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RIVERA v. CHATER

September 30, 1996

EDNA RIVERA, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security Defendant.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge

 Edna Rivera ("Rivera") brings this action pursuant to 42 U.S.C. § 1383(c) for judicial review of a final decision of the Commissioner of Health and Human Services ("Commissioner") *fn1" denying her application *fn2" for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 401, et seq. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, this case is remanded for further proceedings.

 I. BACKGROUND

 A. Prior Proceedings

 Rivera initially filed an application for SSI on July 7, 1993. (Tr. at 30-33.) *fn3" Rivera's claim was denied on September 15, 1993. (Tr. at 35-38.) At Rivera's request, the Commissioner reconsidered Rivera's application but once again denied any benefits. (Tr. at 39, 41-44.) Rivera then requested a hearing before an administrative law judge ("ALJ"). (Tr. at 45.) A hearing was held before ALJ Mark J. Hecht on May 10, 1994. (Tr. at 14, 19-29.) In a decision dated May 19, 1994, the ALJ found Rivera not to be disabled within the meaning of the Social Security Act, and therefore not entitled to benefits. *fn4" (Tr. at 9-10.) Rivera then requested that the Appeals Council review the hearing decision, (Tr. at 7-8); however, this request was denied. (Tr. at 4-5). The Commissioner's decision became final, and Rivera began this action seeking a reversal of the Commissioner's decision, or in the alternative, a remand for a new hearing.

 B. Factual Background

 Rivera was born on November 21, 1944, in Puerto Rico and came to the continental United States when she was six years old. (Tr. at 21.) She is 5'2" and weighs 180 pounds. Following four years of high school, *fn5" Rivera worked as a department stock clerk at Biltman's for eight years. (Tr. at 21-22.) Her employment at Biltman's was terminated when they went out of business. (Tr. at 23.) Abraham and Strauss subsequently employed Rivera as a stock clerk for two years; she left their employ following the birth of her second child. (Tr. at 22-23.) The positions at Biltman's and Abraham and Strauss required some lifting. (Tr. at 22.) In 1989, Rivera worked for three weeks in a factory working with zippers before the factory closed. (Tr. at 23.) At the time of the hearing, Rivera had not worked since 1989 and was receiving public assistance. (Tr. at 22-23.)

 Rivera has suffered from asthma since she was 15 years old; during her second pregnancy she discovered she has hypertension. (Tr. at 24-25.) She testified at the hearing that she was taking oral medication in an effort to control both conditions, including steroids to control the asthma. (Tr. at 24-25.)

 Rivera bases her application for SSI benefits on the claim that her asthma and hypertension prevent her from working. (Tr. at 30.) During the period from May 1992 to September of 1993, doctors at St. Vincent's Hospital treated Rivera on multiple occasions for problems relating to her asthma and hypertension. (Tr. at 63-74.)

 Dr. Papapietro is Rivera's treating physician. He began treating Rivera in March 1992. (Kubitschek Decl. Ex. A.) A medical assessment of Rivera's employability, completed by Dr. Papapietro on June 29, 1993, stated that Rivera did not suffer from any medical conditions that would prevent her from bending, carrying light or heavy objects, climbing a ladder, lifting heavy or light objects, or pulling/pushing heavy or light objects. Dr. Papapietro failed to complete the section of the assessment regarding the employability of Rivera, her ability to stand for any length of time, and her ability to walk around. (Tr. at 75.)

 Dr. E.B. Balinberg examined Rivera on August 20, 1993, for the Social Security Administration ("SSA"). He concluded that Rivera had a "limited ability to walk fast, to walk long distances, to climb many stairs and to perform heavy isometric activities like to lift, to carry, to push and to pull heavy loads." (Tr. at 13, 77-86.)

 On May 10, 1994, the SSA held a hearing at Rivera's request to review the denial of her SSI benefits. (Tr. at 19.) Rivera appeared at the hearing pro se. ALJ Hecht told her that she was not required to have formal representation and asked her if she intended to proceed alone. Rivera stated she would proceed alone. (Tr. at 19.)

 During the course of the hearing, the ALJ asked Rivera the number of times she was hospitalized and visited the emergency room. Rivera responded that she had last been hospitalized in 1993, and visited the emergency room twice between January and May of 1994. She also testified that she took steroids when she was admitted to the hospital. (Tr. at 24.) Portions of the record regarding the Plaintiff's emergency room visits were inaudible and not captured in the hearing transcript. The ALJ asked Rivera whether she felt that her condition was worsening, and she replied in the affirmative. (Tr. at 27.) In response to a question about whether the weather exacerbated the condition, Rivera stated that cold or damp weather worsened the condition. (Tr. at 26.)

 The ALJ denied Rivera's application for benefits finding that her "impairments did not prevent [her] from performing her past relevant work." (Tr. at 11-14.) Plaintiff requested an appeal and submitted additional evidence that included a revised assessment from Dr. Papapietro and additional medical records from St. Vincent's Hospital. The appeal was denied. (Tr. at 4-6.)

 A revised assessment of employability, completed by Dr. Papapietro on June 7, 1994, stated that Rivera was not fully or temporarily employable. Further, the assessment stated that Rivera's medical condition limited her ability to perform activities that require bending, carrying light or heavy objects, climbing a ladder, lifting heavy or light objects, and pulling/pushing heavy or light objects. It is significant to note that the revised assessment simply crossed out the initial findings from the June 29, 1993 assessment and added notations that the prior entries were in error. The physician initialed these changes on the form. (Tr. at 88.)

 On February 7, 1995, Dr. Papapietro completed a medical report form provided to Rivera by a social worker at MFY Legal Services. According to this form, Dr. Papapietro last treated Rivera in February of 1995, and her asthma and hypertension was expected to last at least twelve months. The report also related that Rivera experiences difficulty breathing on exertion, occasional shortness of breath at rest, and frequent exacerbation of her asthma symptoms. (Kubitschek Decl. Ex. A.) Between October 1994 and September 1995, Rivera visited the emergency room on at least four occasions due to her asthma. (Kubitschek Decl. Ex. B; Shteyngart Decl. Ex. A.) The report went on to state that Rivera could sit, up to eight hours at a time, could stand continuously for one hour for a total of three hours in an eight hour work day, and could walk continuously for 15 minutes, for a total of 90 minutes in an eight hour work day. Further, the report concluded that Rivera could lift or carry up to five pounds, squat, and climb up to one-third of an eight hour work day. Bending and reaching could constitute up to two-thirds of an eight hour work day. The doctor placed moderate restrictions on Rivera's exposure to stress or changes in temperature and humidity, and a total restriction on exposure to dust. The doctor also imposed mild restrictions on being at unprotected heights and being around machinery. Rivera is capable of traveling by bus or subway. (Kubitschek Decl. Ex. B.)

 II. DISCUSSION

 Plaintiff argues for remand or reversal based on four grounds -- that the ALJ did not adequately inform her of her right to counsel, that the ALJ failed to conduct a full and fair inquiry, that the Commissioner's decision is not supported by substantial evidence, and that the case should be remanded based on new evidence.

 A district court's review of a denial of benefits is limited. The court may not determine de novo whether the claimant is actually disabled. Rather, the court must affirm the Commissioner's final determinations so long as they are supported by substantial evidence in the record and are not the product of legal ...


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