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Gittens v. Astrue

August 16, 2008

SYLVESTER GITTENS, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

MEMORANDUM AND ORDER

DORA L. IRIZARRY, United States District Judge

Plaintiff Sylvester Gittens filed applications for disability benefits under the Social Security Act (the "Act") on June 1, 1980 and on September 1, 1982. Both applications were denied on initial review, and plaintiff did not appeal either decision.*fn2 On June 27, 2000, after reopening plaintiff's 1982 application pursuant to the Second Circuit's Decision in Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995), which required the reopening and readjudication of claims that were denied at any time between June 1, 1976 and July 19, 1983, the Social Security Administration affirmed the determination denying plaintiff benefits under the Act. Plaintiff challenged that decision in a hearing held before an Administrative Law Judge ("ALJ") on May 20, 2003. By decision dated December 16, 2003, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On August 6, 2004, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff filed the instant action to challenge the Commissioner's decision, pursuant to 42 U.S.C. § 405(g). The Commissioner now moves for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's cross-motion is denied.

I. Background

A. Factual History

Plaintiff was born on May 13, 1939, and attended school in his home country of Barbados, where he received the equivalent of a high school diploma. (Tr. 41.)*fn3 From 1969 to 1979, plaintiff held a job as a mechanic/maintenance worker in the United States, where he occasionally was required to lift heavy objects, ranging from 50 to 100 lbs. (Id. at 45, 48.) On April 16, 1979, plaintiff injured his back while lifting a pallet at work. (Id. at 42, 48.) Several months after the accident, plaintiff was admitted to Brooklyn Hospital, complaining of pain and numbness in both legs, especially on the right side. (Id. at 42, 304.) Plaintiff underwent conservative treatment, but his symptoms persisted. (Id. at 304.)A myelogram performed in September 1979 revealed a slipped disk on the left side of plaintiff's back. (Id. at 304.) On February 19, 1980, doctors at the Brooklyn Hospital operated on plaintiff, performing a lumbar laminectomy on plaintiff's L4 and L6 vertebrae, and removing herniated discs. (Id. at 299.) After the operation, plaintiff was prescribed Tylenol with codeine for his pain, and he remained at the hospital for one week, resting and receiving physiotherapy. (Id. at 305.) Medical reports indicate that plaintiff recovered very well from the operation, and that at the time of his discharge, he was able to walk unassisted. (Id.) After being discharged, plaintiff attended physical therapy sessions for a time, but at some point, he discontinued his treatment. (Id. at 26.)

Plaintiff received worker's compensation payments because of his injury; files from the Workers' Compensation Board contain reports of medical examinations conducted on plaintiff after his back operation. (See id. at 206-07.) A medical examination report dated October 13, 1981, shows that plaintiff "had no limp," but that his "[f]lexion [was] markedly restricted," and that he could only raise his straightened right leg 15 degrees, and could only raise his straightened left leg 40 degrees. (Id. at 207.) The report also states that plaintiff's reflexes were "equal and active" and that there was no atrophy of either thigh. (Id.) Furthermore, the report notes that although plaintiff did not feel that his condition had improved since his injury, his doctor had suggested he might go back to light work. (Id.) A second medical examination report from the Worker's Compensation Board, dated September 20, 1982, indicates that plaintiff's condition had improved somewhat since 1981, but noted that his motions were still markedly restricted. (Id. at 206.) Specifically, the report notes that plaintiff "was unwilling to attempt bending over enough to touch his knees," and that his straightened left leg raising was restricted bilaterally, but that he could raise his straightened right leg 30 degrees. (Id.) The examiner also noted one inch atrophy of the thigh. (Id.) Plaintiff's reflexes again were marked as "equal and active." (Id.)

At a pre-hearing conference held before an attorney-advisor from the Social Security Administration on November 6, 2002, plaintiff testified about his back injury and the treatment he received for it. (Id. at 21-34.) Plaintiff alsonoted that he had suffered strokes since the year 2000, has been diagnosed as a diabetic for "a good few years," and that he has not had surgery since his 1980 laminectomy. (Id. at 27, 30.) At the close of the hearing, the attorney-advisor indicated that subpoenas would be issued for plaintiff's relevant medical evidence. (Id. at 33.) At the May 20, 2003 hearing in front of ALJ Lucian Vecchio, plaintiff testified that since the surgery, he occasionally experiences a sudden pain across his back, for which he takes Tylenol, rubs Ben-Gay on his back, and lies down. (Id. at 50-51.) Plaintiff also testified that he occasionally travels to Barbados, where he sometimes treats his back pain by going to a place where he can soak in warm water. (Id. at 49-51.) Regarding his post-operation employment history, plaintiff testified that after his surgery, he applied for several desk jobs because he believed that he could work at a job that didn't require heavy lifting. (Id. at 45, 49.) He did not return to work, however, and instead stayed at home to take care of his daughter, and to do work around his house, including painting. (Id. at 49-50.)

C. The ALJ's Decision

In a decision dated December 16, 2003, after obtaining plaintiff's relevant medical history and reviewing the claim de novo, the ALJ first determined that the only period at issue was from the onset date of plaintiff's injury, July 18, 1979, until plaintiff's last insured date, September 30, 1985.*fn4 (Id. at 11.) The ALJ further concluded that although plaintiff had a severe impairment, it was not per se disabling, and that even though plaintiff's impairment prevented him from performing his past relevant work during the period at issue, plaintiff retained the capacity to perform sedentary work that existed in the national economy. (Id. at 15-16.) Based on these conclusions, the ALJ determined that plaintiff was "not disabled" within the meaning of the Act. (Id.) The Appeals Council denied plaintiff's request for review on August 6, 2004, and this action followed. (Id. at 3-5)

II. Discussion

A. Standard of Review

Unsuccessful claimants for disability benefits under the Act may bring an action in federal district court seeking judicial review of the Commissioner's denial of their benefits "within sixty days after the mailing . . . of notice of such decision or within such further time as the Commissioner of Social Security may allow." 42 U.S.C. § 405(g). A district court, reviewing the final determination of the Commissioner, must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The former determination requires the court to ask whether "the claimant has had a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotations omitted). The latter determination requires the court to ask whether the decision is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

The district court is empowered "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." 42 U.S.C. § 405(g). A remand by the court for further proceedings is appropriate when "the Commissioner has failed to provide a full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations."Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004). A remand to the Commissioner is also appropriate "[w]here there are gaps in the administrative record." Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999) (quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997)). ALJs, unlike trial court judges, have a ...


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