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McGowan v. Astrue

March 23, 2009


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


Plaintiff Hugh McGowan filed an application for disability insurance benefits ("DIB") under the Social Security Act (the "Act") on August 9, 2004, alleging disability resulting from coronary artery disease ("CAD"), from July 10, 2001. Plaintiff's application was denied initially and on reconsideration. Plaintiff testified, by video conference, at a hearing held before an Administrative Law Judge ("ALJ") on September 8, 2006. By a decision dated September 26, 2006, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On March 30, 2007, 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 seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g). The Commissioner now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of his denial of benefits. The Commissioner urges the court to affirm his decision because "substantial evidence of record supports the findings that plaintiff's alleged impairments did not prevent him from engaging in substantial gainful activity, and the correct legal standards were applied." (Def.'s Mem. of Law in Supp. of His Mot. for J. on the Pleadings (Doc. 9) at 2.) Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the Commissioner's decision and remand for the calculation of benefits. Plaintiff also asks for attorney's fees pursuant to 42 U.S.C. § 406(b) and 28 U.S.C. § 2412(d). Alternatively, plaintiff asks the court to remand for further administrative proceedings.

For the reasons set forth more fully below, the Commissioner's motion is denied. The court finds that the ALJ failed to adequately develop the record when weighing the opinion of the treating physician. Furthermore, the ALJ provides no sound reason to conclude that plaintiff's testimony about his symptoms is "not entirely credible." (Admin. Tr. at 19.) Finally, the ALJ applied the improper legal standard when concluding that plaintiff could perform his past relevant work as a police lieutenant responsible for hostage negotiations. As such, plaintiff's cross motion is granted to the extent that this case is remanded to the Commissioner for further proceedings consistent with this opinion.


A. Non-medical and Testimonial Evidence

Plaintiff is sixty-six years old. (Id. at 65.) From October 1968 to July 2001, he served in the New York City Police Department ("NYPD"), starting as a police officer and retiring as a lieutenant. (Id. at 80, 88.) For thirteen years, he was in charge of a hostage negotiation team. (Id. at 278-79.) The team consisted of two full-time detectives. As needed, plaintiff would request hostage negotiators. (Id. at 279.) His job required plaintiff to respond rapidly to hostage situations. (Id. at 280.) Once he arrived at the scene, he coordinated and supervised the negotiators and tactical units. (Id. at 281.) He was required to lift and carry police equipment such as bullet proof vests, helmets, portable radios, and firearms. (Id. at 80.) This equipment often weighed approximately twenty-five pounds and occasionally weighed about fifty pounds. (Id.) According to plaintiff, the job required him to walk for about one hour, stand for about three hours, and sit for about two hours. (Id. at 72, 80.) Plaintiff wrote his own incident reports by hand. (Id. at 279.) He did not have a secretary or any other administrative staff. (Id.) His duties sometimes required him to confer with other agencies to plan for contingencies and train hostage negotiators. (Id. at 281.)

Plaintiff stopped working in June 2001 because of chest pains and shortness of breath. (Id. at 79, 281-82.) He claimed that he did not have the stamina to continue his job. (Id. at 282.) He was too weak to carry the bullet proof vests or helmets, and was unable to do any heavy lifting, standing, or squatting for long periods of time. (Id. at 103, 289.)

When he applied for disability benefits, plaintiff was able to take care of his personal needs, but doing so "cause[d] fatigue, pain and discomfort and [wa]s very time consuming." (Id. at 113.) He only was able to do simple household repairs such as replacing a light bulb and sweeping the front and back steps, but required assistance with holding the step stool or when sweeping and raking leaves. (Id. at 101.) Each day, he reads, watches television, and builds model airplanes. (Id. at 102.) He naps everyday before dinner. (Id. at 284.) He shops for clothing and medication in stores, by phone, by mail, and through the internet. (Id.) When he occasionally accompanies his wife to go shopping, he stays in the car. (Id. at 285.)

Once or twice a week, he prepares simple meals for himself, such as soups, sandwiches, and cereal. (Id. at 100.) His wife takes care of the grocery shopping, family finances, as well as most of the chores. (Id. at 285-86.) He is still able to drive and take public transportation. (Id. at 101.)

Two or three times a week, plaintiff walks for a quarter-mile. (Id. at 99, 283, 287.) He testified that fatigue and dizziness prevents him from taking longer walks. (Id. at 288.)

With respect to his social life, on a daily basis, he communicates with his family and friends either in person, by phone, or though e-mail. (Id. at 103.) Additionally, he attends church, social groups, and meetings weekly. (Id.) His four children visit him frequently and occasionally, they go out to a restaurant. (Id. at 287.)

In 2004, plaintiff completed a doctorate degree. (Id. at 285.) Plaintiff completed most of his thesis and turned in a first draft while he was still with the NYPD. He completed all of his coursework by 1995. (Id. at 285-86.) After he left the NYPD, the only remaining work was revising and incorporating comments into his thesis. (Id.) In 2005, he did some consulting work by mail, reviewing and editing lesson plans for the Public Agency Training Counsel. (Id. at 293.)

B. Medical Evidence

Starting in early 2001, plaintiff began experiencing nocturnal chest discomfort. (Id. at 188.) Once or twice a week, the discomfort woke him from his sleep. (Id.) The discomfort abated after ten to fifteen minutes. (Id.) On May 24, 2001, plaintiff underwent an echocardiogram and stress test, which revealed mild fibrocalcific disease of the aortic valve and roots, but no aortic stenosis. (Id. at 147.) The test revealed reversible defects consistent with exercised-induced ischemia. (Id. at 148.)

On June 25, 2001, plaintiff visited Dr. Marrick Kukin, the Director of the Heart Failure Program at Mt. Sinai Hospital. Dr. Kukin is board certified in internal medicine with a subspecialty in cardiology and later served as the Director for the Heart Failure Programs at St. Luke's Roosevelt Hospitals. (Id. at 188, 255.) Dr. Kukin concluded that plaintiff probably had coronary artery disease and recommended cardiac catherization as soon as possible. (Id. at 188.)

Plaintiff underwent a cardiac catherization on July 2, 2001. (Id. at 175-79.) On October 19, 2001, plaintiff took a treadmill exercise gated stress test at Mt. Sinai Hospital. (Id. at 173-74.) The test revealed severe and extensive apical, anteroseptal, and inferoposterior ischemia with accompanying chest pain. (Id.) Plaintiff was admitted to Mt. Sinai Medical Center that same day for acute coronary syndrome, and on October 24, 2001, underwent a triple coronary heart bypass. (Id. at 231-47.) Plaintiff was discharged on October 29, 2001, "having recovered well from his coronary surgery." (Id. at 235.) His discharge report indicated that he "was quick to improve with ambulation and was capable of ambulating over 200 feet by the time of his discharge." (Id.) On September 19, 2002, plaintiff underwent another treadmill exercise gated stress test. (Id. at 162.) The test revealed mild abnormalities consistent with mild anteroapical ischemia although there was no longer evidence of extensive ischemia. (Id.)

On February 3, 2005, Dr. Jerome Caiati performed a consultative examination of plaintiff for the Social Security Administration ("SSA"). (Id. at 194-214.) Dr. Caiati specializes in internal medicine but it is unknown what his qualifications are for cardiology. According to his medical report, plaintiff can cook, clean, shop, do laundry, shower, bathe, dress, watch television, listen to the radio, read, attend church, and socialize with friends. (Id. at 194.) Dr. Caiati does not note the amount of effort required by plaintiff to do these activities or the frequency with which plaintiff engages in these activities. (Id.) Dr. Caiati observed that: plaintiff appeared to be in no acute distress; had normal gait; can walk on heels and toes without difficulty; and could get on and off of the examination table without difficulty. (Id. at 195.) Dr. Caiati conducted a treadmill exercise test, which had to be terminated after three minutes because plaintiff's legs became tired. (Id. at 196.)

Dr. Caiati ruled that the test was "nondiagnostic," but found that the test was negative for ischemia or arrhythmia. (Id.) He concluded that plaintiff's sitting, standing, walking, pushing, pulling, lifting, reaching, climbing, and bending was "unrestricted." (Id. at 197.)

On February 26, 2005, Al Grazia, a medical consultant, conducted a physical residual functional capacity assessment of plaintiff. (Id. at 216-221.) There is nothing in any of the submissions indicating that Al Grazia is a doctor and according to plaintiff, there are no licensed physicians in New York by that name. (Mem. of Law in Supp. of Pl.'s Cross-Mot. (Doc. 11) at 9.)

In making the assessment, the consultant relied on Dr. Caiati's treadmill test, but he did not have any files from Dr. Kukin, plaintiff's treating physician. (Admin. Tr. at 217, 220.) The consultant concluded that plaintiff's condition limited him to occasionally lifting about twenty pounds and frequently lifting about ten pounds. (Id. at 217.) In an eight-hour work day, the consultant found that plaintiff can stand or walk for about six hours with normal breaks, and sit for about six hours with normal breaks. (Id.) The consultant believed that plaintiff's capacity to push or pull was "unlimited." (Id.) The consultant's report noted that plaintiff claimed to suffer from heart disease, but considered the allegations only "partially credible." (Id. at 219.) According to the assessment, plaintiff was capable of doing light work, which is defined as follows:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can ...

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