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March 30, 2004.

LINDA JEFFERSON, Plaintiff, -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge


Plaintiff Linda Jefferson brings this action pursuant to 42 U.S.C. § 405(g), to challenge a final determination of the Commissioner of Social Security ("the Commissioner") finding that Plaintiff was not entitled to Social Security disability benefits under the Social Security Act. Plaintiff has moved, and Defendant has cross-moved, for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, Plaintiff's motion is denied, Defendant's motion is granted in part and denied in part, and the case is remanded to the Commissioner for further proceedings consistent with this decision.*fn1


  On August 6, 1998 Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") under 42 U.S.C. § 423, alleging that she became disabled on March 17, 1998, due to Page 2 diabetes, stress, and the amputation of two toes on her right foot. (See Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl.'s Mem.") at 1; Mem. of Law in Supp. of Commissioner's Cross-Mot. for J. on the Pleadings ("Def.'s Mem.") at 2.) Her application was denied on December 23, 1998, and denied on reconsideration on May 7, 1999. (See R. at 58-61, 64-66.)*fn2 On May 26, 1999, Plaintiff suffered injuries to her back and neck from an automobile accident. (See id. at 35-36.)

  On November 4, 1999, a hearing was held before an Administrative Law Judge ("ALJ"), at which Plaintiff was represented by counsel. (See id. at 31-55.) The ALJ issued a decision denying benefits on November 8, 1999. (See id. at 10-27.) The ALJ found that (1) Plaintiff met the requirements for disability insured status on March 17, 1998, when the period began, and continued to meet them through December 2003; (2) she had not engaged in substantial gainful activity during the relevant period; (3) Plaintiff's back, neck, and right foot impairments and mental depressive disorder qualify as severe under the Social Security Act ("Act"); (4) although "severe" under the Act, Plaintiff's impairments do not meet the medical criteria contained in 20 C.F.R. Part 404, Appendix 1 to Subpart P; (5) Plaintiff is able to sit for up to seven hours on a sustained basis in a work environment, stand or walk for as long as three hours over the course of an eight-hour Page 3 work day, and to frequently lift and carry objects weighing up to fifteen pounds, but cannot engage in aerobic activities requiring rapid movement; and (6) Plaintiff is able to perform her past relevant work as an eligibility worker. (See id. at 23-24.) The ALJ concluded by finding that Plaintiff had not been under a disability as defined by the Act at any time from March 17, 1998, until the date of the decision, "because (despite her medical problems) [she] can still perform the type of work she used to do or is otherwise able to make an adjustment to work which exists in significant numbers in the national economy. . . ." (Id. at 14; see also id. at 23-24.) Accordingly, the ALJ denied Plaintiff's application for DIB.

  The ALJ's decision became the final decision of the Commissioner on October 29, 2001, when the Appeals Council denied Plaintiff's request for review. (See id. at 5-6.)


 I. Plaintiff's Testimony

  Plaintiff was born on December 22, 1948. She earned a high school degree and completed two years of business school. (See R. at 252.) For twenty-nine years, Plaintiff worked as an Eligibility Specialist at the New York City Human Resources Administration. (See id. at 38, 41.) Her job was primarily clerical, involved "a lot of paperwork," and required Plaintiff to use a computer and a telephone. (Id. at 42.) Plaintiff was also required to travel Page 4 around the city to see clients. (See id. at 41.) A typical day at her job involved three hours of walking and five hours of sitting. (See id. at 86.) Plaintiff's job also required her to bend and reach constantly, and to frequently lift and carry boxes and supplies weighing as much as ten pounds. (See id.)

  Plaintiff, a diabetic since 1990, stopped working on March 17, 1998, which marks the beginning of the period for which she seeks DIB. (See id. at 38.) On March 18, 1998, she was admitted to Montefiore Medical Center with a fever and swelling in her right foot, and complaining of nausea and abdominal pain. (See id. at 171, 183, 228, 248.) She was diagnosed with an infection in her right foot, which required the amputation of her first and second toes. (See id. at 39, 247.) At the hearing, Plaintiff testified that, "the wound is still open somewhat. It closed some, but it still — it bleeds when I walk." (Id. at 39.) Plaintiff tended to her foot with ointment and bandages, and was under the care of a podiatrist. (See id. at 40.)

  On August 6, 1998, Plaintiff submitted a Disability Report, claiming that she could no longer work due to her "diabetes and stress." Plaintiff claimed that, "[m]y sugar is uncontrollable and it becomes high. I am unable to leave home." (Id. at 81.) Further, Plaintiff reported that she was "unable to move as quickly as [her] job require[d]." (Id.) Plaintiff also claimed that she could not work because, "I'm also becoming stressful and can't be Page 5 around crowds." (Id.) In the Disability Report, Plaintiff indicated that she cooked two to three times a week, and was able clean and shop with assistance. (See id. at 84.) Her recreational activities consisted of watching television and reading, and although she was able to use public transportation with a companion, her social visits were confined to her home. (See id.)

  At the hearing, Plaintiff testified that she experiences "a lot of stress," and was currently "going through family problems" as a result of her son's "nervous breakdown" and subsequent hospitalization. (Id. at 47.) Further, she had assumed the role of "payee" on her son's behalf, which "cause [d] [her] a lot of stress." (Id.) Plaintiff, however, has not received any treatment for her mental condition. (See id.) Plaintiff stated that she was uncomfortable talking about her mental condition with her primary care physician, and thus could not obtain a referral to see a psychiatrist. (See id.)

  In addition to Plaintiff's diabetes and stress-related ailments, on May 26, 1999, Plaintiff sustained injuries to her back and neck in an automobile accident. (See id. at 36.) This accident has caused her "back problems . . . and problems with [her] neck," and, as a result, Plaintiff cannot sit for long periods of time. (Id. at 36.) For every hour that she sits, Plaintiff testified that she must take ten minutes to stretch. (See id. at 37.) She also testified that she experiences Page 6 "tremendous pain at night," and has not "had a decent night's sleep since [the automobile accident] happened." (Id. at 36.) Although she was offered prescription pain killer[s], she refused to take them because she currently takes insulin, and does not "want to have too many different drugs in [her] system." (Id. at 36.) Plaintiff also experiences trouble walking, and requires the assistance of a cane to maintain her balance when the weather is cold. (See id. at 39.)

  Lastly, Plaintiff testified that she visits the park and her sister's house. (See id. at 48.) She uses the subway "once in a while," and drive's during the day, but not for more than twenty minutes at a time. (Id. at 43.) Plaintiff further testified that she can read with glasses, although her vision problems have made reading difficult. (See id. at 49.)

 II. Vocational Expert Testimony

  Edna Clark, a vocational expert, also testified at the hearing. (See id. at 44-47, 50-51, 52-54.) Clark testified that Plaintiff's past relevant work as an eligibility specialist, which appears in the Dictionary of Occupational Titles ("DOT") as an eligibility worker, is normally considered sedentary.*fn3 (See id. at Page 7 45.) She concluded that the keyboard skills, record-keeping, report-writing, and interpersonal or communication skills that Plaintiff utilized as an eligibility specialist were transferable to other sedentary jobs. (See id. at 50.) Based on Plaintiff's testimony about her age, education, and work experience, and assuming that Plaintiff could sit for no more than six hours total, stand for no more than two hours total, and could lift no more than ten pounds, Clark found that Plaintiff "could perform her past relevant work as it is typically performed in the national economy." (Id. at 50.) Clark further testified that, although Plaintiff's need to stretch every hour would prevent her from performing the duties of a regular typist, or a data entry worker, she has the capacity to perform the job of clerk typist because that job would allow here "latitude to get up and go and do something else." (See id. at 53.) In response, Plaintiff claimed that she does not have the skills to perform any job where typing is a major component. (See id. at 52.)

 III. Medical Evidence

  A. The Evidence between March 17, 1998 and May 26, 1999

  Plaintiff's medical records indicate that, when she entered Montefiore Medical Center on March 18, 1998, for treatment of the Page 8 infection in her right foot, she had not been compliant with her diabetes medication regimen for the previous eight months, and that she had not been monitoring her glucose levels with the glucomonitor, as she had been instructed. (See id. at 164.) On March 31, 1998, the first and second toes of Plaintiff's right foot were amputated. Plaintiff remained hospitalized until April 8, 1998, for treatment of her foot and diabetic ketoacidosis. (See id. at 164, 171, 222, 434.) Between July 1998 and August 1999, Plaintiff was monitored for these conditions by the New York Medical Group. (See id. at 207, 213, 277-82, 288-99, 361-64, 378-81, 402-07, 411-12, 414-23, 426.)

  On August 20, 1998, Dr. Gabriel Feinstein reported that Plaintiff's surgical site was fully healed, but he also referred Plaintiff to a vascular doctor to determine whether she needed to wear orthopedic shoes. (See R. at 207, 297, 421.) On August 24, 1998. Dr. Steven P. Rivers, a vascular surgeon, examined Plaintiff and determined that her amputation site was healed, but recommended that she use an "amputee block," some tissue, or cloth padding to fill the open space in her right shoe. (Id. at 413.) On April 5, 1999. when Dr. Rivers next saw Plaintiff, he noted "a small shallow ulceration at the base of the transected first toe." (Id. at 401.) Although he found that the area was "clean and granulating and free from surrounding infection," he recommended that Plaintiff seek more frequent podiatric care, and that she obtain orthotic Page 9 footwear. (Id.) He prescribed custom-molded shoes and indicated that he would "support any reimbursement for this preventative care." (Id.) On June 24, 1999, Dr. Rivers again found a "shallow opening on the plantar aspect of the amputation site." (Id. at 395.) When Plaintiff indicated that she would be unable to obtain insurance coverage for orthotic footwear until the following autumn, Dr. Rivers reiterated to Plaintiff the importance of such footwear, and again advised her of the need for more frequent podiatric care to shave off overgrown tissue and keep the area as dry as possible. (See id.)

  On November 20, 1998, Dr. Joseph A. Grossman performed a consultative physical examination of Plaintiff. (See id. at 252-55.) His functional assessment of Plaintiff was that she was "[i]mpaired for prolonged and rapid walking and climbing and for foot controls bilaterally." (Id. at 254.) However, he found "no impairment for bending, stooping, crouching, standing, sitting, lifting, hand controls, pushing, pulling, hearing, speech and travel." (Id.)

  Dr. Alain DeLachapelle, a psychiatrist, conducted a consultative examination of Plaintiff on November 20, 1998. (See id. at 250.) Plaintiff reported to Dr. DeLachapelle that she had been depressed ever since her operation, but she had not seen a psychiatrist and was not taking any psychiatric medication. (See id.) Dr. DeLachapelle opined that Plaintiff "has a satisfactory Page 10 ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (Id. at 251.)

  Dr. Khalil, a non-examining state agency medical consultant, reviewed Plaintiff's medical records, and on December 16, 1998, submitted both a Mental Residual Capacity Assessment and a Residual Physical Functional Capacity Assessment. (See id. at 256-67, 269-76.) With regard to Plaintiff's mental residual capacity, Dr. Khalil opined that, although Plaintiff suffered from a depressive disorder, it did not significantly limit her ability to perform work-related functions. (See id. at 259, 265-67.) Dr. Khalil further opined that Plaintiff's mental impairment slightly restricted her daily activities and caused slight difficulties in her social functioning, but seldom caused deficiencies in concentration, persistence, or pace that would result in a failure to complete tasks in a timely manner. (See id. at 263.) Moreover, the doctor determined that Plaintiff's mental impairment never caused episodes of deterioration or decompensation in work settings. (See id.) Based on ...

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