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CZEREP v. BARNHART

United States District Court, S.D. New York


September 2, 2004.

BOGDAN CZEREP, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE RICHARD J. HOLWELL, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Plaintiff Bogdan Czerep ("Czerep" or "plaintiff") 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 the plaintiff's application for Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and Czerep has filed a cross-motion for an order directing that his case be remanded to the Commissioner for additional administrative proceedings, pursuant to 42 U.S.C. § 405(g).

  For the reasons set forth below, I recommend that the defendant's motion be denied and that the plaintiff's motion be granted. II. BACKGROUND

  Procedural History

  On March 6, 2000, Czerep filed an application for SSI benefits in which he alleged that he became disabled on December 14, 1999, due to testicular cancer, a torn biceps muscle and asthma. (Tr. 63-66, 77).*fn1 The application was denied initially on May 11, 2000, and upon reconsideration on June 14, 2000. (Tr. 45-48, 51-54). Czerep then requested a de novo hearing before an Administrative Law Judge ("ALJ"), and appeared pro se before ALJ Kenneth G. Levin on May 8, 2001. On May 15, 2001, the ALJ issued a decision finding that the plaintiff was not entitled to disability benefits under the Social Security Act. (Tr. 11-21). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the plaintiff's request for review on April 25, 2002. (Tr. 7-8). See 42 U.S.C. § 405(h). Czerep filed the instant complaint seeking review of the Commissioner's decision on June 14, 2002. Thereafter, the defendant moved for judgment on the pleadings pursuant to Fed.R.Civ. P. 12(c), and plaintiff filed a cross-motion for an order remanding his case to the Commissioner for further administrative proceedings, in light of new evidence, pursuant to 42 U.S.C. § 405(g).

  Factual Background

  1. Non-Medical Evidence

  Czerep was born on May 19, 1955, and came to the United States from the Ukraine in December 1956. (Tr. 63-64). A lawful permanent resident of the United States, Czerep completed the tenth grade in school and served in the United States Army for two months in 1975, when he received an honorable discharge due to asthma. (Tr. 63-63, 161-62).

  As noted above, in his application for SSI benefits, Czerep identified his disabling conditions as testicular cancer, asthma and a torn biceps muscle, and reported that, because of these conditions, he became unable to work on December 14, 1999. (Tr. 77). At his hearing before the ALJ, Czerep testified that, prior to that date, he had been employed as a truck driver and delivery person for approximately fifteen years. As a truck driver, Czerep was required to walk and stand for approximately three hours per day and to lift loads of up to fifty pounds. Occasionally Czerep was required to lift loads of up to one hundred pounds. (Tr. 78).

  Czerep testified further that he stopped working because his impairments grew worse and he began to have difficulty lifting and walking. (Tr. 28-29). Additionally, Czerep stated that he: 1) was 5' 6" tall and weighed approximately 310 pounds; 2) required a cane to walk; 3) suffered from asthma and, therefore, could not walk for long or short periods of time without becoming short of breath; 4) suffered from pain in his arms, legs, wrists and elbows; 5) had torn the biceps muscle in his right arm while lifting a heavy object and frequently experienced pain in that area; 6) often suffered from swollen and sore ankles; and 7) was receiving psychiatric treatment for depression. (Tr. 25-35). Czerep also testified that he lived with his girlfriend and that she did most of the household chores. (Tr. 29). Czerep stated that he did some of the cooking, but spent most of his time lying in bed and watching television or reading. (Tr. 34).

  Mark Ramrauth ("Ramrauth"), a vocational expert, testified at the ALJ hearing concerning the plaintiff's employment capabilities. According to Ramrauth, a person of Czerep's age, with a similar education, work experience and physical condition, could perform work as a messenger, an elevator operator or an usher. (Tr. 40-41). Ramrauth stated that, in the local economy, there were openings for approximately 10,000 messenger jobs, 3,000 elevator operator jobs and 5,000 usher jobs. Ramrauth also testified that there were over 130,000 messenger jobs, 226,000 elevator operator jobs, and 64,000 usher jobs available nationally. (Tr. 41).

  2. Medical Evidence

  a. Evidence Relating to Physical Condition

  On February 17, 2000, Dr. Lavonna Branker, an internist employed at HS Systems, Inc., a health care provider located in New York City, examined Czerep and generated a medical report. (Tr. 121-24). Dr. Branker reported that Czerep had been diagnosed with testicular cancer in 1996 and treated with radiation therapy and left orchiectomy.*fn2 (Tr. 121). According to Dr. Branker, the plaintiff had brought with him a note from a medical doctor stating that he had metastatic testicular cancer with pulmonary involvement and was unable to work. Previously, plaintiff had presented with complaints of scrotal pain which was diagnosed as being consistent with sarcoidosis.*fn3 Id. Dr. Branker reported that the plaintiff appeared well nourished and was not in acute distress. Additionally, Dr. Branker found that the plaintiff: i) was 5' 6" tall and weighed 300 pounds; ii) had a normal range of motion of the spine, clear lungs and a regular heart rhythm; iii) showed pitting edema*fn4 in his lower calves, but had intact and symmetrical peripheral pulsations; iv) had normal gait*fn5 and station, although he walked with a cane; v) had no difficulty getting up from a seated position or getting on or off the examining table; vi) used his arms and hands fully when getting dressed and undressed; vii) had full range of motion in his joints with no swelling, deformity, or tenderness; viii) could do a full squat with difficulty; ix) had normal and symmetrical deep tendon reflexes and normal motor and sensory reflexes; and x) had normal pulmonary function. (Tr. 121-26).

  Dr. Branker reported that her impression, based on her examination of the plaintiff, was of a possible recurrence of testicular cancer, sarcoidosis with normal pulmonary function tests, clinically stable asthma, morbid obesity, mild venous insufficiency, umbilical hernia, bilateral ankle pain with full range of motion and polysubstance abuse in remission. (Tr. 124). According to Dr. Branker, Czerep was able to walk, sit, stand, lift, carry, handle objects and travel. (Tr. 124). Dr. Branker reported the prognosis to be "fair to guarded" and stated that Czerep needed further documentation of his possible testicular cancer. (Tr. 124).

  On April 3, 2000, Dr. Michael Polak, an internist employed at Diagnostic Health Services, Inc., located in New York City, examined the plaintiff and generated a medical report. (Tr. 130-33). Dr. Polak reported that Czerep had a regular heartbeat, clear lungs and positive bowel sounds in his abdomen. (Tr. 131). According to Dr. Polak, Czerep suffered from "two plus" pitting edema in his foot with no stasis dermatitis, ulceration or calf tenderness. (Tr. 132). Dr. Polak stated that the plaintiff's Homans' sign*fn6 was negative and that his pulses were "two plus" and equal bilaterally. Id. In addition, Dr. Polak noted that the plaintiff: a) had no impairment of fine dexterous movement in either hand; b) had right biceps asymmetry consistent with his claim that he had torn his right biceps; c) showed no obvious spine or joint deformity and had a full range of motion of both his spine and joints; d) showed no sign of neurological abnormality; and e) showed no evidence of obstructive restrictive airway disease. Id. Dr. Polak diagnosed bilateral edema in plaintiff's legs, status post right biceps tear, obesity, status post excision of left testicular cancer, asthma, alcohol abuse and multiple substance abuse. Id. Dr. Polak reported that Czerep had a mild limitation in his ability to walk, carry, lift and stand Id. Dr. Polak advised the plaintiff to avoid exposure to dust, chemicals, smoke, noxious inhalants and extremes of cold and heat. Dr. Polak stated that the plaintiff was not limited in his ability to sit, bend, or engage in activities that required dexterity. (Tr. 133).

  Czerep's medical records show that he received medical treatment at Beth Israel Medical Center ("BIMC") and Beth Israel Health Care System ("BIHCS") during the period April 2000 through October 2000. (Tr. 155-60, 179-205). On April 14, 2000, Dr. Patricia C. Villamena, an attending physician at BIMC, interpreted the results of a pulmonary function test given to Czerep. (Tr. 181). Dr. Villamena reported that the plaintiff's lung volumes and diffusing capacity were within normal limits. Id. According to Dr. Villamena, there was mild obstructive dysfunction. Id.

  On June 14, 2000, Dr. Kathy Park of BIMC's Emergency Department examined the plaintiff and generated a medical report. (Tr. 189-93). Dr. Park reported that the plaintiff complained of intermittent wheezing that had lasted three days. According to Dr. Park, Czerep had run out of asthma medication, but was not in acute distress. (Tr. 189). Dr. Park reported a diagnosis of acute asthma exacerbation. (Tr. 193).

  On June 20, 2000, Dr. Corey Eber, a radiologist at BIMC, interpreted the results of a CT scan of Czerep's chest. (Tr. 194-95). Dr. Eber reported that there was no change in the appearance of bilateral mediastinal and hilar lymph nodes or in the multiple small pulmonary nodules. (Tr. 194). Dr. Eber stated that there was no pleural or pericardial abnormality. According to Dr. Eber, the plaintiff had no chest wall mass and had an unremarkable upper abdomen. Dr. Eber reported that sarcoidosis could explain the lymphadenopathy,*fn7 although metastatic carcinoma could not be ruled out. Dr. Eber recommended clinical correlation. Id.

  On July 5, 2000, Dr. John Graney of BIHCS examined the plaintiff and generated a medical report. (Tr. 196-97). Dr. Graney noted that Czerep had a history of testicular cancer, a recent diagnosis of sarcoidosis and recent asthma exacerbation. (Tr. 196). Dr. Graney reported his assessment as testicular cancer, sarcoidosis, asthma and allergic rhinitis.*fn8 Id.

  In a medical report completed after plaintiff's July 5, 2000 examination, Dr. Graney indicated that he had diagnosed the plaintiff as having these four conditions. (Tr. 155). Additionally, Dr. Graney stated that, as of July 5, 2000, the plaintiff complained of shortness of breath two to three times per week which resolved upon treatment for asthma. (Tr. 156). Dr. Graney reported a forced expiratory volume of 2.6 on pulmonary function testing, and clear lungs with no wheezes or rales. (Tr. 157). Dr. Graney stated that the plaintiff had a moderate obstructive dysfunction with a positive response to bronchodilators. Id. According to Dr. Graney, the plaintiff was not limited in his ability to stand, walk, sit, push or pull, but only in his ability to lift or carry. Id.

  On October 21, 2000, Elaina LaRusso, a physician's assistant at BIMC's Emergency Department, examined Czerep and generated a medical report. (Tr. 198-201). Ms. LaRusso noted that the plaintiff complained of and was diagnosed with right knee pain. (Tr. 200). Ms. LaRusso stated that Czerep was obese, but looked well. Ms. LaRusso reported that the plaintiff was given a cane and treated with an ace bandage and medication. Id. Ms. LaRusso recommended that the plaintiff follow up with his private physician and return to the emergency room if he experienced swelling, pain, redness, or difficulty walking. (Tr. 201).

  Also on October 21, 2000, Dr. Jefferey Miller, a radiologist at BIMC, interpreted an x-ray of the plaintiff's knee. (Tr. 202). Dr. Miller reported that the x-ray showed no fracture or dislocation and that the plaintiff's joint space was preserved. Id.

  On October 25, 2000, Dr. Erika Blank of BIHCS examined Czerep and generated a medical report. (Tr. 204-05). Dr. Blank reported that the plaintiff's chest was clear. (Tr. 204). Dr. Blank assessed testicular cancer, sarcoidosis, asthma, allergic rhinitis and depression. Id.

  On May 1, 2000, Dr. Peter Seitzman, a state agency physician, prepared a set of forms entitled "Residual Physical Functional Capacity Assessment" ("RFC forms"), based on his review of the evidence presented in connection with Czerep's SSI benefits application. (Tr. 142-52). Dr. Seitzman reported that the plaintiff could lift or carry up to twenty pounds occasionally and could lift or carry up to ten pounds frequently. Dr. Seitzman stated that plaintiff could stand or walk with normal breaks for a total of about six hours in an eight-hour workday and could sit with normal breaks for a total of about six hours in an eight-hour workday. According to Dr. Seitzman, plaintiff was able to push or pull without limitation and, in addition, had no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 142-148). Dr. Seitzman noted that examination of the plaintiff revealed near normal findings and no significant limitations. (Tr. 143). Dr. Seitzman stated that the plaintiff was restricted to the performance of light work due to obesity and edema of the legs. Id.

  On July 13, 2000, Dr. Seitzman again reviewed the medical evidence and prepared a second set of RFC forms. (Tr. 167-74). On this occasion, Dr. Seitzman found, inter alia, that the plaintiff could lift or carry up to fifty pounds occasionally and could lift or carry up to twenty-five pounds frequently. In addition, Dr. Seitzman advised the plaintiff to avoid fumes, odors, dusts, gases, and poor ventilation due to his asthma. (Tr. 168-171). Dr. Seitzman concluded that the plaintiff was restricted to medium work. (Tr. 168).

  On May 8, 2001, Dr. Gerald Greenburg, an internist and pulmonologist, testified as a medical expert at plaintiff's hearing before the ALJ. (Tr. 36-39). Dr. Greenburg testified that he had reviewed Czerep's medical records and had listened to Czerep's hearing testimony. (Tr. 36). Dr. Greenburg stated that Czerep had a history of asthma, testicular cancer and obesity. Id. Dr. Greenburg stated further that Czerep's testicular cancer had been receptive to surgery and that the appearance of nodules in the lungs, which had been noted in a chest x-ray taken in November 1999, was subsequently diagnosed as sarcoidosis and, thus, unrelated to the plaintiff's original cancer. According to Dr. Greenburg, the decision of plaintiff's physician not to treat his sarcoidosis was appropriate.

  With respect to plaintiff's asthma, Dr. Greenburg stated that the plaintiff had very good pulmonary function studies which were almost normal. Dr. Greenburg noted further that there were several asthmatic exacerbations documented, but fewer than five or six per year. In addition, medical evidence indicated that Czerep's asthma exacerbations were mild, and that the plaintiff's treating physician believed that Czerep's asthma was exercise-induced and that his ability to lift and carry was not significantly impaired by his asthma. (Tr. 36-39). Dr. Greenburg testified that there was medical evidence of a right biceps tear, but that the extent of limitation caused by the tear was not well documented. (Tr. 37). Dr. Greenburg concluded that Czerep could do light level activity with the environmental restrictions typically recommended for persons suffering from asthma. (Tr. 39).

  b. Evidence Relating to Mental Condition

  Czerep's medical records show that he received psychiatric treatment at BIHCS's Psychiatric Outpatient Service ("Outpatient Service") during the period May 2000 through March 2001. (Tr. 213-38). On May 22, 2000, Cindy Brody ("Brody"), a psychology intern employed at the Outpatient Service, conducted a psychiatric assessment of the plaintiff. (Tr. 213). Brody reported that the plaintiff complained of being depressed and stated that he experienced episodes of "binge eating" two to three times per week and had a conflicted relationship with his girlfriend. Additionally, the plaintiff had a history of drug and alcohol dependence but claimed that he had not used any drugs for three years. Id. According to Brody, the plaintiff appeared to be "somewhat disheveled" and "morbidly obese." Brody stated that the plaintiff's mood was "low key" and "lonely." Brody's diagnostic assessment of the plaintiff included "rule out" major depressive disorder, binge eating disorder, and polysubstance dependence in full sustained remission. Id.

  On May 25, 2000, Brody again conducted a psychiatric assessment of the plaintiff. (Tr. 227). According to Brody, the plaintiff reported that he was in a sad mood but was less unhappy than he had been during the previous treatment session. Plaintiff also stated that he had angry feelings toward his girlfriend and that he broke things approximately three times a week, but had never struck his girlfriend. Plaintiff reported that had been drinking two to three beers a day for the last several weeks, was not in a twelve step program, noticed a relationship between his alcohol consumption and his mood and was worried about his physical health. Id.

  On June 5, 2000, Brody examined the plaintiff and reported, in a psychological "progress note," that the plaintiff had tested positive for both marijuana and alcohol. (Tr. 227). In a psychological report dated June 19, 2000, Brody stated that the plaintiff had a history of drug and alcohol abuse, had grown up in a chaotic and abusive family, and typically spent his day watching television, listening to the radio, reading the newspaper, visiting friends and sitting outside with his dog. During an individual psychotherapy session held on the same day, plaintiff indicated that his sleep was often disturbed and that he experienced feelings of low self-esteem, irritability and increased appetite. Plaintiff also indicated that he had consumed at least one alcoholic drink on fifteen of the previous thirty days, had consumed alcohol to point of feeling "buzzed" on at least five of the previous thirty days, and had smoked marijuana on ten of the previous thirty days to "manage" his anger. (Tr. 214-29). Brody's diagnosis on this date included major depressive disorder, polysubstance dependence in partial sustained remission, binge eating disorder and personality disorder. (Tr. 216).

  On July 7, 2000, Dr. Prameet Singh, a psychiatrist at BIMC, examined the plaintiff and generated a medical report. (Tr. 232-33). According to Dr. Singh, the plaintiff reported that he sought treatment because of increased depression including depressed mood, restless sleep, frequent awakenings, low energy, increased eating and occasional passive suicidal ideation without plan or intent. (Tr. 231). Dr. Singh reported a diagnosis of cocaine dependency in remission, marijuana dependence, alcohol dependence, major depression and "rule out" substance abuse mood disorder. (Tr. 232).

  On July 27, 2000, Dr. Singh met with Czerep for follow-up treatment. (Tr. 233-34). Dr. Singh reported that the plaintiff tested positive for recent marijuana use. (Tr. 233). According to Dr. Singh, the plaintiff reported that he drank alcohol two or three times per week, experienced low motivation, anhedonia, irritability, low energy and a sense of hopelessness. Id. Dr. Singh recommended a trial of antidepressant medication but cautioned the plaintiff that regular urine toxicologies would be taken and that changes in plaintiff's medication would be made only if Czerep maintained sobriety. Id.

  On August 10, 2000, Dr. Singh stated in a progress report that plaintiff showed improvement in mood after four weeks of taking medication and reported an increase in energy and a more positive outlook. In a progress note dated January 24, 2001, Dr. Singh stated that the plaintiff reported an improvement in mood since starting his medication. (Tr. 235). In a progress report dated March 12, 2001, Dr. Singh reported that the plaintiff was continuing to use his prescribed medication without any ill effects and was remaining sober. In a progress note dated March 15, 2001, Dr. Singh reported that the plaintiff had missed treatment for approximately four months, but appeared to be responding well to his prescribed medication. (Tr. 224).

  On June 19, 2000, Dr. Richard King, a psychiatrist employed at Diagnostic Health Services, Inc., examined the plaintiff and generated a medical report. (Tr. 161-62). Dr. King reported that the plaintiff had average intelligence and fair insight and judgment. (Tr. 161). Dr. King stated that Czerep's memory was grossly intact and that he was oriented to time, person and place. Id. According to Dr. King, the plaintiff reported being able to do routine activities of daily living, including household chores and shopping. Dr. King reported a diagnosis of, inter alia, adjustment disorder of adult life, anxiety and depression to a mild degree. (Tr. 162). Dr. King was of the opinion that Czerep was able to understand, carry out and remember instructions, and also was able to respond appropriately to co-workers and supervisors as well as to pressures at work. Id.

  c. Medical Evidence Obtained After Plaintiff's Administrative Hearing

  On August 14, 2001, Dr. Jeffrey Cohen, a radiologist affiliated with BIMC, performed an MRI examination of plaintiff's lumbar spine. See Memorandum of Law in Support of Plaintiff's Cross Motion for Remand, Exhibit B. Dr. Cohen reported that his impression, based on his examination of the plaintiff, included: 1) multilevel degenerative disc disease involving all of the lumbar disc interspaces; 2) epidural lipomatosis dorsally from L2 through L5 S1 that had compromised the spinal cord; 3) a moderate degree of lumbar stenosis*fn9 at the L2-3 discspace level; 4) a mild degree of lumbar stenoses at L4-5, L3-4 and L1 2; 5) a small disc protrusion at L4-5 with mild thecal sac compression to the left of the midline; and 6) a small disc protrusion at L1 2 producing slight focal thecal sac compression to the left of the midline. Id.

  On October 17, 2001, Dr. Cohen performed an MRI examination of the plaintiff's pelvis and generated a medical report. Id. Dr. Cohen reported that there was no evidence of pelvic mass. According to Dr. Cohen, Czerep's prostate was not enlarged, and his bladder was distended but otherwise unremarkable. Id. Dr. Cohen's impression, based on his examination of the plaintiff, was of a fat-containing left inguinal hernia. Id.

  On August 28, 2001, Dr. Paul Yang, a vascular surgeon employed at BIMC, examined the plaintiff and generated a medical note. Id. Dr. Yang reported that, as a result of his treatment for testicular carcinoma, the plaintiff had developed severe lymphedema*fn10 of the left leg. Dr. Yang stated that the plaintiff required a lymphedema pump several times a day for several hours. Id. Dr. Yang reported that Czerep was unable to work and that his condition was chronic and life-long. Dr. Yang stated his opinion that the plaintiff should be permanently excused from work due to the daily treatment he required. Id.

  On March 12, 2002, Dr. Yang again examined the plaintiff and generated a medical report. Id. Dr. Yang reported that the plaintiff: i) was morbidly obese; ii) suffered from chronic sleep apnea and asthma; iii) suffered from chronic lymphedema of both lower extremities; and iv) was being treated two to three times daily with a lymphedema pump at home. Id. Dr. Yang reported that the plaintiff was under his treatment. Id. Dr. Yang stated his opinion that, given plaintiff's "comorbid conditions," he should be considered for permanent disability. Id. Based on an examination performed on May 13, 2003, Dr. Yang reported that Czerep: a) had been under his care since August 2001; b) was morbidly obese and had sleep apnea; c) had a new diagnosis of sarcoidosis which limited his pulmonary status; d) suffered from chronic lymphedema; e) was being treated with stockings, elevations and a lymphedema pump; and f) was unable to walk for long distances without a walker. Dr. Yang stated that in his opinion, the plaintiff should be considered for permanent disability. Id.

  On December 17, 2001, Dr. Alexander Lee, a physician employed at BIMC's Spine Institute, examined Czerep and generated a medical report. Id. Dr. Lee reported that his impression was of chronic back pain and neurogenic lower extremity pain. Dr. Lee stated that due to the condition of the spine, the plaintiff would be unable to tolerate any degree of work. Id. Dr. Lee reported that the plaintiff was unable to do any significant lifting or sitting for prolonged periods of time. Dr. Lee asserted that the plaintiff should be placed on permanent disability. Id.

  Decision of the ALJ

  The ALJ found that Czerep had not engaged in substantial gainful activity since the date of his application for SSI benefits. The ALJ also found that Czerep had a combination of impairments considered "severe" within the meaning of the Social Security Act. However, the ALJ determined that Czerep's medically determinable impairments did not meet or medically equal one of the impairments listed in Part 404, Subpart P, Appendix 1 of title 20 of the Code of Federal Regulations ("C.F.R."). The ALJ considered, therefore, whether Czerep had the capacity to perform his prior work.

  Based on a review of the record, including plaintiff's medical history, the ALJ determined that Czerep was not able to perform his past relevant work, but nevertheless had the residual functional capacity to perform a significant range of light work. The ALJ noted that there were a large number of jobs in the national economy that Czerep could perform, for example, messenger, elevator operator and usher. Accordingly, the ALJ found that Czerep was not disabled within the meaning of the Social Security Act. (Tr. 19-20).

  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." 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., No. 01 Civ. 9093, 2003 WL 21497528, at *5 (S.D.N.Y. June 30, 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 Anderson & Co., 72 F.3d 1085, 1092 (2d Cir. 1995).

  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 his or 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.

  New Evidence

  The Social Security Act provides, in pertinent part:

The court . . . may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . .
42 U.S.C. § 405(g).

  To satisfy the requirements of this provision, a plaintiff must show that: (i) the proffered evidence is new and not merely cumulative of what is already in the record; (ii) the evidence is material; and (iii) there was good cause for the plaintiff's failure to present the evidence earlier. See Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). To be material, the evidence must be both relevant to the claimant's condition during the time period for which benefits were denied, and probative. See id. "The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Commissioner to decide claimant's application differently." Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (quoting Tirado v. Bowen, 842 F.2d 595, 597 [2d Cir. 1988]); see also Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 2163 (1991) ("[T]he court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding."). "Good cause" for failing to present evidence during an administrative hearing exists where "the evidence surfaces after the [Commissioner's] final decision and the claimant could not have obtained the evidence during the pendency of that proceeding." Lisa, 940 F.2d at 44.

  Application of the Legal Standard

  In this case, the ALJ's decision provides a detailed sequential analysis of the plaintiff's disability as required by 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ found that the plaintiff had not engaged in substantial gainful activity at least since March 6, 2000, the date on which he applied for SSI benefits. Secondly, the ALJ found that Czerep had a combination of impairments that was "severe" within the meaning of the Social Security Act. However, applying the third step of the procedure for evaluating a disability claim, the ALJ reviewed the plaintiff's medical evidence and found that the plaintiff did not have one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1. Therefore, the ALJ considered whether the plaintiff, despite his "severe" impairments, had the residual functional capacity to perform his past work.

  The ALJ noted that all of the individuals whose evaluations of Czerep were included in the administrative record agreed that Czerep had at least the ability to perform light exertional activity, with some environmental restrictions. Consequently, the ALJ found that, because Czerep's previous occupation as a truck driver and delivery person required him to perform at a medium exertional level, Czerep did not have the residual functional capacity to perform his past work. The ALJ determined, however, at the fifth step of his analysis, that there was other work Czerep could perform. Accordingly, the ALJ concluded that Czerep was not under a "disability" as that term is defined in the Social Security Act.

  The Court finds that the ALJ applied the appropriate legal standard in evaluating plaintiff's disability claim. However, notwithstanding the propriety of the ALJ's evaluation based on the evidence in the administrative record, it appears that new evidence has come to light which satisfies the requirements set forth at 42 U.S.C. § 405(g) and which, for this reason, warrants remand of this matter to the Commissioner so that the issue of Czerep's entitlement to SSI benefits may be resolved.

  The evidence in question is new and not merely cumulative of what is already in the record. It consists of reports of medical examinations conducted after the date of plaintiff's ALJ hearing. Thus, the evidence did not exist at the time of that hearing. Moreover, since the evidence did not exist at the time of the ALJ hearing, and only surfaced after the Commissioner's final decision in this matter, good cause existed for Czerep's failure to submit the evidence to the ALJ.

  Furthermore, the new evidence is material. First, it is relevant to the time period for which the benefits were denied, that is, March 2000 through May 2001, even though it consists of documents that were prepared after the ALJ rendered his decision, because it supports plaintiff's contention that, during that time period, his condition was more serious than was previously thought. See Pollard, 377 F.3d at 193-94. Thus, on August 28, 2001, a few months after the ALJ issued his decision, plaintiff was diagnosed by his treating physician, Dr. Yang, as having "late stage lymphedema" as a result of his treatment for testicular cancer. On March 12, 2002, and May 13, 2003, Dr. Yang confirmed his previous assessment of plaintiff's condition and noted that the plaintiff "should be considered for permanent disability." Additionally, on December 17, 2001, Dr. Lee reported that, due to the condition of plaintiff's spine and the chronic nature of his back pain, "I do believe that the patient will be unable to tolerate any degree of work." According to Dr. Lee's assessment, the plaintiff "is unable to do any significant lifting or sit for any prolonged periods of time [and] [h]e should be placed on permanent disability." Thus, in this case, the new evidence is "pertinent" because it "may disclose the severity and continuity of impairments" existing during the relevant time period or "may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations" during that period. Lisa, 940 F. 2d at 44.

  Secondly, the new evidence is probative and presents a "reasonably possibility" of influencing the Commissioner to decide Czerep's application differently inasmuch as it contradicts some of the ALJ's findings and bolsters the credibility of plaintiff's subjective complaints. See id. Thus, the ALJ had concluded, based on the evidence available to him at the time of Czerep's hearing, that "there has been no metastasis, recurrence or recent functional manifestation" of testicular cancer or the treatment provided for this ailment in 1994. However, as noted above, Dr. Yang reported in August 2001 that plaintiff's lymphedema was a complication secondary to his treatment for testicular cancer. Additionally, although the ALJ concluded that plaintiff was able to perform light exertional activity, both Dr. Yang and Dr. Lee found that plaintiff was unable to perform any work and, given the chronic and life-long nature of his impairments, should be on permanent disability. Furthermore, during his hearing before the ALJ, plaintiff drew attention to his use of a cane, his inability to walk for long or short periods of time without becoming short of breath, pain in his arms, legs, wrists and elbows, and his swollen and sore ankles — subjective complaints which may have arisen in connection with the subsequent onset of lymphedema. Therefore, the new evidence, analyzed together with the administrative record, presents at least a reasonable possibility that the Commissioner would find that Czerep is disabled within the meaning of the Social Security Act and, thus, entitled to SSI benefits. Accordingly, plaintiff's request for an order remanding his case to the Commissioner for further administrative proceedings in light of the new evidence should be granted.

  IV. RECOMMENDATION

  For the reasons set forth above, I recommend that: 1) the defendant's motion for judgment on the pleadings pursuant to Fed.R. Civ. P. 12(c) be denied; and 2) the plaintiff's cross-motion, for an order remanding his case to the Commissioner for further proceedings consistent with this opinion, be granted.

  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 Richard J. Holwell, 500 Pearl Street, Room 1950, 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 Holwell. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 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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