Brown v. Apfel

• Decision Date: 01 April 1999
• Docket Number: Docket No. 98-6128
• Citation: 174 F.3d 59,1999 WL 183758
• Parties: , Unempl.Ins.Rep. (CCH) P 16167B John BROWN, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 59

174 F.3d 59

61 Soc.Sec.Rep.Ser. 594, Unempl.Ins.Rep. (CCH) P 16167B

John BROWN, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.

Docket No. 98-6128.

United States Court of Appeals Second Circuit.

Argued March 19, 1999.

Decided April 1, 1999.

Troy G. Rosasco, Turley, Redmond & Rosasco, Islandia, N.Y. (Sarah H. Bohr, Sarah H. Bohr, P.A., Jacksonville, Fla., on the brief), for Plaintiff-Appellant John Brown.

Rosanne M. Harvey, Assistant United States Attorney (Deborah B. Zwany, Assistant United States Attorney, and Zachary W. Carter, United States Attorney, on the brief), Eastern District of New York, Brooklyn, N.Y., for Defendant-Appellee Kenneth Apfel.

Before: McLAUGHLIN, CALABRESI, and GIBSON, ^* Circuit Judges.

PER CURIAM:

Plaintiff-appellant John Brown appeals from a judgment of the United States District Court for the Eastern District of New York (Jacob Mishler, Judge ) affirming the magistrate judge's report which, in turn, upheld the decision of the Commissioner of Social Security denying Brown's claim to Social Security Supplemental Security Income ("SSI") disability benefits and Disability Insurance Benefits under 42 U.S.C. § 405(g). Without deciding whether substantial evidence supported the Administrative Law Judge's ("ALJ") conclusion that Brown was not disabled, a determination about which we have doubt, we reverse the Commissioner's decision because new medical evidence that Brown submitted to the Social Security Appeals Council following the ALJ's decision undermines the findings on which the ALJ's denial of Brown's claims was based.

BACKGROUND

Brown is fifty-three years old and has a high school education. From 1983 to September 1993, he worked as a kitchen aide and then a cook at a hospital. Brown left his job at the hospital on his doctor's orders following a car accident in which he, while driving, suffered a seizure and lost consciousness.

After the September 1993 accident, Brown was treated with an anti-seizure medication but continued to suffer from seizure episodes. He was taken to a hospital emergency room six times between October 1993 and March 1994 as a result of such episodes. On four of these emergency room visits, Brown reported that he had not taken his anti-seizure medication as prescribed.

In September 1994, Brown's family physician referred him to Dr. K.R. Shetty, a neurologist, who apparently has treated Brown since that time. Although Dr. Shetty initially told Brown that he could return to work, Brown continued to report that he was experiencing seizures. In June 1995, Dr. Shetty noted that Brown's seizures were "under poor control" and that Brown "is permanently disabled and is unable to hold any gainful employment."

Brown first applied for Disability Insurance benefits in January 1994 and for Supplemental Security Income ("SSI") benefits in April 1994. His applications were denied both times, and denied again in July 1994. Brown then requested a hearing before an ALJ. At Brown's hearing, held in March and August of 1995, the ALJ heard testimony from a court-appointed medical expert, from a court-appointed vocational expert, and from Brown.

In October 1995, the ALJ decided that Brown was not eligible for SSI or Disability Insurance benefits. Although the court-appointed doctor, Dr. John Holloman, had testified that Brown's condition was disabling, the ALJ rejected this, his own medical expert's opinion, on the ground that it was based on Brown's hospitalizations, which, the ALJ concluded, were for the most part caused by Brown's failure to take his anti-seizure medication. Relying on the vocational expert's testimony that a person who suffered occasional seizures could work safely and effectively in some light-duty jobs, the ALJ found that Brown was not disabled.

In April 1996, Brown appealed the ALJ's decision to the Social Security Appeals Council. In support of his appeal, Brown submitted new medical evidence consisting of treatment records from an examination by an epileptologist in October 1995 and from three neuropsychological examinations that Brown had received in February, March, and April 1996. Prior to this point, Brown's neurological examinations, including at least one EEG, had not indicated significant abnormalities. During his neuropsychological exam in November 1995, however, video EEG monitoring recorded that Brown experienced nine seizures in twenty-four hours. And the neuropsychologist noted that Brown was "currently being considered as a possible candidate for epilepsy surgery to control intractable seizures." Furthermore, during his examination by the epileptologist, Brown told the doctor that he had experienced at least six mild seizures in the previous month. In March 1997, the Appeals Council denied Brown's request for review of his application, rendering the ALJ's determination the final decision of the Commissioner of Social Security.

In May 1997, Brown filed this action in the district court, seeking review of the Commissioner's decision. Both the government and Brown filed motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The district court granted the government's motion and denied Brown's motion, and Brown filed this appeal.

DISCUSSION

A. Standard of Review

We review challenges to the Commissioner's decisions to determine no more than whether they are supported by substantial evidence. 42 U.S.C. § 405(g) (1994); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence means " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). But "[t]o determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (per curiam). And "[o]ur responsibility is always to ensure that a claim has been fairly evaluated...." Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983).

"Because the District Court's determination was governed by the substantial evidence standard, and because we must apply the same standard of review, 'our focus is not so much on the district court's ruling as it is on the administrative ruling.' " Rivera, 923 F.2d at 967 (quoting Wagner v. Secretary of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.1990)). In reviewing an ALJ's decision, we consider the entire administrative record, including new evidence submitted to the Appeals Council following the ALJ's decision. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996).

B. Determining Disability

To qualify as disabled for purposes of being entitled to disability benefits, an individual must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (1994).

Social security regulations set forth a five-step inquiry by which the Commissioner is to evaluate a claim for SSI disability benefits. See 20 C.F.R. §§ 404.1520, 416.920; Perez, 77 F.3d at 46.

The first step of this process requires the Secretary to determine whether the claimant is presently employed. If the claimant is not employed, the Secretary then determines whether the claimant has a "severe impairment" that limits her capacity to work. If the claimant has such an impairment, the Secretary next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the Secretary will find the claimant disabled. However, if the claimant does not have a listed impairment, the Secretary must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the Secretary determines whether the claimant is capable of performing any other work. If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the Secretary to prove in the fifth step that the claimant is capable of working.

Perez, 77 F.3d at 46. In making his determination by this process, the Commissioner must consider four factors: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur, 722 F.2d at 1037.

In applying the five-step framework to Brown, the ALJ found (1) that Brown was not engaged in substantial gainful activity; (2) that Brown had a severe physical impairment that significantly limited his ability to do basic work activities; (3) that Brown did not have one of the listed disabilities or an equivalent disability; (4) that Brown did not have the ability to perform his past work at the hospital; but (5) that Brown had a residual functional capacity to perform light work that was available in the national and regional economy. Brown argues that the ALJ erred in determining that his condition is not medically equivalent to the listed disabilities.

C. Analysis

The ALJ based his determination that Brown was not disabled on three findings: (1) that the persistence of Brown's seizures was largely caused by his failure to take his medication as prescribed; (2) that the lack of findings of neurological abnormality and the infrequency of Brown's seizures did not support Dr. Holloman's conclusion that Brown's condition was equivalent...