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February 6, 2004.

ROBERT BRUTSCHE, Plaintiff -against- JO ANNE BARNHART, Commissioner of the Social Security Administration, Defendants

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Robert Brutsche challenges the Commissioner of Social Security's determination that he was not entitled to Supplemental Security Income ("SSI") disability benefits because he was not disabled on or before December 31, 1999. He sues pursuant to 42 U.S.C. § 405 (g) and § 1383(c)(3) (2000). Both parties move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and Brutsche argues in the alternative that the case should be remanded for further administrative proceedings. For the reasons stated below, both parties' Fed.R.Civ.P. 12(c) motions are denied, and Brutsche's request for a remand is granted.


  Robert Brutsche was born on May 25, 1936.

  (Administrative Record ("R.") 27) He is a high school graduate and completed one year of college. (R. 108) He worked for most of his adult life, holding jobs in restaurants, as a mover, and most recently as a security guard from 1981 to 1989 and as a doorman from 1990 to 1992 and 1996 to 1997. (R. 30, 108) When he was a doorman, his duties included greeting tenants and visitors, using the intercom and elevator, carrying trash containers, and receiving deliveries. (R. 108-09) According to Brutsche, these responsibilities required him to stand for four hours a day, walk for four hours a day, and frequently lift up to Page 2 50 pounds. (R. 109) Brutsche stopped working on March 10, 1997, and he claims that he has been disabled since that date. (R. 104) He met the disability insured status requirements of Title II of the Social Security Act from March 10, 1997, through December 31, 1999, but not thereafter. (R. 13) Accordingly, he must have been disabled on or before December 31, 1999, to establish his entitlement to a period of SSI benefits. (R. 13)

  In July 1998, Brutsche filed an application for SSI benefits. (R. 42-44; 104-09) He reported that he was disabled by obsessive-compulsive disorder, which interfered with his ability to concentrate on tasks and thus caused him to lose jobs. (R. 104) He explained that he had been prescribed Prozac (R. 105), and he said that his daily activities included eating, doing laundry, cleaning his apartment, seeing friends occasionally, riding public transportation as needed, and taking long walks "when able to do so." (R. 107)

  Brutsche's application for SSI benefits was denied in August 1998 (R. 71-73), and he requested reconsideration of his claim shortly thereafter. (R. 75, 76) The Social Security Administration misplaced Brutsche's original request (R. 75) and then contacted Brutsche in August 1999, asking him to complete a new set of forms for his reconsideration request. (R. 76) Brutsche then submitted a second set of forms in support of his request for reconsideration. (R. 112-16) In this request, Page 3 Brutsche reported that he had developed these ailments since he first filed for SSI benefits: an irregular heartbeat, a stomach ailment, arthritic psoriasis in his joints, two hernias, and deteriorating hearing. (R. 112) He also stated that Dr. Mindy Beran of Mount Sinai had instructed him to walk at a slow pace and avoid lifting. (R. 112) Brutsche reported that he had visited Dr. Beran and Dr. Danie Sherer, both of Mount Sinai, since he filed his claim for disability benefits, and he indicated that he had last visited the New York State Psychiatric Institute in March 2000. (R. 113) At the end of his request for reconsideration, Brutsche attached a three-page, handwritten description of his typical day. (R. 114-16) Brutsche's request for reconsideration was denied in May 2000 (R. 93-95), and he then requested a hearing before an administrative law judge. (R. 96)

  Brutsche appeared with an attorney and two interns at a hearing before Administrative Law Judge Newton Greenberg ("the ALJ") on March 19, 2001.*fn1 (R. 26) Brutsche testified that he Page 4 suffered from low-grade depression and frequently took home food, or other items that he found on the streets. (R. 28) He also identified photographs*fn2 of his cluttered apartment. (R. 28-29) Brutsche said that he was "let go" from his last job because the superintendent of the building said he did not work fast enough (R. 29), and Brutsche did not seek other employment because he was "physically falling apart" due to back pain and depression. (R. 30-31) He testified that after leaving his job he sought treatment for obsessive-compulsive disorder by participating in an experimental program on obsessive-compulsive disorder run by the New York State Psychiatric Institute. (R. 31) In response to questions from the ALJ, Brutsche stated that he was unable to work because of "low-grade depression," which prevented him from functioning. (R. 32) Although Prozac lifted his spirits, Brutsche did not like its side effects, which made him "like a rubber duck" because he could not function or feel anything. (R. 32) Brutsche testified that he sometimes cleaned his apartment, did laundry every two days, and cooked and shopped for himself. (R. 34) He said that, at the time of the hearing, he was not on medication and was not seeing a psychiatrist because of the Page 5 expense. (R. 35) When asked about other physical ailments, Brutsche reported he had had back problems since he worked as a mover, and as a result had visited a chiropractor once every week or two since 1978. (R. 37) He testified further that, at the time of the hearing, he could "hardly walk" on some days because of his back ailments. (R. 37) Brutsche also mentioned in passing that he had flat feet, two past hernias, and once did poorly on a hearing test. (R. 37-38)

  The record before the ALJ included the following evidence of Brutsche's medical history. Since 1978, Brutsche had visited chiropractor Joseph T. Cunnane regularly for treatment of lower back pain and leg pain, which Dr. Cunnane believed interfered with Brutsche's ability to work. (R. 182, 201-02) Brutsche received psychotherapy from social worker Richard S. Klotz from 1979 to 1989, who reported that Brutsche had problems with obsession, paranoia, and depression during that period. (R. 199-200) From March 1997 to March 2000, Brutsche participated in the New York State Psychiatric Institute clinical study on obsessive-compulsive disorder. As a part of the study, Dr. Raphael Campeas performed a psychiatric assessment of Brutsche on March 3, 1997, and diagnosed him with obsessive-compulsive disorder. (R. 128-31) The record also contains "Progress Notes" from Dr. Campeas that described Brutsche's condition and response to treatment every two to three weeks between November 1997 and Page 6 July 1998. (R. 132-61) On August 4, 1998, Dr. Campeas completed a report on Brutsche's mental status, in which he indicated that Brutsche's ability to function in a work setting was "fair," though hindered by his practice of hoarding material and procrastination. (R. 168-69) Apart from a March 2000 psychiatric assessment by Dr. Campeas, in which he indicated that Brutsche's problems with hoarding had improved (R. 206-09), there is no other substantive evidence from the New York State Psychiatric Institute or Dr. Campeas in the administrative record.

  In addition to the evidence from Brutsche's own doctors, the record also contained the following evidence from consulting physicians. On July 21, 1998, consulting psychiatrist Dr. Richard King examined Brutsche and diagnosed him with a mild to moderate generalized anxiety disorder and "rule out" obsessive-compulsive disorder. (R. 163) Dr. King concluded that Brutsche had a satisfactory ability to understand, remember, and carry out instructions and a satisfactory ability to respond appropriately to supervisors, coworkers, and work pressures in a work setting. (R. 163) On May 16, 2000, Brutsche met with a second consulting psychiatrist, Dr. Renee Ravid, who tentatively diagnosed Brutsche with a depressive disorder; "rule out" obsessive-compulsive disorder, bipolar disorder, and personality disorder; and a history of psoriasis. (R. 173) She also opined Page 7 that Brutsche had some impairments in sustained concentration and a somewhat reduced tolerance to stress because of chronic anxiety and depression. (R. 173) However, she reached these conclusions without any of Brutsche's psychiatric records (R. 172), and she stated that a review of Brutsche's past and present psychiatric treatment was necessary for a definitive diagnosis. (R. 173) The same day, Brutsche' was physically examined by Dr. Michael Polak, a consulting physician, who diagnosed Brutsche with an irregular heart rate as diagnosed at Mount Sinai, psoriasis, and depression. (R. 175) Dr. Polak found that Brutsche was "mildly impaired for carrying/lifting, pushing/pulling, walking or standing" but stated that medical records should be obtained from Brutsche's primary medical doctor to confirm his diagnosis. (R. 176) The record also contains results of an EKG, chest x-ray, and blood test apparently ordered by Dr. Polak at this time (R. 177-80); the chest x-ray revealed that Brutsche had a 20 degree levoscoliosis in his upper thoracic spine. (R. 179)

  Brutsche supplemented the administrative record with affidavits from himself and two of his friends — attorney Susan Kemp and United Nations officer Richard Sydenham. (R. 191-98) These affidavits described Brutsche's life history and behavior, and to some extent Brutsche's friends — not medical professionals — discussed their impressions of Brutsche's psychiatric and physical health. (See R. 194-98) Kemp also Page 8 stated that Brutsche was unable to maintain a job because of his personality traits and behavioral problems, not because of an unwillingness to work. (R. 197)

  After reviewing the evidence in the case, the ALJ issued a decision on May 9, 2001, finding that Brutsche was not disabled on or before December 31, 1999, because his impairments did not prevent him from performing his past relevant work as a doorman. (R. 12-17) Shortly thereafter, Brutsche's legal representatives requested a corrected copy of the administrative record*fn3 and a copy of the tape of the administrative hearing (R. 212), but Brutsche still had not received these materials as of May 14, 2002. (R. 213) In order to avoid further delay, Brutsche's legal representatives appealed the ALJ's decision to the Appeals Council at that time and requested an expedited determination. (R. 213-25) On appeal, Brutsche introduced an August 2001 psychiatric evaluation by Dr. Peter Stastny, who diagnosed Brutsche with obsessive-compulsive disorder and dysthymic disorder. (R. 226-30) Dr. Stastny concluded that Brutsche's psychiatric conditions rendered him "markedly disabled" (R. 229) and "not likely to ever regain a substantial capacity to work in the open market." (R. 230) The Appeals Page 9 Council denied Brutsche's request for review on July 9, 2002 (R. 3-4) Brutsche then filed the present action on September 11, 2002.


  A federal court should set aside an ALJ decision to deny disability benefits only where it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a ...

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