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HARRISON v. SECRETARY OF HHS

October 19, 1995

TANYA HARRISON, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 Plaintiff, Tanya Harrison, brings this action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (the "Act"), 42 U.S.C §§ 405(g) and 1383(c)(3), challenging a determination of the Secretary of Health and Human Services (the "Secretary"), denying plaintiff's applications for Social Security Disability benefits and Supplemental Security Income benefits based on disability. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the parties' cross-motions for judgment on the pleadings are denied, the determination denying benefits is reversed, and the case is remanded to the Secretary for further proceedings consistent with this opinion.

 PROCEDURAL HISTORY

 Plaintiff alleges that she has been disabled since March 25, 1991 due to lumbar radiculopathy, a condition which causes back pain and restricts movement. On April 11, 1991, Harrison filed concurrent applications for Title II, Social Security Disability benefits and for Title XVI, Supplemental Security Income benefits. Tr. 61-73. *fn1" The applications were denied on November 12, 1991. Tr. 57-60, 74-77. Plaintiff's request for a reconsideration of that decision was also denied. Tr. 81-89. Harrison then requested a hearing, which was held on November 17, 1992 before Administrative Law Judge ("ALJ") Louis V. Zamora (the "Hearing"). Plaintiff appeared at the Hearing pro se. Tr. 23. On April 27, 1993, the ALJ issued his decision. Relying on the opinion of a consultative examiner, Dr. Travis, ALJ Zamora found that plaintiff has "a residual functional capacity to perform sedentary work" and denied plaintiff disability benefits. Tr. 23-28. This determination by the ALJ became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review on September 17, 1993. Tr. 3-4.

 BACKGROUND

 Plaintiff was born on March 21, 1949 and has an eleventh grade education. Tr. 53, 37. She worked for the United States Postal Service from February 1986 through March 1991. Harrison initially performed the duties of a letter carrier. Tr. 38. During her last two years at the Postal Service, plaintiff performed light duty work which involved putting mail into boxes and typing letters. Tr. 39. Before plaintiff joined the Postal Service, she worked for two years as a therapist aide in Manhattan State Hospital. Tr. 39.

 Harrison testified at the Hearing that while she was working as a therapist aide, she was attacked by a patient and injured her back. Tr. 39. She left her job at the hospital to pursue a career with the Postal Service. Id. Plaintiff stated that she stopped working for the Postal Service on March 25, 1991 because she was suffering from constant pain in her lower back, which radiated to her legs, and her legs would "give out." Tr. 40. She takes medication, which helps temporarily, but the pain always returns. Tr. 41. Plaintiff testified that she started having the pain approximately three years before she left the Postal Service. Tr. 41, 100. She also experiences decreased strength and instability in her legs, cannot walk or sit for prolonged periods and cannot bend. Tr. 40-46.

 Plaintiff was first treated for back pain in February 1989 at the Soundview Health Center. Tr. 125-27. A private physician at the Center, Dr. Donald Woodburn, referred her for hospitalization and treatment at the Union Hospital of the Bronx, where she was hospitalized for three days in November of 1989. Tr. 128-39. X-rays taken during her stay revealed "mild disc space narrowing at C5-6 which [was suggestive] of early discogenic disease." Tr. 137. Following a physical examination on November 9, 1989, Dr. Woodburn reported marked obesity, scoliosis in the thoracic spine with an inclination towards the left side, marked lumbar lordosis, tenderness along the right iliac crest (or hip bone) and limitations in bending and flexing. Tr. 139. In the Disability Report plaintiff filled out on April 11, 1991, she stated that she saw Dr. Woodburn every two weeks starting in March of 1989 until March 27, 1991. Tr. 101. On March 27, 1991, Dr. Woodburn recommended that plaintiff go on permanent disability, due to the pain in her lower back that continued "despite maximum therapeutic intervention." Tr. 140.

 Following Dr. Woodburn's relocation to Florida, Harrison was attended by Dr. Jennifer Wright. Dr. Wright treated plaintiff in December 1991, February 1992, April 1992 and May 1992. Tr. 116-22. On Dr. Wright's recommendation, plaintiff underwent an electromyogram ("EMG") and a magnetic resonance imaging ("MRI") test. Tr. 118, 120. The results of the EMG showed findings "most consistent with bilateral lumbar 5 radiculopathy." Tr. 170-72. The MRI revealed "degenerative changes at the L3-L4 interspace" of the lumbar spine. Tr. 118. From June 1992 to October 1992, plaintiff was attended by Dr. Maya Gluck-Shats. (Tr. 115, 176-77).

 On October 12, 1991, Harrison was examined by social security consultative examiner, Dr. Daoud Karam. (Tr. 142-45). X-rays performed on October 14, 1991 in conjunction with this examination revealed some "osteophytes involving the L4 and L5 vertebral bodies." (Tr. 145). His final impression of plaintiff's condition was "severe low back derangement [and] osteoarthritis." (Tr. 144).

 Harrison received emergency medical care on November 1, 1992 at St. Barnabas for severe back, knee and foot pain. Tr. 184-87. She was given medication and discharged to the outpatient and physical rehabilitation clinics for follow-up treatment. Tr. 165-66. Plaintiff underwent physical rehabilitation therapy from December 1992 until May 1993 when she was discharged due to lack of response to the treatment. Tr. 14.

 On January 23, 1993, plaintiff was examined by Dr. L. Travis, a social security consultative examiner. Although he noted that Harrison's MRI results from February 14, 1992 showed "degenerative changes [to] L4-5 but no disc herniation" and her EMG showed "bilateral L-5 radiculopathy," Dr. Travis's impression was that "there is no clinical evidence of a radiculopathy." Tr. 194. X-rays of the lumbar spine taken in conjunction with that examination showed "degenerative osteophyte formation" and "mild disc space narrowing . . . at the L3-L4 level suggestive of possible degenerative disc disease at this level." Tr. 195. Dr. Travis' recommendation was that plaintiff lose weight and follow the advice of her local physician. Tr. 194.

 On February 11, 1993, plaintiff was examined by Dr. Joseph Waltz, the director of the department of neurological surgery at St. Barnabas. His diagnosis was for "lumbar canal stenosis secondary to post traumatic changes involving the D.J.D. articular facets and extensive productive changes posteriorly with a superimposition of a prolapse herniated midline disc at L4-L5 creating a significant spinal stenosis." Tr. 13.

 DISCUSSION

 A. Scope of Review

 Section 205(g) of the Act provides that "any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action . . . in [a] district court of the United States." 42 U.S.C. § 405(g). "It is not the function of a reviewing court to determine de novo whether the claimant is disabled." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The standard of review, as established by Congress, is whether the Secretary's decision is supported by substantial evidence. Id. However, legal error and failure to provide a full and fair hearing present additional bases of judicial review. See Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) ("a reviewing court must be satisfied that the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act"); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) ("where an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is ...


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