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ELIAS v. APFEL

June 30, 1999

MOUNIR ELIAS, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The plaintiff, Mounir Elias ("Elias" or the "plaintiff"), commenced this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), seeking review of a final administrative determination of the Commissioner of the Social Security Administration (the "Commissioner" or the defendant) denying his application for social security disability insurance benefits. Presently before the Court is the defendant's motion for judgment on the pleadings as well as the plaintiff's cross-motion for similar relief, both pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ("Fed.R.Civ. P."). The issues for the Court to resolve are: (1) whether the Commissioner's denial of disability benefits was supported by substantial evidence; (2) whether Administrative Law Judge Daniel J. Slattery (the "ALJ") erred by not requesting the presence of a vocational expert to determine whether the plaintiff could perform light work; and (3) whether the plaintiff received a fair hearing in that he appeared before the ALJ without the benefit of counsel.

I. BACKGROUND

A. Procedural History

B. Factual Background

Elias, who is presently 56 years of age, alleges that he has been disabled since December 31, 1993 due to severe neck and back injuries. Elias is a high school graduate and completed three years of schooling at Staten Island College, where he studied mechanics and engineering. Elias has worked as a cab driver for most of his adult life. From 1979 through December 1993, Elias worked for a cab company, where he performed clerical work, and drove, maintained, and repaired the cabs. On March 3, 1992, Elias was injured in an auto accident. Elias claims that on December 31, 1993, the injuries caused by the auto accident forced him to stop working.

After the auto accident on March 3, 1992, Elias went to South Shore Hospital for treatment on March 7, 1992. X-rays of his cervical and lumbosacral spines were negative. The hospital diagnosis was cervical and lumbosacral spine spasm. Elias then received follow up care from Dr. Joyce Goldenberg, a physician, on March 10, 1992. A musculoskeletal exam revealed moderate tenderness and restricted motion of his neck and back. Dr. Goldenberg made a diagnosis of a whiplash syndrome, cervical and lumbosacral myositis, and a low back sprain. The treatment consisted of physical therapy and pain medication. Dr. Goldenberg did not recommend that Elias undergo surgery.

On April 29, 1992, Dr. James Dana, a physiatrist, examined Elias. Dr. Dana opined that Elias suffered from a cervical sprain, right cervical derangement, and left sacroiliac joint sprain. Dr. Dana ruled out a sprain of the cervical and lumbosacral spine. He recommended physical therapy to the cervical spine and additional testing.

From 1992 to 1995, Dr. Jacob Lehman, an orthopedist, examined and treated Elias on numerous occasions. On June 2, 1992, Dr. Lehman reported that Elias had tenderness and muscle spasm over the neck and back, and that his right bicep and right ankle reflexes were diminished at that time. Dr. Lehman was of the opinion that Elias was totally disabled. He prescribed physical therapy and Vicodin, a pain medication. Subsequent examinations over the three year period indicated that while Elias continuously had severe neck and back pain, his condition occasionally improved due to the chiropractic treatment and Vicodin medication. On February 24, 1994, Dr. Lehman reported that he found disc damage in Elias' neck and lower back. However, he did not conclude that Elias required surgery. In addition, in reports prepared on different dates, Dr. Lehman stated that Elias was either partially or totally disabled. Significantly, however, Dr. Lehman's findings were in the context of reports to the Workers' Compensation Board, which simply asked the treating physician whether the patient is partially or totally disabled.

On January 11, 1995, Elias applied for Social Security Disability benefits. On February 11, 1995, Dr. Choi prepared a report at the request of the Office of Disability Determination. In her report, Dr. Choi indicated that she first examined Elias on June 29, 1994, and thereafter saw him three times a week, although the frequency of visits had been reduced to once every two weeks at the time of the report. Dr. Choi's findings included decreased sensation of the left extremities, normal and equal deep tendon reflexes, no atrophy, no motor deficit, and positive straight leg raising on the left at eighty degrees at rest. Dr. Choi noted that Elias did not have significant abnormality in gait, and did not require an assistive device to walk.

In the opinion of Dr. Choi, Elias could not continue to work as a cab driver, but importantly, she concluded that Elias could perform light work. Dr. Choi specified that Elias could lift and carry a maximum of twenty pounds, and stand and/or walk, as well as sit, up to six hours a day.

On February 23, 1995, at the request of the Administration, Dr. S. Dutta, a surgeon, conducted a consultative examination. After physically examining Elias, Dr. Dutta made a diagnosis of a herniated disc at the L4-5 level with left lumbar radiculopathy. Significantly, Dr. Dutta also concluded that Elias was able to perform limited desk work on a part time basis.

C. The Hearing

Elias appeared pro se before the ALJ on June 12, 1996. At the time of the hearing, Elias was solely under the care of a chiropractor and was taking Vicodin medication. Elias testified that he lived with his wife. He also testified that he had pain in the middle of his back, as well as in his shoulders. Elias claimed that he had difficulty sleeping, and that the Vicodin made him feel "half dead." He was able to dress himself, although his day often consisted of "wandering around" as he lacked concentration. Elias would sometimes go with a friend to "visit people or go to church." He did not perform housework, nor did he shop. Elias further stated that he could not sit and stand for prolonged periods, and that he did not walk much. As such, ...


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