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Smith v. Astrue

January 23, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Sandra Smith's ("Plaintiff") application for disability insurance and supplemental security income benefits. Now before the Court is Plaintiff's motion for judgment on the pleadings [#4], seeking an order directing that the matter be remanded solely for the calculation of benefits, or, in the alternative, remanding the case for a new hearing before a new Administrative Law Judge ("ALJ"), and Defendant's cross-motion [#8] for an order remanding the case for a new hearing. For the reasons that follow, Plaintiff's application is denied, Defendant's application is granted, and this matter is remanded for a new hearing.


On February 23, 2005, Plaintiff applied for disability and supplemental security income benefits, claiming to be disabled due to back pain and stroke. (64-65).*fn1 The Commissioner denied the application. On March 15, 2007 and June 6, 2007, a hearing was held before Administrative Law Judge Elizabeth W. Koennecke ("ALJ"). On September 24, 2007, the ALJ issued a decision denying benefits, finding that Plaintiff had failed to establish a severe impairment.(15-17). On February 11, 2008, the Appeals Council denied Plaintiff's request for review. (5-7). On April 10, 2008, Plaintiff commenced the subject action.


Plaintiff was forty-four years of age at the time of the hearing, and had earned her GED, after leaving high school in the ninth grade. (292). Her employment history includes work as a factory laborer and as a kennel maintenance worker in a veterinary hospital. (65).


Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here. It is sufficient for purposes of this Decision and Order to note that prior to September 2004, Plaintiff was in good health. On September 1, 2004, Plaintiff was injured in a motor-vehicle accident. Subsequently, she began to experience pain, in her back and radiating into her left leg. Plaintiff was diagnosed as having a "left L5-S1 herniated nucleus pulposus," and on November 1, 2004, she underwent surgery. The surgery provided some relief, although Plaintiff still complained of back pain and tingling and numbness in her legs. A few days after the surgery, Plaintiff began experiencing episodes where she felt dizzy and had trouble speaking. Plaintiff also began complaining of pain in her head. On December 17, 2004, Plaintiff had an MRI scan of her brain, which suggested a "watershed territory infarct," that is, an area of injury in the brain tissue caused by a stroke. Plaintiff subsequently complained of having problems with speaking and with understanding numbers.

On March 14, 2005, Webster H. Pilcher, M.D. ("Pilcher"), Plaintiff's treating neurosurgeon, examined Plaintiff and concluded that she could return to work part-time, with a restriction on lifting more than thirty pounds. On April 12, 2005, Plaintiff was examined by Look Persaud, M.D. ("Persaud"), an agency consulting neurologist. Persaud concluded that Plaintiff's prognosis was "fair to guarded," and that she had moderate to severe limitations on her ability to sit, stand and walk, for prolonged periods. Look further observed that Plaintiff was tearful and had abnormally slow speech, and he questioned whether she might have an underlying psychiatric problem. On May 3, 2007, David C.Y. Kung, M.D. ("Kung") examined Plaintiff and found that she had recurring problems with the L5-S1 disc, resulting in radiculopathy and sciatica, and he recommended that she have additional surgery. Yung also examined Plaintiff's brain MRI test result, and expressed doubt that it indicated a cerebral infarct. (252) ("I cannot say that I see it [infarct], but there is some enhancement of cortex in the small areas of the brain on both sides but that is not true infarct."); (see also, 253) ("No evidence of cerebral infarct or abscess."). On May 4, 2005, Helen Collins, Ph.D. ("Collins"), a consulting psychologist, examined Plaintiff. Collins concluded that Plaintiff would be able to understand and follow simple directions and perform simple tasks, but would have problems paying attention, concentrating, performing complex tasks independently, relating to others, and dealing with stress. (174). Collins further noted that "[t]he results of the examination appeared to be consistent with stress related and cognitive problems [which] may significantly interfere with the claimant's ability to function on a daily basis." (175).

On March 15, 2007, Plaintiff appeared before the ALJ and provided her with updated medical information. The ALJ adjourned the hearing, to allow her to obtain Plaintiff's most-recent medical records. On June 6, 2007, the hearing resumed. Plaintiff testified concerning her medical history and work history. However, Plaintiff became increasingly agitated, and stated that she wanted to end the hearing. In that regard, Plaintiff expressed anger toward her doctors, based upon their comments in her medical records and their inability to cure her. She also expressed resignation that she would not receive benefits. The ALJ attempted to calm Plaintiff and have her continue, and she also took testimony from Plaintiff's mother. However, Plaintiff remained combative and agitated.


42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

For purposes of the Social Security Act, disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than ...

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