 S. Ct. at 1427).
"The substantial evidence test . . . applies not only to the [Commissioner's] findings of fact, but also to the inferences and conclusions of law to be drawn from such facts." Smith v. Shalala, 856 F. Supp. 118, 121 (E.D.N.Y. 1994) (internal quotations omitted). There are limits, however, upon the extent to which a reviewing court may permit an ALJ's conclusion to be based upon an unarticulated finding of fact or analysis, for it is the function of the Commissioner, and not a reviewing court, to pass upon the credibility of witnesses, and to set forth clearly its findings which form the basis for its decision. See Ferraris, 728 F.2d at 588; Berry, 675 F.2d at 469; Vasquez, 632 F. Supp. at 1563-64 (citation omitted).
A. Analysis under Step Three of the Evaluation Process
The petitioner first contends that the Commissioner improperly evaluated the medical evidence concerning whether his impairment is of a type listed within Appendix 1 of the regulations for purposes of the third inquiry in the Commissioner's evaluation process. See Berry, 675 F.2d at 467. Specifically, petitioner argues that he is per se disabled because his ailment meets the criteria set forth under 20 C.F.R. § 404, Subpart P, App. 1, § 1.12, which provides coverage for:
Fractures of an upper extremity with non-union of a fracture of the shaft of the humerus, radius, or ulna under continuing surgical management directed toward restoration of functional use of the extremity and such function was not restored or expected to be restored within 12 months after onset.