Curry v. Apfel, Docket No. 98-6267

Decision Date01 August 1998
Docket NumberDocket No. 98-6267
Citation2000 WL 358549,209 F.3d 117
Parties(2nd Cir. 2000) CORDIE CURRY, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of Social Security, Defendant-Appellee
CourtU.S. Court of Appeals — Second Circuit

Appeal from the order of the United States District Court for the Eastern District of New York (Frederic Block, Judge) entered September 25, 1998, granting judgment on the pleadings in favor of Defendant-Appellee.

Reversed and remanded.

[Copyrighted Material Omitted] James M. Baker, New York, NY (Kenneth Rosenfeld, Northern Manhattan Improvement Corporation, New York, NY, of counsel) for Plaintiff-Appellant.

Carolyn L. Miller, Assistant United States Attorney, New York, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Deborah B. Zwany, Kathleen A. Mahoney, Assistant United States Attorneys, New York, NY, of counsel) for Defendant-Appellee.

Before: CALABRESI and PARKER, Circuit Judges, and TRAGER, District Judge.*

PARKER, Circuit Judge:

Plaintiff-Appellant Cordie Curry appeals from the judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge) entered September 25, 1998, granting judgment on the pleadings in favor of Defendant-Appellee Kenneth S. Apfel, Commissioner of Social Security ("Commissioner").

This appeal arises out of the Commissioner's denial of Curry's claim for disability benefits under the Social Security Act ("Act"), 42 U.S.C. 301 et seq., related to injuries sustained while working as a plumber in 1987. Subsequent to the Commissioner's initial denial and denial upon reconsideration, an administrative law judge ("ALJ") held a hearing and determined that Curry was not eligible for benefits. Pursuant to 42 U.S.C. 405(g), Curry then filed this action in the United States District Court for the Eastern District of New York. The district court granted the Commissioner's motion for judgment on the pleadings and denied Curry's motion for judgment on the pleadings.

I. BACKGROUND

At the time of the administrative hearing, Curry was a 44-year-old widower with a high school education, living alone and supported by public assistance. After working as an airline baggage handler and record store salesperson, Curry attended a plumber's trade school in the early 1980s and worked as a plumber from 1981 to October 9, 1990. Curry last worked in 1990 or 1991.

Curry avers that his disability began on October 9, 1990. Because Curry has received an award of disability benefits commencing June 17, 1995 in connection with an application filed on October 21, 1996, the disability period at issue here is October 9, 1990 through June 16, 1995 (the date of the ALJ's decision).

A. Medical Evidence

While working as a plumber at St. Luke's Hospital ("St. Luke's"), Curry sustained an injury to his back and right knee on September 30, 1987, when he jumped or fell from a ladder to avoid hot water flowing from a pipe. On October 6, 1987, Curry visited Dr. Frankel, who determined that Curry's knee was "ok," and on November 19, 1987, referred Curry to an orthopedic surgeon for lower back pain. The orthopedist, Paul Hobeika, M.D., reported that Curry's neurological exam was within normal limits, prescribed physical therapy for a lumbo-sacral sprain, and stated that Curry could return to work on November 25, 1987.

On December 22, 1987, Curry saw Dr. Kwon, who diagnosed chronic lumbar strain and recommended further diagnostic tests. On January 7, 1988, Dr. Cole conducted physical, electrodiagnostic, and electromyographic evaluations of Curry. He observed good, active lumbo-sacral range of motion with discomfort reported at the extremes of flexion and extension. Nerve studies were normal, although some mild irritation of the L5 and/or S1 area existed.

Curry received physical therapy from January 14 through June 28, 1988. During this time, Curry visited Dr. Hobeika twice, on February 4 and April 7, 1988. The doctor noted that Curry continued to complain of back pain.

On July 13, 1988, Dr. Hobeika operated on Curry's right knee and diagnosed internal derangement. Curry saw Dr. Hobeika for several follow-up visits, including a visit on June 5, 1989, when Curry complained of continuing pain in his lower back and pain "on and off" in his right knee. On April 4, 1990, Curry returned to Dr. Hobeika stating that he continued to experience pain in his right knee. Curry also informed Dr. Hobeika that he had not worked since February 2, 1990. Dr. Hobeika diagnosed arthritis in the right knee and placed Curry "off work" until April 6, 1990. Curry saw Dr. Hobeika again on August 30, October 11, October 29, November 8, and December 3, 1990. On this last visit, Dr. Hobeika noted that Curry should change jobs.

On November 14, 1990 and January 14, 1991, Curry visited Arthur L. Matles, M.D., in relation to a worker's compensation claim. Matles diagnosed internal derangement of the right knee and stated on both visits that Curry could not return to work "at this time." On January 17, 1991, Curry saw Dr. Frankel, who noted that Curry had experienced back pain since 1987. Curry failed to keep three other scheduled appointments with Dr. Frankel.

Nothing in the record indicates that Curry received any medical care from January 17, 1991 until April 15, 1993, when Curry visited Peter Frazer, M.D., for left knee pain. Although an x-ray revealed no abnormalities of either the left or the right knee, Dr. Frazer diagnosed arthritis in the right knee. He prescribed a non-steroidal anti-inflammatory. On July 14, 1993, Curry saw Roy Brown, M.D., who wrote a letter "to whom it may concern," stating that Curry was being treated for bilateral synovitis of the knees and "is considered severely disabled."

In connection with his September 28, 1993 application for benefits, Curry underwent examination on January 27, 1994, by Mario Mancheno, M.D., a consulting physician to the Commissioner. Dr. Mancheno noted that Curry had tenderness and stiffness, but no swelling, in the right knee. The doctor also observed some tenderness in the lower back, but found no muscle spasm or deformity. Dr. Mancheno reported that an x-ray revealed mild degenerative joint disease in the right knee. Dr. Mancheno suggested that discogenic disorder of the lumbo-sacral spine be ruled out. As to impairment, Dr. Mancheno concluded that Curry had moderate impairment of lifting and carrying activities and mild impairment in standing and walking, pushing and pulling, and sitting.

In April 1994 Curry visited St. Luke's complaining of increased knee pain. He resumed physical therapy from May 19, 1994 through February 8, 1995. In August 1994, Curry saw Gabriel Dugue, M.D., to have disability forms completed. The doctor diagnosed significant osteoarthritis in the right knee and moderate osteoarthritis in the left knee. Finally, Curry saw Dr. Hobeika again in February and on March 6, 1995. He had not seen Dr. Hobeika since December 1990. Dr. Hobeika completed a medical assessment form requested by Curry's counsel. Dr. Hobeika reported that Curry had osteoarthritis in both knees, which will not improve. He concluded that Curry could sit for two hours continuously, could stand for 30 minutes at a time, could walk for 15 minutes, and during an eight-hour day, could sit for no more than two or three hours, stand a total of one hour, and walk a total of 30 minutes. In addition, Dr. Hobeika stated that Curry could lift up to 20 lbs. occasionally and carry up to 10 lbs. occasionally. In a second medical assessment form, Dr. Hussapibis concurred with Dr. Hobeika's opinion.

B. Administrative Proceedings

On September 28, 1993, Curry applied for disability benefits, stating that he had been unable to work since October 9, 1990. The Commissioner denied the application initially and again upon reconsideration. Curry then requested a hearing, which was held on March 9, 1995 before ALJ Mary E. Cerbone.

In an opinion dated June 16, 1995, the ALJ held that Curry was not under a disability as defined by the Social Security Act. The ALJ reviewed Curry's medical history and his testimony. The ALJ dismissed Curry's testimony relating to his work history as not credible due to "inconsistencies" and his testimony about pain and physical restrictions as "somewhat exaggerated and not supported by objective or clinical findings." Similarly, the ALJ rejected the functional limitations set forth in Dr. Hobeika's report, characterizing the limitations as "not supported by objective or clinical findings." Although the ALJ found that Curry had demonstrated that his impairments precluded him from returning to his past relevant work, the ALJ concluded that Curry "retains the residual functional capacity to perform the exertional requirements of at least sedentary work" and, in particular, that "the record does not establish that [Curry] is unable to sit for prolonged periods of time, lift and carry ten pounds and perform the minimal standing and walking required for sedentary work activity."

The Appeals Council denied review and, as a result, the ALJ's determination became the final judgment of the Commissioner.

C.District Court Proceedings

On May 9, 1996, Curry filed a complaint in federal district court seeking review of the ALJ's ruling. Both parties moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). In granting the Commissioner's motion (and denying Curry's motion), the district court held that the Commissioner's decision was supported by substantial evidence. More specifically, the district court concluded that (1) the Commissioner articulated "'good reasons' for declining to give controlling weight to" the opinion of Curry's treating physician, Dr. Hobeika, (2) "[t]he Commissioner's decision to accept [the opinion of its consulting physician,] Dr. Mancheno[], . . . over that of [Dr. Hobeika] was completely appropriate given the...

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