United States District Court, S.D. New York
September 2, 2004.
BOGDAN CZEREP, Plaintiff,
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
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).
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.
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
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.
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.
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
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.
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
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.
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.
c. Medical Evidence Obtained After Plaintiff's Administrative
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.
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
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
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).
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 ).
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 ) (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.
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.
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.
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).