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CZEREP v. BARNHART

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 ...


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