The opinion of the court was delivered by: DAVID TRAGER, District Judge
Plaintiff, Steven Golubchick ("plaintiff") brought this action
pursuant to the Social Security Act, 42 U.S.C. § 405(g) ("the
Act"), seeking review of a final decision of the Commissioner of
Social Security ("Commissioner") finding that he was not entitled
to disability insurance benefits under the Act. The Commissioner
requests that her decision be reversed and plaintiff's claim be
remanded for further administrative proceedings under
42 U.S.C. § 405(g). Plaintiff cross-moves for reversal and award of benefits.
For the reasons set forth below, plaintiff's request that the
court reverse the Commissioner's decision and award benefits
commencing February 3, 1997 is granted. The Commissioner's
decision should be remanded for further proceedings, before a new
ALJ, in order to determine whether plaintiff was disabled during
the period of August 10, 1995 until February 3, 1997, and for
calculation of benefits.
Plaintiff filed an application for a Period of Disability and
Disability Insurance benefits under Title II and Part A of Title
XVIII of the Social Security Act on October 29, 1996, claiming to
have been unable to work since August 10, 1995. (Tr. 190-93).
Plaintiff claimed disability resulting from osteoarthritis,
spinal stenosis with peripheral neuropathy, seizures, and
clinical depression with alcohol and drug addiction. (Tr. 211).
On June 3, 1997, the application was initially denied (Tr. 178,
180-82). Plaintiff requested reconsideration. The Social Security
Administration had plaintiff's claim reviewed by a physician and
disability examiner of the State agency. Plaintiff's request was
denied again. (Tr. 179, 184-85). Plaintiff then requested a
hearing before an administrative law judge ("ALJ") of the Office
of Hearings and Appeals which was held on May 6, 1998. (Tr.
59-121; 186). Plaintiff, however, was not present at the first
hearing and a second hearing was held on May 28, 1998. (Tr. 122).
After the hearing held on May 28, 1998, plaintiff asked the
Appeals Council to review the decision. The Appeals Council
granted plaintiff's request for review under the error of law
provision of the Social Security Administration regulations,
20 C.F.R. § 404.970. (Tr. 25). The Appeals Council vacated the
hearing decision and remanded the case to an ALJ. (Id.) The ALJ
asked that additional evidence pertinent to plaintiff's case be
submitted. (Id.) On August 20, 1998, the ALJ, before whom
plaintiff and his attorney appeared, considered the case de
novo, and found that plaintiff was not under a disability. (Tr.
30-49). The Appeals Council granted plaintiff's request for
review on August 1, 2001, and remanded the case to the ALJ for
failure to proffer evidence to plaintiff's attorney. (Tr. 24-26).
On January 22, 2002, after proffering the relevant evidence to
plaintiff's attorney, the ALJ issued a decision denying
plaintiff's claim. (Tr. 12-23). On May 23, 2003, the decision of
the ALJ became the final decision of the Commissioner when the
Appeals Council denied plaintiff's request for review. (Tr. 5-8).
This action followed.
Plaintiff, Steven Golubchick, was born on January 27, 1947.
(Tr. 124, 190). He completed high school (Tr. 124-25, 215),
graduated from City College with a degree in film production (Tr.
124-25, 215), and served in the air force where he worked as a
weather observer. (Tr. 127). Between 1986 and 1995, plaintiff
worked as a customer service representative. (Tr. 134-35). In
this capacity, plaintiff took orders and scheduled jobs over the
telephone. (Tr. 135). Between February and July 1995, plaintiff
worked as a night shift manager doing pre-press production work.
(Tr. 129). In this capacity, plaintiff worked on a computer
preparing negatives for printing. (Tr. 129-30). He left his job
in July 1995 to undergo neck surgery. (Tr. 131).
Plaintiff testified that he did not return to work after
recovering from neck surgery because he suffered from a
"breakdown." (Tr. 132). Plaintiff stated that he did not return
to work because he lost control of his hands, suffered from
numbness in his fingers, and could not feel. Furthermore, he
testified that he was also suffering from a mental breakdown.
(Id.) According to plaintiff, he was replaced at his previous
job (Tr. 133) and tried to obtain work at a "freelance place."
(Id.) Plaintiff did not secure work and claimed that it was
because he had numbness in his hands and could not "handle the
keyboard." (Tr. 134). Plaintiff did not attempt to return to his
job as a customer service representative because of stress, heavy
drinking, and "a problem with pills." (Tr. 136). He testified
that the only work he had performed since July 1995 was street
vending. This work only lasted a day or two and according to
plaintiff, he "couldn't take it." (Tr. 128).
According to plaintiff, he stopped drinking in November 1995
and attended an outpatient detoxification program at VA Hospital
for his drug and alcohol abuse. (Tr. 144). Plaintiff stated that
he had a mental breakdown and was hospitalized at the Brooklyn VA
Hospital in 1997. (Tr. 145). He also reported that he suffered
from short-term memory loss and would forget previous
conversations he had taken part in. (Tr. 172).
Plaintiff reported that he lived alone. (Tr. 126). He did not
have a driver's license and used public transportation. (Tr.
126-27). According to plaintiff, he would spend his days
shopping, going to program, watching television, cleaning his
apartment, and cooking. (Tr. 169-70). In October 1997, he was
approved for placement in a supported housing program and a
supportive single room occupancy residence because he was
homeless and considered mentally ill. (Tr. 353-54).
Standard for Finding Disability
To be "disabled" under the Act and therefore entitled to
benefits, a claimant must demonstrate 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). Furthermore, an individual's impairment must be "of
such severity that he 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." 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration has promulgated a five step
procedure for evaluating disability claims. 20 C.F.R. § 404.1520.
This Circuit has implemented that procedure as follows:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience. Assuming
the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other
work which the claimant could perform. Rosa v.
Callahan, 168 F.3d 72 (2d Cir. 1999).
In his January 22, 2002 decision, the ALJ found that plaintiff
was "not `disabled' within the meaning of the Social Security Act
and Regulations [and] therefore not entitled to a Period of
Disability Insurance Benefits, based on his application filed
October 29, 1996." (Tr. 16). The ALJ reached that conclusion
based on the following findings: (1) there was no evidence that
plaintiff engaged in substantial gainful activity after August
10, 1995, the alleged disability onset date, (2) ...