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CLEVELAND v. APFEL

May 25, 2000

RICHARD CLEVELAND, PLAINTIFF,
V.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

  OPINION AND ORDER

Plaintiff, Richard Cleveland, brings this action under Section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g), to review a final determination of the Commissioner of Social Security (the "Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") benefits based upon disability. For the reasons set forth below, the decision of the Commissioner is reversed and the case is remanded to the Administrative Law Judge for further proceedings consistent with this Opinion.

I. Procedural History

Plaintiff filed applications for SSI benefits and for disability insurance benefits on March 15, 1996 due to back pain and hypertension. Tr.*fn1 at 2. His claims were denied initially, Tr. at 58, and upon reconsideration, Tr. at 71. He then requested a hearing to review his claims, Tr. at 82, which was held on March 6, 1997 before Administrative Law Judge ("ALJ") James B. Reap. Tr. at 29. Attorney Robert Bellone represented plaintiff at this hearing. Id. The ALJ considered plaintiff's case de novo and, on May 1, 1997, found that plaintiff was not disabled and not eligible for SSI or disability insurance benefits.*fn2 Tr. at 24-25. This decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on February 25, 1999. Tr. at 4-6.

Plaintiff's complaint, seeking review of the Commissioner's decision, was filed on April 29, 1999. The Commissioner now moves for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), seeking affirmance of his decision. Plaintiff has cross-moved for reversal of the Commissioner's decision and payment of benefits as requested in his application.

II. Plaintiff's Personal History

Plaintiff is a 54-year-old man who lives alone in a fourth-floor apartment in an elevator-equipped building. Tr. at 33. At the hearing before the ALJ, plaintiff testified that he injured his back in an on-thejob accident on February 2, 1987.*fn3 Plaintiff, who has completed high school and two and a half years of college, alleges that he has been unable to work since December 18, 1989 because of a back disability.*fn4 Tr. at 84. In describing his back pain, plaintiff stated that it felt like "molten lead . . . and make a dagger out of it, and stick it in you." Tr. at 40. Plaintiff reported that he has periods of weeks or "a couple of months" where his back does not cause him pain but that he will also have periods of a "week or two" where his back prevents him from doing "what a normal person does." Tr. at 30-31. He also stated that the pain is sometimes constant. Tr. at 41.

Plaintiff testified that he cooks, does light cleaning, takes out his trash and does his laundry. Tr. at 44-45. He also stated that he does his own shopping, but that he cannot lift objects weighing more than 20 pounds for fear of dropping them. Tr. at 49-50. Plaintiff is able to take walks, drive an automobile, and ride public buses, but if he walks too much his back starts to bother him. Tr. at 44-46. His most comfortable position is sitting in a straight-backed chair. Tr. at 51. Doctors have prescribed Motrin and Flexeril for pain and plaintiff "periodically" attends physical therapy. Tr. at 41. Plaintiff stated that his pain is something he has learned to live with and that when his back is causing him pain he usually "just lays at home." Tr. at 43.

III. Summary of the Medical Evidence

A. Treating Physician's Findings

Plaintiff was treated periodically by Dr. Robert D. Small from 1985 to 1997. Tr. at 101-11. He was initially treated for a left shoulder injury in May of 1985, Tr. at 112, but suffered a left hamstring injury in February of 1987. Tr. at 109. From May 14, 1987 to February 18, 1988, plaintiff sought treatment for pain and numbness in his left leg, back pain, and occasional pain and numbness in his left hand. Tr. at 105-08. Dr. Small ordered a magnetic resonance imaging test ("MRI") and an electromyograph ("EMG") of plaintiff's lumbosacral spine on May 14, 1987. Tr. at 108, 214. During appointments in August and September of 1987, plaintiff continued to report severe pain in his left leg, but stated that he had some relief of his back pain. Tr. at 106-07. On December 22, 1987, the results of the MRI and the EMG came back "normal." Tr. at 106. Plaintiff, however, reported continued back pain, severe at times, and numbness in his leg. Id. Dr. Small informed him that there was no further treatment available. Id. Plaintiff made another appointment to see Dr. Small on February 18, 1988. Tr. at 105. He reported mild back pain radiating down his left leg and occasionally his right leg. Id. Dr. Small informed plaintiff that since his symptoms were subjective and that no physiological cause of his pain could be demonstrated, there was nothing he could do. Id. He advised plaintiff to seek help from a neurologist or an alternative physician. Id. Dr. Small concluded that plaintiff was partially disabled due to subjective feelings of pain. Tr. at 104.

On August 3, 1990, plaintiff returned to Dr. Small reporting back pain but no further leg pain. Tr. at 103. He claimed that he could not sit for long periods of time and had to get up every fifteen to twenty minutes. Id. Dr. Small determined that plaintiff had a lumbosacral sprain of undetermined etiology and told him again that there was nothing further he could do. Tr. at 103. Plaintiff returned on November 12, 1991 and told Dr. Small that he was there because his attorney needed an updated report. Id. On January 27, 1992, plaintiff returned to Dr. Small complaining of increased back and leg pain. Tr. at 102. Dr. Small ordered a second MRI on February 3, 1992. Id. The MRI revealed a degenerative disc disease but no evidence of mass effect on the nerve roots and no evidence of spinal stenosis or large, extruded disc material. Tr. at 214. Dr. Small reviewed the results of the MRI and determined that there was no herniated disk and no physiological cause for plaintiff's reported pain. Tr. at 101.

Plaintiff returned to Dr. Small approximately four years later on March 26, 1996, on referral from his attorney because he was applying for SSI benefits. Tr. at 175. He reported constant lower back pain radiating from the left buttock. Id. Dr. Small determined that plaintiff was asymptomatic after performing a physical examination. Id. On July 22, 1996, plaintiff sought treatment from Dr. Small for pain and stiffness in his left leg and back radiating down both thighs. Tr. at 175. Dr. Small found that plaintiff's straight leg raising was positive at 80 degrees and that there was some paravertebral muscle spasm, but that the deep tendon reflexes remained intact. Id.

Plaintiff's final appointment with Dr. Small was on February 24, 1997. Tr. at 173. Plaintiff made the appointment so that Dr. Small would complete the paperwork for his disability claim. Id. Dr. Small examined plaintiff and found that he was able to sit and stand but had tenderness over the left sciatic notch. Id. Dr. Small concluded, in a nine-line statement, that plaintiff is "disabled" with "consistent left sciatic pain" but that the etiology of the pain could not be identified. Id. Dr. Small determined that plaintiff should return to him on a "prn basis." Id. Dr. Small also completed a Workers' Compensation form indicating that plaintiff is "totally disabled" and that it is ...


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