United States District Court, Western District of New York
April 18, 2002
MELVIN LEPAK, ON BEHALF OF BARBARA A. LEPAK, DECEASED, PLAINTIFF, VS. JO ANN B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.
DECISION AND ORDER
Siragusa, J. The plaintiff brought this action pursuant to
42 U.S.C. § 405(g) to review the final determination of the
Commissioner of Social Security ("Commissioner") who denied Barbara A.
Lepak's application for disability benefits. Before the Court is the
Commissioner's motion for judgment on the pleadings (docket #4) seeking
an order affirming the Commissioner's decision, and plaintiff's motion
(docket #9) for either judgment on the pleadings and remand for
calculation of benefits, or, in the alternative, remanding the case for
further development of the record and application of the proper legal
standards. For the reasons stated below, the Court grants the plaintiff's
motion to reverse the Commissioner's decision and to remand for further
development of the record pursuant to sentence six of 42 U.S. Code §
405(g), and denies the Commissioner's motion for judgment on the
II. PROCEDURAL BACKGROUND
Claimant Barbara A. Lepak ("Decedent") filed an application for
disability insurance benefits on March 6, 1998. The application was
denied initially and on reconsideration. The decedent filed a request for
a hearing before an Administrative Law Judge ("ALJ") and the hearing was
held on December 30, 1998. On March 23, 1999, the ALJ found the decedent
retained the residual functional capacity to perform her past relevant
work as a dispatcher.
Following the decedent's death on April 26, 2001, Melvin Lepak, as the
decedent's surviving spouse, was substituted as the plaintiff herein
pursuant to 42 U.S. Code § 404(d).
The ALJ's decision became the Commissioner's final decision when the
appeals Council denied the plaintiff's request for review on June 1,
2001. The plaintiff commenced a civil action in this Court on July 3,
III. DECEDENT'S WORK HISTORY
The decedent, who was born on July 11, 1948, claimed she had been
disabled since February 1, 1989. She testified before the ALJ that she
had been previously employed by IBM as a dispatcher for service calls.
She described this employment to the ALJ as "video terminal work." She
started that work in June of 1980 and stopped working at that job on July
11, 1988. The dispatching job required her to remain seated in a chair
all day, answer the phone, and type information into the computer
system. While at work, due to her medical problems, she experienced
alterations in vision, blood sugar changes, and vomiting. She also
testified that she could not obtain a full night's rest due to her
medical difficulties, and, therefore, was unable to maintain a daily work
schedule. She was last insured for Social Security benefits as of
December 31, 1994.
IV. MEDICAL HISTORY
The decedent was diagnosed with diabetes. From 1980 through April
1993, she was treated periodically by Dr. Newton Galusha. Until the
summer of 1986, Dr. Galusha thought that the decedent was relatively
asymptomatic as to her diabetes and could work without restrictions.
However, according to a report from Dr. Galusha dated December 14, 1988,
the decedent experienced increased difficulties during the fall of 1987,
and was hospitalized three times for problems related to her diabetes. An
EEG test, which was administered to her, showed generalized proximal
activity compatible with a seizure disorder. Dr.
Galusha described the
decedent's primary problem as arising from her complaint of decreased
visual acuity, for which he referred her to Dr. Debra Duer. Dr. Galusha
opined in his December 14, 1987 letter that her ability to return to work
duties depended on her visual acuity.
On September 16, 1988, Dr. Galusha reported that the decedent was
suffering from multiple medical problems, including: insulin dependent
diabetes; seizure disorder; migraine variant syndrome with visual
disturbance; and reoccurring gastrointestinal problems. He additionally
detailed sixteen different medications she was taking for these
In January 1990, the decedent was hospitalized again, this time for
nausea, vomiting and dehydration. At the time, her diabetes remained
under poor control. She experienced a further hospitalization in October
1990 for removal of her right kidney.
During the course of his treatment, Dr. Galusha made extensive notes
regarding the decedent's medical complaints, including inability to
sleep, diarrhea, depression, seizures, drug reactions and vision
problems. He also noted she had paresthesia in her feet.
On September 10, 1993, the decedent saw Dr. Lloyd Fasset. Dr. Fasset
noted a bruise on the right side of the decedent's neck and that the
rhythm of her heart, although fairly regular, was somewhat fast.
Further, he reported that she had one to two millimeters of pretibial
The decedent was seen by Dr. Luke Chen in late 1992 and 1994. However,
the majority of his notes are illegible. She then began treatment with
Dr. Robert Taylor, III, but the record does not contain either his
notes, nor the dates of his treatment.
In October 1997, the decedent began treating with Dr. John Brosnan, an
orthopedic physician, to whom she was apparently referred by Dr. Taylor.
Dr. Brosnan had x-rays of her foot taken, which revealed an old fracture
that evidently had never been treated. The x-rays also showed some bone
destruction. Dr. Brosnan's physical examination revealed swelling over
the decedent's right foot and tenderness. An MRI of her foot established
multiple and significant abnormalities, diffuse soft tissue edema around
her ankle joint, including an abnormal soft tissue process in her
mid-foot, tarsal bones with localized soft tissue edema. Dr. Brosnan
opined that the decedent had a Charcot foot. In follow-up visits, Dr.
Bronsan noted that the decedent continued to experience pain off and on
with swelling over her foot.
By affidavit filed January 25, 2002, the plaintiff's counsel informed
the Court that after discovering that certain medical records from IBM
were not part of the record on appeal, he contacted IBM and obtained the
records, which he attached to his affidavit. He also forwarded copies of
the IBM records to counsel for the Commissioner and asked him to
stipulate to a remand under sentence six of 42 U.S. Code § 405(g),
however counsel declined to do so.
Of particular significance, as to the records that were not part of the
record on appeal, was a report from Dr. Galusha dated December 30, 1998,
which reads, in pertinent part,
She continues to have visual disturbances which we
have not been able to control even with preventive
medicine and this interferes with her use of a
commuter screen. She continues to have frequent bowel
movements which require the close proximity of a
bathroom and frequent interruptions of her job
situation. Her diabetes also requires certain dietary
restrictions and time restrictions.
I therefore feel that Barbara is totally disabled at
this point in time and it is not clear whether these
multiple conditions will be controlled in the future
to an extent that would allow full time employment.
For the present however, I feel there is not an
expectation that she can work on any regular
predictable basis without interruption. There is no
single condition that makes her totally disabled but
[it] is the combination of her multiple disorders that
result in the above opinion.
Newton C. Galusha, M.D., report (Dec. 30, 1988) (attached as Exhibit A to
The additional medical information also contains a letter from Dr.
Deur, another of the deceased's treating physicians, in which she states
that, "Ms. Lepak is under medical treatment at the present time and until
her diabetes is medically stable, her vision will be impaired and
fluctuating." Debra Deur, M.D. letter (Dec. 22, 1987) (Attached as
Exhibit A to McDonald aff.).
A. THE STANDARD OF REVIEW
The issue to be determined by this Court is whether the Commissioner's
conclusions "are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard." Schaal v. Apfel,
134 F.3d 496, 501 (2d Cir. 1998). It is well settled that
it is not the function of a reviewing court to
determine de novo whether the claimant is disabled.
Assuming the Secretary [Commissioner] has applied
proper legal principles, judicial review is limited to
an assessment of whether the findings of fact are
supported by substantial evidence; if they are
supported by such evidence, they are conclusive.
Parker v. Harris, 626 F.2d 225
, 231 (2d Cir. 1980). Substantial evidence
is defined as "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Id. at 231-32. Where there are gaps in the administrative
record or where the Commissioner has applied an incorrect legal
standard, remand for further development of the record may be
appropriate. Id. at 235. However, where the record provides persuasive
proof of disability and a remand would serve no useful purpose, the Court
may reverse and remand for calculation and payment of benefits. Id.
B. THE STANDARD FOR FINDING A DISABILITY
For purposes of the Social Security Act, disability is the "inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months." Social Security Act §
223(d)(1)(A), 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501. The
Social Security Administration ("SSA") has promulgated regulations which
establish a five-step sequential analysis an ALJ must follow:
First, the SSA considers whether the claimant is
currently engaged in substantial gainful employment.
If not, then the SSA considers whether the claimant
has a "severe impairment" that significantly limits
the "ability to do basic work activities."
If the claimant does suffer such an impairment, then
the SSA determines whether this impairment is one of
those listed in Appendix 1 of the regulations. If the
claimant's impairment is one of those listed,
the SSA will presume the claimant to be disabled. If
the impairment is not so listed, then the SSA must
determine whether the claimant possesses the "residual
functional capacity" to perform his or her past
Finally, if the claimant is unable to perform his or
her past relevant work, then the burden shifts to the
SSA to prove that the claimant is capable of
performing "any other work."
Schaal, 134 F.3d at 501 (citations and internal quotation marks omitted).
D. THE ALJ'S DECISION
Using the sequential evaluation process, the ALJ found that the
decedent had not engaged in any substantial gainful activity since
February 1, 1989. The ALJ determined, at the second step, that the
decedent did have a severe impairment during the period from February 1,
1989 through December 21, 1994 (the date she was last insured for Title
II disability benefits). However, at the third step, the ALJ found that
the decedent's severe impairment did not meet or equal one of the
impairments listed in, or was not medically equal to one listed in,
Appendix 1, Subpart P., Regulations No. 4.
Proceeding to the fourth step of the sequential analysis, the ALJ found
that the decedent was able to return to her past relevant work as a
dispatcher. Having found her not disabled, the ALJ concluded his analysis
and did not proceed to the fifth step.
The Commissioner points out that sedentary work, the kind of work the
ALJ found the decedent was capable of performing, is defined a work that
involves lifting no more than ten pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing if often necessary in
carrying out the job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a); see also Memorandum of Law in Support of the
Commissioner's Cross-Motion for Judgement on the Pleadings
("Commissioner's Memorandum") at 7, n. 3.
On June 9, 1980, Congress amended the original remand provision of
42 U.S.C. § 405(g) by providing conditions under which remand is
deemed appropriate for the taking of additional evidence. A claimant must
show that (i) the evidence is in fact new and material, and (ii) good
cause exists for failure to produce that evidence in prior proceedings.
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983). The Court finds
that the medical evidence offered by the plaintiff's counsel is new and
material and further finds good cause exists for the failure of the
plaintiff's former counsel to obtain and present the evidence. In reaching
this determination, the Court is of course mindful of the "treating
physician rule," which requires that the opinion of a treating physician
be given controlling weight if it is well supported by medical findings
and not inconsistent with other substantial evidence, and further directs
that an ALJ cannot arbitrarily substitute his own judgment for competent
medical opinion. Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999).
Although the Assistant U.S. Attorney who argued the case in court did not
consent to remand, he frankly and admirably acknowledged the probative
value of the evidence presented by the plaintiff's counsel.
Accordingly, the plaintiff's motion for judgment on the pleadings
(docket #9) is
denied, the plaintiff's motion for remand under sentence
six of 42 U.S. Code § 405(g) for consideration of the new and
relevant evidence presented by the plaintiff's counsel, and the
Commissioner's cross-motion for judgment on the pleadings (docket #4) is
This case is remanded under sentence six of 42 U.S.C. § 405(g).
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