The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, U.S.D.J.
Leroy Thomas brings this action pursuant to Section 205(g) of
the Social Security Act (the "Act"), 42 U.S.C. § 405(g). He seeks
review of the determination by the Commissioner of the Social
Security Administration (the "Commissioner"), finding him not
disabled and denying his application for Supplemental Security
Income ("SSI") benefits. Mr. Thomas argues that the decision of
the Administrative Law Judge (the "ALJ") was erroneous and not
supported by substantial evidence. The Commissioner has moved for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons set forth below, I
recommend that the Commissioner's motion be denied, and that the
case be remanded to the Social Security Administration for
further proceedings. Background
Mr. Thomas was born on July 22, 1943. (Admin. R. at
58).*fn1 In the late 1950s, he completed the eleventh grade
and then attended barber school. (Admin. R. at 47-48). The
plaintiff received his barber's license and worked as a barber
and beautician until a few years before filing his SSI claim,
when pain made it impossible for him to continue. (Admin. R. at
48-49). For several years prior to that point, Mr. Thomas worked
a reduced schedule to accommodate his physical condition. (Admin.
R. at 49). Mr. Thomas' pain stems from two incidents. First, when
the plaintiff was eleven years old, he underwent surgery on his
left hip. (Admin. R. at 44). Mr. Thomas still experiences
soreness and pain from this surgery, which included insertion of
a pin. (Admin. R. at 44). He has said that this pain can be
excruciating and sometimes runs up his back. (Admin. R. at 44).
Second, in 1995, the plaintiff's leg locked, causing him to fall.
(Admin. R. at 42-43). As a result, he suffers from constant pain
in his right wrist. (Admin. R. at 44). This condition is
particularly problematic for Mr. Thomas because he is
right-handed. (Admin. R. at 46). The plaintiff, however, did not
seek medical attention for these conditions until 2001. (Admin.
R. at 34). Mr. Thomas did not do so because the pain was more manageable prior to that point, and since his childhood
surgery created a lingering reluctance to submit to medical
treatment. (Admin. R. at 34).
Mr. Thomas also suffers from asthma. (Admin. R. at 44). To
treat this condition, the plaintiff uses inhalers every day.
(Admin. R. at 45). He claims that his asthma makes him tired
after walking short distances and also increases his sensitivity
to certain air contaminants. (Admin. R. at 49-50, 53). For
example, Mr. Thomas identified one chemical used in the
hairdressing business that he could not tolerate because of his
condition. (Admin. R. at 53). Whenever this chemical was used,
the plaintiff would have to leave the room. (Admin. R. at 53).
Until recently, Mr. Thomas lived on the third floor of a
building that did not have an elevator. (Admin. R. at 46-47). In
2002, however, he was evicted for failure to pay rent in a timely
manner, and he has since lived in a shelter. (Admin. R. at
46-47). Mr. Thomas frequently takes the subway or bus when he
travels. (Admin. R. at 47, 52). He currently spends most of his
time at a senior citizens' center and in the library. (Admin. R.
Mr. Thomas has visited several doctors since he originally
filed his application for SSI benefits. From 2001 through 2002,
Mr. Thomas visited a Dr. Singh, located on East 124th Street, on
three or four separate occasions. (Admin. R. at 32-34). Although Mr. Thomas met with Dr. Singh to discuss a rash, the plaintiff
also discussed his leg condition with the doctor. (Admin. R. at
In February 2002, the plaintiff first visited Harlem Hospital,
where he was examined by Dr. Ashmi Patel. (Admin. R. at 136-37).
Mr. Thomas complained of hip, back, and wrist pain, as well as
asthma and a growth on his right buttock. (Admin. R. at 136). In
March 2002, Dr. Patel's orders were reviewed by Dr. Baktash
Bootorabi, who noted degenerative changes in Mr. Thomas' right
wrist and left femoral head. (Admin. R. at 138-39). Dr.
Bootorabi, however, did not identify any fractures or
dislocations. (Admin. R. at 138-39).
In April 2002, Dr. Patel completed a Residual Functional
Capacity Questionnaire for Mr. Thomas' Social Security claim.
(Admin. R. at 114-19). Her diagnosis was that the plaintiff
suffered from asthma and degenerative arthritis. (Admin. R. at
114). The doctor also identified joint instability in Mr. Thomas'
left hip and right wrist, tenderness, and crepitus. (Admin. R. at
114). She wrote that the plaintiff's pain often interfered with
his attention and concentration, that he could not stand or sit
continuously for more than 30 minutes, and that he could only
lift and carry less than ten pounds. (Admin. R. at 115-17). As a
result of these observations, Dr. Patel concluded that Mr. Thomas
was incapable of performing even "low stress jobs." (Admin. R. at
115). In June 2002, Mr. Thomas was examined by Dr. Edmond Balinberg.
(Admin. R. at 120-22). Dr. Balinberg's records indicate that the
plaintiff was referred to him "by the Judge of Hearing and
Appeals." (Admin. R. at 120). Dr. Balinberg observed that the
plaintiff had a distorted gait and a leg length discrepancy.
(Admin. R. at 121). He also wrote that Mr. Thomas had some
difficulty transferring from a seated position on and off the
examining table. (Admin. R. at 121). Dr. Balinberg's prognosis
was that Mr. Thomas had a chronic condition. (Admin. R. at 122).
He went on to write: "Functional capacity to do work related
activities, this is a judge case. I fill in the form required by
the judge medical source statement ability to do work related
activities physical." (Admin. R. at 122). On that form, Dr.
Balinberg indicated that the plaintiff's lifting and carrying
abilities were affected by his impairment. (Admin. R. at 129). In
his opinion, Mr. Thomas could only occasionally lift or carry
twenty to fifty pounds. (Admin. R. at 129). Dr. Balinberg,
however, failed to indicate how much weight Mr. Thomas could
frequently lift or carry. (Admin. R. at 129). Dr. Balinberg also
indicated that Mr. Thomas' standing, walking, and sitting
abilities were affected by his impairment. (Admin. R. at 129-30).
In Dr. Balinberg's opinion, Mr. Thomas could only perform those
activities for about six hours in an eight-hour workday. (Admin.
R. at 1293-0). Finally, Dr. Balinberg indicated that the
plaintiff's bronchial asthma made him sensitive to several environmental
factors, including temperature extremes, noise, dust, vibration,
humidity, hazards, fumes, odors, chemicals, and gases. (Admin. R.
Mr. Thomas returned to Harlem Hospital in July 2002, and once
again met with Dr. Patel, whose notes indicate that the plaintiff
was "in process of trying to get SSI" and "wants to go to rehab."
(Admin. R. at 140). Dr. Patel also recorded that the plaintiff's
wrist and hip pain had improved through the use of medication.
(Admin. R. at 140). Despite these improvements, the doctor
referred Mr. Thomas for physical therapy and rehabilitation.
(Admin. R. at 141). Mr. Thomas first met with a physical therapy
consultant several weeks later. (Admin. R. at 142). In August
2002, he began physical therapy at the hospital. (Admin. R. at
Medical records submitted to the Appeals Council following the
ALJ's decision show that Mr. Thomas' physical and occupational
therapy continued until at least November 2002. (Admin. R. at
1557-4). These medical records also show repeated visits with
doctors at Harlem Hospital to supervise the plaintiff's progress.
Mr. Thomas again met with Dr. Patel in August and November 2002.
(Admin. R. at 153, 175). He also met with Dr. Roger Perard twice
in September 2002 and once in October 2002. (Admin. R. at 162,
169, 171). Finally, Mr. Thomas was examined by Dr. Jacquelin Emmanuel in September 2002 and Dr. Peter Flemister in November
2002. (Admin. R. at 152, 154, 168). These doctors noted ...