Balsamo v. Chater

• Decision Date: 06 March 1998
• Docket Number: Docket No. 96-6322
• Parties: Patrick BALSAMO, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 75

142 F.3d 75

56 Soc.Sec.Rep.Ser. 474

Patrick BALSAMO, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,

Defendant-Appellee.

Docket No. 96-6322.

United States Court of Appeals, Second Circuit.

Argued Oct. 30, 1997.

Decided March 6, 1998.

Steven S. Landis (Beth G. Arnold, on the brief), Binder and Binder, Hauppauge, NY, for Plaintiff-Appellant.

Michael J. Goldberger, Assistant United States Attorney (Zachary W. Carter, United States Attorney, Deborah B. Zwany and Bruce H. Nims, Assistant United States Attorneys for the Eastern District of New York, Brooklyn, NY, on the brief), for Defendant-Appellee.

Before: CARDAMONE, WALKER, and JACOBS, Circuit Judges.

WALKER, Circuit Judge:

Plaintiff-appellant Patrick Balsamo ("Balsamo") appeals from the October 25, 1996 judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., District Judge ) granting, pursuant to Fed.R.Civ.P. 12(c), a motion for judgment on the pleadings to defendant Shirley S. Chater, Commissioner of Social Security ("Commissioner"), and finding substantial evidence to affirm the decision of the administrative law judge ("ALJ")(Jonathan Jacobs, Judge ) dismissing Balsamo's claim for social security benefits.

Vacated and remanded.

Background

Balsamo suffered a number of unfortunate injuries during his tenure from 1985 to 1993 as a police officer with the New York City Police Department ("NYPD"). On April 29, 1988, Balsamo was involved in a car collision that resulted, according to a medical report by orthopedist Dr. Martin Weseley, in injuries to Balsamo's neck, left hand, left knee, and lower back. Following medical treatment and an arthroscopic procedure, Balsamo was declared by Dr. Weseley to be in "good condition" and by early 1989 he returned to full duty at the NYPD. On June 2, 1990, Balsamo was involved in a second, work-related car accident involving a suspect, after which Balsamo was diagnosed by Dr. Ernesto Lee, M.D. ("Dr. Lee"), an orthopedic surgeon, with back and left knee injuries including "chondromalacia of the medial femoral condyle and ... deformity of the lateral meniscus." In September 1990, Dr. Lee performed a second arthroscopic procedure on Balsamo and provided further treatment including exercises, therapy, and pain relief medication. After this second accident, pursuant to Dr. Lee's recommendation, Balsamo worked on restricted duty at the NYPD. In February 1991, Dr. Lee reported Balsamo as having a "lateral meniscus tear" of the left knee and "left sciatic root disease." In a follow-up medical report in May 1991, Dr. Lee observed "gradual improvement" but diagnosed Balsamo's condition as "permanent and chronic."

On July 19, 1991, while attempting to get away from a suspect, Balsamo suffered a third, work-related injury, diagnosed by Dr. Lee in August 1991 as a lateral meniscus tear of the left knee. Dr. Lee stated that Balsamo would be "totally disabled" for three weeks. Balsamo nevertheless eventually returned to restricted duty at the NYPD. Balsamo suffered a fourth, work-related injury on January 4, 1992 in an accident while in his patrol car, after which Dr. Lee diagnosed him with sprains of both knees and the right hand. For some months afterward, Balsamo continued to complain of left knee pain, which led Dr. Lee to perform an MRI and a third arthroscopic procedure on Balsamo in May 1992. After the procedure, Dr. Lee found "[n]o significant chondromalacia" in Balsamo's left knee. Between January 1992 and March 1993, despite complaining of severe pain, Balsamo for the most part continued his restricted duty work for the NYPD, missing a total of approximately two months of work. According to Balsamo, he had difficulties sitting and walking during this time and did not change his police uniform at work because that would have required going down steps. On March 31, 1993, Balsamo finally retired from the NYPD, after which he began to receive a police pension. Balsamo has since lived at home with his wife and four children.

On October 21, 1993, Balsamo filed an application for social security disability insurance benefits, alleging that he became disabled on March 31, 1993. Following the denial of his application--initially on January 18, 1994 and on reconsideration on April 21 1994--Balsamo requested and received an administrative hearing before an ALJ.

Medical Evidence

The following medical evidence was presented to the ALJ and cited in the ALJ's opinion. In a November 1994 medical report, Balsamo's treating physician Dr. Lee concluded that Balsamo could "walk ... half a block, stand fifteen minutes, sit fifteen minutes, bend one or two times per 8 hour period," and perform "limited" grasping and manipulation. In a residual functional capacity form completed one week later, Dr. Lee noted that Balsamo could sit for one hour and stand/walk for one hour per eight-hour day, occasionally lift and carry up to ten pounds, occasionally climb steps, and never reach or bend.

Balsamo received treatment from two other physicians. In August 1994, Dr. S.K. Pal, M.D. ("Dr. Pal"), an internist, wrote that "[Balsamo] is under my care suffering from severe left knee pain, back pain and sciatica.... Movement of left knee and back is severely restricted. He is permanently disabled." In September 1994, Dr. Pal also completed a residual functional capacity form, concluding that Balsamo could sit for two hours and stand/walk from zero to one hour per eight-hour day, occasionally lift up to ten pounds and carry up to five pounds, and occasionally bend, climb steps, and reach. In October 1994, Dr. Pal prepared another medical report, stating that Balsamo visited him "about once a month" for some period following his original injuries in 1988, describing Balsamo's injuries as including a "[l]ateral [m]eniscual [sic] tear, [l]igament damage, lateral displacement of left patella, [and] secondary sciatic back pain," and concluding that "[p]rognosis is bad and [Balsamo] will not recover any time."

From 1989 to 1994 Balsamo also received treatment for his back and knee injuries from Dr. John Acquavella, M.D. ("Dr. Acquavella"), described by both parties on appeal as a "chiropractor" and by the ALJ as a "physician." In December 1993, Dr. Acquavella prepared a medical report stating that Balsamo could lift up to ten pounds occasionally, stand/walk for less than two hours per day, and sit without limitation. In October 1994, however, Dr. Acquavella completed another functional assessment of Balsamo, concluding that he could lift and carry up to five pounds occasionally, sit for only two hours and stand/walk from zero to one hour per eight-hour day, and occasionally bend, climb steps, and reach.

For her part, the Commissioner offered into evidence an April 1994 medical report by its orthopedic consultant, Dr. Roger Antoine, M.D. ("Dr. Antoine"), who was not one of Balsamo's treating doctors. Dr. Antoine confirmed many of the findings of Balsamo's treating doctors, for example, that Balsamo had a "history of ligamentous and meniscal tear" to the left knee and injuries to his spine and right hand. Dr. Antoine's report also noted that Balsamo could sit for up to 20-30 minutes, stand for up to 25-30 minutes, walk two to three blocks, and lift up to twenty pounds. The report is unclear, however, as to whether Balsamo could sit and stand/walk for repeated periods of this duration, for one period of this duration, or for smaller repeated periods totaling a period of this duration within an eight-hour day.

Balsamo's Testimony

At the hearing on December 20, 1994, Balsamo testified that, as a result of his knee injuries, he could walk only one block at a time, stand for at most fifteen to twenty minutes at a time, sit for at most twenty minutes at a time, and lift approximately ten pounds. He stated that he took Tylenol with codeine and Vicodin to relieve his knee pain. Balsamo also asserted that, since March 31, 1993, he had performed no household chores--including preparing meals, doing the dishes, cleaning the house, and mowing his lawn; he had taken no vacation trips, belonged to no club or organization where he would have to travel to meetings, and had performed no volunteer work. Though Balsamo would "periodically" attend church services and "[o]n an occasion" go shopping with his wife, he spent most of his time "[l]ooking at TV, reading the paper or [a] book."

The ALJ Decision

In his January 24, 1995 decision, the ALJ held that Balsamo was not disabled within 42 U.S.C. § 423 of the Social Security Act and denied Balsamo's benefits application. Although finding that Balsamo's medical condition "preclude[d] him from returning to his past work activity," the ALJ concluded that Balsamo "retain[ed] the residual functional capacity for sedentary work." The ALJ rejected the medical conclusions of Drs. Lee and Pal and the October 1994 conclusion of Dr. Acquavella as to Balsamo's capacity to perform sedentary work, on the basis that "[m]ost of [Balsamo's] treating physicians, since his alleged onset date, report no significant clinical findings to support their opinion that [Balsamo] is totally disabled and unable to work." The ALJ stated, for example, that "[t]he preponderant evidence establishes that there is no atrophy of any muscle groups indicative of disuse for the purpose of avoiding discomfort and as one would expect here in this case based on [Balsamo's] allegation of constant and totally disabling pain."

The ALJ did not cite the report of the Commissioner's own orthopedic consultant, Dr. Antoine, as evidence for its conclusion. Perhaps this was because Dr. Antoine's report further supported Balsamo's claimed inability to perform residual functions. The ALJ also rejected Balsamo's "complaint of totally disabling pain [as] not ... credible to the extent alleged." The ALJ did note, however, that Balsamo was "not homebound" because he "own[ed] and operate[d] a...