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Scott v. Barnhart

January 8, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge



Mary Scott, on behalf of Robert Norris, deceased ("plaintiff"),*fn2 brings this action under 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner") that plaintiff is not disabled under the Social Security Act, and therefore, is not entitled to Social Security disability benefits. This case is most troubling. Several Administrative Law Judges ("ALJs") ruled that plaintiff was not entitled to benefits and on three different occasions, on review, a district court remanded for further proceedings because of defects in the Administrative Hearing. Now, I must do the same in a case that has been prosecuted for over a decade.

Plaintiff originally applied for Social Security disability insurance benefits on February 27, 1996.*fn3 Plaintiff identified a disability onset date of April 3, 1980, due to, inter alia, hypertension, cardiac difficulties, uncontrolled diabetes and edema (Tr. 52). Plaintiff's application was initially denied. (Tr. 46-48, 53-55). Plaintiff then requested a hearing before an administrative law judge ("ALJ"), which was held on October 7, 1997 before ALJ Verner R. Love. (Tr. 25-45). ALJ Love determined that plaintiff was not disabled under the Act (Tr. 10-17). Plaintiff appealed to this Court, and the parties stipulated to a remand pursuant to sentence four of 42 U.S.C. §405(g). (Tr. 4-5, 396-98) (Case No. 00-CV-6119, Telesca, J.).

Upon remand, a second hearing was held on January 16, 2002 by ALJ John P. Costello. (Tr. 309-380). ALJ Costello issued a determination on March 19, 2002, finding plaintiff not disabled. (Tr. 292-305, 606-16). Plaintiff appealed to the district court and the matter was again remanded by stipulation and order filed January 17, 2003 pursuant to sentence four of 42 U.S.C. §405(g). (Tr. 627-629) (Case no. 02-CV-6293, Siragusa, J.).

A third hearing was held by ALJ John P. Costello on May 24, 2004. (Tr. 652-75). On September 23, 2004, ALJ Costello issued a decision finding that, based upon vocational expert testimony adduced at the hearing, plaintiff could perform a significant number of jobs in the national economy, including order clerk, and addresser and cutter/paster. However, the vocational expert's testimony related to the availability of such jobs in 2003. (Tr. 591-605, 755-766).

Plaintiff appealed to the district court once again, and on September 1, 2005, the parties stipulated for a third time to remand the case pursuant to sentence four of 42 U.S.C. §405(g). (Tr. 775, 779, 785-87) (Case no. 04-CV-6595, Siragusa, J.) The court order specified that on remand, the ALJ was to develop the record with respect to the incidence of the jobs plaintiff could perform prior to his date last insured, December 31, 1986. (Tr.786). The Appeals Council order remanding the matter to an ALJ further required that the ALJ consider whether plaintiff is a class member in the matter of Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). (Tr. 782-784).

Hearings were held on February 8, 2007 and May 14, 2007 by ALJ James E. Dombeck, to obtain vocational evidence concerning the incidence of the order clerk and addresser and cutter/paster positions between the alleged onset date of April 3, 1980 and the date last insured, December 31, 1986. (Tr. 867-947). On September 12, 2007, ALJ Dombeck determined that during the period in issue, plaintiff was capable of returning to his past relevant work as a "farm manager," and/or making an adjustment to other work that existed in significant numbers in the national economy, and was therefore not disabled. (Tr. 751A-O).

This action followed. The Commissioner has moved (Dkt. #5) and the plaintiff has cross-moved (Dkt. #8) for judgment on the pleadings. As discussed below, the Commissioner's decision is reversed, and the matter is remanded for further proceedings.


Plaintiff has a high school education, and was forty years old on his last day of work. His past relevant work included employment as a truck driver for Xerox from 1965 until 1980, and as a fruit farmer from 1973 through February 1996 (Tr. 57, 190).

Plaintiff ceased truck driving in 1980 due to a nervous breakdown and depression, for which he was treated sporadically from 1980 to 1984. (Tr. 35, 36). At his 1997 hearing, plaintiff testified that he has suffered from uncontrolled diabetes since 1982, with blood sugar fluctuations that require him to lie down two or three times a day. (Tr. 29-30). Since 1983, he has noted numbness in his legs, and severe numbness and swelling in his feet. (Tr. 41). Plaintiff also suffers from heart problems, and underwent coronary artery bypass surgery in 1991 with a subsequent blockage in 1992. (Tr. 39). The resulting fatigue makes it difficult for him to walk more than short distances, and he suffers from coughing spells and chest pains when nervous or stressed. (Tr. 39-40).

As a fruit farmer, plaintiff managed his farm, drove equipment, ran sprayers, used tools, and supervised between two and ten people. (Tr. 58). He sat for two hours per day, stood for four hours, and walked for one hour, with frequent lifting and carrying of up to fifty pounds, and occasional bending. (Tr. 43). In his spare time, plaintiff maintained the orchards that occupied 20 acres of his 60-acre farm, trimming and planting trees, plowing and dusting. (Tr. 30-32).

According to plaintiff's son, daughter, and ex-wife, each of whom testified at the 2007 hearing, plaintiff functioned primarily in a supervisory capacity, directing and relying upon the work of hired employees and family members who worked on the farm, and did little or no physical work himself. (Tr. 333-338, 870-877, 883, 922, 931-32). Plaintiff complained of fatigue, chest pains and shortness of breath, suffered frequent coughing spells, and was unable to walk more than short distances. (Tr. 340, 874). He had difficulty dealing with stress and was reluctant to leave the house. (Tr. 931). At or about the time he quit his truck driving position with Xerox, plaintiff became notably depressed by his physical limitations, and remained so until his death. (Tr. 340-342). By all accounts, the farm was not profitable, and usually lost money from year to year. (Tr. 888, 927).

During the relevant time period, plaintiff was treated by several different physicians. On August 22, 1980, a Dr. Seal completed a medical report for the Department of Social Services, noting that he had treated plaintiff on a monthly basis since February 1972. He diagnosed plaintiff with moderately severe hypertension, instability, gout, fatigue, obesity, and bouts of headache, nervousness, dizziness and nausea. (Tr. 710). Treatment notes throughout 1981 continued to note anxiety attacks, headaches, depression, dizziness, hypertension and fatigue. (Tr. 278-285). At the request of the Bureau of Disability Determinations, examining physician Dr. Anthony V. Ferrari saw plaintiff on February 18, 1981. Dr. Ferrari diagnosed plaintiff with severe hypertension, significant psychiatric disease, diabetes mellitus and gout. (Tr. 732).

On March 5, 1981, treating psychiatrist Dr. John McIntyre completed a psychiatric RFC form for plaintiff, which identified mild and moderate limitations with respect to all work functions, and "severe" limitations with respect to work requiring frequent contact with others, and ability to meet production, quality and attendance standards. (Tr. 734-737).

No medical records are available for 1982 or 1983. In March 1984, plaintiff was admitted to the Meyers Community Hospital for a sudden onset of chest pain. His blood pressure was stabilized and he was discharged ten days later. (Tr. 214). From 1984 through 1987, plaintiff treated regularly with several physicians, who repeatedly noted the plaintiff's diagnoses of obesity, unstable angina, uncontrolled diabetes and edema. (Tr. 214-275). Although plaintiff's treating general practitioner, Dr. Ghertner, recommended a cardiac catheterization in February 1987, plaintiff refused it, denying cardiac symptoms. (Tr. 267). No further medical records are available until February 26, 1991, when plaintiff did undergo a cardiac catheterization. During surgery, multiple areas of significant plaque stenosis (narrowing of the arterial vessels) were identified, with some arterial vessels up to 90 to 95% stenosed. (Tr. 97-99). An admission note by treating cardiologist Dr. Gacioch noted that plaintiff has had hypertension since the mid-1970s, controlled at fluctuating levels due to changes in plaintiff's weight. Plaintiff described chest pains, relieved by nitroglycerin. An exercise stress test was terminated after six minutes due to chest tightness and shortness of breath. Plaintiff was ordered to be admitted for coronary bypass surgery. (Tr. 157).

On March 21, 1991, plaintiff underwent a quadruple bypass surgery. (Tr. 127-128). On March 31, 1991, he was referred to the Sodus Emergency Department where he was found to be in mild congestive heart failure. He was treated with Lasix, and by April 1, 1991, was found to be free of symptoms. (Tr. 156). Subsequent reports reflect that plaintiff had little or no edema, and no significant cardiac complaints, for almost a year. (Tr. 152-54).

On July 31, 1992, plaintiff was hospitalized with unstable angina. (Tr. 93). He underwent cardiac catheterization revealing total occlusion (blockage) of both saphenous vein grafts (the grafts used for plaintiff's bypass surgery), along with severe coronary artery disease and left ventricular dysfunction and graft disease. (Tr. 149). On August 27, 1992, plaintiff was seen by Dr. Gacioch, who felt that coronary bypass grafting was the last treatment option for plaintiff. (Tr. 133). On October 20, 1992, plaintiff was admitted to Rochester General Hospital for a percutaneous transluminal coronary ...

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