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KULESZO v. BARNHART

September 30, 2002

SHAWNA KULESZO F/K/A/ DILLON, PLAINTIFF,
V.
JO ANN B. BARNHART,[FN1] WEST PAGE 45 COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge

  DECISION AND ORDER

I. INTRODUCTION

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's work history can be briefly stated. She has past relevant work experience as a hospital dietary aide and custodian, which the ALJ found she was no longer able to perform. Plaintiff was born on September 28, 1969, has an eleventh grade education and a general equivalency diploma. She left her last job as a housekeeper for Cornell University and before that, she had worked at Schuyler Hospital as a dietary aide from 1987 to 1990. She has not worked since April 15, 1991.

IV. MEDICAL 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.

V. NON-MEDICAL EVIDENCE

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.

Additionally, she indicated that she has experienced highs and lows in her blood sugars since 1991-1992. She stated she had periods of high blood sugar approximately twelve to thirteen times out of a month, and that it was brought on by sickness, daily stress or physical activity. She stated that symptoms accompanying the high blood sugar levels included blurred vision, nausea and headache. She said that the highs would last anywhere from forty-five minutes to one hour, which was the amount of time that it took her to bring her blood sugars under control. She also testified that during the same period of time, she experienced low blood sugar episodes. She stated that she experienced from nine to ten episodes a month at unpredictable times and that the symptoms included inability to concentrate, irritability and confusion. She testified that she has continued to experience these highs and lows despite taking her insulin.

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.

V. DISCUSSION

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 ...


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