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DEVORA v. BARNHART

May 22, 2002

GISELA DEVORA PLAINTIFF,
V.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, Judge.

  OPINION AND ORDER

Introduction

Plaintiff Gisela Devora brings this action pursuant to 42 U.S.C. § 405 (g) to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her disability and Supplemental Social Security benefits.*fn1 The Commissioner has moved for judgment on the pleadings on the ground that her decision was supported by substantial evidence. Devora opposes this motion and has requested that the matter be remanded for a new hearing. On February 21, 2002, the parties consented to determination of this case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). For the reasons set forth below, the Commissioner's motion is denied and Devora's motion for a remand is granted.

I. FACTUAL BACKGROUND

A. Procedural History

On October 19, 1998, Devora submitted applications for disability benefits and for supplemental security income benefits based on disability. R. 58-61, 163-66.*fn2 These applications were denied initially and on reconsideration. R. 37-40, 43-46. Subsequently, Devora requested a hearing before an Administrative Law Judge ("ALJ"). R. 47. The hearing was held on July 1, 1999. R. 19-34. Devora, who spoke through an interpreter at the hearing, appeared without an attorney or any other representative. R. 19, 21. On September 14, 1999, the ALJ issued a decision finding that Devora was not entitled to disability benefits. R. 8-17. This decision became final on December 6, 2000, when the Appeals Council denied Devora's request for review. R. 4-6. Devora presented a timely complaint to the Pro Se Office of this Court on February 5, 2001. An attorney filed a notice of appearance on behalf of Devora on May 2, 2001.

B. Evidence Presented at the Hearing

1. Testimony

Devora was born on November 11, 1942, in Santo Domingo, Dominican Republic. R. 24. She had been in the United States since 1977. R. 25. She completed four years of school. R. 26. Devora does not speak any English. R. 25.

Devora's previous employment was as a sewing machine operator and a floor worker in a clothing factory. R. 25, 67, 87. She worked at these positions from January 1977 to May 1998. R. 67, 87. Devora's work in the clothing factory required seven hours a day of standing and one hour of sitting. R. 67. The positions did not require any walking. R. 67. Devora was not required to lift more than 10 pounds during her employment. R. 67. Devora stopped working in 1998, when she was laid off and began collecting unemployment insurance benefits. R. 25, 26. According to the interpreter at the hearing, Devora had stated to him while reviewing her case file that her employer had laid her off "because she was ill on the job and he saw that she wasn't strong and she wasn't able to do the job." R. 26.

Devora stated that when she walks she gets a pain in the left side of her neck. R. 30. She also testified that she could not stand up for any length of time. R. 30. She stated that if she sits for a while she has to lie down and if she stands for "a second" she has to sit back down. R. 30. She was also not able to carry anything and could "barely walk" due to pain in her back. R. 30. She was able to lift 5 to 10 pounds. R. 30.

In terms of daily activities, Devora stated that she went to church. R. 31. She was advised that she should walk for exercise. R. 32. She was able to read and watch TV a little. R. 31. At home, she prepared meals and washed dishes. R. 31-32. She was barely able to wash and dress herself, at times because of "incredible" pain in her back. R. 32. Sometimes her daughter or a friend would help her get dressed. R. 32. She also complained of pain in the bottom of her foot and pain in the bone of her right leg "like it's going to explode" if she stood for too long. R. 32.

Devora stated that she had not been treated for depression. R. 30. She took one 400 milligram tablet of Ibuprofen every six hours, two 40 milligram tablets of Monopril per day and 500 milligrams of calcium twice a day. R. 27-28.

Devora claimed she had previously been treated for her impairments by a Dr. Ralph Barrauco. R. 23. However, no records were received from Dr. Barrauco in response to two separate requests made by the ALJ. R. 124-25. Devora then went to Harlem Hospital, but ceased treatment there because "they didn't understand me." R. 23. Subsequently, she began treatment at Metropolitan Hospital Center. R. 23.

During her testimony, the ALJ requested that Devora have her doctor fill out a form entitled "Medical Assessment of Ability to Do Work Related Activities, Physical," R. 29-30, 32 33, stating that the form was "very important." R. 29. The ALJ stated that there was a "good chance" that she would be found disabled, but that she had to have the right documentation. R. 29. He also stated that she should not "worry about it" but should "just do the best" that she could to get her doctor to fill out the form. R. 33.

2. Medical Records

Devora's medical records reflected that she was seen at Harlem Hospital on October 6, 1998. R. 117-18. She reported a two-year history of joint pain in both shoulders, the lower back, her wrists and knees. R. 118. She was not in any distress during that examination. R. 118. The examining physician found that Devora was obese and had a crepitant right knee but that she did not have any swelling or reduction of range of motion. R. 118. The examining physician's assessment was that Devora was suffering from obesity, arthritis and hypertension. R. 117. Devora was recommended to lose weight, exercise and adhere to a low salt diet. R. 117. It was also recommended that she take medicine for her high blood pressure. R. 117.

On October 22, 1998, Devora began receiving treatment at Metropolitan Hospital Center. R. 22, 76, 15 1-54. On her first visit, Devora's blood pressure was 150/100. R. 152. She stated that she had not taken any medication since October 6, 1998. R. 152. A week later when she was examined, her blood pressure was listed as 140/90. R. 150. Devora denied any headaches, dizziness, chest pain or shortness of breath. R. 150.

On December 31, 1998, also at Metropolitan Hospital Center, Devora reported pain in her legs and hips that was worse with movement but improved with rest and nonsteroidal inflammatory medication. R. 148. She had crepitation in the knees, but she exhibited full range of motion and there were no effusions. R. 149. Her blood pressure was 140/90 and she weighed 219 pounds. R. 149. Devora's blood pressure medication was changed and an exercise program was recommended. R. 149. She returned for another blood pressure reading on January 14, 1999, where she reported that she was taking her medication and had no complaints at that time. R. 146. Her blood pressure was 150/100. R. 146.

Devora was seen by a dietician on February 15, 1999. R. 145. She was measured to be 61" tall and weighed 216 pounds, which was 187% of her desirable body weight. R. 145. She was instructed by the dietician on a weight reduction diet, low fat cooking methods and healthy, balanced meals. R. 145.

On February 26, 1999, Devora again visited Metropolitan Hospital Center and presented with complaints of knee pain that increased with walking. R. 140. She was found to have crepitus of the right knee and bilateral pitting edema. R. 140. She denied any shortness of breath, palpitations or chest pain. R. 140. Her blood pressure medication was increased; diet and exercise were recommended for her obesity. R. 141. The treating physician prescribed weight loss and Motrin as treatment for Devora's degenerative joint disease. R. 141. Devora returned for refills of her medicine on April 28, 1999, but did not present any additional complaints at that time. R. 138.

On her next visit to Metropolitan Hospital Center, which took place on May 21, 1999, Devora's health problems were identified as hypertension, obesity and degenerative joint disease. R. 134. Her weight had increased to 219 pounds. R. 134. Her blood pressure was 140/96. R. 134. Crepitus of her right knee with inflammatory signs and bilateral pitting edema were also noted. R. 134. The record stated that Devora had been noncompliant with her low cholesterol diet and her dietary restrictions were reinforced. R. 135. When she returned on June 25, 1999 for a blood pressure reading her blood pressure remained at 140/90. R. 133.

On July 21, 1999, at her examination at Metropolitan Hospital Center, she was 217 pounds and her blood pressure was 130/90. R. 132. Devora denied chest pain, shortness of breath or any other breathing problems. R. 132. She presented with bipedal pitting edema. R. 132. Her treating physician assessed Devora as having ...


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