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July 29, 1997

MANUEL BATISTA, Plaintiff, against SHIRLEY S. CHATER1 Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SOTOMAYOR


 Plaintiff Manuel Batista brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to challenge a final determination of the Commissioner of Social Security ("the Commissioner"), denying plaintiff's application for disability insurance benefits and Supplemental Security Income ("SSI") based on disability. Pursuant to Fed. R. Civ. P. 12(c), both parties have moved for judgment on the pleadings. For the reasons to be discussed, both motions for judgment on the pleadings are DENIED. Plaintiff's action is REMANDED to the Commissioner for reconsideration consistent with this Opinion and Order.


 Plaintiff filed applications for Social Security disability insurance and Supplemental Security Income ("SSI") on October 19, 1992, alleging an onset of disability of September 6, 1989. (Tr. 84-87.) *fn2" Plaintiff met the special insured status earnings requirements of the Social Security Act ("the Act") for establishing eligibility to disability insurance benefits on the alleged onset date of his disability. (Tr. 119.) The Commissioner found the plaintiff to have continued to meet the insured status through December 31, 1994. (See Defendant's Memorandum at 3.) Insured status is not a consideration for SSI eligibility. The October 19, 1992 application was denied on November 30, 1992. (Tr. 101.) Plaintiff subsequently requested reconsideration on December 3, 1992, which was denied on January 19, 1993. (Tr. 111-114.) *fn3" After the denial of his reconsideration application, plaintiff requested an administrative hearing on January 25, 1993. (Tr. 115-118.) The Administrative Law Judge issued a Notice of Dismissal on November 8, 1993 *fn4" , but the application was remanded for a hearing by Order of the Appeals Council on December 20, 1993.

 On March 2, 1995, a hearing was held before ALJ Robin J. Arzt. (Tr. 24-61.) The plaintiff, who is illiterate and unable to communicate in English, appeared pro se and testified through a Spanish interpreter. (Tr. 13.)

 At the time of his March 2, 1995 hearing, plaintiff was forty-six years old with a first grade education. (Tr. 35, 84.) He had worked in a rug factory as a packer for seventeen years. (Tr. 36.) Plaintiff testified that his work involved lifting packages of up to 200 pounds, with assistance of others when necessary. Plaintiff stood, bent and walked during most of his work day. (Tr. 36-37.) Plaintiff further testified that his employer warned him several times that he would be terminated because of his excessive lateness and absentee rate, which plaintiff claims were due to his illnesses. Plaintiff, however, left his employment on his own accord in September of 1989. (Tr. 37.) He has not worked since that time. (Id.)

 The record shows that plaintiff has been diagnosed with a combination of physical and psychiatric impairments, including hypertension, arthritis of the back and neck, right shoulder problems, angina pectoris, Peptic Ulcer Disease (PUD), gastritis, duodenitis, hypopotassemia and dysthymic disorder with depression anxiety. (See Ex. 29-34, 44-64.) Eduardo Pignaelli, M.D., plaintiff's treating physician who first examined him on December 10, 1993, submitted a Medical Report dated November 14, 1994, in which he diagnosed plaintiff with hypertension and depression. Dr. Pignaelli reported that plaintiff's hypertension was controlled with medication. The doctor restricted plaintiff from heavy lifting, but opined that his ability to stand, walk, lift, carry and sit were not affected. (Tr. 345-350.) Plaintiff also notified the Social Security Administration that he had other treating doctors, Pedro L. Benedicto and Dr. Caplan (Tr. 123-131.), who had both been treating him during his alleged disability date of September 6, 1989, but the record does not contain any reports or documentation from these doctors.

 Gerald Galst, M.D., the Social Security medical expert with expertise in cardiology (Tr. 370), testified at the hearing that plaintiff does not fully understand the nature of his impairments. For example, Dr. Galst explained that plaintiff was confused about his kidney problem (Tr. 50.), and that although plaintiff complained to Wei Kao, M.D., the consultative expert, that plaintiff had a heart attack, all of his objective medical evidence regarding his heart are normal and showed no cardiac damage. (Tr. 51.) Dr. Galst also testified that plaintiff's blood pressure was well controlled on medication, but that he was taking Pamelor for his psychiatric problems, which Dr. Galst considered to be plaintiff's major illness. (Tr. 58.) Dr. Galst pointed out to the ALJ that Dr. Ariet Casals, plaintiff's psychiatrist, was treating him with psychotherapy for depression. Dr. Galst also said that Dr. Casals' opinion indicated that plaintiff had a dysthymic disorder with depression and anxiety, hypertension, angina and diabetes mellitus. (Tr. 57) Further, Dr. Galst observed that plaintiff was depressed and suffered from severe anxiety. Although Dr. Galst conceded that he was not a psychiatrist, he concluded that based on plaintiff's testimony and Dr. Casals' report, plaintiff was not able to work due to his psychiatric impairments. During Dr. Galst's testimony, the Spanish interpreter advised the ALJ that he had trouble translating the medical terms in Dr. Galst's testimony. (Tr. 51-52.)

 The record is not clear on the onset date of plaintiff's psychiatric condition. The record does not contain any medical records regarding plaintiff's psychiatric impairment during plaintiff's alleged disability onset date of September 6, 1989. Although plaintiff testified that his psychiatric problems began when his son died in 1993, the record reveals evidence that his psychiatric problems might have started before 1993. For example, there is an indication that plaintiff is a "very anxious person" in his medical records from Bronx-Lebanon for Period 4-15-91 to 11-4-91 in Exhibit 29. (Tr. 165.) Plaintiff was observed to be "tearful and holding his head" but "remains alert and oriented to person, place and time" during an "urgent" visit for severe head pain to Lincoln Medical and Mental Health Center Emergency Services on November 11, 1991. (Tr. 400.) Also, the record reveals a document dated 12/04/92 that states that plaintiff "has an element of hypochondria/paranoia", and that he was to be scheduled for a psychiatric consultation. (Tr. 245.) The record, however, does not include the results of this consultation. Other documentation regarding plaintiff's psychiatric impairment include the Questionnaire as to Psychiatric Impairment and the Medical Assessment of Ability to Do Work-Related Activities (Mental) by Ariet Casals, M.D., dated October 12, 1994 (Tr. 339-342.), and a letter from E. Hernandez, CSW, of the Bronx-Lebanon Hospital Center Department of Psychiatry Crotona Park Community Mental Health Center, dated February 28, 1995, verifying that plaintiff is attending the Adult Outpatient Clinic and receiving psychotherapy at Bronx-Lebanon. (Tr. 369.) In Dr. Casals' Questionnaire, there is a brief, three-sentence summary of the results of plaintiff's mental status examination, the only report of any objective tests in the record, which indicates that plaintiff is "alert and fully oriented. His mood is anxious, and depressed. He is of average intelligence. He has exhibited mild memory problems, problems of immediate recall." (Tr. 339.) The actual results of the mental status examination are not in the record.

 In a decision dated October 20, 1995, the ALJ found that the plaintiff was not disabled under Titles II and XVI of the Act. (Tr. 10-20.) The ALJ found that plaintiff had arthritis of his cervical and thoracic spine, hypertension and dysthymic disorder. The ALJ included that the medical evidence of record verified that plaintiff "retains the functional capacity for low stress light work activity which does not require remembering and carrying out complex instructions." (Tr. 14.) In reaching her decision, the ALJ considered plaintiff's arthritis, back pain and hypertension. The ALJ discussed the report dated May 12, 1994, of Dr. Wei Kao, which stated that plaintiff's hypertension is well-controlled with medication and that his osteoarthritis is mild. (Tr. 15.) The ALJ failed to discuss, however, that Dr. Kao observed that plaintiff appeared to be agitated and recommended a psychiatric exam for plaintiff. (Tr. 323.)

 In her decision, the ALJ also reviewed Dr. Galst's testimony indicating that plaintiff's hypertension was well controlled and that plaintiff had mild degenerative joint disease of the spine and minimal degenerative joint disease of the thoracic spine. (Tr. 16.) The ALJ then stated: "Dr. Galst concludes that the claimant should be able to do light to medium work activity." (Id.) What Dr. Galst actually said, was: "Based on his testimony here and the report of Dr. Casals, I don't think he's capable of doing any work at this time. And I would be inclined to think he had a residual functional capacity which is less than sedentary though he does not meet any specific listings." (Tr. 58.) Dr. Galst stated that plaintiff had a residual functional capacity of light to medium only after the ALJ asked him to give an assessment of plaintiff's residual functional capacity prior to the onset of his psychiatric problem. *fn5"

 The ALJ also stated in her decision that plaintiff does housework, uses public transportation, and visits people. (Tr. 16.) In March 1992, Dr. M. Mescon, a consultative examiner, reported that plaintiff was able to clean and cook and was able to carry two gallons of milk easily. (Tr. 225) The record reflects, however, that plaintiff had significant difficulties with common life tasks. Plaintiff stated, for instance, that "I am not able to use the bus as it makes me dizzy. I use the subway but suffer shortness of breath when climbing up and down the stairs. I try to take a taxi when I can-" (Tr. 133.) Plaintiff also testified during the hearing that when he travels on public transportation, sometimes he does not know where he is. (Tr. 35.)

 Plaintiff further testified that he felt afraid in the street, that he did not want anyone to see him, that he did not have any friends. (Tr. 42-43.) Plaintiff also stated that he could not cook because he forgot that he was cooking and ruined everything; that he could not do household chores because he never finished and did not put things where they belonged; and that he did not like visitors because they bother him. (Tr. 156.)

 Despite the foregoing evidence in the record, the ALJ found that plaintiff was not disabled and that "none of the claimant's impairments was attended by clinical or laboratory findings, either singly or in combination, which were the same as, or medically equivalent to, the criteria for any impairment described in Appendix 1, Subpart P, Regulations No. 4." (Tr. 19.) The ALJ determined that plaintiff is classified as a younger individual, see 20 C.F.R. §§ 404.1563, 416.963, who is unable to communicate in English, see 20 C.F.R. §§ 404.1564, 416.964, with a past history of unskilled work. See 20 C.F.R. §§ 404.1568, 416.968. Having concluded that plaintiff retained the residual functional capacity for light work activity and applying the vocational profile set forth in the grids, the ALJ found that Rule 202.16 of 20 C.F.R. Pt. 404, Subpt. P, App. 2 applied to this case and that plaintiff is not disabled. The ALJ determined that plaintiff's capacity for the full range of light work has not been compromised significantly by his additional nonexertional *fn6" limitations. The ALJ completed the OHA Psychiatric Review Technique Form, dated October 21, 1995, finding that plaintiff had a dysthymic disorder in category 12.04, with slight restrictions of activities of daily living and slight difficulties in maintaining social functioning. The ALJ also found that the plaintiff often had deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner. (Tr. 21-23)

 On October 30, 1995, plaintiff requested that the Appeals Council review the decision of the ALJ, but the Appeals Council denied the request on February 13, 1996 (Tr. 6-9.), *fn7" and this became the ...

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