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April 14, 2003


The opinion of the court was delivered by: Sidney H. Stein, United States District Judge


Joseph Brown brings this action pro se pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge a final determination by defendant Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner"), denying him Social Security Disability Insurance ("SSDI") and Supplemental Security Insurance benefits ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, defendant's motion is denied and the case is remanded for further proceedings consistent with this Opinion.


A. Administrative Proceedings

On March 15, 2000, Brown filed an application with the Social Security Administration ("SSA") for SSDI and SSI payments. (R. 40-42).*fn1 The application was denied initially and upon reconsideration. (R. 37-39, 48-52, 158-162). At Brown's request, administrative law judge Michal Lissek (the "ALJ") reviewed that determination de novo at a hearing on November 30, 2001, subsequently finding that Brown was not disabled and thus not entitled to either of the benefits he sought. (R. 16). On April 19, 2002, the Appeals Council denied Brown's request for review of the ALJ's decision, which thereby became the final decision of the Commissioner. (R. 4-5).

1. Brown's Testimony

At the administrative hearing, Brown testified that he was 48 years old and living under the care of his mother, Correen Brown. (R. 23-24). Brown's education consists of at least some high school. (R. 24). Brown testified that he receives public assistance as his primary source of income; however, he has been excused from its work requirements because of letters from his physicians. (R. 35).

Brown's most recent employment was as a parking attendant at a Manhattan garage operated by Gramercy Parking Terminal, Inc. from 1978 to 1993. (R. 24). According to Brown, his employment terminated because the garage had been sold to New York City during one of his hospitalizations. (R.25). His subsequent attempts to work at various garages were unsuccessful due to his "inability to get in and out of cars." (R. 25-26).

Brown further testified that he is claiming disability benefits on the basis of several physical impairments, including a seizure disorder, back disorder, and uncontrollable hiccups. (R. 26, 34). Although he regularly takes Dilantin, a medication prescribed by his treating physician, Dr. Singh, for his seizure disorder, Brown testified that he suffered an attack even while medicated. (R. 26-27). When questioned by the ALJ, Brown maintained that these seizure attacks were unrelated to alcohol abuse. (R. 32).

2. Witness Testimony

Henderson Morton, apparently a lay witness on behalf of Brown, testified that Brown is susceptible to attacks related to his throat and breathing. (R. 30). Morton further testified that Brown suffers from random seizures associated with ventilation and temperature changes, unrelated to alcohol abuse. (R. 31-32). Rather, Morton opined that these attacks were more likely caused by Brown's alleged thyroid condition or lack of proper diet. (R.32).

B. Medical Evidence

1. Treating Physician's Report

The record does not contain the receipt of any medical treatment prior to January 21, 1994, when Brown was admitted to Montefiore Hospital. At Montefiore Hospital, he was diagnosed with a large mass within the left lobe of the thyroid gland. (R. 113).

Dr. Singh submitted medical records dated from March 4, 1996 to January 6, 2000, indicating that Brown suffers from a seizure disorder, thyroid goiter hiccups, small hiatal hernia, and Barrett's esophagus. (R. 115-119). On March 4, 1996, Brown was treated in the hospital emergency room at Lincoln Medical and Mental Health Center for convulsive seizures. (R. 121-125). The attending physician noted that Brown's seizures ended once his sodium level corrected; in addition, he opined that the seizures were most likely caused by alcohol abuse. (R. 123). An endoscopy report completed on March 7, 1996 revealed that Brown suffers from severe Barrett's esophagus. (R. 126).

On October 17, 1999, Dr. Singh performed a CT scan of Brown's chest, revealing a heterogeneous mass in the left lobe of the thyroid. (R. 118). Because it had not changed over the past five years, the mass was considered benign. Id. On January 6, 2000, Dr. Singh subsequently diagnosed the mass as indicative of thyroid goiter. (R. 115).

Based on that CT scan, Dr. Singh also concluded that Brown's remaining lungs were clear, with no evidence of pleural effusion. (R. 117). Upon examining the upper abdomen, Dr. Singh noted that neither the lung nor spleen was enlarged. However, she reported that Brown had a small hiatal hernia with mild esophageal thickening. Id.

On April 5, 2001, Dr. Singh performed a medical assessment of Brown's ability to do work-related activities. (R. 152-154). She diagnosed Brown with chronic obstructive pulmonary disease ("COPD"), thyroid goiter, seizure disorder, and esophagitus. (R. 153). Based on these limitations, she opined that Brown is limited to occasionally*fn2 carrying 5-10 lbs. (R. 152). However, his ability to stand or sit are unaffected by these impairments. Id.

Additionally, Dr. Singh opined that Brown is unable to climb or balance, and can occasionally stoop, crouch, kneel or crawl. Id. Based on diagnosing COPD and seizure disorder, Dr. Singh recommended that Brown avoid environments involving heights, moving machinery, temperature extremes, chemicals, dust, fumes, humidity, or vibration. Id.

2. Consultative Physicians' Reports

a. Dr. Polak's Report

On December 27, 2000, Dr. Polak, a consultative internist, diagnosed Brown with chronic lower back pain and a seizure disorder. (R. 133). X-rays indicated degenerative changes in Brown's lumbosacral spine; other findings suggested enlargement of the thyroid. Id.

Dr. Polak also diagnosed Brown with alcoholism partly based on his admitted history of alcohol abuse (which he claimed ended eight years earlier). Id. Brown also admitted that he had smoked a pack of cigarettes every day for eighteen years. Id.

Dr. Polak concluded that Brown's lungs are clear, with no wheezes, rhonchi, or rales. (R. 132). In examining Brown's musculoskeletal system, Dr. Polak concluded that Brown's station and gait are normal, to the extent that he has "no difficulty transferring from a seated position on and off the examining table." Id. In examining Brown's back, Dr. Polak found no presence of deformity or paravertebral spasms; the range of motion on flexion is 0-70 degrees. Id. Dr. Polak also reported that Brown's "finger/hand dexterity" is "intact." Id. Additionally, Dr. Polak found no deformity or paravertebral spasms in Brown's back. Id.

Based on these findings, Dr. Polak recommended that while Brown is "mildly impaired for carrying/lifting, pushing/pulling, bending or sitting," he can perform activities involving dexterity, walking, or sitting. (R. 133). Dr. Polak noted that "consideration should be taken into account that [Brown] suffers from breakthrough seizures." Id.

b. Dr. Gondolo's Report

On January 5, 2001, Dr. Gondolo, a consultative neurologist, diagnosed Brown with a seizure disorder and lumbosacral spine sprain and strain. (R. 138). In the history of Brown's illnesses, Dr. Gondolo noted that Brown was unable to say how many seizures a month he suffered, but that he sustained several injuries during these episodes. (R. 137). Dr. Gondolo recommended that Brown continue his Dilantin treatments, and added a prescription for Phenobarbital for his seizures.

Dr. Gondolo also reported that Brown's gait and motor capacities are normal. Id. Consequently, the doctor concluded that Brown is moderately limited in "lifting and carrying, walking because of the lumbosacral sprain and strain." Id. However, this prognosis was ...

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