United States District Court, Western District of New York
February 26, 2003
SUZETTE LEONOVICH, PLAINTIFF,
JO ANN B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Charles J. Siragusa, District Judge
DECISION AND ORDER
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 is the Commissioner's motion (docket #3) seeking an
order reversing her decision and remanding the case, pursuant to sentence
four of § 405(g), for further hearings, and plaintiff's motion
(docket #5) for summary judgment, seeking a reversal of the
Commissioner's decision and a remand for calculation of benefits only.
For the reasons stated below, the Court grants plaintiff's motion and
remands the case pursuant to sentence four of § 405(g) for
calculation of benefits only.
II. PROCEDURAL BACKGROUND
Plaintiff filed an application for disability insurance benefits on
October 21, 1997, alleging she was disabled as of November 19, 1996, as a
result of problems with her hands. The Commissioner denied her
application initially and on reconsideration. Plaintiff then filed a
request for a hearing before an Administrative Law Judge ("ALJ") and the
hearing was held on October 9, 1998. The ALJ issued a written decision on
May 24, 1999, finding that plaintiff was not disabled, and that she
retained the residual functional capacity to perform sedentary work. The
ALJ's decision became the Commissioner's final decision when the Appeals
Council denied Plaintiff's request for review on March 8, 2002. Plaintiff
commenced this civil action on April 22, 2002.
III. PLAINTIFF'S WORK HISTORY
Plaintiff was born on August 23, 1961. She is a high school graduate
who also earned a teaching assistant certificate from Corning Community
College. From 1979 to 1984, plaintiff worked as a sales clerk and
bookkeeper at a Sears Catalogue Store. She then from September, 1981*fn1
to November 18, 1996, worked as a teaching assistant, first at Bradford
Central School, then at Bath Central School.
IV. MEDICAL HISTORY
Plaintiff reports that she was injured at work on February 5, 1996,
when she tried
to keep a magazine holder from falling, with resulting
injury to her right wrist and thumb. R. at 241. That evening, she put ice
on her injured wrist and thumb, then returned to work the next day. The
pain continued, so she visited her family physician, Dr. Eric Phillips.
On February 8, 1996, Dr. Phillips diagnosed wrist pain and, for a
treatment plan, wrote," cock up splints . . . Advil . . . x-ray tonight."
R. at 22. Plaintiff continued to see Dr. Phillips every two to four weeks
and, on July 9, 1996, plaintiff underwent an electromyogram ("EMG") of
her hands at Dr. Phillips' direction. The examining neurologist, Dr. Paul
Buckthal, wrote that plaintiff appeared to be suffering from either de
Quervain's Syndrome*fn2, or disruption of the carpal metacarpal joint
capsule. R. at 263-64.
On July 25, 1996, plaintiff was evaluated at the Hand Management Center
of St. Joseph's Hospital in Elmira, New York, by Jill Townsend, PT, CHT.
Ms. Townsend wrote in her assessment that plaintiff's problems included
significant pain, swelling and diminished range of motion of the right
thumb resulting in decreased ability to incorporate that hand into
functional activities of daily living. She instructed plaintiff on the
use of heat and cold, and fitted her with a spica*fn3 splint with the
goal of resting the joints and tendons, thereby reducing pain and
edema*fn4. Plaintiff then began a course of physical therapy and
experienced some improvements. R. 158-59. As of September 9, 1996, Ms.
Townsend noted that plaintiff had returned to work and that she was
managing, although she noted some increase in plaintiff's symptoms. R. at
161. Plaintiff was fitted with another spica splint in October 1996, with
the result that her pain decreased and mobility increased. R. at 163.
On November 19, 1996, plaintiff left work due to pain in her left
elbow. Plaintiff continued physical therapy and after fifteen physical
therapy visits, Kimi Archer, MSPT*fn5 at Ira Davenport Memorial Hospital
in Bath, New York, concluded in a report dated March 6, 1997, that
plaintiff, "had not received any significant improvement in her hand
function and did have continued reports of pain specifically after being
seen by three doctors prior to her last apt. [sic.]" R. at 166.
As a result of being right-handed,, plaintiff had relied on her left
arm more when her right arm became sore, resulting in injury to her left
elbow. R. at 43. As a result of her left elbow injury, plaintiff
increased the use of her right arm, which led to increased pain in her
right thumb and wrist. R. at 164. In his examination notes of November
18, 1996, Dr. Phillips wrote that plaintiff was totally disabled. R. at
In December 1996, plaintiff began another course of physical therapy at
Ira Davenport Memorial Hospital. She attended a few appointments, but
experienced continued pain. R. at 166. She saw Dr. Steven Garner, an
orthopedic surgeon, on January 30, 1997. Dr. Garner found a
positive Finkelstein*fn6 test on the right, with some discomfort of the thenar
eminence, ulnar area and MP joint. He reported that plaintiff's left
wrist was tender, had a positive Tinel's sign*fn7 and had decreased
sensation along the ulnar nerve distribution. Dr. Garner thought
plaintiff might have de Guervain's [sic]*fn8 and ulnar neuropathy of the
left hand. He wrote in a January 30, 1997, letter to Dr. Phillips that,
"the hope for a resolution may be somewhat grim." R. at 178.
In connection with her workers' compensation claim, Dr. John S. Forrest
evaluated plaintiff on January 29, 1997. R. at 154. She complained of
bitter pain in her right hand and at the base of her thumb, with
shakiness of the hands. He noted that her left hand had tingling on the
outer fingers which sometimes radiated up to her elbow. Plaintiff told
Dr. Forrest that she could not wash, do her dishes, clean, or lift, and
that she spent her time sitting and reading. R. at 155.
Dr. Forrest reviewed x-rays taken in February and December 1996 and
noted that plaintiff appeared in considerable pain, crying with ordinary
hand movements. He observed swelling and tenderness of the right
carpometacarpal joint of her thumb, and positive Tinel's and Phalen's*fn9
signs by her right elbow. He noted the following: her hand grip was
reduced bilaterally, with only seven pounds on the right, and fifteen
pounds on the left; and her side pinch grip was also reduced, at two
pounds on the right and four pounds on the left. On her left wrist and
elbow, he remarked there was a positive Tinel's sign, but a negative
Phalen's sign. Dr. Forrest diagnosed plaintiff as having a probable
marked sprain of the MP and CMP (carpometacarpal) joints. He also wrote
that there was ulnar nerve neuritis of her left elbow and wrist, possibly
due to overuse. R. at 154-57. Dr. Forrest considered plaintiff to have a
"marked temporary partial" disability. R. at 157.
On March 11, 1997, plaintiff was again evaluated by Ms. Townsend at
St. Joseph's Hospital. R. at 167-69. Although, Ms. Townsend observed that
plaintiff's right thumb was not swollen, she did make a number of abnormal
findings. She found the range of motion of plaintiff's right thumb was
only 60% of that of the left thumb, and that plaintiff's right hand grip
and pinch strength were only 30% to 50% of her left hand. Ms. Townsend
also found palpable tenderness of some of the hand joints, and that the
Phalen s sign (used to test for carpal tunnel syndrome) was positive
bilaterally, as was the Tinel's test over the ulnar nerve at plaintiff's
wrist and elbow. R. at 167-69.
On May 13, 1997, plaintiff saw Dr. Russell J. Striff, Jr., an
orthopedic surgeon. R. at 170-72. She complained to him of having
constant pain in her left hand,
tingling in her left elbow and constant
pain in her right thumb. Plaintiff also spoke of pain in both arms. Dr.
Striff found that plaintiff's range of motion in both thumbs was normal,
and an EMG was also normal. Dr. Striff's findings included right trigger
thumb by history*fn10, left ulnar nerve entrapment, and fibromyalgia of
the arms. Dr. Striff thought plaintiff's problems would not be resolved
with surgery, and thought she would be better off seeing a
rheumatologist, recommending Dr. Kenneth Gold. He also opined that,
[s]he is disabled from her regular job. The temporary
restrictions have to do with power grasp and lifting,
carrying, pushing or pulling more than five pounds.
There will almost certainly be permanent restrictions
and the restrictions will almost certainly be severe.
R. at 172.
Pursuant to Dr. Striff's suggestion, plaintiff was seen by Dr. Kenneth
Gold, a rheumatologist, on May 28, 1997. R. at 173-76. Plaintiff told
Dr. Gold that she was no longer able to do her housework. She complained
of numbness and tingling in her fourth and fifth fingers. Dr. Gold found
that her right thumb was tender even to light touch. Dr. Gold also found
that plaintiff's grip strength was markedly decreased on the right side,
and that she experienced mild discomfort during movement of her wrists.
However, Dr. Gold, disagreed with Dr. Striff, and ruled out nerve
entrapment and fibromyalgia. He diagnosed plaintiff as suffering from
myofascial pain disorder. Dr. Gold wrote in his May 28, 1997 report
[p]rognosis at this point is quite poor as symptoms
have been present 15 months. She has been off work now
for six months without any significant improvement . . .
Prognosis of this is quite poor. I think that the
likelihood of her benefitting from vocational rehab is
quite limited given the fact that both upper
extremities are inoperable and she would be unable to
do any type of sedentary or manual labor with her
current problem. . . .
R. at 175-76.
Subsequently, in a June 9, 1997, letter, Dr. Gold wrote that although
he had permitted plaintiff to return to work, that decision was based on
false information. He stated that because he was told by the Workers'
Compensation carrier that plaintiff was willing to return, and that her
employer would take her with her restrictions, he did not consult with
plaintiff before permitting her to return to work. He also stated in the
I evaluated [plaintiff] only for the question as to
whether or not she had fibromyalgia. I am not involved
in her on-going care regarding her musculoskeletal
pain problem and do not feel that I am at liberty to
be issuing work restrictions, etc. I defer to Dr. Eric
Phillips who is seeing her on an on-going basis with
respect to this.
R. at 177 (emphasis in original).
On June 2, 1997, plaintiff returned to orthopedic surgeon Dr. Garner.
He injected her thumb area, apparently with an anti-inflammatory.
However, plaintiff developed an inflammation from the injection and was
placed in a splint. R. at 181-82.
Plaintiff saw Dr. Forrest again on June 26, 1997. She spoke of right
thumb pain which radiated down her forearm, as well as tingling in the
fingers of her left hand. R. at 187-87. Dr. Forrest examined plaintiff,
finding pain in her right thumb, a positive Tinel's sign by the left
wrist and elbow, and a positive Phalen's sign on the left ulnar nerve. He
also observed that
plaintiff was hypersensitive using her hands. Dr.
Forrest's findings were unchanged from January 1997. He wrote in a report
dated June 26, 1997, that plaintiff had a marked temporary partial
disability and was capable only of very light activity. He wrote,
[s]he should be able to sign individuals in and out,
stamping with or without her splint, able to answer
phone, monitor cafeteria, limited lifting 5#or less
as suggested by Dr. Striff which would include one
book at a time but should not carry heavy books in
either arm and not keep her arms in prolonged flexion
particularly on the left.
R. at 186-87.
On September 23, 1997, plaintiff underwent a functional capacity
assessment by Lisa Wheeler, a Physical Therapy Assistant at Corning
Hospital. R. at 188-92. Ms. Wheeler performed a variety of tests, which
caused throbbing, tingling pain and soreness. Ms. Wheeler wrote in a
Functional Assessment Overview that plaintiff could do the following:
Lift above shoulder level R 1#, L 1#, B 6# R 1#, L 1#, B 6#
Lift from desk to chair R 2#, L 2#, B 8# R 2#, L 1#, B 8#
Lower from chair to floor R 2#, L 2#, B 8# R 1#, L 2#, B 8#
Push Bilaterally 6.5# Bilaterally 6.5#
Pull R 2#, L 2# R 2#, L 2#
R. at 191.
Dr. Forrest examined plaintiff for a third time on December 4, 1997.
R. at 193-97. Plaintiff reported that her condition was not improved,
despite wearing her splints day and night. She complained of continued
pain in her right thumb, some tingling by the tip of her right thumb and
two outer fingers, as well as some tingling from her left elbow down to
the two outer thumbs. Plaintiff related that even so simple an activity
as stirring would bring on pain and swelling. Dr. Forrest found that her
grip and pinch strength continued to be markedly low bilaterally, more so
on the right, and he also found a decrease in sensation in the left wrist
along the ulnar nerve distribution. Dr. Forrest's opinions remained
consistent. He did not consider plaintiff capable of returning to being a
teacher s assistant and found she had a marked partial degree of
disability. Dr. Forrest closed his written report by stating that
plaintiff was "so limited with constant splinting that work activities of
any nature appear thwarted. . . . [Plaintiff], under her present
treatment regime, is headed towards long term crippling, and a change of
evaluation and treatment is indicated, in my opinion." R. at 197.
On December 4, 1997, plaintiff returned to the Hand Management Center
for evaluation. She reported that the June 1997 injection by Dr. Garner
did not bring about improvement, and complained she had persistent right
thumb pain and some tingling in both hands. R. at 198. She also stated
that despite using the splints, she had problems writing as well as with
heavier gripping activities, with occasional tingling in the tip of her
thumb. Plaintiff was again seen by Ms. Townsend who wrote in her report,
dated December 10, 1997, that she found "pain and laxity upon stress to
the ulnar collateral ligament of
the right MP joint and significant
palpable tenderness over the CMC joint trapezium and to a lesser extent
scaphoid region." R. at 199-200. Ms. Townsend also found that on the left
side, plaintiff, "has strong provocative tests ie [sic] Tinel's and
Phalen's over median and ulnar nerves. Her strength is generally
decreased for a female of this age on this side." R. at 200. Overall,
Ms. Townsend's findings changed little from March 1997. R. at 199.
Dr. Wesley Canfield, a physician selected by the Commissioner, saw
plaintiff on December 17, 1997. R. at 201. In a written report, Dr.
Canfield wrote that plaintiff reacted with pain at any movement of her
hands or forearms. R. at 202. He also indicated that her grip strength
bilaterally was 4/5, but she complained of discomfort at the extremes
dorsiflexion and plantar flexion. He noted that she could not oppose her
right thumb to the base of her fifth digit. R. at 203. He also found that
the Tinel's sign was positive bilaterally and there was ulnar nerve
tenderness. In addition, he determined there were myofascial trigger
points in the head, neck and trapezius. Dr. Canfield's diagnosis was
bilateral carpal tunnel, overuse syndrome of the forearms and hands and
myofascial pain. He wrote that plaintiff could not return to her former
job. Dr. Canfield found that plaintiff's prognosis was guarded and
concluded that she was limited dramatically in her activities of daily
living. R. at 203-04.
Plaintiff was then referred to Dr. Daniel Britton, a neurologist, who
examined her on April 22, 1998. By this time, plaintiff's symptoms were
similar in both hands. Dr. Britton performed nerve conduction and EMG
tests. Both of these tests were normal. Dr. Britton was unsure as to the
exact cause of the plaintiff's problem, but thought her condition might
be helped by therapy on plaintiff's neck and shoulders and consequently,
he referred her to a physical therapist, Cathleen Anderjack. R. at
Cathleen Anderjack evaluated plaintiff on July 6, 1998, and wrote, in
her Physical Therapy Initial Evaluation report, that plaintiff had a more
severe pain response with extension, rotation and side bending to the
right. R. at 266-68. During manual muscle testing to plaintiff's
bilateral upper extremities, she noted functional limitations, except for
wrist flexion, finger abduction and abduction. Ms. Anderjack wrote that
plaintiff was able to oppose her fingers, with a struggle, and, "pain
response is noted to a more severe degree with extension, rotation and
side bending to the right." R. at 267. In the assessment portion of her
report, Ms. Anderjack wrote,
[p]atient presents with significant disability and
dysfunction about the cervical area and bilateral
upper extremities. Cervical involvement has not been
diagnostically confirmed however, bilateral disability
in both hands relating to digits four and five with
pain in paresthesia, indicate central cervical
involvement. This patient is also unable to perform
cervical extension without exquisite painful
repercussions, translating into migraine type
R. at 267. Plaintiff underwent twenty-four physical therapy sessions with
Ms. Anderjack. The progress notes concentrated far more on plaintiff's
neck and shoulders than her hands or wrists. R. at 269-77. In a September
21, 1998, discharge note, Ms. Anderjack wrote that plaintiff had a
complete and thorough understanding of exercise needs with pictorial
guides for a home program. However, the report also indicates that
plaintiff continued to experience myofascial pain. R. at 277.
On October 9, 1998, shortly after her physical therapy had ended,
appeared for a hearing before the ALJ. Plaintiff testified that
she had continual, severe pain and periodic numbness in her hands. She
stated that when using her hands, they swelled. R. at 49. She indicated
that she had been taking anti-inflammatories to cope with pain, but
stopped due to stomach problems. R. at 46. Plaintiff testified that the
pain from her right shoulder to her neck was, "[l]ike a knife. Like right
now it's got a severe burning sensation." R. at 51. She also testified
that the pain in her left shoulder was the same. R. at 51, 62. She stated
that she had stopped washing dishes, because she had broken too many of
them. She further stated that her daughter usually did the laundry and
the cooking. Additionally, plaintiff related that she could read for only
a short time due to her difficulty in holding books. R. at 56. She also
testified that it was also hard to write. R. at 63.
From 1996 through 1998, plaintiff continued to see Dr. Phillips on a
monthly basis. Dr. Phillips' office notes for December 2, 1996; January
3, 1997; January 30, 1997; February 24, 1997; March 26, 1997; April 29,
1997; May 28, 1997; June 26, 1997; July 29, 1997; August 25, 1997;
September 24, 1997; October 27, 1997; November 21, 1997; December 22,
1997; and January 21, 1998, show that plaintiff was totally disabled. In
his office notes of March 18, 1998, Dr. Phillips wrote, "Pt. has marked
degree of permanent disability [illegible] B/C UE (wrist/Elbows/Hands)."
R. at 259. However, in his report dated April 22, 1998, Dr. Phillips
wrote that plaintiff had a marked partial disability. R. at 260. Dr.
Phillips listed a diagnosis of overuse syndrome and classified plaintiff
as being partially disabled through his last progress note, dated
September 23, 1998. R. at 280-84.
Dr. Phillips provided even greater detail on plaintiff's limitations in
the work assessment form he completed on September 28, 1998. He wrote
that plaintiff was limited to occasional lifting or carrying of two
pounds with each arm. He also stated that plaintiff's ability to sit and
stand were not limited, other than the need for periodic breaks, ruled
out climbing and crawling, and found plaintiff's capacity for reaching,
handling, feeling, pushing and pulling to be limited. Dr. Phillips closed
by writing that plaintiff had "marked limitation of the use of both
hands." R. at 285-88.
Dr. Phillips referred plaintiff to Dr. Dawn M. Heil, a plastic
surgeon. In her February 16, 1999 report, Dr. Heil wrote that plaintiff's
right thumb ached with even light duty, that her hands became ice cold
and swollen with dusting, even if she used her splints. Dr. Heil also
noted that plaintiff had a maximum strength of one pound bilaterally in
her hands and six pounds bilaterally in her shoulders. She concluded by
writing, "I completely concur with Dr. Ross's assessment in that she is
significantly impaired and should be considered to have marked permanent
disability for use of bilateral upper extremities." R. at 294.
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
relevant work. 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).
C. THE ALJ'S DECISION
The Administrative Law Judge issued his decision on May 24, 1999,
finding that plaintiff was not entitled to disability insurance benefits
under Social Security Act §§ 216(i) and 223. Applying the sequential
evaluation process, the ALJ found, at step one, that plaintiff had not
engaged in substantial gainful activity since November 19, 1996, the date
she states she became disabled. At step two, he found medical evidence
established that plaintiff had severe impairments, however, at step
three, the ALJ found that they did not meet the listings, or have
impairments of a nature nor were they medically equal to the listings, in
appendix 1, subpart P., regulations No. 4.
At step four, the ALJ found plaintiff was unable to perform her past
relevant work as a teaching assistant, sales clerk, or bookkeeper. At
step five, the ALJ determined that plaintiff's residual functional
capacity for the full range of sedentary work was reduced by her
inability to lift, push, or pull more than two pounds, reach above her
head more than occasionally, or sit more than thirty minutes at a time.
However, in this regard, the ALJ discredited plaintiff's allegations of
disabling symptoms and limitations, including pain.
He found she had the
residual functional capacity to perform the physical exertion
requirements of sedentary work except for lifting, pushing, or pulling
more than two pounds; reaching above her head more than occasionally; or
sitting for more than 30 minutes at a time. He also found there were no
nonexertional limitations. R. at 29.
In an undated letter, the ALJ provided hypotheticals based on
plaintiff's situation to a vocational expert and asked the expert to
identify any jobs plaintiff would be capable of performing. R. at
144-46. In his letter, the ALJ wrote:
Assume a 37-year-old female claimant, having graduated
high school and taken two courses at Corning Community
College so as to obtain a teaching assistant
certificate. Further assume this claimant s employment
history is as follows: 1. September 1979-February
1984: Salesclerk/bookkeeper at Sears Factory Store,
duties including daily cost report, deposits, taking
telephone orders and waiting on customers. This job
entailed walking four hours each day, sitting two
hours, standing two hours, constant bending and
lifting between 25-50 lbs. 2. February 1990-June
1993: teaching assistant at Bradford Central School,
Where claimant helped with computers and helped
students with their class work. Exertionally this
entailed walking one hour per day, standing three
hours, sitting four hours, frequent bending and
lifting 10-20 lbs. 3. December 1993-November 18,
1996, teaching assistant in the library at Haverling
High School, which entailed supervising students,
computer work, shelving books and inventory.
Exertionally, assume claimant walked two hours per
day, stood three hours, sat three hours, constantly
stooped and lifted 25-50 lbs. Assume for purposes of
this hypothetical, claimant cannot return to her past
relevant work if, for no other reason, the lifting
Assume that claimant injured her right thumb and
adjacent tendons in November 1996. Shortly
thereafter, she was prescribed a splint for the right
wrist which she continues to wear. Basically, she
experiences some thumb pain and finds the thumb
difficult to bend. Assume claimant is right-hand
dominant and is barely able to write a note of a dozen
or so words. Further, assume that claimant has
developed an overuse syndrome with the left wrist,
necessitating wearing a splint full time. Also, assume
some tingling and numbness in the fourth and fifth
fingers of the left hand is experienced.
Assume that claimant is able to sit eight hours in an
eight-hour day and stand eight hours, assuming in both
instances that she would be accorded normal breaks.
Additionally, assume that claimant can lift but two
lbs., can stoop frequently, and would be limited in
reaching above her head and limited in push/pull
(presumably to two lbs.).
1. Based upon the foregoing, considering claimant s
age, education, work experience and limitations, is
claimant able to return to any of her past relevant
work as it is normally done in the Hammondsport area
of New York State and/or other regions in the national
2. Based upon the foregoing, considering claimant s
age, education, work experience and limitations, are
there jobs existing in the Hammondsport area of New
York State and/or other regions in the national
economy which claimant can do?
3. Considering the claimant s age, education, work
experience and limitations, and assuming the only
change in the above-mentioned exertional abilities
would be that she can sit no more than 30 minutes at
one time (without having to stand or walk), are there
jobs existing in the Hammondsport area of New York
State and/or other regions in the national economy
which claimant can do?
R. at 144-45. When notified of the letter action, plaintiff s counsel
objected, R. at 147, citing Social Security Ruling ("SSR") 96-9p, page 5
which, he pointed out, states as follows:
If an individual is unable to lift 10 pounds or
occasionally lift and carry items like docket files,
ledgers, and small tools throughout the workday, the
unskilled sedentary occupational base will be eroded.
The extent of erosion will depend on the extent of the
limitations. For example, if it can be determined that
the individual has an ability to lift or carry
slightly less than 10 pounds, with no other
limitations or restrictions in the ability to perform
the requirements of sedentary work, the unskilled
sedentary occupational base would not be significantly
eroded; however, an inability to lift or carry more
than 1 or 2 pounds would erode the unskilled sedentary
occupational base significantly. For individuals with
limitations in lifting or carrying weights between
these amounts, consultation with a vocational resource
may be appropriate.
SSR 96-9p. SSR 96-9p also states that "a finding of `disabled' usually
applies when the full range of sedentary work is significantly
eroded. . . ." Id. Julie Andrews, MPA, CRC, ABDA, CCCJS, Vocational
Expert, responded in a letter dated March 1, 1999. R. at 149-51. Ms.
Andrews stated that such an individual could not do her past relevant
work, but could do one of the following jobs:
Information Clerk DOT number 237.367-022
Order Clerk, Food & Beverage DOT number 209.567-0 14
Surveillance System Monitor DOT number 379.367-0 10
The ALJ ruled out the order clerk job, but held that plaintiff was not
disabled, as she could perform the functions of the information clerk and
surveillance system monitor positions. R. at 28-29.
The Commissioner, in her motion for remand, argues that the ALJ did not
evaluate evidence that plaintiff had greater functional limitations,
including manipulative limitations, as a result of her alleged
impairments. She states that Dr. Phillips, plaintiff's treating
physician, opined that plaintiff was limited in reaching, handling, and
feeling, but that the ALJ appeared to adopt only the portion of the
doctor s opinion that plaintiff could lift a maximum of two pounds, and
failed to reconcile the doctor s finding of manipulative limitations. She
asserts this was improper under Fiorello v. Heckler, 725 F.2d 174, 176
(2d Cir. 1983) (ALJ may not "pick and choose" those excerpts of the
medical reports that supported a denial of benefits). Further, the
Commissioner argues that Dr. Kenneth Gold, also an examining physician,
opined that plaintiff could not do "any type of sedentary or manual labor
with her current problem." R. at 176. Finally, she points out that Dr.
John S. Forrest, another examining physician, reported that plaintiff
underwent a functional capacity evaluation that showed she could do "very
little," R. at 194, and that "at the present time she is so limited with
constant splinting that work activities of any nature appear thwarted."
R. at 197. The Commissioner argues that the ALJ did not address this
statement, or reconcile it with his finding that plaintiff could do a
limited range of sedentary work. Notwithstanding these arguments,
however, the Commissioner also contends that the record, as it presently
stands, does not contain evidence which would clearly support a finding
that plaintiff is disabled. On the other hand, while plaintiff concurs
that remand is proper, she maintains it should be for the calculation of
Plaintiff's first argument in support of her position, that SSR 96-9p
restricts the ALJ from calling a vocational expert in this case, is not
persuasive. The plain language of the ruling suggests that for individuals
for whom lifting, carrying, pushing, and pulling is limited between ten
and two pounds, consultation with a vocational resource may be
appropriate. That language does not suggest that it would be inappropriate
to consult with a vocational expert when an individual is limited to
carrying no more than one or two pounds. Thus, the court concluded that
plaintiff's argument on this point is not a basis for reversal or remand
in this case.
Next, plaintiff contends that the ALJ improperly evaluated the medical
evidence in the record and that such evidence establishes that plaintiff
is disabled. The Commissioner's regulations addressing the weight to be
given a medical opinion provide in pertinent part:
(d) How we weigh medical opinions. Regardless of its
source, we will evaluate every medical opinion we
receive. Unless we give a treating source's opinion
controlling weight under paragraph (d)(2) of this
section, we consider all of the following factors in
deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more
weight to the opinion of a source who has examined you
than to the opinion of a source who has not examined
(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since
these sources are likely to be the medical
professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical
findings alone or from reports of individual
examinations, such as consultative examinations or
brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we
will give it controlling weight. When we do not give
the treating source's opinion controlling weight, we
apply the factors listed in paragraphs (d)(2)(i) and
(d)(2)(ii) of this section, as well as the factors in
paragraphs (d)(3) through (d)(6) of this section in
determining the weight to give the opinion. We will
always give good reasons in our notice of
determination or decision for the weight we give your
treating source's opinion.
(i) Length of the treatment relationship and the
frequency of examination. Generally, the longer a
treating source has treated you and the more times you
have been seen by a treating source, the more weight
we will give to the source's medical opinion. When the
treating source has seen you a number of times and
long enough to have obtained a longitudinal picture of
we will give the source's opinion
more weight than we would give it if it were from a
(ii) Nature and extent of the treatment relationship.
Generally, the more knowledge a treating source has
about your impairment(s) the more weight we will give
to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and
extent of examinations and testing the source has
performed or ordered from specialists and independent
laboratories. For example, if your ophthalmologist
notices that you have complained of neck pain during
your eye examinations, we will consider his or her
opinion with respect to your neck pain, but we will
give it less weight than that of another physician who
has treated you for the neck pain. When the treating
source has reasonable knowledge of your
impairment(s), we will give the source's opinion more
weight than we would give it if it were from a
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight
we will give that opinion. The better an explanation a
source provides for an opinion, the more weight we
will give that opinion. Furthermore, because
nonexamining sources have no examining or treating
relationship with you, the weight we will give their
opinions will depend on the degree to which they
provide supporting explanations for their opinions. We
will evaluate the degree to which these opinions
consider all of the pertinent evidence in your claim,
including opinions of treating and other examining
(4) Consistency. Generally, the more consistent an
opinion is with the record as a whole, the more weight
we will give to that opinion.
(5) Specialization. We generally give more weight to
the opinion of a specialist about medical issues
related to his or her area of specialty than to the
opinion of a source who is not a specialist.
20 C.F.R. § 404.1527(d)(1)-(5).
Based on the above regulation, clearly Dr. Phillips' and Dr. Gold's
opinions should carry great weight in this case. Although the Commissioner
relies on contrary medical evidence in the record, that evidence does not
come from treating sources and, thus, is not accorded the great weight
that the treating physicians' evidence is under this regulation. For
example, the Commissioner relies in part on the opinion of Dr. Judith
Rodnar, a state agency physician who never examined plaintiff. R. at
205-12. However, the Court determines that Dr. Rodnar's findings, "that
plaintiff was able to lift 50 pounds occasionally and 25 pounds
frequently, are so grossly different from the opinions of all examining
physicians and medical evidence that they deserve no consideration in this
case." Pl.'s Mem. Supp. Mot. Summ. J. at 16.
Likewise, the opinion of Dr. J. Randall (his first name it is not shown
on the physical residual functional capacity assessment form), also
relied on by the ALJ, states limitations in lifting that are far beyond
those given by the treating and examining physicians. R. at 213-20. Dr.
Randall's report also mentions plaintiff's complaint of tingling in both
hands, the fact that she wears wrist splints, that her right grip
strength is five pounds and her left grip strength is twelve, and that
she has a positive Tinel's sign on her right and left sides. His
conclusion, that she is capable of performing light work not requiring
constant repetitive motion of her hands, or involving fine manipulation,
is not supported by the evidence in the record before this Court. The
finds it significant that the ALJ chose to ignore Dr.
Randall's and Dr. Rodnar's findings with regard to plaintiff's ability to
Based on its thorough review of the record in this case, the Court
finds that the Commissioner's final decision is not supported by
substantial evidence in the record. Parker v. Harris, 626 F.2d 225, 231
(2d Cir. 1980). It is clear from the treating physicians' reports that
plaintiff has tried just about every avenue for relief offered by the
medical profession, all without success. The record as it now stands
provides persuasive proof of disability and the Court concludes that a
remand for further deliberations would serve no useful purpose;
therefore, the Court reverses the Commissioner's decision, and remands
solely for calculation and payment of benefits. Id.
Accordingly, the Commissioner's motion for reversal of the
Commissioner's decision and remand for further consideration (docket #3)
is granted in part, denied in part, and plaintiff's motion for summary
judgment (docket #5), reversing the Commissioner's decision and
remanding the case, pursuant to sentence four of 42 U.S.C. § 405(g),
solely for calculation and payment of benefits, is granted.
IT IS SO ORDERED.