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THOMAS v. BARNHART

August 18, 2005.

LEROY THOMAS, Plaintiff,
v.
JO ANNE BARNHART, Commissioner of Social Security, Defendant.



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

  A. Personal History

  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. at 50-51).

  B. Medical History

  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 33).

  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. at 132).

  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 174).

  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 ...


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