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August 7, 2003


The opinion of the court was delivered by: David Larimer, Chief Judge, District


Procedural Posture

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner") that Paula Aragon-Lemus ("plaintiff) is not disabled under the Social Security Act ("the Act") and, therefore, is not entitled to benefits. Plaintiff applied for benefits under Title XVI of the Act on June 28, 1996 (T. 70, 72-85).*fn1 Her application was denied both initially, (T. 48-51), and upon reconsideration (T. 54-57). Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"), which was held on March 25, 1998 (T. 22-45). The ALJ, after considering all of the evidence, decided that plaintiff was not disabled under the meaning of the Act (T. 11-17). The decision of the ALJ became the final decision of the [ Page 2]

Commissioner on May 30, 2002 when the Appeals Council denied plaintiff's request for review of the ALJ's decision (T. 6-7).2*fn2

Plaintiff timely appealed the Commissioner's decision and the action is properly before this Court. The Commissioner and plaintiff have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Commissioner's decision is reversed, and this matter is remanded for further proceedings consistent with this opinion.

II. Factual Background

Plaintiff is a political refugee from Cuba. She came to the United States in 1995 in order that she might have the freedom to practice her religion and teach the same to her children (T. 28). Plaintiff apparently has a high school education and has allegedly worked as a "sewing machine operator/instructor" (T. 11, 16). On or about February 22, 1996, plaintiff visited Dr. P. William Haake, who diagnosed her with mild degenerative disc disease and scoliosis (T. 121-22). Dr. Haake noted that plaintiff's range of motion in the cervical spine was not limited, she was able to walk, and that she had good grip strength (T. 121). He prescribed no medication and only a cervical collar, but later reports from Dr. Haake indicate that plaintiff was not wearing the cervical collar (T. 119).

Later that year, on October 15, 1996, Dr. Murli Raghavan examined plaintiff for the New York State Department of Social Services Office of Disability Determinations ("DDS"). After noting that plaintiff did the household chores with help from her husband, Dr. Raghavan measured some of plaintiffs non-exertional capacities (T. 105-106). The doctor performed no tests or analysis on [ Page 3]

plaintiff's ability to walk, stand, sit, push, or pull. Dr. Raghavan's ultimate conclusion was that plaintiff indeed suffered from moderate scoliosis and recurrent headaches and opined that she was "probably only suited for a sedentary light job" (T. 106).*fn3

Soon after that examination, on or about November 7, 1996, plaintiff saw another treating physician, Dr. Douglas H. Jones. Dr. Jones described plaintiff as being "in no severe distress," but because of tenderness of plaintiff's neck, shoulder, and back muscles, plaintiff's ailments were "consistent with a muscle spasm/fibromyalgia*fn4 picture" (T. 131-32). Only a few weeks later, Dr. Jones saw plaintiff and noted that plaintiff looked "somewhat better," but while she was under "no acute distress[,] . . . she was still showing tenderness to palpation of the muscles of the neck, [ Page 4]

shoulders[,] and upper back" (T. 133). In December 1996 though, a non-examining DDS physician opined that plaintiff retained the functional capacity to do "medium" work (T. 95-102).*fn5

In January 1998, Dr. Jones again found that plaintiff was "in no severe distress[,] but was uncomfortable" and noted that there was "quite significant tenderness to palpation of the muscles of the neck, shoulders[,] and upper back . . ." (T. 135). He suggested that normalizing plaintiff's sleep pattern "might be the key" to her treatment (T. 135). Dr. Jones answered the ALJ's request for an update on plaintiff's condition on March 10, 1998, saying that plaintiff's ailments "may likely inhibit her from any meaningful employment at this time," but was unable to determine plaintiff's specific exertional limitations because plaintiff failed to keep her appointment at which a functional capacity evaluation was to be performed (T. 130).

At her hearing, plaintiff testified to pain in her "whole body," (T. 32), and an inability to sit or stand for any prolonged period of time because her bones hurt (T. 29-30). Plaintiff reported being able to walk about three blocks or, if carrying around ten pounds, only one block (T. 33). In order to relieve her pain, plaintiff said that she must go to a dark, silent room and stay in bed much of the time (T. 33-35). Plaintiff testified to being not able to do most household chores and needing assistance from her husband, neighbor, son, and sister (T. 35-36, 42). [ Page 5]

III. Legal Standards

A. "Disability" Under the Act

A person is "disabled" under the Act and, therefore, entitled to benefits when she 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. § 423(d)(1)(A). To qualify for benefits, the disability must be the result of an "anatomical, physiological, or psychological abnormalit[y] . . . demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). Such a disability will be found to exist only if an individual's impairment is "of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

The Second Circuit has described the five-step process with which the Commissioner determines whether a claimant is disabled and entitled to benefits:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has a listed impairment, the Commissioner will consider the claimant disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a listed impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if [ Page 6]
the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (footnote and citation omitted).

In the present case, the ALJ found that plaintiff was not engaged in substantial gainful activity, and had not been since August 1995 (T. 16). The ALJ next found, based on the medical evidence in the record, that plaintiff's impairments — scoliosis, fibromyalgia, and headaches — were severe (T. 16). The impairments noted, however, were not listed in 20 C.F.R. pt. 404, subpt. P, app. 1 and did not equal any of the listed impairments (T. 16). At the fourth step, the ALJ concluded that plaintiff had the residual functional capacity to perform work-related activities involving lifting up to twenty pounds occasionally and ten pounds frequently, as well as sitting, walking, or standing for up to six hours in an eight-hour day (T. 16). These limitations correspond to an exertional capacity of "light." See 20 C.F.R. § 416.967(b). Consequently, the ALJ held that plaintiff's experience as a "sewing machine operator/instructor," which falls into the "light" exertional category, Dictionary of Occupational Titles, Codes 787.132-010 and 787.682-066 (4th ed. 1991), was past relevant work (sometimes "PRW") to which plaintiff could return (T. 16). The ALJ, therefore, found plaintiff not disabled within the meaning of the Act (T. 17).

B. Standard of Review

The Commissioner's decision that plaintiff is ineligible to receive benefits must be affirmed if it is supported by substantial evidence. 42 U.S.C. § 405(g); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence is defined as "`more than a mere ...

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