United States District Court, S.D. New York
November 3, 2005.
GEORGE METAXOTOS, Plaintiff,
Jo ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, District Judge
Plaintiff George Metaxotos ("Metaxotos") has moved under Rule
12(c), Fed.R.Civ.P., to vacate the decision of defendant Jo
Anne B. Barnhart, Commissioner of Social Security (the
"Commissioner") for supplemental security income disability
benefits, to find Metaxotos disabled and to remand the action for
the calculation of benefits, or, alternatively, to remand to
consider new and material evidence. The Commissioner has
cross-moved to vacate the decision and to remand and has opposed
a finding of disability. For the reasons set forth below, the
motions for remand are granted, and the motion seeking a finding
of disability is denied.
Metaxotos applied for disability benefits alleging arthritis as
his disabling impairment on May 24, 2000. (See Tr. 86-95.) His
application was denied on August 30, 2001. (See Tr. 28-32.) He
filed a request for reconsideration on September 17, 2001, (see
Tr. 33-34, 35, 117-122), and complained that he continued to
experience knee, back, and hip pains. (See Tr. 117.) SSA denied
the request for reconsideration on March 27, 2002. (See Tr. 36-39.)*fn1 On April 9, 2002, Metaxotos promptly filed
an appeal of the March 27, 2002 denial. (See Tr. 40.)
A hearing was scheduled for May 22, 2003, which was adjourned
to July 2, 2003. Metaxotos and his attorney appeared at the July
2, 2003 hearing and provided testimony regarding his impairments.
(See Tr. 296-316.) The record was kept open after the hearing
to allow Metaxotos's attorney to submit additional evidence in
support of his claim. The Administrative Law Judge ("ALJ") asked
the attorney to obtain "some kind of medical report" as well, and
the attorney said he would try. (See Tr. 314-15.) Additional
evidence was submitted to the ALJ on August 28, 2003.
By notice of decision dated August 30, 2003, the ALJ denied
Metaxotos's claim for benefits. (See Tr. 9-19.) The ALJ agreed
that Metaxotos suffered from severe osteoarthritis of the knees
and hepatitis C and that these impairments caused functional
limitations which would prevent him from performing his past
relevant work as a painter and piano mover. However, the ALJ
determined that Metaxotos retained the ability to perform the
full range of sedentary work. (See Tr. 18.) She used the
Commissioner's medical vocational rules and considered his
ability to perform sedentary work, his age (49 1/2), education
(high school), transferrable work skills (none), and relied on medical
vocational rule 201.21 to deny the claim.
Metaxotos appealed to the Commissioner's Appeals Council. By
notice dated February 21, 2004, the Appeals Council denied his
appeal. (See Tr. 4-7.)
This action was filed on April 20, 2004 seeking to reverse the
Commissioner's decision and to remand for a calculation of
The instant motion and cross-motion were marked fully submitted
on June 22, 2005.
The Administrative Record
Metaxotos was born in New York City on March 12, 1954. He did
not graduate high school but eventually did obtain a general
equivalency diploma in 1996. He worked in the past as a house
painter and a piano mover. Metaxotos suffers from severe
arthritis of the knees, back and neck, as well as hepatitis C and
The records of the Valley Hospital Clinic covered treatment for
bilateral knee pain from March to May 2000. An x-ray taken on
April 3, 2000 revealed "marked narrowing of the medial
compartment of each knee . . . consistent with bilateral osteoarthritis." The diagnostic impression was "bilateral severe
osteoarthritis" and "left knee loose bodies." (See Tr.
Metaxotos reported that he sustained extensive multiple body
injuries, including injuries to his knees, from a car accident in
1979. He reported that he was told in 1995 that he was a
candidate for "TKR" (total knee replacement) but was using
alcohol and drugs at that time and failed to follow up properly.
He received Darvocet and Vicodin for pain management. (See Tr.
The Brooklyn Hospital records revealed treatment for bilateral
knee pain from November 2000 to March 2001. (See Tr. 179-193.)
A knee x-ray done on November 8, 2000 reportedly revealed
"advanced degenerative changes involving both compartments of
knees." (See Tr. 187.) A December 29, 2000 x-ray of the knee
was consistent with post-traumatic degenerative osteoarthritis.
(See Tr. 190.)
Clinical examination revealed crepitus and synovial thickening
of the knee. Metaxotos was not taking medication other than
Motrin around this time but it was also noted that his Medicaid
had yet to be approved. He was also in the process of quitting
heroin at the time. He complained of an inability to sleep
because of pain. He was prescribed Vioxx for the arthritis as
well. (See Tr. 185-86.) On March 2, 2001, Dr. Emilio Del Priore wrote a letter
indicating Metaxotos had "late stage osteoarthritis." Dr. Del
Priore reported that Metaxotos was not able to participate in
heavy physical activity and that he should be involved only with
"sedentary roles." (See Tr. 193.)
Records from Methodist Hospital from June 2001 reported that
Metaxotos complained of feeling overwhelmed and expressed some
thoughts about suicide. He was unable to recall how he had been
thrown out of a crisis center. He complained of pain in his legs
and hips and was taking Tylenol #3 for pain. He was discharged
after it was determined that he was not a risk to himself. (See
Records from Lincoln Hospital in June 2001 stated that
Metaxotos was being treated for lower back and knee pain. (See
Tr. 210.) At this time his medications included Flexeril and
Tylenol #3. (See Tr. 206.)
Records from Cabrini Hospital included a January 2002 x-ray of
the lumbosacral spine revealing spondylosis at L4-L5 and L5-S1.
An x-ray of the knees revealed bilateral moderate to severe
In March 2002, Metaxotos had a "left total knee arthroplasty"
(i.e., an artificial knee implant) done at Cabrini Hospital. (See Tr. 278-81.) He had the same procedure done on
the right knee in May 2002. (See Tr. 284.)
Dr. Marc Ross provided a July 15, 2003 letter in which he
stated that Metaxotos was unable to work due to restricted
mobility and difficulty with walking. Dr. Ross based this opinion
upon his consideration of Metaxotos's condition post-surgery and
his complaints of back and shoulder pain. He reported that
Metaxotos was using Vicodin every eight hours for pain
management. His gait was antalgic without a cane and he was
"unable to kneel or bend." (See Tr. 275-76.)
On July 30, 2001, Dr. John Sawicki examined Metaxotos on behalf
of the Social Security Administration for purposes of assessing
his claim for disability benefits. Metaxotos reported injuring
his knees, low back and neck in 1979. Metaxotos complained of
knee pains, back pain and "numbness into left arm and fingers."
He said he had difficulty standing, sitting and bending. (See
On examination, Dr. Sawicki noted "paraspinal tenderness and
left reapezius tenderness" along the cervical spine. (Tr. 214.)
There was also paraspinal tenderness of the thoracic and lumbar
spine with left sided lumbar tenderness noted. Straight leg
raising was done to 70 degrees and was positive bilaterally.
(See id.) Range of motion of the right knee on extension was to 135
degrees and 120 degrees to the left. He was noted to be
Dr. Sawicki noted that Metaxotos was slow in dressing and
undressing and had difficulty putting on his socks and shoes. He
transferred slowly from a seated to a standing position. He was
able to walk slowly without his cane. Dr. Sawicki provided no
assessment of Metaxotos's ability to sit, stand, walk, lift or
Non-examining SSA consultative physician Dr. Howard Goldbas
reviewed the exhibit file as it existed on August 10, 2001. Dr.
Goldbas concluded that the complaints of knee, back and hip pain
were due to arthritis and that Metaxotos's complaints of pain
were partially credible. (See Tr. 221.) He determined that
Metaxotos could stand and/or walk for only 2 hours in an 8 hour
day; sit for about 6 hours; lift 10 pounds frequently and 20
pounds occasionally. (See Tr. 217.) He determined that
Metaxotos could never perform kneeling and crawling but that he
could stoop and balance occasionally. (See Tr. 218.) He advised
that he should avoid concentrated exposure to extreme cold,
wetness and humidity. (See Tr. 220.)
Consultative examining physician Dr. Mario Mancheno examined
Metaxotos on January 3, 2002 for the SSA. He noted complaints of
injury to the cervical spine (CS) and lumbosacral spine (LSS) with subsequent knee pains. Metaxotos was taking
Vioxx and Tylenol #3 at the time of the examination. (See Tr.
Dr. Mancheno observed no difficulty in dressing and getting on
the examination table. Gait was reportedly normal. He had no
difficulty toe/heel walking.
On examination Dr. Mancheno observed "stiffness of right and
left paravertebral muscles" in the neck. (Tr. 231.) There was
tenderness noted at C4 to C7 on the right and left paraspinal
areas. Dr. Mancheno noted crepitus and tenderness of both knees.
He reported "some tenderness noted from L3 to S1 of left and
right paraspinal areas of the lower back." An x-ray of the lower
spine revealed disc space narrowing at L4-L5 and L5-S1 consistent
with degenerative joint disease of the back. (See id.)
Dr. Mancheno stated that his findings were consistent with a
discogenic disorder of the lumbosacral and cervical spine and
arthritis of the knees. He advised that he felt there was a mild
impairment in lifting and carrying, standing and walking, pushing
and pulling, and sitting. Tr. 233.
One of SSA's physicians made a non-examining consulting report
on February 12, 2002 relating to the one done by Dr. Goldbas. Tr.
249-55. This report is identical to the one Dr. Goldbas completed
except that lifting and carrying was limited to less than 10 pounds frequently and 10 pounds occasionally. (See
The Standard For Judicial Review
Judicial review of the Commissioner's final decision requires
"two levels of inquiry." See Johnson v. Bowen, 817 F.2d 983,
985 (2d Cir. 1987). First the court must determine whether the
correct legal principles were applied. Id.; Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984) ("Failure to apply the
correct legal standards is grounds for reversal."). Second, the
court must decide whether substantial evidence supported the
Commissioner's determination. Johnson, 817 F.2d at 985.
In reviewing the administrative ruling, the court does not make
a de novo determination whether the plaintiff is disabled but
does, however, "undertake `plenary review' of the administrative
record to determine whether substantial evidence supports the
denial of benefits." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996). Substantial evidence is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971) (citation omitted).
The Commissioner follows a five step sequential evaluation when
determining disability: First the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity [Step One]. If he is not, the [Commissioner]
next considers whether the claimant has a "severe"
impairment which significantly limits his physical or
mental ability to do basic work activities [Step
Two]. If the claimant suffers such an impairment, the
third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner]
will consider him disabled without considering
vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a person
who is afflicted with a "listed" impairment is unable
to perform substantial gainful activity [Step Three].
Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite
the claimant's severe impairments, he has the
residual functional capacity to perform his past work
[Step Four]. Finally, if the claimant is unable to
perform his past work, the [Commissioner] then
determines whether there is other work the claimant
can perform [Step Five].
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see
also 20 C.F.R. § 416.920 et seq.
A reviewing court must be satisfied that the claimant has had a
"full hearing under the Secretary's regulations and in accordance
with the beneficent purposes of the Act." Gold v. Secretary of
Health, Education and Welfare, 463 F.2d 41, 43 (2d Cir. 1972);
Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980). The ALJ
is obliged to remember that "[t]he Social Security Act is a
remedial statute which must be `liberally applied'; its intent is
inclusion rather than exclusion." Marcus v. Califano,
615 F.2d at 29 (quoting Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d
Cir. 1975) (citation omitted)); see also Rivera v.
Schweiker, 717 F.2d at 723; Gold, 468 F.2d at 41. Remand Is Appropriate
The parties agree that the ALJ made several errors in the
adjudication of Metaxotos's claim. They disagree, however, on the
According to Metaxotos, the ALJ failed to address properly his
subjective complaints of pain and failed to take into proper
account his medications and his daily activities. In addition, he
contends that the ALJ failed to develop the record with respect
to the report of Dr. Ross and ignored evidence of functional
limitations. In addition and alternatively, Metaxotos has
contended that a remand is warranted to consider an October 22,
2003 letter by Dr. Dinia Rozen and December 2003 MRIs.
The Social Security Act authorizes a court to remand a case to
the Commissioner for further proceedings. See
42 U.S.C. § 405(g). The fourth sentence of this section provides as follows:
The court shall have power to enter, upon the
pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without
remanding the cause for a rehearing.
Id. The court may properly remand a case to the Commissioner
for further proceedings pursuant to the fourth sentence of
42 U.S.C. § 405(g), when the Commissioner failed to correctly apply
the law and regulations. See Melkonyan v. Sullivan, 501 U.S. 89
(1991). As the Second Circuit has stated, "[w]here there are gaps
in the administrative record or the ALJ has applied an improper
legal standard, we have, on numerous occasions, remanded to the
Commissioner for further development of the evidence." Rosa v.
Callahan, 168 F.3d 72
, 82-83 (2d Cir. 1999) (quoting Pratts v.
Chater, 94 F.3d 34, 39 (2d Cir. 1996)).
The Commissioner has acknowledged that in adjudicating this
case, the ALJ did not fully develop the record with respect to
treating source medical evidence. An ALJ has a duty to develop
the record. See 20 C.F.R. § 416.912(d).
In particular, the Commissioner has conceded that the ALJ
failed to either make initial contact or to re-contact
Metaxotos's treating sources when she was required to do so.
Metaxotos sought treatment for his mental impairment at St.
Mark's Place Institute of Mental Health, Inc., ("SMPIMH"), from
November 27, 2001 until at least July 14, 2003. (See Tr. 236,
241, 274.) It was noted by Renata Novak Ziarnik, Metaxotos's
psychotherapist, that he saw Dr. Benjamin Bukholts, a
psychiatrist at the SMPIMH during that time. Id. Further, Beatu
Jackowska, a counselor at SMPIMH, reported that Metaxotos had
been scheduled to see a psychiatrist there once a month. (See
Tr. 241, 274.) Both Ms. Ziarnik and Ms. Jackowska opined that
Metaxotos could not work, but those opinions were rejected
because they were non-medical sources. (See Tr. 236, 241, 274.) The record does not indicate that the ALJ attempted to
contact Dr. Bukholts, a treating psychiatrist, for treatment
notes, records or opinions and contains no medical evidence from
The record does contain a single report of a mental status
examination performed by a physician, possibly a psychiatrist, at
SMPIMH.*fn2 (See Tr. 224-29.) The signature on this report
is illegible but the letters "MD" appear after the signature. The
report was therefore ambiguous in one essential aspect, and the
ALJ was required to re-contact the source for additional
information or clarification. See 20 C.F.R. § 416.912(e).
Furthermore, the Commissioner has conceded that the contents of
this report should have led the ALJ to re-contact the treating
source. The ALJ referred to this report and was aware that it was
a treating source report. (See Tr. 14, 15.) It was particularly
important that she re-contact the source, because she rejected
the opinions of Metaxotos's therapists at SMPIMH, Beatu Jackowska
and Renata Ziarnik, as non-medical sources. (See Tr. 15.) In addition, the Commissioner has noted that the record does
not contain all reports of treatment for Metaxotos's physical
impairment. In his application filed on May 24, 2000, Metaxotos
identified the Valley Hospital Clinic as a treating source. Tr.
90. He again identified this clinic as a treating source on
September 27, 2001 when he requested reconsideration of his
claim. (See Tr. 118.) The record contains reports and office
notes for the period up to May 17, 2000 that were submitted by
Metaxotos's attorney on July 20, 2000. (See Tr. 169, 170-78.)
There is no indication that the ALJ attempted to contact this
source for updated information or records for the period between
July 2000 and September 2001.
The Commissioner has agreed with Metaxotos that the ALJ also
did not re-contact Dr. Ross for clarification of his opinion and
instead rejected it based on a comparison with the opinions of
consultative physicians. (See Tr. 18.) The ALJ had requested
additional records from Dr. Ross. (See Tr. 314.) Metaxotos
complied with that request and obtained a report and opinion from
Dr. Ross. (See Tr. 275-76.) However, the ALJ rejected that
report as inconsistent, but did not re-contact Dr. Ross for
clarification or additional information.
The Commissioner has noted Metaxotos's contention that his case
should be remanded for consideration of new and material
evidence. See 42 U.S.C. § 405(g) (sixth sentence); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (evidence must be new,
material and good cause must exist for failure to submit it
earlier). While not conceding that these documents constitute
"new" and "material" evidence, the Commissioner has noted that
these reports will be evaluated on remand and may assist in
proving Metaxotos's allegations of disability at that time.
When both parties agree that the ALJ's decision was flawed,
remand is appropriate.
A Finding Of Disability By The Court Is Not Appropriate
The parties dispute whether or not the evidence in the record
compels a finding that Metaxotos is disabled within the meaning
of the Act. It is undisputed that he has some physical, or
exertional, limitations, but whether this limitation prevents all
work activity is not clear.
Although the ALJ accepted Dr. Ross's opinion that Metaxotos
should not bend or kneel, (see Tr. 275), and specifically
found, as a factual matter, that Metaxotos could not engage in
any kneeling or bending, (see Tr. 18, 19), the legal
significance of her own finding is disputed.
According to Metaxotos, the Social Security Ruling provides
that a finding of disabled is appropriate for a claimant who is limited to sedentary work and who cannot perform any
An ability to stoop occasionally; i.e., from very
little up to one third of the time, is required in
most unskilled sedentary occupations. A complete
inability to stoop would significantly erode the
unskilled sedentary occupational base and a finding
that the individual is disabled would usually apply,
but restriction to occasional stooping should, by
itself, only minimally erode the unskilled
occupational base of sedentary work. Consultation
with a vocational resource may be particularly useful
for cases where the individual is limited to less
than occasional stooping.
According to the Commissioner, the language from the ruling
demonstrates a complete inability to stoop would usually result
in a finding of disability, and the final sentence of the quoted
material expressly provides that a vocational expert should be
consulted when the claimant is "limited to less than occasional
stooping." The Commissioner has argued that if a finding of
disability is mandated, there would be no reason to obtain
vocational evidence. The meaning of the ALJ's finding that
Metaxotos was able to do "no bending" is contested and thereby compels remand rather than a determination of disability by the
The appropriate remedy when faced with an ambiguous finding is
to remand the case to the Commissioner for clarification of the
ambiguity. See, e.g., Pratts v. Chater, 94 F.3d 34, 39 (2d
Cir. 1996) (remanding for further proceedings where ALJ's
rationale was not clear).
Finally, Metaxotos contends that the medical vocational rules
compel a finding of disability as of the August 29, 2003
decision. Metaxotos has argued that since he was six months and
fourteen days shy of his 50th birthday at the time of the August
29, 2003 decision, the Commissioner's regulation provides that
SSA will not "mechanically" apply the age categories within the
medical vocational rules in a "borderline situation." See
20 C.F.R. § 416.963(b); Heckler v. Campbell, 461 U.S. 458, 462,
103 S.Ct. 1952, (1983); 43 Fed. Reg. 55349, 55359 (1978)
(comments accompanying the promulgation of the predecessor to
section 404.1563(a) provide that agency `practice over the years,
in fact, has been in agreement with the comment that the passage
of a few days or months before the attainment of a certain age
should not preclude a favorable disability determination.").
The Social Security Administration, in its Hearings, Appeal and
Litigation Law Manual (commonly referred to by its acronym "HALLEX"), a resource to be used by its employees, has
set forth the following two-part test for identifying borderline
1. Determine whether the claimant's age is within a
few days or a few months of a higher age category.
2. If so, determine whether using the higher age
category would result in a decision of "disabled"
instead of "not disabled."
If the answer to one or both is "no," a borderline
age situation either does not exist or would not
affect the outcome. The adjudicator will then use the
claimant's chronological age.
If the answer to both is "yes," a borderline age
situation exists and the adjudicator must decide
whether it is more appropriate to use the higher age
or the claimant's chronological age (use of the
higher age category is not automatic.) To decide
which age category to use, take a "sliding scale"
approach. Under this approach, the claimant must show
progressively more additional vocational
adversity(ies) to support use of the higher age
as the time period between the claimant's actual age
and his or her attainment of the next higher age
The regulations and the HALLEX do not clearly define when a
borderline situation exists. Some courts which have addressed
this regulation have held that six months is within the rule.
Cox v. Apfel, No. 98-7039, 1998 WL 864118, at *4 (10th Cir.
Dec. 14, 1998) (because plaintiff was within six months of next
age category at time decision issued, ALJ erred by not addressing
whether plaintiff was of borderline age); Smith v. Barnhart,
No. 00 Civ. 2643, 2002 WL 126107, at 2-4 (N.D. Ill. Jan. 31, 2002) (noting
that the cases tend to treat claimants who are within six months
of next age category as borderline); Freundt v. Massanari, No.
00 C 456, 2001 WL 1356146, at *17-20 (N.D. Ill. Nov. 2, 2001)
(six months and 12 days from next age category should have
triggered inquiry by ALJ concerning borderline situation);
Tousignant v. Apfel, 1998 WL 142415, at *5 (N.D. Ill. Mar. 26,
1998) (finding that 10 months would seem to be borderline);
Roush v. Heckler, 632 F. Supp. 710, 711-12 (S.D. Ohio 1984)
(six months borderline).
Courts have further held that because it is the Commissioner
who bears the burden at step five, it is her burden to establish
that a case is not a borderline case where she relies on the
medical vocational rule to deny a claim. See Daniels v.
Apfel, 154 F.3d 1129, 1133 (10th Cir. 1998); Pickard v. Comm'r
of Soc. Sec., 224 F. Supp. 2d 1161, 1170 (D. Tenn. 2002);
Graham v. Massanari, 2001 U.S. Dist. LEXIS 6415, at *24 (D.
Here, Metaxotos was found not disabled based on application of
medical vocational rule 201.21. (See Tr. 20 (finding 11).) This
rule applies for claimants who 1) are limited to sedentary work;
2) are aged 45 through 43; 3) have a high school education; and
4) have non-transferrable work skills. See 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 201.21. Because the ALJ failed to
identify whether this was a borderline situation and failed to address the implications of the timing of her decision,
a remand is appropriate.
Since remand is required, and rather than have this Court
announce a rule to define the edge of the borderline, further
proceedings upon remand should include consideration of the
The motion and cross motion for remand are granted. The motion
to find disability is denied.
It is so ordered.
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