The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD J. HOLWELL, UNITED STATES DISTRICT
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
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).
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.
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).
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