The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge
Siragusa, J. 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 her
application for disability benefits. Before the Court are both plaintiff's
motion (document #5), and the Commissioner's motion (document #9) for
judgment on the pleadings. Oral argument was heard by the Court on August
22, 2002. For the reasons stated below, the Court grants plaintiff's
motion, reverses the Commissioner's decision and remands solely for
calculation of benefits.
II. PROCEDURAL BACKGROUND
On February 28, 1994, plaintiff filed an application for disability
insurance benefits and supplemental security income benefits. Her request
for benefits was denied by notice dated May 10, 1994, and then on
reconsideration by notice dated September 27, 1994.
After a hearing before an Administrative Law Judge ("ALJ"), a decision
was issued, dated September 21, 1995, denying plaintiff s claim for
benefits. The Appeals Council, by order dated July 2, 1996, remanded the
matter to the ALJ to obtain testimony from a Vocational Expert ("VE").
After a second hearing before the same ALJ, a decision dated March 19,
1997, was issued again denying plaintiff s claim for benefits. The
Appeals Council remanded the matter a second time by order dated February
9, 1999, requiring the ALJ to allow plaintiff s representative to
question the VE concerning the potential side effects of plaintiff s
medications, potential loss of concentration ability, and the impact of
those factors on the occupational base. A third hearing was held before a
different ALJ with the same result, that is, by decision dated June 4,
1999, plaintiff s claim for benefits was denied for a third time. The
Appeals Counsel, on September 14, 2001, affirmed the June 4, 1999 ALJ's
decision, making it the Commissioner's final decision in this case.
Plaintiff filed this action on October 19, 2001.
III. PLAINTIFF'S WORK HISTORY
Plaintiff was first diagnosed with diabetes mellitus in 1987. As early
as January 16, 1991, plaintiff began to experience numbness in both of
her legs. She had decreased vibratory senses in her toes. Her doctor*fn2
found that she had lateral cutaneous neuropathy and questionable early
diabetic foot neuropathy. In July of 1992, she was having numbness and
tingling in her left hand. She also complained of her left hand and left
foot curling up. Examination by MHE*fn3 on July 24, 1992, revealed
thenar wasting on the right side as well as on the left side of her
hands. She had achiness in her hands and the left foot as well. It was
felt that she had a mild diabetic neuropathy which was intensifying. On
Sunday, February 7, 1993, plaintiff went into a diabetic shock and was
seen by her doctor*fn4 on the following Tuesday with continuing problems
with stiffness in her hands. Her blood sugars at home were "real bouncy."
R. at 449.
She saw Dr. Russell Woglom on October 27, 1993, and complained of
having trouble with her hands, including the inability to "snap*fn5
buttons", as well as tightness and cramping. Dr. Woglom opined that she
had decreased manual dexterity of unknown etiology.
Plaintiff next saw Dr. Daniel Britton, a neurologist, on December 9,
1993. Her medical history indicated problems with weakness and stiffness
of her hands for approximately two years, worsening in the last couple of
months prior to Dr. Britton's examination. Plaintiff informed Dr.
Britton, at the examination, that she was having difficulty using her
hands for writing and other purposes, that her hands were weak, that she
had numbness in her fingertips, and that she had also noticed that her
left leg had gotten weaker and was smaller than her right. Dr. Britton
made the following findings with respect to plaintiff: decreased
sensation on the right side of the trunk; right foot had decreased
sensation that was bilateral and compatible with diabetes; decreased
sensation on the right side of the body compared to the the left;
definite wasting of the intrinsic muscles of the hands, both from median
and ulnar nerve distribution, which was fairly symmetrical in both
hands; the thenar eminence on the right side was more wasted than on the
left; some weakness in the deltoid biceps and triceps; weakness and
wasting of the left leg, that is, 2 cm. at the calf and 2-4 cm. at the
thigh; a definite Babinski*fn6 on the left, no response on the right;
and a slightly spastic gait. Dr. Britton's impression was that plaintiff
might have cervical myelopathy and recommended an MRI to rule out a
syrinx or other cervical spinal lesion. He wrote in his report that he
was not sure of the cause of this "definitely disabling condition that is
progressive." R. at 271.
Dr. Britton referred plaintiff for physical therapy treatment.
However, because plaintiff was suffering from diabetic neuropathy in both
hands, the physical therapist thought that there was nothing she could do
to help plaintiff. Plaintiff was seen again on March 2, 1994, by Dr.
Woglom. Her blood sugars had been fluctuating, and Dr. Woglom found that
she had polyneuropathy consistent with diabetic neuropathy. Dr. Woglom
also reported wasting of the thenar eminence.
The balance of the medical records regarding her continued treatment do
not appear to show any improvement in her neuropathy. It appears her hand
impairment worsened with the onset of early flexion contractures of all
the digits of the right hand. See R. at 451. Additionally, on August 22,
1997, Dr. Beth Bollinger, an orthopedic surgeon, reported that, beginning
in June of 1997, plaintiff's difficulties progressed to include her
feet. An x-ray of her left foot indicated degenerative and erosive
arthritic changes involving the cuneiform bones of the left foot,
together with the joints between the first, second and third metatarsals
and cuneiform bones. On September 4, 1997, due to continued pain in the
left foot, Dr. Bollinger recommended surgery for first, second and third
tarsometatarsal fusion with a possible bone graft. Finally, there are
numerous incidents where plaintiff was hospitalized due to her inability
to control her blood sugars, although Dr. Michael Eisman at Schuyler
Hospital opined that her inability to do so was due to her lack of
compliance with his instructions. See R. at 262, 320.
Plaintiff is claiming an onset date of April 15, 1991. Prior to March
31, 1993, her date last insured, her hands started to deteriorate, that
is they lost muscle and become weaker. She testified that she had
difficulty tying her shoes and that she experienced very bad cramping in
the back of her legs and hands three to four times per week. She also
testified that she became very tired when using her hands, or when
walking, and would have to sit down.
Plaintiff further testified that she was able to do some grocery
shopping and housework, but has always required assistance from others.
She also said she required frequent breaks from any physical activity.
Currently, she claims she still has the cramping in her hands, arms,
and the back of her legs and her feet. She further claims that she is
experiencing pain and stiffness in her left hip. She says that her hands
lock up and she has to smooth out the stiffness, that this happens
approximately three to four times per week, and that It takes
approximately five to ten minutes before the pain is gone, so that she can
use them again. She describes the presence of pain in addition to
stiffness. She also alleges that the symptoms of the neuropathy started
in 1992 and since that time have become progressively worse.
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 ...