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United States District Court, S.D. New York

February 5, 2004.

JAMES A. TRUESDALE, JR., Plaintiff -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  James A. Truesdale, Jr. brings this action under section 205(g) of the Social Securty Act, 42 U.S.C. § 405(g) (the "Act"), challenging the final decision of the Commissioner of Social" Security ("Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Plaintiff has moved, and the Commissioner has cross-moved, for judgment on the pleadings pursuant to Federc31 Rule of Civil Procedure 12(c).


  A. Procedural History

  Plaintiff filed an application for SSI benefits and DIB on October 6, 2000. See Transcript of the proceedings ("Tr.")*fn1 Page 2 at 11. In his application, plaintiff alleged that he was disabled and unable to work since January 21, 1997, due to an accident in 1983 that led to a screw being placed in his right knee which causes him pain. Id. at 52. Additionally, plaintiff stated that he was depressed, chemically dependent, had a nervous condition, and suffered from seizures, all of which caused him to become disabled in 1996 by not being able to "handle a job either mentally or physically." Id. His claim was denied initially and upon reconsideration. Id. at 11. Upon request, a hearing was conducted before an administrative law judge ("ALJ") on May 1, 2002. Id. at 18. On May 17, 2002, the ALJ issued a decision denying plaintiff's application for benefits. Id. at 8. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 19, 2002. See Plaintiff's Memorandum of Law in Support of His Motion for Judgment on the Pleadings ("PI. Mem.") at 1.

  B. Plaintiff's Personal History

  Plaintiff was born on June 14, 1963. Tr. at 62. He was thirty-seven years old when he filed his application in October 2000. Id. at 22. He completed nine years of school but never obtained a general equivalency diploma, although he did undergo vocational training in carpentry. Id. at 22-23. Plaintiff lives with his wife and three-year old son in a building without an elevator. Because he lives on the second Page 3 floor, plaintiff is required to walk up and down short flights of stairs to enter or exit his apartment building. Id. at 92.

  Plaintiff testified that he last worked as a hotel manager for about a year in 1994. Id. at 23-24. His duties included answering phones, informing people as to room availability and capacity, and ordering cleaning materials for the building. Id. Plaintiff testified that he had previously worked as a security guard, which required him to sit in a booth and walk around the perimeter of a building to make sure everything was in order. Id. at 25. However, in his application, plaintiff wrote that his injuries first bothered him on August 9, 1994, and he stopped working due to those injuries on January 21, 1997. However, he also checked "NO" to the question, "Did you work at any time after the date your illnesses, injuries or conditions first bothered you?" Id. at 52. Consequently, the record is somewhat inconsistent as to when plaintiff stopped working.

  Plaintiff's daily/weekly activities, as listed in his application, include grocery shopping, occasional cooking and cleaning, going to group therapy four times a week and another therapy program six times a week, visiting his mother every Sunday, and occasionally taking his son to the park to watch him play. Id. at 66. Plaintiff wrote that he travels using the trains and busses. Id. at 67. Plaintiff testified to subjective Page 4 pain, stating that he could only bend, stand or walk for about two to three minutes before he felt pain. Id. at 30. In addition to his physical disabilities, plaintiff testified to his depression and chemical dependency, for which he takes medication and goes to therapy. Id. at 29, 32.

  C. Medical Evidence

  1. Treating Physicians

  a. Dr. Philome Gracia

  Dr. Philome Gracia, an internist at the Narco Freedom Clinic, examined plaintiff on July 21, 2000. Id. at 97-105. Dr. Gracia diagnosed plaintiff as being ambulatory with right knee pain. Dr. Gracia further diagnosed chronic opiate dependence and post-traumatic stress disorder. He recommended the continuation of methadone treatment as well as treatment with Elavil and Celebrex. Id. at 100-01.

  b. Dr. Kenneth Alper

  Dr. Kenneth Alper, a psychiatrist, examined plaintiff on September 27, 2000. Plaintiff acknowledged a past suicide attempt, past criminal convictions, and past heroin use. Plaintiff also informed Dr. Alper that he was attending a group program at the International Center for the Disabled (XVICD"), where he was being treated by Dr. Bihari. Additionally, he was being treated by Dr. Hyder at "New Beginnings." Dr. Alper sent plaintiff for an EEG, the result of which was normal. Id. at Page 5 108-09.

  c. Dr. Batari

  The Social Security Administration ("SSA") contacted Dr. Batari in order to obtain his medical opinion regarding plaintiff's disability. Dr. Batari informed the SSA that he saw plaintiff every two months for medication management and evaluation. He diagnosed plaintiff with heroin abuse, in remission, and dysthymia, in partial remission. Dr. Batari made the following findings. Plaintiff was independent, not formally thought disordered, not suicidal, nor a threat to others. Plaintiff's intellect was average with attention and concentration span intact for simple tasks on an ongoing basis. Dr. Batari felt that although plaintiff was somewhat depressed, he had gained insight into the detrimental aspects of his substance abuse and was somewhat better. Plaintiff had coherent speech and was goal oriented, and resided with his spouse in an amicable relationship. Plaintiff could pursue simple repetitive work if he maintained his daily Zoloft medication regimen. Id. at 70.

  d. Lincoln Medical and Mental Health Center

  On March 26, 1999, plaintiff was taken to the Lincoln Medical and Mental Health Center ("LMMHC") complaining that he felt as if he was about to have a seizure. Id. at 89-90. Plaintiff reported that he had a history of seizures since he Page 6 sustained a head trauma in 1988. Id. at 89. Laboratory tests indicated that plaintiff's phenytoin level was less than 3.5 g/mL, far below the effective plasma concentration of 10-20 g/mL. Id. at 88.*fn2 Plaintiff admitted that he had not taken the medication that controlled his seizure disorder (Dilantin) for several days. Id. at 89. Plaintiff was treated with Dilantin. Id. He was also given an appointment to see Dr. Subbarajo. Id. at 83.

  Plaintiff again went to LMMHC on September 2, 1999, at which point he complained that he had had two seizures in the past week. He described those seizures as feelings of nervousness but did not report any neurological deficits after the seizures. At that point, plaintiff's phenytoin level was 3.0. The hospital report states that plaintiff's primary physician was Dr. Salehi. Id. at 82.

  Plaintiff returned to LMMHC on September 30, 1999, complaining of increasing pain in his knee, which was not alleviated by Tylenol or Motrin. He reported knee pain and arthritis since 1983. A knee examination showed no swelling or tenderness. The doctor's diagnosis was seizure disorder, for which he recommended continuing Dilantin, and osteoarthritis in the knee. Id. at 80. Page 7

  On October 6, 1999, Plaintiff went to the orthopedic clinic at the LMMHC. The record indicates that an MRI, CT scan and x-rays all revealed osteoarthritic changes in the knee, tears of the medial and lateral menisci and depression of the medial plateau. Upon examination, the physician noted tenderness in the knee. The physician's diagnosis was osteoarthritis of the right knee with a history of tears of the menisci. His recommendation was surgery at a later point in plaintiff's life, a knee support, physical therapy, and daily use of Voltaren, an anti-inflammatory. Id. at 79.

  2. Consulting Physicians

  a. Dr. Babu Patel

  Dr. Babu Patel, a physician specializing in internal medicine, examined plaintiff on July 19, 2000, on behalf of the SSA. Plaintiff reported that he suffered from post-traumatic stress disorder following a motor vehicle accident in 1997, and intermittent depression, yet reported no history of attempted suicide or hospitalization. Plaintiff also reported a motor vehicle accident that occurred in 1983, which caused a fracture of his right knee for which he underwent surgery at St. Barnabas Hospital. He complained of present pain in his right knee and stated that he could not bend his right knee and that he used a cane for walking. Plaintiff's reported medications included methadone, Elavil and Celebrex. Id. at 92. Page 8

  b. Dr. Jorge Kirschtein

  Dr. Jorge Kirschtein, a psychiatrist, examined plaintiff on August 1, 2000. Plaintiff reported that he arrived by train unaccompanied. He informed Dr. Kirschtein that he lived with his wife and son, had no friends, and had no difficulty in accomplishing daily activities such as traveling. Plaintiff explained that he was unable to work due to anxiety, depression and substance abuse of many years duration. In addition to depression, plaintiff reported being in a motor vehicle accident in 1997 and suffering from post-traumatic stress disorder since then. He claimed that at one point, he had tried to commit suicide while at Riker's Island. Id. at 106.

  Dr. Kirschtein found that plaintiff's allegations were not fully consistent with his examination. Dr. Kirschtein found that plaintiff's ability to understand, carry out and remember instructions was severely impaired, while his ability to respond appropriately to supervision, co-workers and work pressure in a work setting was moderately impaired. Dr. Kirschtein found that plaintiff's activities of daily living were moderately impaired, his social functioning was mildly impaired, and his concentration and persistence in completing tasks in a timely manner were severely impaired. Dr. Kirschtein recommended three months of case management with a dual diagnosis program. He also stated that if plaintiff was compliant with the recommended treatment Page 9 and if neurological testing showed some impairment, SSI would most likely be the outcome. Id. at 107.

  c. Dr. Peter Graham

  At the request of the SSA, Dr. Peter Graham, a physician specializing in internal medicine, examined plaintiff on November 22, 2000. Plaintiff stated that he arrived by bus, unaccompanied. Plaintiff reported having a history of seizures for the past fourteen years resulting from a head injury which caused approximately twenty seizures a year. Plaintiff claimed that his last seizure occurred in August, 2000. He reported daily use of Tegretol. Id. at 110.

  Plaintiff also reported a seventeen-year history of joint pains and pain in his right knee. He described difficulty walking and reported using a cane and taking Celebrex twice a day for pain. Plaintiff additionally reported a four-year history of depression for which he took Elavil and Zoloft and saw a psychiatrist. He told Dr. Graham that he had never considered suicide. Id.

  Dr. Graham performed a complete physical examination on plaintiff, including an examination of the eyes, ears, nose, throat, neck, spine, chest, heart, abdomen, and extremities as well as a neurological exam, and laboratory exams. Id. at 111. Dr. Graham's final assessment was seizure disorder by history, joint pain by history, mild limitation of function in the right Page 10 knee, and psychiatric disorder by history. He listed plaintiff's capabilities as being able to sit, stand and walk, although limited by right knee problems, lift objects, but heavy lifting/carrying limited by knee problems, handle objects, hear, speak, and travel, with some travel limitations due to knee problems. Id. at 112.

  d. Dr. Edward Vadeika

  Dr. Edward Vadeika, a psychiatrist, evaluated plaintiff on November 22, 2000. Plaintiff reported mental distress of three to four years duration. Plaintiff reported feeling depressed and anxious all the time with recurring nightmares and flashback memories of a trauma he suffered several years ago. Plaintiff reported the following symptoms to Dr. Vadeika: difficulty sleeping and concentrating, forgetfulness, and visual and auditory hallucinations. He also told Dr. Vadeika that he attempted suicide on three different occasions. Plaintiff admitted to sniffing heroin and drinking alcohol excessively. He reported receiving therapy at the International Center for the Disabled and taking Amitriptyline and Sertraline (anti-depressants) daily. Id. at 115.

  Dr. Vadeika diagnosed plaintiff as having major depression, opiate dependence (methadone maintenance) and abuse in partial remission, and alcohol dependence in partial remission. Id. at 116-17. He further diagnosed plaintiff as Page 11 having status post old gunshot wound to left arm by history, status post right knee fracture by history, left knee arthralgia by history, and right hip arthralgia by history. Dr. Vadeika described plaintiff's prognosis as guarded, and recommended continuing psychiatric treatment and methadone maintenance. Dr. Vadeika stated that he did not consider plaintiff capable of managing his funds and any benefit payments he might receive in the future. Id. at 117.

  D. Other Evidence

  At the hearing on May 1, 2002, plaintiff testified that he had arthritis in his spine, vision problems, seizures, pain in his knee, and depression. Id. at 25-29. He also testified that h?* could not bend, walk, stand or sit for more than two or three minute's before experiencing pain. Id. at 30, 32.


  In reviewing a denial of disability benefits, the Act provides that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). Substantial evidence in this context is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). As such, this Court's task is limited to Page 12 determining whether the ALJ's decision is based upon substantial evidence in the record and the correct application of governing legal principles. Id.

  In deciding disability claims, the ALJ must follow a five step process. See 20 C.F.R. § 404.1520, 416.920. First, the ALJ must consider whether the claimant is currently engaged in substantial gainful activity. Second, if he is not so engaged, the ALJ must determine whether the claimant has a "severe" impairment that significantly limits his physical or mental ability to do basic work activities. Third, if the claimant suffers from such a limitation, the ALJ must decide whether, based solely on the medical evidence, that limitation corresponds with one of the conditions listed in Appendix 1 of the regulations. If it does, the ALJ does not inquire into vocational factors such as age, education and work experience because the claimant is presumed to be disabled. Fourth, if the claimant does not have a listed impairment, the ALJ must determine whether the claimant has the residual capacity to perform his past relevant work despite his severe impairment. Finally, if the claimant satisfies his burden of showing that he has a severe impairment that prevents him from performing his past work, the burden then shifts to the Commissioner to prove that the claimant retains the residual functional capacity to perform alternative work which exists in the national economy. Page 13 See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).


  The ALJ determined that plaintiff had "not performed substantial gainful activity at least since the application date." Tr. at 13. The ALJ then determined that although the evidence established the existence of a "severe impairment involving back and knee disorders, epilepsy and depression . . . there does not exist any medical findings which meet or equal in severity the clinical criteria of any impairment listed in Appendix 1, Subpart P to Regulations No. 4." Id. at 13-14. The ALJ next found that plaintiff retained the residual functional capacity*fn3 to perform his past relevant work as a security guard.*fn4 Without reaching the fifth step, the ALJ concluded that plaintiff was not disabled. Id. at 16.

  Plaintiff argues that the ALJ erred in failing to: (1) fully develop the record and obtain his complete medical history; and (2) accord controlling weight to the opinions of his treating physicians. In his decision, the ALJ did not mention any reports Page 14 from plaintiff's treating physicians and relied solely on the reports of the consulting physicians. Plaintiff further contends that the ALJ did not properly consider his subjective complaints of pain in determining his disability.

  A. The Treating Physician Rule

  The regulations require an ALJ to give a treating physician's opinion on the nature and severity of a claimant's impairments controlling weight when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." 20 C.F.R. § 404.1427(d) (2), 416.927(d)(2). When a treating physician's opinion is not given controlling weight, the ALJ must apply a series of factors in determining the weight to give such an opinion. See id. These factors include: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the opinion's consistency with the record as a whole; and (3) whether the opinion is from a specialist. See id. "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).

  The record here contains reports from two of plaintiff's treating physicians, Dr. Gracia and Dr. Alper as well Page 15 as reports from LMMHC.*fn5 Tr. at 89, 97, 108. In addition, a social security representative obtained a report from a third treating physician, Dr. Batari. Id. at 70. In his decision, the ALJ discussed plaintiff's visits to LMMHC, and the medical evaluations performed by Drs. Patel, Kirschtein, Graham, and Vadeika. With the exception of reports from LMMHC, the ALJ's decision was based solely on the reports and diagnoses of consulting physicians appointed by the SSA.*fn6 No mention was made of the three treating physicians whose reports were readily available in the record. Tr. at 89, 97, 108. Furthermore, the record does not contain any evidence that the ALJ sought to obtain medical information from other treating physicians referenced in the record. Not only did the ALJ fail to provide "good reasons" for not crediting the opinions of plaintiff's creating physicians, he provided none at all. In his decision, the ALJ discussed only those opinions of the consulting physicians, without addressing the reports of the treating physicians or explaining why he chose to discount them entirely. Id. at 12-15. Page 16

  B. The ALJ's Duty, to Fully Develop the Record

  Due to the non-adversarial nature of a disability benefits hearing, the ALJ has an affirmative duty to develop the administrative record.*fn7 See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). This duty exists even when a claimant is represented by counsel.*fn8 Id. Here, the ALJ had the affirmative duty to more fully develop the record by contacting Dr. Arcarelli, plaintiff's treating physician, obtaining a more complete report from Dr. Batari, another treating physician, and obtaining the missing page of Dr. Kirschtein's report, a consulting physician. Furthermore, although the record indicates that plaintiff had seen Dr. Sabbaraya at LMMHC and LMMHC listed Dr. Salehi as plaintiff's primary physician, there are no reports from either doctor in the record. Additionally, in Dr. Alper's report, plaintiff stated he was seeing Dr. Hyder at "New Beginnings" and was attending a group program at the ICD, yet the record Page 17 indicates no effort by the ALJ to contact either Dr. Hyder or the ICD.

  C. Plaintiff's Subjective Symptoms of Pain

  In evaluating the severity of an impairment, the ALJ must consider a claimant's subjective symptoms including complaints of pain. See 20 C.F.R. § 404.1529(c)(3), 416.929(2)(3). "The ALJ has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant." Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). If the ALJ's decision to ignore plaintiff's subjective complaints of pain is supported by substantial evidence, then this Court must uphold that determination. See Aponte v. Sec'y Dep"t of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).

  At his hearing, plaintiff testified that he had arthritis in his spine, vision problems, seizures, pain in his knee, and depression. Tr. at 25-29. He also testified that he could not bend, walk, stand or sit for more than two or three minutes before he begins to feel pain. Id. at 30, 32. The ALJ determined that plaintiff's subjective complaints of disabling pain, precluding any type of gainful employment, were not fully credible. Tr. at 14. The ALJ stated that he carefully considered: (1) the nature, location, onset, duration, frequency, Page 18 radiation, and intensity of any pain;(2) precipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) treatment, other than medication, for relief of pain; (5) functional restrictions; and (6) the claimant's daily activities and work record. Id. Because these are the considerations required by the regulations, the ALJ has met his burden.

  D. Plaintiff's Past Relevant Work

  While plaintiff contends that the ALJ did not fully investigate the demands placed upon a typical security guard, both his hearing testimony and his memorandum in support of his motion for judgment on the pleadings indicate that plaintiff's most recent work had been as a hotel manager and was more akin to a desk clerk. Tr. at 24; Pl. Mem. at 1. This position required very minimal, if any, walking at all. Based on these representations, the ALJ should determine whether plaintiff has the residual functional capacity to perform his past relevant work as a desk clerk.*fn9


  In sum, because the Commissioner failed to fully develop the record and failed to explain why he discounted the Page 19 opinions of the treating physicians that were contained in the record, I cannot conclude that the Commissioner's finding of no disability is supported by "substantial evidence."

  Given these errors, this matter is remanded for further administrative proceedings. On remand, the Commissioner should obtain detailed reports from plaintiff's treating physicians, to the extent available, describing plaintiff's diagnoses and physical/mental limitations, and how they affect his ability to perform various work-related activities. These reports should be used to determine whether or not plaintiff is disabled. In addition, if the ALJ chooses to discount the reports of plaintiff's treating physicians, he must fully explain his reasons for doing so. Finally, the Commissioner should locate the missing page of Dr. Kirschtein's report.

  For the foregoing reasons, the Commissioner's decision is vacated and the matter is remanded pursuant to sentence four of section 405(g) of Title 42 of the United States Code for further proceedings consistent with this Opinion. The Clerk of the Court is directed to close this case.


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