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Fleming v. Astrue

November 2, 2010


The opinion of the court was delivered by: John Gleeson, United States District Judge


Anthony Fleming seeks review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the Social Security Commissioner's determination that he is not entitled to disability insurance benefits under Title II of the Social Security Act. The Commissioner moves for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), asking the Court to affirm his decision respecting Fleming's alleged disability. Fleming cross-moves for judgment on the pleadings, seeking an order remanding the case solely for the award of disability benefits from October 18, 2002. For the reasons stated below, the Commisioner's motion is denied, and Fleming's motion is granted, but only to the extent that the Commissioner's decision is reversed and the case is remanded for further proceedings.


A. Procedural History

Fleming applied for disability benefits under Title II of the Social Security Act on June 2, 2003, claiming disability as of October 18, 2002. R. at 44. He claimed that he became unable to work as of that date because of chronic pain in his back, shoulder, and knees resulting from multiple surgeries and a degenerative bone disorder, id. at 53, and because of shortness of breath, id. at 294. A hearing was held before Administrative Law Judge ("ALJ") Harold Rosenblum on April 11, 2005. See id. at 281-314. Fleming, who was represented by counsel, testified.

On July 27, 2005, the ALJ held that Fleming was not disabled within the meaning of the Social Security Act because his medical impairments did not prevent him from performing his past relevant work. Id. at 13, 17. The Appeals Council denied Fleming's request for review on October 28, 2005. Id. at 5. On January 4, 2006, Fleming filed a pro se action in this Court seeking review of the ALJ's determination. On July 18, 2006, Fleming submitted to this Court material medical records that were not included in the administrative record. On the agreement of the parties and pursuant to the sixth sentence of 42 U.S.C. § 405(g), I reversed and remanded the case on August 30, 2006 for further administrative proceedings to consider the additional records.

Meanwhile, on May 6, 2006, Fleming filed a claim for Supplemental Security Income under Title XVI of the Social Security Act. See R. at 340. On remand, Fleming's application for disability benefits was consolidated with his SSI application, and both were considered at a hearing held on June 20, 2007 before ALJ Rosenbaum. Id. at 340, 379. Fleming, represented by new counsel, testified at the hearing, as did medical expert Dr. Richard Wagman. Id. at 372-442. On August 29, 2007, the ALJ issued an opinion finding that Fleming was disabled within the meaning of the Social Security Act as of May 30, 2006, the date his SSI application was filed. Id. at 341. The ALJ also determined that Fleming had acquired sufficient quarters of coverage under the Act to remain insured under Title II only through December 31, 2004. Id. As the ALJ had concluded that Fleming was not disabled prior to that date, he also concluded that Fleming was not entitled to a period of disability or to disability insurance benefits. Id. Accordingly, the ALJ granted Fleming's SSI application but denied his application for disability benefits under Title II of the Act.*fn1

The Appeals Council denied Fleming's request for review on October 31, 2009, id. at 219-21, rendering the ALJ's August 29, 2007 decision the final decision of the Commissioner, see DeChirico v. Callahan, 134 F.3d 1177, 1179 (2d Cir. 1998). The Commissioner requested that this Court reopen Fleming's appeal, and the parties subsequently filed cross-motions for judgment on the pleadings. Oral argument was heard on the motions on October 22, 2010. Fleming is represented in these proceedings by new counsel.

B. Fleming's Age, Education, Family, and Work History

Anthony Fleming was born on April 17, 1961. He indicated in his disability reports that he had completed two years of college, R. at 59, 75, but stated at the April 11, 2005 hearing that his formal education ended with high school, id. at 284. Fleming also completed labor management training. Id. at 59. As of June 20, 2007, Fleming lived with his wife, his sixteen year-old daughter and his wife's eighteen year-old daughter. Id. at 393; see also id. at 22-23. In addition, Fleming has five children who do not live with him.

Until October 18, 2002, the date on which he claims he became disabled, Fleming worked as a supervisor for the New York City Parks Department. Id. at 63, 284. Fleming held that job for approximately eighteen months. Id. at 284. Previously, Fleming had worked as Director of Material Management for the Greater New York Nursing Home Association, as a union representative, as assistant district manager for a community board, as assistant director for a nursing home, and as a consultant for a health insurance organization. Id. at 63, 284-89. Fleming earned no income in 1998 or in any year after 2002. Id. at 48. In addition, in 1997, he earned only $74.24. Id.

C. Fleming's Description of His Medical Condition

In connection with his application for benefits, Fleming complained of chronic pain in his back, shoulder, and knees, which he attributed to three surgeries in less than two years and a degenerative bone disease. R. at 53, 62. He stated that he had been bothered by pain since September 1997, id. at 53, and he claimed to feel pain when lifting, standing, walking, sitting, kneeling, and squatting, id. at 83. At the April 11, 2005 hearing, Fleming testified that he had had multiple surgeries for problems with the joints in his knees, shoulders, and back, and that he wore a brace on each knee, a shoulder immobilizer, and a back brace. Id. at 290-91.

In addition to the problems with his joints, Fleming testified that he was unable to hold a pen or pencil in his right hand. Id. at 291. He also complained of high blood pressure, id. at 309, and shortness of breath, which rendered him unable to walk more than a single block without medication, id. at 294. Fleming reported having to rest for ten to twenty minutes each time he walked one block. Id. at 84. Fleming testified that he had visited hospitals on about six occasions due to shortness of breath and pain in his left arm, including one time in December 2002 when he collapsed in the street. Id. at 309-10. As of April 11, 2005, he was on six medications, which he took daily for pain, high blood pressure, and heart palpitations. Id. at 300-303. Fleming testified that he made weekly visits to Drs. Dalbir K. Chhabra and Inderpal S. Chhabra, a husband and wife team at Lefferts Medical Associates, whom he had been seeing since either late 2002 or late 2003. He also testified that the Drs. Chhabra recommended tests and MRIs that he was unable to obtain because he was uninsured and could not afford to pay for them. Id. at 425.

Although he indicated in his disability reports that he did not drive because of the medications he was on, id. at 81, Fleming testified on April 11, 2005 that he was able to drive and sometimes did drive himself to his weekly doctor's appointments, which were approximately ten minutes away from his house. Id. at 297. Fleming reported spending his days reading, watching television, and meditating, id. at 82, 308, but he also testified that he did what he could around the house, including making the bed, vacuuming on occasion, taking the trash to the incinerator room, and getting the mail, id. 303-304, 308. Most weeks, Fleming was able to attend church, where he served as a deacon, but he missed some Sundays as a result of his ailments. Id. at 307-308. He was able to use a computer to type the lessons that he taught at church when he was able to attend. Id. at 311. Fleming testified that he rarely left the house other than to go to church or to the doctor, although he sometimes sat outside with a pillow and read until he became too uncomfortable. Id. at 308.

By the time he testified at the June 20, 2007 hearing, Fleming had not been to church in almost two years. Id. at 397. He said that he spent his days taking medication, watching television, and sleeping, id. at 399. He had a stroke in June 2006, which left him mostly blind in the right eye. Id. at 383-84. He could not remember when he began sleeping all day but knew that it was before the stroke. Id. at 399. He testified that he was still experiencing high blood pressure, heart palpitations, and shortness of breath, and said that his respiratory problems became severe in 2004 and had gotten progressively worse since then. Id. at 391. At the time of the hearing, Fleming was still suffering from chronic pain in his back, his shoulder, his knees, and his right hand, and he stated that the pain left him barely able to walk. Id. at 383-86. His right hand was also affected by tremors, and he wore a sling on his right arm to help control the tremors. Id. at 383. In addition to the sling, the back and knee braces, and the shoulder immobilizer, Fleming reported using a cane. Id. at 383-84. He also testified to using a machine to help him breathe and taking medications to treat his high blood pressure, palpitations, blood clots, depressive symptoms, joint infections, and respiratory problems. Id. at 386, 388-91. He said that his doctors had encouraged him to undergo back surgery, but he had refused. Id. at 386.

D. The Medical Evidence

1. Medical Records from 1985 to 2003

Fleming's medical history dating back to 1985 is documented by records from Brookdale Hospital Medical Center, the Hospital for Special Surgery, and Dr. Murray J. Werzberger. These records reveal that Fleming has suffered from a complex array of medical conditions throughout his adult life.

Following a December 1985 automobile accident, Fleming suffered from a cerebral concussion, neck and back injuries, and headaches, which were treated at the Brookdale Hospital Medical Center ("Brookdale"). R. at 248-76, 171-80. In 1986, Fleming was treated for a Baker cyst*fn2 in his left knee. Id. at 92. In 1998 and 1999, Fleming returned to Brookdale three times. He was treated for musculoskeletal pain in his chest in June 1988, id. at 241-43, and for temporary loss of consciousness and migraine in November 1988, id. at 221. In October 1989, Fleming underwent surgery for right carpal tunnel syndrome. Id. at 181-89, 218-19.

After a second car accident in May 1997, Fleming complained of persistent symptoms of pain and mechanical symptoms in his left shoulder. Id. at 98-100. A magnetic resonance imaging ("MRI") revealed a partial tear of the supraspinatus tendon,*fn3 and on October 20, 1997, arthroscopic surgery*fn4 was performed to address a labral tear.*fn5 Id. at 100. Fleming underwent physical therapy, but his pain persisted. Id. Based on the results of a January 12, 1998 MRI, he was referred to the Hospital for Special Surgery for further evaluation. Id. Due in part to "obvious pain in the left shoulder," and suspicions of a torn rotator cuff, id. at 102, a second arthoscopy of the left shoulder was conducted at the Hospital for Special Surgery on February 6, 1998. Id. at 98-99.

From January to March 1999, Fleming underwent treatment with Dr. Murray Werzberger for pain in his left knee. Id. at 125, 127-28, 133-37, 140-44. He complained of left shoulder pain and trouble walking. Id. at 127. A January 12, 1999 MRI of Fleming's left knee showed a small knee effusion,*fn6 but no tears. Id. at 138-39. Arthoscopy was scheduled for the left knee for May 5, 1999. Id. at 132. Meanwhile, on January 26, 1999, Dr. Werzberger noted that, after two surgeries on his left shoulder, Fleming required a replacement joint but had declined to receive one. Id. at 127.

Several years later, in March 2003, Fleming returned to Dr. Werberger and reported that he had been involved in yet another car accident in 2001, and had been hospitalized for almost a week. Id. at 126. He had had a blood clot in his left thigh and pain in his left knee and lower back. Id. Fleming reported to Dr. Werzberger that he had undergone physical therapy and pain therapy from April through October 2001. Id. At the time of his visit to Dr. Werzberger, Fleming complained of pain in his lumbosacral area*fn7 and his left knee and was taking medication to relieve the pain. Id. Dr. Werberger found clicking of the right shoulder and determined that Fleming was suffering from pain secondary to trauma from the motor vehicle accident. Id. He prescribed continued use of pain medications and referred Fleming to an orthopedist and a neurologist. Id.

On June 7, 2003, Fleming returned to the Brookdale emergency room complaining of low back and bilateral flank pain, headaches, and blurred vision. Id. at 159-170. He was prescribed a nonsteroidal anti-inflammatory. Id. at 165. Again, on October 7, 2003, Fleming visited Brookdale, complaining of back pain. Id. at 152. He was diagnosed with chronic back pain, ...

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