Carey v. Apfel, 97-CV-6261L.

• Decision Date: 21 May 1998
• Docket Number: No. 97-CV-6261L.,97-CV-6261L.
• Court: U.S. District Court — Western District of New York
• Parties: Carol CAREY, Plaintiff, v. Kenneth APFEL, Commissioner of the Social Security Administration,<SMALL><SUP>1</SUP></SMALL> Defendant.

6 F.Supp.2d 195

Carol CAREY, Plaintiff, v. Kenneth APFEL, Commissioner of the Social Security Administration,¹ Defendant.

No. 97-CV-6261L.

United States District Court, W.D. New York.

May 21, 1998.

James R. Sullivan, Fulreader, Rosenthal, Sullivan, Clifford, Santoro & Kaul, Rochester, NY, for Carol Carey.

Anne VanGraafeiland, Asst. U.S. Atty., Rochester, NY, for John J. Callahan, Commissioner of Social Security, Kenneth S. Apfel, Commissioner of Social Security.

DECISION AND ORDER

LARIMER, Chief Judge.

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of the Social Security Administration that plaintiff was not disabled, and therefore, was not entitled to disability benefits. This Court finds that the Commissioner's decision was not supported by substantial evidence and accordingly remands the matter to the Commissioner for further administrative proceedings.

PROCEDURAL BACKGROUND

Plaintiff Carol Carey ("Carey") was born on October 31, 1956 and is presently forty-one years old. (T. 53).² On January 19, 1994 Carey applied for Social Security disability benefits. (T. 53-56). She claimed that she was unable to work since November 10, 1993 due to congenital scoliosis. (T. 85). The Social Security Administration ("SSA") denied her applications initially and upon reconsideration. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") and it was held on March 22, 1995.

On August 24, 1995, the judge issued a decision in which he found that plaintiff was not entitled to disability benefits. (T. 10-20). On April 29, 1997, SSA's Appeals Council notified plaintiff that it would not review the ALJ's decision. (T. 3-4). The ALJ's decision thus became the Commissioner's final decision, and plaintiff commenced this action. Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

Carey claims disability due to back pains caused by congenital scoliosis.³ (T. 142). In 1973 Carey underwent "extensive posterior spine surgery" to fuse spine segments at T12-L1. (T. 142). Over the years since the surgery, she developed a pseudoarthrosis which caused a "moderate amount of back discomfort."⁴ Id. In addition, Carey's back has a "very severe kyphosis deformity with back tenderness and pain with any movement."⁵ Id. Dr. John Devanny, an orthopedics surgeon, at Strong Memorial Hospital, performed the surgery in 1974 and has treated Carey ever since. Id. He concluded an April 13, 1994 letter to SSA with the statement that "I feel very strongly that this woman is totally disabled and may remain so on a permanent basis. I urge you to strongly reconsider her situation. I do not feel that she is capable of doing any type of light duty work." Id. The record also includes treatment records from Dr. Devanny's clinic for the period from 1973 to 1994. In a note from 1991, Dr. Devanny suggested that Carey reduce her hours from over fifty per week to forty because she was developing back pain when she worked the longer hours. (T. 178). In November 1993, around the time she stopped working, Dr. Devanny noted that "I feel at the present time we should try to modify her activities to see if we can quiet down this pain. I strongly feel she should stay off work for two months on medical disability. Then we will reevaluate the situation." (T. 179).⁶

The ALJ wrote to Carey's attorney on December 6, 1994 seeking several clarifications from Dr. Devanny. (T. 158-59). The ALJ asked whether there was a discrepancy between the doctor's opinion that Carey could not work and the fact that up until late 1993 she worked ten hour days at Champion. (T. 158) ("[a]pparently she can sit and stand as long as it is not for long periods of time"). The ALJ also sought Dr. Devanny's evaluation of the listings as they applied to Carey's condition. Finally, the ALJ requested "the doctor's detailed opinion as to whether this claimant can do sedentary work." (T. 158-59). The ALJ apparently included a medical assessment form for Dr. Devanny to complete, but there is no indication that he ever completed it.

Dr. Devanny's reply to the ALJ was dated March 17, 1995 and again described plaintiff's impairments:

I believe she certainly does have a severe impairment secondary to her congenital kyphosis and previous surgery. She does have radicular distribution of her symptoms and does have demonstrable decreased sensation in one leg with an absent ankle reflex. I believe that this does fit the description of section 1.05-C.⁷

Her abnormal physical findings have been persistent for over 20 years and I would not anticipate any change in the future. Once again, I feel that she does have a severe impairment and I would not anticipate any improvement in the future.

(T. 182).

Between 1986 and October 1993 Carey also received medical treatment from Dr. Geoffory Wittig, at Tri-County Family Medicine. (T. 86). The numerous clinical notes from that office show that Dr. Wittig provided Carey with primary care for a variety of conditions, including sinusitis and her complaints of back pain. (T. 108-35). For instance in July 1993, Dr. Wittig treated Carey for low back and leg pains. (T. 131). Apparently Carey complained of "nagging hip and leg pain" which was worse after work and "progressively worse through the course of the week." (Id.). The doctor also noted Carey's complaints of occasional parasthesia of the left hip, and made a diagnosis of possible disc herniation of the lower back. (Id.). At a visit in September 1993, Dr. Wittig changed his diagnosis of what was causing Carey's back pain because she was having less radicular symptoms and had symptoms "more like strain at the base of prior surgery." (T. 132). Dr. Wittig continued to prescribe Tylenol with Codine ("Tyl.# 3") for relief of this pain and gave Carey a new referral to Dr. Devanny. (Id.).

On March 25, 1994, SSA referred Carey to Dr. Raghavan for a one-time consultative examination. (T. 136-41). Dr. Raghavan performed a physical examination and concluded with an impression similar to Dr. Devanny's diagnoses:

Congenital scoliosis and kyphosis. Ms. Carey complains of low back pain secondary to the congenital scoliosis and kyphosis. She underwent spinal fusion and decompression of the spinal cord in 1974 following which she has sensory deficit of the left lower extremity. There is limitation of range of motion of the spine and a very prominent kyphosis at the thoracolumbar area. She should continue followup with her physician.

(T. 137).

Carey worked at Champion Products between 1986 and November 1993. She held positions as "sewer," or sewing machine operator, and as a "utility service operator." (T. 82-83). The first position required sitting all day long with constant bending and lifting, as well as frequently carrying up to twenty-five pounds. The utility service operator required her to run a variety of machines and included periods of walking, standing and sitting. It also required constant bending and frequent lifting of bundles weighing up to twenty-five pounds. (T. 23). Due to Champion's work schedule, Carey worked ten hours per day at both positions. (Id.).

Carey testified that she spent most of her time sitting on her sofa — "with my feet totally off the floor" reading or watching television. (T. 44). "And usually when I sit, I'm on the couch, with my feet totally up off the floor. It's usually so that my feet are in the same position as my hip, because that relieves the pressure more." (Id.). Carey described her daily activities and noted that her husband had to help her get dressed at times. (T. 43). She also described a typical day for the ALJ:⁸ (T. 43-44).

Carey told the ALJ that she "could sit half-hour, but usually by 45 minutes, I'm already starting to get the warm, burning sensation, that I should actually get up and move out of that one position." When asked about standing, she replied that "[i]f I stand in one position, not very long at a time, five, ten minutes, if I've got to stand in one little area. If I can move about, oh probably a good hour, before I can have to really — at the point that I really got to get off my feet." (T. 46). With respect to her ability to walk, Carey explained that "if I'm in a good day, usually I can take and walk the two miles that the doctor required me to, but I'm limping before the two miles is up. I have a real bad limp, by the time I'm — but I only do that maybe twice a week." (Id.). She also testified that she could lift a five-pound bag of sugar but only without bending to pick it up. (Id.). She also testified that she had muscle spasms in her legs that required her to get out of bed and walk around at night, and that on some nights she would sit in a chair keeping her feet on the floor to prevent the spasms from making "my whole body jump." (T. 49).

DISCUSSION

A. The Standard of Review

The issue to be determined by this Court is whether the Commissioner's decision that plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence is defined as "more than a mere scintilla. It 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)). Thus, the determination of the Commissioner is conclusive as long as it is supported by substantial evidence and is not based on legal error. Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir.1989) (citations omitted).

B. The Standard for Finding a Disability

A person is disabled when he or she is unable "to engage in any substantial gainful activity by reason of any medically...