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FRANKLIN v. APFEL

May 20, 1998

ROGER R. FRANKLIN, Plaintiff,
v.
KENNETH S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION1, Defendant.


JOHN T. CURTIN, United States District Judge.


The opinion of the court was delivered by: CURTIN

DECISION and ORDER

CURTIN, District Judge

 Plaintiff Roger R. Franklin ("Franklin") filed this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to appeal defendant's unfavorable final decision denying disability benefits. Plaintiff and defendant, Commissioner Kenneth S. Apfel (the "Commissioner"), have cross-moved for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(c). For the following reasons, plaintiff's motion is granted, defendant's motion is denied, and the matter is remanded for further administrative proceedings.

 Procedural History

 Plaintiff filed an application for Social Security disability insurance benefits on November 1, 1993 (T. 84 - 86). *fn2" The Commissioner denied this application upon initial review and again on reconsideration. Plaintiff requested an administrative hearing, which was held on January 26, 1995, before an administrative law judge ("ALJ") (T. 49 - 83). The judge issued a decision on May 9, 1995, in which he found that plaintiff was not disabled (T. 23 - 38). The Appeals Council denied the plaintiff's request for review on September 25, 1996, at which point the decision of the administrative law judge became final (T. 3 - 4). Plaintiff then filed the present civil action.

 Medical History

 Plaintiff alleged that he has been disabled since January 17, 1993, due to back problems, depression, anxiety, and stomach ulcers (T. 116). Plaintiff suffered back pain after he was injured at work in 1980 (Id.). Plaintiff continued to work, but as of July 1988 he was receiving twice-monthly treatments from Dr. Alt, a chiropractor. (T. 156, 159). On November 2, 1993, Dr. Alt indicated in a report to the New York State Worker's Compensation Board that plaintiff was totally disabled due to "Acute lumbosacral strain/sprain" (Id.). Dr. Alt's report included the results of two CT scans of plaintiff's lumbosacral spine (T. 157, 158). These tests, performed on August 2, 1988 and April 23, 1993, both concluded with "normal" findings (Id.).

 In 1994, Dr. Alt's successor, chiropractor Dr. Horvath, stated that plaintiff suffered from "a chronic low back pain condition" (T. 172). After noting the test results that supported this diagnosis, Dr. Horvath stated that "the patient has chronic hypertenisities [sic] of lumbar spine paraspinal musculature bilaterally. The patient[']s physical limitations include engaging in any lifting over a maximum of 25 pounds and no frequent lifting and carrying of objects greater than 15 pounds. The patient responds favorably to chiropractic care and the chiropractic care helps him perform activities of daily living at a higher functional capacity" (Id.). In a January 25, 1995 letter to plaintiff's attorney, Dr. Horvath added to those limitations, noting that "Mr. Franklin should also not engage in any prolonged sitting as the above restrictions aggravate his now chronic lumbar condition" (T. 197).

 Plaintiff also sought treatment from Dr. Young Man Kim, a physician who completed forms for SSA on two occasions. After an examination on December 8, 1993, Dr. Kim provided diagnoses of lumbosacral strain and emphysema (T. 160). On an accompanying form Dr. Kim stated that plaintiff was limited in the amount he could "lift and carry". This assessment also included restrictions as to ability to "stand and/or walk" for less than two hours per day, sitting limited to less than six hours per day, and a limited ability to "push and/or pull" (T. 169). *fn3"

 Dr. Kim again completed a form in September 1994 (T. 180 - 81). At this time, he recorded the following restrictions: maximum lifting/carrying fifteen pounds, both occasionally and frequently; a total of two hours standing/walking during an eight-hour workday, fifteen minutes without interruption; and a total of two hours sitting, ten minutes without interruption (T. 180). An accompanying report stated that plaintiff suffered from lumbosacral strain, chronic obstructive pulmonary disease, and a peptic ulcer (T. 185).

 In addition to these physical problems, plaintiff was treated beginning in April 1990 for "generalized anxiety disorder with depressed mood" by psychiatrist Dr. Bona (T. 136). The record contains Dr. Bona's treatment notes for the period between 1990 and 1993 and reveal that although plaintiff's condition never really improved, it also never became more severe (T. 133 - 54). Throughout the treatment period, plaintiff underwent monthly sessions, and the psychiatrist prescribed a small dose of Value (Id.). In one 1993 report, Dr. Bona noted that plaintiff's "inability to obtain gainful employment has however caused him to experience periods of depression and increased anxiety" (T. 136).

 In a Medical Report for Determination of Disability signed on June 10, 1993, Dr. Bona reported that plaintiff had normal abilities in four broad areas of mental functioning (T. 134 - 135). These four areas were understanding, carrying out and remembering instructions; responding appropriately to co-workers and to supervision; meeting quality standards and production norms; and sustaining adequate attendance (T. 135).

 In August 1994, Dr. Bona completed a "Medical Assessment of Ability to Do Work-related Activities (Mental)" form in which he indicated very diverse functioning in several areas (T. 174 - 75). Thus, although he found that plaintiff had "good" ability to relate to co-workers and to deal with the public, plaintiff also had only a "fair" ability to follow work rules, use judgment, and function independently, and "poor to no[ ]" ability to deal with work stresses or maintain attention/concentration (T. 174). *fn4"

 Non-Medical History

 Franklin completed eighth grade and attended high school until age seventeen, but never earned a general equivalency diploma ("GED") (T. 120, 53 - 54). Franklin testified that he learned to cook in the Army, but had no other vocational training (T. 54). Plaintiff worked as a vending machine deliverer from 1966 through 1988, and as an installer of juice machines between 1990 and 1992 and testified that he had not worked since then (T. 120, 61). However, plaintiff told his psychiatrist in 1993 that he had helped a used car dealer, and was engaged in "buying and selling", a term which is otherwise unexplained in the record (T. 140, 133). Plaintiff also attempted to work as a taxicab driver, apparently for very short periods of time, but stopped due to the resulting pain (T. 139).

 In an October 1993 report to the Social Security Administration, Franklin wrote that he did not perform much home maintenance because of fear that he would have pain (T. 119). At his hearing, plaintiff testified that he watched television at home and did not help with the household chores, snow ...


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