Cherico v. Colvin
| Decision Date | 07 August 2014 |
| Docket Number | 12 Civ. 5734 (MHD) |
| Parties | DANIEL J. CHERICO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Daniel J. Cherico filed this 2012 lawsuit to challenge the decision of the Commissioner of Social Security denying his 2000 application for an award of Social Security disability benefits. Plaintiff had sought such an award on the basis of multiple serious spinal problems extending back to 1986.
Both parties agree that the final decision of the Social Security Administration ("SSA") -- a decision on the last of three appeals by plaintiff to the SSA Appeals Council from three adverse rulings by two administrative law judges -- is not defensible. That said, defendant has moved to remand the case to the SSA for still further proceedings, while plaintiff has moved for judgment on the pleadings, contending that the already voluminous record demonstrates that he is entitled to an award of benefits at this stage. For the reasons that follow, we grant plaintiff's motion and order that the case be remanded solely to permit the calculation of benefits.
We first summarize the extended and tortuous history of plaintiff's pursuit of insurance benefits through the administrative process. That effort, which was ultimately unsuccessful, lasted for approximately fifteen years, with much of that time attributable to administrative delays and errors.
Plaintiff, who is currently 69 years old, was eligible for disability insurance coverage through December 31, 1998. (Tr. 20). He first applied for disability insurance benefits on March 14, 1997. On that application, he reported a disability onset date of January 1, 1994. (Tr. 763-65). The SSA denied his claim initially on June 30, 1997 and then again on July 28, 1997. (Tr. 754). He did not appeal that determination by seeking an ALJ hearing, but rather filed a second application, on January 29, 1999, alleging the same onset date. (Tr. 755-58). That application was denied on May 6, 1999. (Tr. 766-77). He sought reconsideration, which was denied(Tr. 759-60), but he did not appeal further.
Represented by counsel, plaintiff filed his third application for benefits on September 29, 2000. (Tr. 44-51). Again, he listed January 1, 1994 as the onset date. (Tr. 45). The SSA denied this application initially, on October 22, 2000, and then on reconsideration, on December 14, 2000. (Tr. 52-54). Plaintiff next sought a hearing before an ALJ on April 9, 2001. (Tr. 57-59). He received that hearing on February 26, 2002 before ALJ Dennis G. Katz. (Tr. 935-61). In the wake of the hearing, Cherico amended his alleged onset date to December 2, 1998. (Tr. 240). The ALJ issued a decision on May 15, 2002, finding that Cherico had not been disabled through the period of his insurance coverage. (Tr. 246-52).
On June 10, 2002, plaintiff's counsel requested review by the SSA Appeals Council and asked at the same time for a copy of the hearing transcript. (Tr. 254). Having received response from the Appeals Council, plaintiff's counsel renewed his request on August 16, 2002, on September 27, 2002, and again on March 4, 2003. (Tr. 255-57). Finally, on April 22, 2004, the SSA provided a tape of the hearing, and plaintiff then submitted additional records to the Appeals Council on May 17, 2004. (Tr. 271-80). Plaintiff wasrewarded for his patience when, on April 15, 2005, the Appeals Council remanded the case to the ALJ for further proceedings. (Tr. 291-94).
ALJ Katz held a brief second hearing on September 21, 2006. (Tr. 962-83). By decision dated October 18, 2006, he again found plaintiff not to have been disabled during the insured period. (Tr. 625-34). Plaintiff sought review by the Appeals Council, on October 25, 2006. (Tr. 642-43). This time the Appeals Council supplied the hearing tape promptly, on November 21, 2006 (Tr. 644-45), and plaintiff submitted his appellate request on December 13, 2006. (Tr. 646-48).
Following plaintiff's last submission, and despite numerous reminders of the pendency of the appeal from plaintiff's counsel (Tr. 649-66), the Appeals Council took no action until July 6, 2009. Finally, on that date the Appeals Council remanded the case for still another hearing, this time before a different ALJ. (Tr. 38-43, 668-73). That hearing was held before ALJ Robert Gonzalez on May 10, 2010. (984-1075). Following that hearing, on July 8, 2010 the ALJ found that plaintiff had not been disabled during the period of his insurance coverage. (Tr. 20-28). Plaintiff sought review before the Appeals Council on July 21, 2010 (Tr. 15), andsubmitted additional evidence in support of his application. (Tr. 14, 920-26). This time -- after a wait of nearly two years -- the Appeals Council denied his request by order dated June 11, 2012. (Tr. 11-14).
Having finally been definitively rebuffed by the SSA, plaintiff filed this lawsuit to review that denial on July 26, 2012.
We first summarize plaintiff's own hearing testimony and other pertinent written representations that he has made. In doing so we note that he testified at two of the three hearings -- the first in 2002 and the third in 2010 -- and made a brief statement at the second hearing, in 2006. In large measure his accounts on these occasions was consistent, although the passage of time unavoidably meant that his circumstances at the time of each hearing had changed to a degree.
Plaintiff was born in 1944. (Tr. 763). He received PhDs inMedical Psychotherapy and Public Health, and underwent post-doctoral training in gerontology. (Tr. 793-94, 941). He worked at the Long Island University campus in Rockland County as the dean and a faculty member and was also on the faculty of Columbia University. (Tr. 824, 941, 1044). He taught both health care administration and disability personnel administration at the graduate level, and mentored graduate students. (Tr. 1044-45). In addition, he treated some patients -- limited to priests and faculty members -- as a psychotherapist, although only on a non-pay basis. (Tr. 941).
According to Dr. Cherico, he first injured his back in November 1986, when he hoisted a very heavy box of books in connection with his work. (Tr. 942-43). Because of the resultant intense pain, he stopped working full-time shortly after the incident, but undertook part-time work, including some lecturing, until 1994. (Tr. 941-42). In 1996, he was involved in an automobile accident, which aggravated his condition to some extent, at least in the cervical spine. (Tr. 947-48, 953).1
Plaintiff stopped all work in 1994 because the pain and the side effects of his medications greatly interfered with the concentration necessary to conduct lectures and do other academic work. (Tr. 942-44, 980, 980, 1046, 1054, 1065). As he described the net effect of his condition, he lacked both "the intellectual stamina to stand in front of a class, as well as the physical stamina." (Tr. 1046).
In plaintiff's hearing testimony, he reported that the pain comes in spasms and can become so intense that he falls down. (Tr. 944, 949). Indeed, that is what occurred in 1986 when he first felt the pain. (Tr. 942-43). He was prescribed a variety of painkillers over the years which also affected his cognition and energy. (Tr. 945). As a result of the pain and pharmaceutical side effects, his cousin came to live with him to supervise his medical care, and his brother takes him for daily walks. (Tr. 980).
He testified that since 1994, when he gave up even part-time work, the condition had worsened. At that time he was able to stand or walk for up to 15 minutes and to sit for 15 minutes at a time. (Tr. 953). As of the time of the 2002 hearing, he could stand orwalk only for three to five minutes at a time. (Tr. 949). He also cannot sit for extended periods because his "right leg would feel like it was paralyzed" (Tr. 1061), and he cannot even button his own shirt. (Tr. 1064).
His most comfortable position is in a reclining chair, but when lying on it he cannot reach forward or to the side or above his head. (Tr. 1062-63). He finds it difficult to rise from the chair, and has a cane to perambulate, although he does not use it unless absolutely necessary. (Tr. 949, 1063).
He typically wakes by 9 a.m., but it takes him until 11 a.m. to get up, wash, dress and eat something. (Tr. 950). He dozes much of the day because sleep at night is difficult due to pain. (Tr. 949). At the time of his first two hearings, he lived with his elderly mother and a younger brother, who is apparently retarded. (Tr. 950-51). Friends sometimes visit, and one friend used to come to the house five days each week to assist his mother in cooking and cleaning. (Tr. 950-52). His brother did the more rigorous housework, such as "garbage and the snow and the windows." (Tr. 951). Plaintiff would leave the house occasionally, but could sit in a car for only about ten minutes before he encountered extreme pain. (Tr. 950). He drove his mother to the food store because thatis only a three-minute trip. (Tr. 951). He sometimes went with a friend to a nearby restaurant to eat, but only because the staff there let him stand and walk around frequently, as he must do when sitting becomes painful, as it does every five to seven minutes. (Tr. 952-53).
By the time of his last hearing, in 2010, his mother had died, and he lived with his brother. (Tr. 1057-58). By then, his sister would cook his meals, and his brother sometimes took him out to a restaurant. (Tr. 1057-58).
As for plaintiff's medical history, he reported that he had been treated since his 1986 injury by an orthopedic surgeon, Dr. Richard Memoli, whom he was seeing every six weeks or two months through at least 2003. (Tr. 946-47). He was also being seen on a regular basis since 1997 by an internist, ...
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