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GARCIA v. COMMISSIONER OF SOCIAL SECURITY

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

I. INTRODUCTION

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 Civil Procedure.

  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.

  II. BACKGROUND

 Procedural History

  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.

 Factual Background

  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. 101-02).

  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 [1957]). 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 [1971])(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 part:

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.

  IV. RECOMMENDATION

  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 RECOMMENDATION

  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).

  SO ORDERED.


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