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
OPINION AND ORDER
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
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.")
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
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
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
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
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
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
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.
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.
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
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
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
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.
III. LEGAL STANDARD
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
determining whether the ALJ's decision is based upon substantial
evidence in the record and the correct application of governing legal
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.
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
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
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
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
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
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
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.
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,
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
In sum, because the Commissioner failed to fully develop the record and
failed to explain why he discounted the
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.
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.