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SAMUELS v. BARNHART

May 13, 2003

SARAH SAMUELS, PLAINTIFF, AGAINST JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.


The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge

OPINION AND ORDER

Sarah Samuels appeals pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking review of the Commissioner of Social Security's (the "Commissioner") decision to deny her Supplemental Security Income ("SSI") disability benefits. Both parties move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons stated below, Samuels' claim is remanded to the Commissioner.

I.

Sarah Samuels was born on July 15, 1944. (Tr. 60) She attended school through the tenth grade (Tr. 93) and also attended a vocational school from 1960 to 1961 (id.). Samuels has no significant work history. On her application for SSI benefits, she reported working in a factory as a seasonal worker making Christmas decorations while attending vocational school. (Id.) In 1980, she worked for several days, going door-to-door taking records for the census bureau. (Id.) Around 1984 or 1985 she worked as a home attendant. (Id.) She did not say how many days a week or over what period she worked in this job. (Id.) Samuels also apparently worked as a foster mother for two years in the early 1990s (Tr. 222), and had a "PWP" job assignment.*fn1 (Tr. 43, 116, 147)

In October 1996, Samuels filed an application for SSI benefits. (Tr. 81-88)*fn2 She reported that she was HIV positive and suffered from hypertension and herpes. (Tr. 81) In January 1997, after her application for benefits was denied (see Tr. 49), Samuels requested reconsideration of her claim (see Tr. 97). At that time, Samuels said that she experienced drowsiness, fatigue, severe back pain, and weakness of both knees. (Id.) Samuels' request for reconsideration was denied in April 1997. (Tr. 54) In October 1997, when she requested a hearing on her claim, Samuels said: "I have limited use of my hands caused by my arthritis which is also in my back. I lay in the bed all day from this pain and the weakness from my HIV." (Tr. 58) She said also: "My pain in wrists and spine hurts so bad that I have trouble getting out of bed. My HIV T-cell count is 535 and I am weak and drowsy." (Tr. 109)

Samuels appeared pro se at her hearing before the Administrative Law Judge ("ALJ") on March 11, 1998. (Tr. 39)*fn3 The transcript of the hearing totals only 7 and 1/4 pages. (See Tr. 39-46) Samuels testified that she could read and write, and that she had achieved a GED. (Tr. 40) Samuels said that her back bothered her all the time and sometimes hurt so badly that she could not get out of bed. (Tr. 41) She said that she took pain medication for her back, but it was "killing" her right then, despite the medication. (Tr. 42) According to Samuels, the pain had kept her from traveling to Pennsylvania the previous month for the funeral of her brother-in-law. (Id.) Samuels complained also of arthritis which would start in her hand, come up to her neck, and move down to her buttocks. (Tr. 41) She said that sometimes she could hardly pick up a loaf of bread — she would pick it up and it would drop out of her hand. (Id.)

In a decision dated May 8, 1998, the ALJ denied Samuels benefits. (Tr. 16-31) The ALJ concluded that Samuels' complaints about pain and weakness were "not fully credible," principally because he found a lack of medical evidence in the record that supported her complaints. (Tr. 22-26)

Evidence that was in the record before the ALJ shows that Samuels had a history of hypertension (see, e.g., Tr. 159-161), and in September 1996 she was diagnosed with HIV and herpes zoster, otherwise known as shingles.*fn4 (Tr. 179) Treatment notes from the Spellman Center at St. Clare's Hospital, where Samuels was treated from October 1996 until at least May 1998 (Tr. 155-204, 228-70), show that Samuels was diagnosed with new onset diabetes mellitus in January 1997 (Tr. 160). Samuels' HIV was treated with antiretroviral drugs (Tr. 164) and remained "asymptomatic." (Tr. 161, 165, 174)

Treatment notes from the Spellman Center contain some evidence that Samuels was experiencing pain. A treatment note from November 19, 1996 states that Samuels was taking Motrin for pain. (Tr. 165) On January 17, 1997, a doctor recommended Tylenol instead of Motrin for Samuels' "postherpetic pain" (Tr. 159), and noted that Samuels had a history of "lumbago" (i.e., back pain) at the herpes zoster site. (Tr. 159) Treatment notes in November and December 1997 refer to "arthritis." (Tr. 197-98) One treatment note appears in the record for which the date is illegible. This note mentions that Samuels took Tylenol for "arthritis" and states, "will give Tylenol Codeine." (Tr. 203)

On March 2, 1998, Dr. Coleman of the Spellman Center reported that Samuels' HIV, hypertension, and diabetes mellitus were stable. (Tr. 228) He noted a history of arthritis but said Samuels was "fully functional" and "doing well." (Id.)*fn5 Dr. Coleman noted that he had first seen Samuels in January 1998. (Id.)

Based on the treatment records from the Spellman Center, as well as the reports of consulting doctors — which are described below — the ALJ concluded that Samuels was not disabled under the regulations. However, the ALJ did not have a full set of Samuels' medical records before him. Additional treatment records were submitted to the Appeals Council by a lawyer helping Samuels with her appeal (Tr. 274-76),*fn6 and these notes provide support for Samuels' complaints about pain and weakness.

Missing from the record before the ALJ were treatment notes from Dr. Shapiro, who treated Samuels from 1990 until October 1996. (Tr. 142).*fn7 In September 1996, Dr. Shapiro wrote that Samuels had "severe blisters, rash [right] lower back, leg, vulva," and she diagnosed this condition as herpes zoster. (Id.) Dr. Shapiro prescribed Tylenol with Codeine. (Id.) Two weeks later, Dr. Shapiro noted that the blisters had spread to Samuels' right chest and were "very extensive, severe." (Id.)

Included in the record before the ALJ were treatment notes from the Spellman Center from October 1996 to March 1997, and from November 1997 to March 1998. (See Tr. 155-204, 228-242) However, missing were notes from April 1997 to October 1997. These notes were submitted to the Appeals Council*fn8 and several contain evidence that Samuels suffered from conditions that cause pain and weakness. In particular, an April 11, 1997 treatment note indicates that Samuels complained of pain and numbness in the upper extremities. (Tr. 247) At that time, she was diagnosed with new onset peripheral neuropathy.*fn9 (Id.) Another treatment note shows that on May 13, 1997, Samuels complained of "arthritis on hands/[undecipherable]." (Tr. 250) Physical examination revealed "positive" findings regarding wrist motion with "stiffness." (Tr. 250) Motrin was prescribed. (Id.) On June 10, 1997, Samuels was told to try Tylenol instead of Motrin for her "postherpetic neuralgia,"*fn10 as the Motrin might increase her blood pressure and affect her kidney. (Tr. 252) A note on September 5, 1997, said: "Renew order . . . tylenol for arthritis." (Tr. 257) In October 1997, Samuels visited the Spellman clinic seeking a refill of Tylenol for "arthritic pain." (Tr. 244)*fn11 None of these notes were before the ALJ.

The record before the ALJ did contain reports of several examinations performed by consulting physicians. On February 16, 1996, Samuels was examined by Dr. Lachman. (Tr. 116-18) Samuels reported to Dr. Lachman a history of high blood pressure and a chronic cough. (Tr. 116) Samuels said she got short of breath when walking, and could walk only one to 1-1/2 blocks before stopping. (Id.) Dr. Lachman said that Samuels "ambulates and gets on and off the examination table without assistance." (Id.) The examination revealed no limitation in the range of motion for any muscle or joint; there was no muscle atrophy; motor strength was full bilaterally; there were no sensory deficits; Samuels' gait was normal; and there were no rashes on the skin. (Tr. 117) Dr. Lachman's impression was that Samuels suffered from hypertension and chronic bronchitis, which he thought was due to cigarette smoking. (Id.) He concluded: "This patient should be able to perform light physical duties. It is possible that her chronic bronchitis could be affected by exposure to chemical irritants. She should stop smoking and reduce her moderate alcohol intake to be in better health and be more productive." (Tr. 118)

Dr. Graham examined Samuels on November 20, 1996. (Tr. 147-49) Dr. Graham's report noted that Samuels had worked four months prior to that date as a PWP worker, but she stated she was unable to work because of "tiredness" and because she could not "lift heavy things." (Tr. 147) Samuels reported also that she was HIV positive and described becoming fatigued easily. (Id.) She said that she was able to walk about 4 to 5 blocks before stopping. (Id.) The examination showed a normal range of motion of the spine with no tenderness or muscle spasm; there was a full range of motion in all joints with no pain; muscle strength was adequate; there was no muscle atrophy; dexterity was normal; and Samuels was able to make a full fist and able to perform a full squat. (Tr. 148) Dr. Graham concluded that Samuels was able to "sit, stand, walk, lift, carry, handle objects, hear, speak, and travel." (Tr. 149) Dr. Graham examined Samuels again on December 2, 1997. (Tr. 207-09) Samuels described becoming tired after walking 4 to 5 blocks. (Tr. 207) Samuels described her history of HIV, hypertension, and diabetes. (Id.) The remainder of Dr. Graham's findings were similar to those in 1996. He concluded: "This patient is able to sit, stand, walk, lift, carry, handle objects, hear, speak, and travel." (Tr. 209)

On January 5, 1998, Dr. Robotti conducted a psychiatric examination of Samuels. (Tr. 222-23) Dr. Robotti stated that Samuels was "fairly well dressed and well groomed," she was "pleasant and cooperative and well-mannered," and her speech was "relevant and coherent." (Tr. 222) There were no delusions, hallucinations, or suicidal or homicidal ideation, insight and judgment were fair, mood was euthymic, affect was broad-ranged and appropriate, she was fully oriented, and her recent and remote memory were intact. (Id.) Dr. Robotti stated that Samuels showed no limitation in understanding, memory, sustained concentration, persistence, and social interaction and adaptation. (Id.) Dr. Robotti's impression was that Samuels suffered from dysthymic disorder*fn12 and alcohol dependence in remission. (Tr. 223) Dr. Robotti noted that Samuels was HIV positive and had arthritis. (Id.) Dr. Robotti concluded: "The patient can manage her own funds and continue medical follow up for human immunodeficiency virus." (Id.)

Also on January 5, 1998, Samuels underwent an intelligence evaluation by Dr. Hoffman. (Tr. 224-25) Dr. Hoffman noted that Samuels said that her arthritis interfered with her daily living ability. (Tr. 224) On the Bender-Gestalt test for assessing organic brain function, Dr. Hoffman found that Samuels' errors showed moderate rather than mild or severe organicity in the graphomotor domain. (Id.) The errors related to integration and angulation. She showed difficulty in spacing her answers appropriately, and anxiety. (Id.) On the Wechsler Adult Intelligence Scale, Samuels earned a Verbal IQ of 90, a Performance IQ of 74, and a Full Scale IQ of 82. (Tr. 225) Dr. Hoffman said that "[t]hese scores indicate average, borderline, and low-average ranges of intelligence respectively." (Id.) Dr. Hoffman found: "The claimant showed high average ability in short-term memory for numerals. She displayed average ability in conceptual reasoning. She showed low-average ability in oral comprehension." (Id.) He found further: "She displayed borderline ability in her fund of general knowledge, word mastery, arithmetic, and symbolic reasoning via hand-eye coordination. She displayed deficient functioning in social reasoning, matching three-dimensional patterns to two-dimensional representations, attention to visual details, and solving puzzles via hand-eye coordination." (Id.) Dr. Hoffman concluded: "The claimant does show the ability to achieve competitive employment, although she would probably need help in managing her funds independently." (Id.) He said: "It is recommended that the claimant be encouraged to seek competitive employment relying on her relative strength in verbal intelligence." (Id.)*fn13

In February 1998, a non-examining physician reviewed Samuels' file. (Tr. 210-217) This physician addressed Samuels' HIV status and "affective disorder" (Tr. 210) and concluded that she could occasionally (one-third of an 8-hour work day) lift and carry 50 pounds and frequently (two-thirds of an 8-hour work day) lift and carry 25 pounds (Tr. 211). The physician further believed that Samuels could stand and walk for 6 hours during an 8-hour period. (Id.)

Another non-examining physician evaluated Samuels' mental impairment in February 1998 and concluded that it "moderately" limited her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (Tr. 218) She was also "moderately" limited in her ability to interact with the general public and moderately limited in her ability to set realistic goals and make plans indepedently. (Tr. 219) This doctor concluded that Samuels was "capable of low contact work activities." (Tr. 220)

II.

The SSI Program established by Title XVI of the Social Security Act, codified at 42 U.S.C. § 1381 et seq. (2000), provides benefits to those who are indigent and disabled. See Bowen v. City of New York, 476 U.S. 467, 470 (1986). The Social Security Act considers someone disabled if he is unable "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." 42 U.S.C. ยง 1382c(a)(3)(A) (2000). The person must be unable not only to do his previous work but also, "considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy, ...


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