ALLYNE R. ROSS, District Judge.
Plaintiff Edwin Tirado ("plaintiff') seeks judicial review of a decision of the Commissioner of Social Security that he was not disabled under the Social Security Act ("Act") for purposes of receiving Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings, and plaintiff has cross-moved. For the reasons explained below, the court denies the Commissioner's motion, grants plaintiff's motion insofar as it seeks reversal of the Commissioner's decision, and remands the case for further proceedings.
Plaintiff protectively applied for SSI on June 30, 2006. Administrative Record ("AR") at 163-68.
At the hearing, plaintiff testified that he was arrested in 1993 and 1997 for selling drugs and that he was incarcerated from 1993 to 1996 and 1997 to 2001. AR 70. He stated that he received his GED in prison and worked thereafter as an equipment manager at the prison gym. AR 70-71. After leaving prison, as a condition of his parole, plaintiff got a job at a furniture center. AR 71-72. Plaintiff's alleged disability onset date, February 1, 2002, closely followed his being hit by a subway train in late January 2002. AR 356-57. Plaintiff testified that he did not apply for benefits until 2006 because the pain did not bother him much after the accident so he went back to work moving furniture but that the pain increased over time and he had to leave work. AR 66-68. He stated that he thereafter applied for SSI at the prompting of a welfare doctor. AR 68. Plaintiff testified that he could not work because he had had surgery on his left knee after the accident; had tom ligaments in his right knee, which regularly swelled up; and had nerve damage. AR 72-74. He testified that could not lift up his shoulders and that doing so caused him pain, that he could not lift or play with his thirty-three-pound child, and that he experienced pain in his spine and lower back after walking three blocks. AR 73-74. Plaintiff also stated that he had seen Dr. Livshits from 2003 to 2004, that he stopped seeing him because of a change in insurance, but that he had recently begun seeing Dr. Livshits again after changing back to his former insurer. AR 68-69.
Plaintiff's claim was denied in a decision by the ALJ dated August 19, 2008. AR 52-59. The ALJ determined that plaintiff had not engaged in verifiable substantial gainful activity, for the purposes of the decision, because his work as a furniture delivery man was off the books. AR 54. The ALJ found that plaintiff had suffered from a severe impairment, namely a right paracentral herniation at C5-6, and noted that, although plaintiff had undergone back and left knee surgery, plaintiff had not undergone medical treatment between 2004 and June 2008. AR 54. The ALJ concluded that plaintiff had the residual functional capacity to perform a range of light work based on (1) plaintiff's having worked from 2003 to 2005 delivering furniture;
In reaching her conclusion regarding plaintiff's residual functional capacity, the ALJ reviewed the medical evidence in the record. With regard to medical evidence from plaintiff s alleged disability onset date to present, the ALJ noted an emergency room report documenting plaintiff's injuries from the train collision and observed that there were no further records until 2003, when plaintiff began physical therapy for knee left knee pain, which continued into 2004 and resulted in surgery. AR 54-55. The ALJ stated that an evaluation in January 2004 showed that plaintiff had a limited range of motion and diminished strength in his right knee. AR 56. The ALJ observed that there were no treatment records for the remainder of 2004 to present and that "the record [wa]s oddly devoid of medical evidence since [plaintiff's] application date in 2006 and [wa]s limited to MRI reports." AR 55-56. The ALJ reviewed plaintiff's evaluation through the Arbor WeCare Program in June 2006, which she found to be mostly normal, and gave considerable weight to the consultative opinion of Dr. Weiss, who opined that plaintiff suffered only mild limitations. ER 56-57. The ALJ also noted that plaintiff testified that he had started treatment with Dr. Livshits in June 2008, three months after his initial hearing was scheduled. AR 56.
The ALJ determined that, considering plaintiff's age, education, work experience, and residual functional capacity, there exist jobs in significant numbers in the national economy that plaintiff can perform. AR 58. She therefore found that plaintiff was not disabled under the act and denied plaintiffs' claims for benefits. AR 59. Plaintiff requested review of this decision by the Appeals Counsel, which affirmed the ALl's denial of benefits on March 26, 2010. AR 1-2. Plaintiff thereafter filed the instant appeal.
This case comes to the court for review of the Commissioner's decision that the plaintiff is not disabled.
42 U.S.C. § 423(d)(1). An individual is considered to be under a "disability" ifhis impairment is of such severity that he is unable to perform his previous work and, given his age, education, and work experience he is not able to engage in any other type of substantial gainful employment in the national economy.
In order to establish disability under the Act, a claimant must prove that (1) he is unable to engage in substantial gainful activity by reason of a physical or mental impairment expected to result in death or that had lasted or could be expected to last for a continuous period of at least twelve months; and (2) the existence of such impairment was demonstrated by medically acceptable clinical and laboratory techniques. 42 U.S.C. §§ 423(d), 1382(a);
The Social Security Administration ("SSA") has promulgated a five step process for evaluating disability claims.
The court's role in reviewing the decisions of the SSA is narrowly confined to assessing whether the Commissioner applied the correct legal standards in making his determination and whether that determination is supported by substantial evidence.
In her August 19, 2008 decision, the ALJ committed legal error by failing to adequately develop the record by contacting plaintiff's treating physicians. The ALJ also erred insofar as she based her adverse credibility finding on plaintiff's attempt to work. The court thus finds that reversal and remand is warranted.
"The ALJ generally has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings."
The record shows that plaintiff reported visiting his primary care physician, Dr. Emmanuel Fashakin, for chronic back pain and swollen knees in 2006 and 2007 and indicates that Dr. Fashakin prescribed plaintiff with a cane, brace, and pain medication. AR 175, 196, 206. The ALJ noted that the record was lacking in medical evidence from this period and took into account this absence of medical evidence documenting plaintiff's condition in assessing plaintiff's residual functional capacity. AR 57. In concluding that plaintiff was capable of light exertion, the ALJ gave the consultative opinion of Dr. Weiss "considerable weight," based in part on the fact that the record contained no treating physician opinion. AR 57. However,
The ALJ similarly erred in neglecting to solicit an opinion from Dr. Aleksandr Livshits, a treating physician specialist, as to plaintiff's residual functional capacity. Although, in her decision denying benefits, the ALJ characterized Dr. Livshits as a doctor with whom plaintiff had only recently started visiting, AR 56, plaintiff testified at the hearing that he saw Dr. Livshits from 2003 to 2004 and, after an insurance-induced hiatus, had recently begun seeing him again. AR 68-69. That Dr. Livshits treated plaintiff over a period of time is also evidenced by a report that Dr. Livshits prepared on September 1, 2008, and which plaintiff attached as additional evidence to his request for review by the Appeals Counsel.
The court also finds error in the reasoning provided by the ALJ for its adverse credibility determination with regard to plaintiff's statements concerning the intensity, persistence, and limiting effects of plaintiff's alleged impairments. The ALJ found that plaintiff's off-the-books job delivering furniture from 2003 to 2005 did not qualify as substantial gainful activity but paradoxically concluded that plaintiff's testimony that he had worked in that capacity diluted his claim that he had been unable to work since 2002. AR 54-55. While such a long period of working may justify a determination that plaintiff was not disabled for the entire period of alleged disability, it does not support a finding that plaintiff was not disabled at any point after 2002. Plaintiff's alleged onset date on his application coincided with his train accident, but, at the hearing, plaintiff stated that his alleged ailments were not particularly bothersome directly following the accident. Plaintiff testified that he therefore returned to work but that the pain later became so bad that he was forced to stop. Courts in this circuit have generally found that failed attempts to work generally add to a plaintiff's credibility rather than undermine it.
Defendant's motion for judgment on the pleadings is denied. Where "there are gaps in the administrative record, or the ALJ has applied an improper legal standard," remand is the appropriate remedy to permit additional consideration.
SO ORDERED.