Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SOBOLEWSKI v. APFEL

November 19, 1997

FLORENCE SOBOLEWSKI, Plaintiff, against KENNETH S. APFEL, Commissioner of Social Security, 1 Defendant.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Plaintiff seeks judicial review, pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), of a final determination of the Commissioner of Social Security (the "Commissioner") denying her application for disability insurance benefits. Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The only issue before the Court is whether the Commissioner's decision is supported by substantial evidence and based upon the correct legal standards. For the reasons discussed below, plaintiff's motion is granted to the extent that the case is remanded to the Commissioner for further administrative proceedings. Defendant's motion is denied.

 BACKGROUND

 I. Procedural History

 Plaintiff applied for Social Security disability insurance benefits on September 23, 1994, claiming an onset date of March 23, 1994, and alleging the following disabling conditions: pancreatitis, arthritis of the legs, feet, arms, and hands, bursitis of the right foot, and macroamlyasemia. Transcript of Administrative Record ("Tr.") 41-44, 70-77. The Social Security Administration ("SSA") denied her application initially (Tr. 46, 55-57) and upon reconsideration. Tr. 45, 62-64. Plaintiff requested a hearing (Tr. 65) which was held on January 5, 1996, before an administrative law judge ("ALJ"). Tr. 29-38.

 By decision dated February 29, 1996, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. His conclusion was based on a finding that, although plaintiff's impairments prevented her from engaging in her past work as a mental hygiene therapy aide, she remained physically capable of performing sedentary work and, given her age, education, and work experience, she was able to engage in gainful employment within the national economy. Tr. 13-20. Plaintiff timely appealed and provided additional medical evidence to the Appeals Council and an explanatory letter from her counsel. Tr. 145-49. The Appeals Council denied review on October 23, 1996, tersely stating:

 
The Appeals Council has also considered the contentions raised in your representative's letter dated October 9, 1996, as well as the additional evidence from P. Parikh, M.D. dated February 6, 1996 and from Max I. Hamburger, M.D. dated April 22, 1996, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision.

 Tr. 3-4. Because the Appeals Council declined to review the ALJ's February 29, 1996 determination, that determination became the final decision of the Commissioner. Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). Plaintiff then commenced this action contending that the Commissioner lacks substantial evidence to support his decision because he failed to credit additional medical evidence from plaintiff's treating physicians provided to the Appeals Council, did not consider plaintiff's nonexertional limitations, and did not consider plaintiff's work history when assessing the credibility of plaintiff's description of her disability.

 II. The Administrative Record

 A. Vocational Evidence

 Plaintiff was born on January 21, 1953, and was forty-three years old at the time of the ALJ's decision. Tr. 41. Plaintiff completed high school in June 1972. Tr. 74. Shortly thereafter, plaintiff began to work as a mental hygiene therapy aide at Pilgrim State Psychiatric Center ("Pilgrim State"), a position she held through March 23, 1994. Tr. 139. As an aide, she assisted patients in various aspects of their daily life, engaged in recreational activities with them, and intervened during fights. Sometimes she would help patients to get up from a chair or off the floor. Tr. 33, 74-75, 139.

 During the hearing before the ALJ, plaintiff offered the following testimony as to the history of her ailments, her work history, and her current activities. She stopped working at Pilgrim State after experiencing a sharp, right-sided pain that she later learned was pancreatitis. Tr. 33. She still experiences constant right-sided pain. Tr. 34, 37. She can walk up to four blocks, stand for ten minutes, and sit one-half hour. Tr. 35. She becomes uncomfortable sitting in one spot. Tr. 36. She has not attempted to return to work full time. Tr. 37. Her daily activities include the light re-heating of food, folding laundry, sewing, watching television, and socializing with friends. Tr. 73. She occasionally drives herself to her doctor's office. Tr. 73.

 On December 12, 1994, she was examined by Dr. Harry Kousourou on behalf of the Commissioner. Dr. Kousourou reported that plaintiff's daily activities included personal care, watching television, cooking, doing laundry, tidying the house, and socializing. Tr. 118.

 B. Medical Evidence Before the ALJ

 1. Abdominal Pain

 At the time the ALJ rendered his decision, the following medical information was on record. One of plaintiff's treating physicians, Dr. Prakashchandra Parikh, began treating plaintiff on March 15, 1993, nine days before plaintiff ceased her employment at Pilgrim State. Tr. 114. On March 23, 1994, plaintiff had severe pain in the upper right quadrant, fever, nausea, bloating and loss of appetite. Tr. 115. An abdominal ultrasound, performed on April 1, 1994, revealed a small left para-pelvic renal cyst. Tr. 134.

 Plaintiff's right upper quadrant pain persisted and Dr. Parikh admitted her to Good Samaritan Hospital on April 18, 1994, with a chief complaint of right upper quadrant abdominal pain since March 31. Tr. 84, 87. Laboratory testing revealed an increased level of amylase, an indicator of pancreatitis. Dr. Parikh's diagnosis was acute pancreatitis and right upper quadrant pain, etiology to be determined. Tr. 84-85, 87-88. Parikh referred plaintiff to Dr. Paul Broomfield, a gastroenterologist, for further evaluation of the plaintiff during her hospitalization.

 On April 19, 1994, Dr. Broomfield noted that plaintiff had been admitted to Good Samaritan Hospital in 1992 for pancreatitis and observed that her condition improved with bed rest but worsened with movement. He opined that plaintiff had chronic, rather than acute pancreatitis. Tr. 89-91. An abdominal ultrasound, performed the same day, showed mild hepatocellular disease changes of the liver, bilateral renal cysts, and mild edematous changes of the pancreas. Tr. 85, 94-96. On April 20, an abdominal CAT scan showed the bilateral renal cysts, but no evidence of pancreatitis. Tr. 85, 97. In his discharge summary, Dr. Parikh indicated that plaintiff's final diagnoses were: macroamylasemia, chronic pancreatitis, kidney cyst, liver disorder, and mixed hyperlipidemia. Tr. 84. He further noted that plaintiff had felt better in the course of time and was discharged on April 25, 1994. Tr. 86.

 On May 5, 1994, at Dr. Parikh's request, Dr. Broomfield again evaluated plaintiff. He reported to Dr. Parikh that plaintiff had been doing well, with the exception of occasional right upper quadrant pain during damp weather or during periods of stress or tension. Tr. 128. Plaintiff reported that she could avoid pain if she drank a great deal of fluid during the day. Tr. 128. Upon examination, her abdomen was soft and non-tender, and Dr. Broomfield opined that her pain was either functional, musculoskeletal, or due to non-ulcer dyspepsia. Tr. 128. He advised that further testing would be performed to determine the status of plaintiff's possible macroamylasemia. If confirmed, however, no further therapy or evaluation would be warranted. Tr. 128.

 On September 12, 1994, Dr. Broomfield again evaluated plaintiff. He confirmed the blood test's finding of macroamylasemia, and noted that she continued to experience occasional bouts of right upper quadrant pain that usually occurred during periods of stress, tension, or anxiety. He further noted that plaintiff was eating well, had normal bowel movements, and had no significant change in weight. Tr. 130. Her abdomen was soft and non-tender. Tr. 130. Because Dr. Broomfield believed that her abdominal pain was either "functional or due to non-ulcer dyspepsia," he ordered an upper gastrointestinal X-ray series. Tr. 130. The series, performed on September 14, 1994, revealed a soft tissue mass in the mid-abdomen, probably a renal cyst, and a hiatal hernia. Tr. 129.

 Responding to a form request from the New York State Department of Social Services, Office of Disability Determinations, Dr. Parikh provided an unsigned and undated report that dealt with plaintiff's condition up to October 26, 1994. Tr. 114-17. Dr. Parikh stated that her symptoms included right upper quadrant pain that occurred "off and on" and was "most severe at times of stress." He diagnosed pancreatitis. Tr. 114. However, the administrative record with respect to this unsigned and undated report is incomplete. Although the report indicates on its face that it comprises seventeen pages, pages four through fifteen are missing. Tr. 114-17. Based on a comparison with a similar report in file from plaintiff's podiatrist, it appears that the missing pages concerned, inter alia, plaintiff's capacity to lift, carry, stand, walk, sit, push, and pull -- i.e., the elements pertinent to determining her residual functional capacity.

 Dr. Rebeco Yu, a urologist, reported to Dr. Parikh by letter dated December 20, 1994, that plaintiff had been seen earlier in the year by Yu's associate, Dr. Mucciolo, for pain in the right flank. Tr. 132. At that time, a sonogram had revealed a renal cyst. An abdominal examination at that time had been essentially unremarkable. Upon return to Yu's office on or about December 20, plaintiff complained of "some vague right upper abdominal discomfort but no gross hematuria." Tr. 132. A repeat sonogram revealed bilateral renal cysts. Upon examination, slight tenderness of the upper right quadrant was noted, although no definite mass was felt. Tr. 132.

 On December 24, 1994, Dr. Harry Kousourou, a board-certified internist, performed a consultative examination of plaintiff on behalf of the Commissioner. He noted that plaintiff complained of a constant throbbing sensation in the right lower quadrant, but found only mild epigastric and right upper quadrant tenderness upon deep palpation, without evidence of masses, or organomegaly. Tr. 118-19. After a complete physical examination, Dr. Kousourou's impression was a history of recurrent pancreatitis, possibly due to hyperlipidemia, and hypertension under good control with medication. Tr. 119-20. He did not provide any assessment of plaintiff's residual functional capacity, despite the requirement in SSA's regulations that a report of a complete consultative physical examination should describe the plaintiff's ability to perform work-related activities such as sitting, standing, walking, lifting, carrying, and handling objects. 20 C.F.R. § 404.1519n(c)(6).

 On March 28, 1995, Dr. Parikh responded to an information request from Pilgrim State, plaintiff's employer, regarding a possible assignment to modified duty. Dr. Parikh listed plaintiff's diagnoses as pancreatitis and anemia, stating that her prognosis was "guarded." Tr. 137. He noted that exertion, such as lifting and bending, caused pain. Dr. Parikh was unsure whether plaintiff could return to full duty in 90 days and advised Pilgrim State that "light duty should be tried first. The patient may do well, or she may have severe pain which will mean total disability." Tr. 137.

 2. Foot Pain

 The following medical evidence pertaining to plaintiff's foot problems was before the ALJ at the time of his decision. On November 17, 1994, plaintiff's podiatrist, Dr. Kenneth E. Coombs, reported that he had first treated plaintiff on September 17, 1987, and had last seen her on October 6, 1994. Tr. 104-13. Dr. Coombs is not a physician; rather, he is a doctor of podiatric medicine. Tr. 113. His treating diagnoses included metatarsalgia, capsulitis secondary to a hypertrophic second metatarsal of the right foot, and history of rheumatoid arthritis. Tr. 104. Her symptoms as of the time of the report included pain and swelling of the ball of the right foot, and an inability to stand or walk for any length of time. Tr. 104. Clinical findings included loss of the plantar fat pad, tenderness, and mild dorsiflexure contracture of the second metacarpophalangeal joint of the right foot, and an antalgic gait pattern secondary to pain. Tr. 105, 111, 112. X-rays revealed a hypertrophic second metatarsal bone on the right foot. Tr. 106. Plaintiff was treated with an anti-inflammatory steroid, local anesthetic, physiotherapy, whirlpool and ultrasound. Tr. 105. Plaintiff was fitted with an orthotic to help reduce the mechanical pressure on the ball of her foot. Tr. 106.

 On December 12, 1994, Dr. Kousourou examined plaintiff's feet and found them to be normal. Tr. 119. X-rays of the foot were normal. Tr. 121.

 3. Other Claimed Disabilities

 In addition to pancreatitis, macroamlyasemia, and bursitis of the right foot, plaintiff stated in her application for disability benefits that she suffered from arthritis of the legs, feet, arms, and hands. In April 1994, Dr. Parikh noted tenderness in plaintiff's right knee. Tr. 85. None of Dr. Parikh's records make any reference to arthritis. However, on November 17, 1994, Dr. Coombs noted that plaintiff had a history of rheumatoid arthritis. Tr. 104. On December 12, 1994, Dr. Kousourou examined, inter alia, plaintiff's extremities, motor and sensory systems, and her station and gait. Tr. 119. He found all to be normal but for crepitus upon flexion of the knees. Tr. 119. As noted, X-rays of the foot were described by the interpreting radiologist as normal. Tr. 121. X-rays of plaintiff's hands were also described by the radiologist as normal, although he noted that "narrowing of the distal joint ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.