United States District Court, S.D. New York
May 4, 2004.
ROBERTO GARCIA, Plaintiff, -against- COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Roberto Garcia ("Garcia") brings this action pursuant to
42 U.S.C. § 405(g) to obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner") denying Garcia's
application for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. The Commissioner has moved for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
For the reasons set forth below, I recommend that the defendant's
motion be denied and that this matter be remanded to the Commissioner for
further administrative proceedings.
On May 4, 1993, Garcia filed applications for disability insurance
benefits and Supplemental Security Income ("SSI") benefits, in which he
alleged that he became disabled on June 6, 1987, as a consequence of wounds he sustained to his hands. (Tr.
215-18).*fn1 Both applications were denied initially on August 26,
1993, and on reconsideration on December 15, 1993. (Tr. 149-52, 156-59).
Garcia then requested a de novo hearing before an Administrative Law
Judge ("ALJ"), and appeared pro se before ALJ Jonathan Jacobs on January
11, 1995, for a hearing in connection with the disability insurance
benefits application.*fn2 (Tr. 45). On March 11, 1995, ALJ Jacobs issued
a decision ("1995 ALJ Decision") finding that the plaintiff was not
entitled to disability benefits because he was not disabled within the
meaning of the Social Security Act as of December 31, 1989, the date he
was last insured for disability benefits. (Tr. 45-48).
On April 25, 1996, the Appeals Council granted the plaintiff's request
for review and found that the ALJ had failed to develop the record
adequately with respect to medical treatment received by the plaintiff.
(Tr. 232-32). Accordingly, the Appeals Council vacated the 1995 ALJ
Decision and remanded Garcia's application for another hearing. (Id.)
Garcia appeared, this time with counsel, for an additional hearing before
ALJ Jacobs on July 18, 1996. Thereafter, on September 26, 1996, the ALJ
issued a new decision ("1996 ALJ Decision"), again finding that Garcia
was not entitled to disability benefits. (Tr. 278-83).
On April 17, 1998, the Appeals Council again granted review, vacated
the 1996 ALJ Decision, and remanded the application this time with instructions that
the ALJ: 1) elicit the testimony of a vocational expert, in order to
determine whether there were a significant number of jobs in the national
economy that Garcia could have performed during the relevant period; and
2) determine whether Garcia was unable to communicate in English. (Tr.
263-64). Garcia appeared, with counsel, before ALJ Mark J. Hecht on
December 9, 1998, ("December 1998 hearing"). (Tr. 14-18). At that
hearing, the testimony of vocational expert Edna Clark ("Clark") was
taken, as well as testimony from Garcia regarding his English language
skills. (Id.). In a decision dated March 22, 1999, ("1999 ALJ
Decision"), ALJ Hecht found that Garcia was not entitled to disability
benefits. (Id.) The 1999 ALJ Decision became the final decision of the
Commissioner when the Appeals Council denied Garcia's request for review
of that decision on March 23, 2001. (Tr. 3-4).
At each of the three administrative hearings, a Spanish language
interpreter was provided for Garcia.
Garcia filed the instant complaint seeking review of the Commissioner's
decision on May 22, 2001; thereafter, the Commissioner moved for judgment
on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Although Garcia received notice of the defendant's motion, he
has not filed any response in opposition to it.
1. Non-Medical Evidence
Garcia was born on September 7, 1947, in the Dominican Republic. (Tr.
128). He attended school in the Dominican Republic, completing the
eleventh grade. (Tr. 93). In 1970, Garcia came to the United States and,
in 1982, he became a citizen. (Tr. 89). He has testified that: (a) he can speak a limited amount of English, but not well;
(b) he cannot read or write in English; and (c) he does not know English
grammar. He took his driver's license examination in Spanish. (Tr. 94).
The plaintiff has also testified that until 1986, he worked as a baler
operator and general helper at a factory that manufactured corrugated
boxes. (Tr. 95). In those capacities, his duties included the operating
of a fork-lift and lifting of bundles of paper weighing over 50 pounds
frequently. (Tr. 98). Garcia explained that he severed his ties with that
employer in 1986 because he did not receive pay that was due to him. (Tr.
69-70). Thereafter, he remained unemployed, except for a period in 1990
when he was briefly assigned to a work program as a condition of
receiving public assistance. Garcia stated that he was unable to perform
the tasks assigned to him as part of that work program, however, and was
soon exempted from the public assistance program's work requirement. (Tr.
On June 6, 1987, Garcia was assaulted in the lobby of his apartment
building by a man wielding two knives. (Tr. 98). While struggling with
his assailant, Garcia sustained lacerations to both of his hands. (Id.).
Garcia was transported to a hospital by police officers, where doctors
operated on both of his hands before discharging him on June 19, 1987.
(Tr. 245, 254). Garcia wore bandages on his hands for approximately two
months. (Tr. 109). According to Garcia, after the assault, he lost
strength in his left hand and never regained it. Consequently, he
testified, he could perform neither the manufacturing work he had
performed previously, nor any other type of work. (Tr. 72, 97-104).
2. Medical Evidence
Garcia's medical records indicate that he was treated at the
Presbyterian Hospital of the Columbia-Presbyterian Medical Center ("the hospital") at least three
times between June 1987 and June 1993. On June 16, 1987, he underwent
surgery to repair nerves and tendons in both of his hands ("1987
surgery"). (Tr. 254). On January 23, 1989, he visited the hospital
again, complaining of, inter alia, chest pains, shortness of breath, and
nausea. (Tr. 235). He underwent further surgery at the hospital on June
11, 1993, ("1993 surgery"), in order to address flexion contracture of
certain joints in the fifth finger of his left hand, a condition that
developed subsequent to his 1987 surgery. (Tr. 237-39).
The 1993 surgery was performed by Dr. Robert Strauch, who also examined
Garcia on at least three other occasions between December 1992 and April
1994. (Tr. 194, 204). On August 3, 1993, Dr. Strauch diagnosed Garcia as
suffering from contracture of the left fifth finger. (Tr. 194). Dr.
Strauch also indicated a diagnosis of "Laceracion flexion tendons 6 yrs
ago." (Id.) In the report, he further documented limitations in the range
of motion of Garcia's left and right fifth fingers, and indicated that
Garcia: 1) had the capacity to carry a maximum of 20 pounds for up to
one-third of a workday; 2) had a limited ability to push and pull objects
with his left hand; and 3) had no limitations in his abilities to sit,
stand, or walk. (Tr. 195, 201). Dr. Strauch examined Garcia again on
April 20, 1994, and completed another report briefly recounting the
plaintiff's medical history, documenting the range of motion of his hands
and fingers, and diagnosing the plaintiff with, inter alia, flexion
deficiencies in the fifth finger of each hand. (Tr. 204-207).
On December 10, 1998, at the request of Garcia's counsel, Dr. Strauch
completed an additional medical report in the form of a questionnaire,
many of whose questions asked Dr. Strauch to describe Garcia's condition during the period 1987 through
1993.*fn3 In this report, Dr. Strauch's responses indicated that during
the period 1987 through 1993: 1) Garcia "had limited use of his hands";
2) Garcia could lift and carry up to 25 pounds occasionally and could
push and pull arm controls, but he could not use his hands for fine
manipulation; and 3) Garcia's medical condition placed "moderate"
restrictions on Garcia's ability to cope with unprotected heights, moving
machinery, and marked changes in temperature and humidity. However, Dr.
Strauch noted that by 1993, Garcia's condition had "ameliorated." The
questionnaire also provided Dr. Strauch with the text of Listings
1.12-1.13 of Part 404, Subpart P, Appendix 1 of Title 20 of the Code of
Federal Regulations (1987) ("Listing of Impairments"),*fn4 and asked:
"Did Mr. Garcia's medical condition satisfy or equal any of the . . .
listed impairments? Yes ___ No ___ If yes, please identify the date of
onset." In response, Dr. Strauch checked "Yes" and indicated "6/87" as
the date of onset. (Tr. 291-94).
On July 7, 1993, Dr. E. B. Balinberg performed a consultative
examination of Garcia. Dr. Balinberg described Garcia as having a flexion contracture in
the fifth finger of each hand and indicated a diagnosis of "Status post
transection of tendons in both hands." He also assessed Garcia's
functional capacity to do work-related activities, rating the motor
strength of Garcia's right hand as "4 out of 5 with an impairment of the
range of motion in the right fifth digit," and rating the motor strength
of Garcia's left hand as "2 to 3 out of 5 with impairment of the range of
motion of the index, middle finger, fourth and fifth." Dr. Balinberg
concluded his report by stating that, in his opinion, Garcia "cannot
perform any activities requiring full use of both hands." (Tr. 188-91).
On July 19, 1993, and again on August 18, 1993, Dr. E. Suitor completed
or partially completed forms captioned "Residual Physical Functional
Capacity Assessment" ("RFC forms"), based on his review of the evidence
presented in connection with Garcia's disability benefits application.
According to the Commissioner, Dr. Suitor is a state agency medical
consultant. On July 19, 1993, Dr. Suitor indicated that Garcia could: 1)
lift and/or carry no more than 10 pounds, either frequently or
occasionally; 2) stand and/or walk for about six hours of an eight hour
workday; 3) push and/or pull items, including hand or foot controls,
without limitation; and 4) assume a variety of postures "occasionally,"
rather than "frequently" or "never." On August 18, 1993, Dr. Suitor
indicated that Garcia could: 1) lift and/or carry up to 20 pounds
occasionally and 10 pounds frequently; 2) stand and/or walk for about six
hours of an eight hour workday; 3) sit for about six hours of an eight
hour workday; 4) push and/or pull items, including hand or foot
controls, without limitation in his lower extremities, but with some
limitation in his upper extremities; 5) assume various postures without
limitations; and 6) engage in only limited fine manipulation. On each RFC
form, Dr. Suitor indicated that the residual functional capacity assessment provided therein was a "Current Evaluation" rather than
an evaluation of Garcia's residual functional capacity as of the "Date
Last Insured" or the "Date 12 Months After Onset." (Tr. 133-48).
On December 14, 1994, Dr. Meyer*fn5 examined Garcia and generated a
medical report. Dr. Meyer recounted the plaintiff's medical history
briefly, noting that the plaintiff had sustained injuries to the nerves
and tendons in his left hand in 1987, had undergone surgery therefor, and
had thereafter developed flexion contracture in the fifth finger of his
left hand, "which required operative release." Dr. Meyer also documented
the range of motion of Garcia's hands and fingers at the time of the
examination, and provided a current diagnosis of, inter alia, flexion
contracture in the fifth finger of his left hand. (Tr. 227-30).
Decision of the ALJ
ALJ Hecht (hereafter "the ALJ") found that Garcia met the earnings
requirements prerequisite to social security disability insurance
coverage from June 6, 1987, (the alleged date of onset of Garcia's
disability) until December 31, 1989. Accordingly, the ALJ considered
whether Garcia was disabled within the meaning of the Social Security Act
during that period. (Tr. 14-15).
The ALJ found that: 1) Garcia had not engaged in substantial gainful
activity since June 6, 1987; 2) Garcia's "impairments did impose some
restrictions, but the impairments did not meet or equal a listing in" the
Listing of Impairments; 3) Garcia was unable to perform his past work in
the manufacturing industry; 4) Garcia was unable to communicate in
English; 5) Garcia retained the capacity to perform light work that did
not require fine manipulation or dexterity; III. DISCUSSION
Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides, in
pertinent part, that "[a]fter the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the
pleadings." 42 U.S.C. § 405(g). The standard for granting a motion for
judgment on the pleadings under Rule 12(c) is identical to that of a Rule
12(b)(6) motion for failure to state a claim. See Patel v. Contemporary
Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). In both
instances, a court is required to accept as true all factual allegations
in the complaint and to view the pleadings in the light most favorable
to, and draw all reasonable inferences in favor of, the nonmoving party.
See id.; District Council No. 9 v. APC Painting, Inc., 272 F. Supp.2d 229,
235 (S.D.N.Y. 2003). Dismissal of a complaint is not warranted "unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Ad-Hoc Comm. of
the Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College,
835 F.2d 980, 982 (2d Cir. 1987)(quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 101-02 ). Additionally, on a motion to dismiss,
a court may consider all papers and exhibits appended to the complaint as
well as any matters of which judicial notice may be taken. See Hirsch v.
Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v.
American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). Remand
The Social Security Act provides, in pertinent part, that "[t]he court
shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for
a rehearing." 42 U.S.C. § 405(g). The court may remand the case for good
cause shown, either upon the motion of a party or sua sponte. Clark v.
Callahan, No. 96 Civ. 3020, 1998 WL 512956, at *l-2 (S.D.N.Y. Aug. 17,
1998) (citing Igonia v. Califano, 568 F.2d 1383 [D.C. Cir. 1977]).
Standard of Review
Under the Social Security Act, the findings of the Commissioner as to
any fact are conclusive, if they are supported by substantial evidence.
See 42 U.S.C. § 405(g). When a district court reviews a decision by the
Commissioner denying a claim for disability benefits, it must assess
whether the Commissioner applied the appropriate legal standard and
whether her decision is supported by substantial evidence. See Toribio
v. Barnhart, No. 02 Civ. 4929, 2003 WL 21415329, at *2 (S.D.N.Y. June
18, 2003) (citing Balsamo v. Chater, 142 F.3d 75, 79 [2d Cir. 1998]).
"Substantial evidence" within the meaning of the Social Security Act is
defined as "more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427
)(internal quotation marks omitted). Thus, a reviewing court is
limited to considering whether the Commissioner's determination is
supported by substantial evidence in the record and is free from legal
error. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). Determination of Disability
An individual is disabled within the meaning of the Social Security Act
if he or she can show an "inability 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). The impairment suffered must be
such that the individual:
is not only unable to do his previous work but
cannot, considering his age, education, and work
experience, engage in any other kind of substantial
gainful work which exists in the national economy,
regardless of whether such work exists in the
immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he
would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520 and 416.920, the Commissioner must
apply a five-step sequential procedure for evaluating a disability claim.
The Second Circuit has summarized that procedure as follows: (1) the
Commissioner considers whether the claimant is currently engaged in
substantial gainful activity; (2) if he is not, the Commissioner
considers whether the claimant has a "severe impairment" which
significantly limits his or her physical or mental ability to do basic
work activities; (3) if the claimant suffers from a "severe impairment,"
the Commissioner must ask whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the
regulations. If the claimant has one of these impairments, the
Commissioner will consider him disabled without considering vocational
factors such as age, education, and work experience; (4) if the claimant
does not have a listed impairment, the fourth inquiry is whether, despite
the claimant's severe impairment, he or she has the residual functional
capacity to perform his or her past work; and (5) if the claimant is
unable to perform his or her past work, the Commissioner then determines whether there is other work
which the claimant could perform. See Rosa, 168 F.3d at 77 (citing Berry
v. Schweiker, 675 F.2d 464, 467 [2d Cir. 1982]).
The disability claimant has the burden of proving the first four
steps. Thereafter, at the fifth step, the burden shifts to the
Commissioner who must prove that the claimant is capable of performing
other work. See Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000);
Toribio, 2003 WL 21415329, at *3.
Treating Source Opinions
The Social Security Administration's regulations provide, in pertinent
Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be
the medical professionals most able to provide a
detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of
individual examinations, such as consultative
examinations or brief hospitalizations. If we find
that a treating source's opinion on the issue(s) of
the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in
your case record, we will give it controlling weight.
When we do not give the treating source's opinion
controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section,
as well as the factors in paragraphs (d)(3) through
(d)(6) of this section in determining the weight to
give the opinion. We will always give good reasons in
our notice of determination or decision for the weight
we give your treating source's opinion.
20 C.F.R. § 404.1527(d)(2).
Failure of the Commissioner to give proper weight to the medical
opinion of a treating source and failure to give good reasons for the
weight accorded to such opinion may constitute good cause for remand.
See Schaal v. Apfel, 134 F.3d 496, 503-05 (2d Cir. 1998). Application of the Legal Standard
The 1999 ALJ Decision engages in the sequential analysis of Garcia's
disability claim required by 20 C.F.R. § 404.1520 and 416.920. At the
first, second, fourth, and fifth steps of this analysis, the ALJ applied
the appropriate legal standards and made findings supported by
substantial evidence. First, the ALJ found that the plaintiff had not
engaged in substantial gainful activity since June 6, 1987, the date of
the alleged onset of his disability. Second, while the ALJ did not make
an express finding that Garcia's impairments were "severe" within the
meaning of the Social Security Act, the ALJ did find that they imposed
"some restrictions" on his ability to work. In particular, the ALJ found
that the impairments precluded Garcia from engaging either in his
previous work or in any work that requires fine manipulation. Considered
with the fact that the ALJ proceeded to steps three through five of the
sequential analysis, such findings make it clear that the ALJ engaged in
the analysis required by the second step of the sequential analysis and
that he found Garcia's impairments to be severe. (Tr. 15-16). At the
fourth step of the analysis, the ALJ considered evidence about Garcia's
residual functional capacity and concluded that he was not capable of
performing his past work. At the fifth step of the analysis, the ALJ
considered evidence regarding the number of jobs in the national economy
during the relevant period of time that Garcia was capable of
performing. The ALJ found that a significant number of such jobs existed.
The ALJ's findings at the first, second, fourth, and fifth steps of the
sequential analysis are supported by substantial evidence in the record,
including Garcia's hearing testimony, the medical reports contained in
the record, and the testimony of the vocational expert. In the third step of the sequential analysis, the ALJ stated that he
was "mindful that in a letter dated December 23, 1998, claimant's
representative suggests that claimant meets listing 1.13 (soft tissue
injury) in the Listing of Impairments." Nevertheless, the ALJ found that
Garcia's impairment did not meet the criteria of that listing, because
"the two surgeries that claimant underwent" did not constitute "a `series
of staged surgical procedures . . .' as required by listing 1.13." (Tr.
16). Additionally, while the ALJ's decision finds that Garcia's
impairment does not meet the criteria of Listing 1.13, the decision does
not consider whether Garcia's impairment may nevertheless be medically
equivalent to that listing. Further, the ALJ does not address whether
Garcia's impairment meets or equals Listing 1.12.
The ALJ's decision also does not explain, what consideration and
weight, if any, he gave to the 1998 report of Dr. Strauch, which
concluded that Garcia's impairments met or equaled one or both of
Listings 1.12 and 1.13. Indeed, the ALJ's decision does not even mention
Dr. Strauch's 1998 report. Since Dr. Strauch treated Garcia's hand
injuries, his "opinion on the issue(s) of the nature and severity" of
those injuries is entitled to controlling weight if it "is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] case
record." 20 C.F.R. § 404.1527(d)(2).
The ALJ did not accord controlling weight to Dr. Strauch's opinion.
Since the ALJ did not provide "good reasons" for not doing so, it cannot
be "determine[d] with certainty what legal standard the ALJ applied in
weighing the medical opinion of plaintiffs treating physician." Schaal,
134 F.3d at 505. In particular, it is unclear whether the ALJ applied the
factors provided in 20 C.F.R. § 404.1527(d)(2)-(6) to determine the
appropriate weight, if any, to accord to Dr. Strauch's opinion if it was to be accorded less than controlling
weight. See id.
Applying the correct legal standards and considering the record
evidence, a reasonable finder of fact might accord some weight to Dr.
Strauch's opinion, and, in turn, might reach a conclusion other than that
reached by the Commissioner in this action. In addition to supporting a
different conclusion in its own right, proper consideration of Dr.
Strauch's report might inform the Commissioner's assessment of other
medical reports in evidence. For example, Dr. Strauch's report indicates
that by 1993 the earliest date of any of the residual functional
capacity assessments in evidence the condition of Garcia's hands was
better than it was at other times during the period 1987 through 1993. In
light of this, a reasonable finder of fact might conclude, that Garcia's
impairment either met the criteria of Listing 1.13 or else that it was
medically equivalent thereto. See 20 C.F.R. § 404.1520(d), 404.1526.
Accordingly, the action should be remanded to the Commissioner, pursuant
to 42 U.S.C. § 405(g), for proper consideration of Dr. Strauch's report,
and for any further development of the record deemed necessary. The
Commissioner should then determine, on the basis of all of the record
evidence, whether Garcia's impairment met the criteria for Listing 1.12
or Listing 1.13 or was medically equivalent to one of those listings.
In light of the foregoing, the Commissioner's motion for judgment on
the pleadings should be denied.
For the reasons set forth above, I recommend that the defendant's
motion for judgment on the pleadings be denied, and that this action be
remanded to the Commissioner for additional administrative proceedings. V. FILING OF OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules
of Civil Procedure, the parties shall have ten (10) days from service of
this Report to file written objections. See also Fed.R.Civ.P. 6. Such
objections, and any responses to objections, shall be filed with the
Clerk of Court, with courtesy copies delivered to the chambers of the
Honorable Barbara S. Jones, 40 Centre Street, Room 2103, New York, New
York, 10007, and to the chambers of the undersigned, 40 Centre Street,
Room 540, New York, New York, 10007. Any requests for an extension of
time for filing objections must be directed to Judge Jones. FAILURE TO
FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am
474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049,
1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);
Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).