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Gittens v. Astrue

June 20, 2008


The opinion of the court was delivered by: George A. Yanthis, U.S.M.J.


Plaintiff Charles Gittens commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision by the Commissioner of Social Security ("the Commissioner") to deny plaintiffs application for disability insurance benefits on the ground that plaintiff was not disabled. Presently before this Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons that follow, I respectfully recommend that the case should be remanded to the Commissioner for further findings.


Plaintiff is a fifty three year-old male (born in 1954) who alleges that he is disabled due to chronic Hepatitis C, glaucoma, and chronic obstructive pulmonary disease ("COPD"). Mr. Gittens worked as a New York City police officer for twenty years. He tested positive for Hepatitis C during a routine physical examination. Mr. Gittens filed an application for a period of disability and disability insurance benefits on January 7, 2004, alleging an inability to perform any substantial gainful activity due to Chronic Hepatitis C, Glaucoma and COPD. His application was initially denied on June 1, 2004, based on the finding that he could perform sedentary work that required only lifting a maximum of ten pounds, and that he could walk and stand occasionally. Mr. Gittens timely requested a hearing on July 21, 2004. The hearing was held before Administrative Law Judge ("ALJ") Brian W. Lemoine on March 14, 2006. On March 31, 2006, the ALJ issued a decision finding that the claimant retained the capacity to perform sedentary work within the meaning of 20 CFR § 416.967(a) and therefore was not disabled within the meaning of the Social Security Act.

Plaintiff then filed a request for review of a hearing decision, which was denied by the Appeals Council. This denial rendered ALJ Lemoine's decision the final decision of the Commissioner, subject to judicial review.


The Commissioner's factual findings are conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla" and "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) (quotation and citation omitted). "To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (quotation and citation omitted). The reviewing court "may only set aside a determination which is based upon legal error or not supported by substantial evidence." Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (quotation and citation omitted).


The SSA defines "disability" as 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). In addition, a person is eligible for disability benefits under the SSA only if his physical or mental impairment or impairments are of such severity that he 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). The Second Circuit has adopted a five-step analysis for evaluating disability claims under the SSA:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has a listed impairment, the Commissioner will consider the claimant disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a listed impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.

Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). In determining whether there is other work which the claimant could perform, "the Commissioner must consider four factors:

(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (internal quotation and citation omitted).


Here, the ALJ applied the five-step procedure and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged onset date of March 31, 2003. At step two, the ALJ determined that plaintiff suffered from COPD and Hepatitis C, both of which are "severe." At step three, the ALJ concluded that plaintiff did not have an impairment or combination of impairments listed in 20 C.F.R. Part 404, Appendix 1, Subpart P.

At step four, the ALJ found that plaintiff had the "residual functional capacity for a broad range of sedentary work, e.g., lifting/ carrying up to 10 pounds; sitting for 6 hours; standing and/or walking for two hours, with additional environmental restrictions that preclude him from no more than occasional exposure to dust, fumes, gases, and other airborne irritants. . . ." He also found that Mr. Gittens could not return to his past relevant work as a police officer.

In reaching this conclusion, the ALJ considered the records of Dr. Lane Segal, who examined the plaintiff in November 2002, February 2003, March 4, 2003, and September 16, 2003. During the course of Dr. Segal's treatment, plaintiff was feeling "fairly well" and complained only of fatigue. A liver biopsy during this time showed mild portal inflamation but no necrosis or fibrosis. The ALJ also considered records from the VA hospital where Mr. Gittens was referred for possible antiviral therapy in November 2003. These records show plaintiff complained of occasional fatigue on exertion but no nausea, shortness of breath, abdominal pain, or other symptoms. The ALJ also considered the diagnosis of Dr. Hillel Tobias who examined the plaintiff in April of 2004. During his examination, Dr. Tobias noted complaints of severe malaise, fatigue, myalgias, arthralgias, increased irritability and inability to concentrate. Based on the plaintiff's symptoms and his diagnosis, it was Dr. Tobias' opinion that plaintiff was totally disabled. Also considered were the medical records and diagnosis of treating physician Dr. Peter Bezdicek, who examined plaintiff on four separate occasions between April 13, 2004 and May 25, 2005. During this time, Dr. Bezdicek diagnosed plaintiff with severe COPD and mild restrictive lung disease. Plaintiff denied any chest pain, fever, night sweats, chills, abdominal pain, nausea, dysuria, or hematuria. Plaintiff also denied any headaches, dizziness, coughing, or wheezing. Plaintiff reported that he was able to climb one flight of stairs. Dr. Bezdicek also examined plaintiff's abdomen and found it to be soft with no discernable abnormalities. As treatment, Dr. Bezdicek prescribed an inhaler and recommended that he stop smoking. Plaintiff declined this recommended course of treatment.

The ALJ noted that, with the exception of Dr. Tobias' observations and records, plaintiff reported no symptoms from the Hepatitis C besides mild fatigue. Medical records indicate that plaintiff shows only mild pulmonary restriction and mild ventilatory defect as a result of his ...

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