Rosa v. Callahan
| Decision Date | 05 February 1999 |
| Docket Number | No. 98-6079,98-6079 |
| Citation | 168 F.3d 72 |
| Parties | Ysabel ROSA, Plaintiff-Appellant, v. John S. CALLAHAN, Acting Commissioner of Social Security, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Jill Ann Boskey, Center For Disability Advocacy Rights ("CeDAR"), Inc., New York, New York, for Plaintiff-Appellant.
Linda A. Riffkin, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Haber, Assistant United States Attorney, New York, New York, on the brief), for Defendant-Appellee.
Before: KEARSE, STRAUB and SOTOMAYOR, Circuit Judges.
Plaintiff-appellant Ysabel Rosa applied for Social Security disability benefits in late February 1995. She claimed that she was disabled when a refrigerator door fell against her while she worked as a cook's helper in October 1993. Defendant-appellee, the Commissioner of Social Security (the "Commissioner"), denied Rosa's application for disability benefits under the Social Security Act (the "Act"), 42 U.S.C. § 301 et seq. An administrative law judge (the "ALJ") subsequently reviewed the matter and upheld the Commissioner's decision. Rosa then filed this action in the United States District Court for the Southern District of New York (Cote, J.). Rosa now appeals from the March 11, 1998 judgment entered by the district court affirming the Commissioner's decision. We find that the denial of disability benefits was based upon an incomplete and inadequate record. Accordingly, we vacate the district court's decision and remand the case to the Commissioner for further development of the record and reconsideration of Rosa's application.
Rosa was born in the Dominican Republic on July 2, 1963. She came to the United States in 1984, and although she subsequently graduated from high school, Rosa is not fluent in English. After arriving in this country, Rosa worked steadily at assorted jobs until the day that she sustained her injuries. From June 1984 to May 1985, Rosa worked in a factory packing children's clothes, and from June 1985 to October 1993, she worked as a cook's helper. While working at this most recent job, Rosa was injured when a refrigerator door fell against her in October 1993. Rosa has not worked since that incident.
On the day of her injury, Rosa was treated at the emergency room at Bellevue Hospital At the request of the New York State Office of Disability Determinations, Rosa visited Dr. K. Seo, an orthopedist, for a consultative examination on April 27, 1995. In his three-page report, Dr. Seo noted that Rosa had a normal range of motion in both shoulders, that she complained of joint pain in her right shoulder, that she had "[d]iminished sensation of the right at the level of C7 and C6," and that she had slightly limited muscle strength in her right arm. (Medical Report by Dr. K. Seo (Apr. 27, 1995) [hereinafter Seo Report].) Dr. Seo also reported that Rosa had no muscular atrophy in her thighs or legs and that she had a normal range of motion in her hip, knee, and ankle joints. At the close of his report, Dr. Seo reached the following conclusions: 1
where x-rays were taken of her. Soon thereafter, on November 1, 1993, Rosa began physical therapy three times per week with Dr. Jose Acevedo. In February 1994, at Dr. Acevedo's suggestion, Rosa began seeing Dr. Enrique Ergas. Dr. Ergas's notes describe nine visits with Rosa between February 16, 1994 and June 28, 1995. In support of her disability application, Rosa also submitted a one-page medical assessment by Dr. Ergas diagnosing Rosa with near total disability. On that form, Dr. Ergas checked a series of boxes indicating that Rosa was incapable of doing any work requiring even minimal lifting or carrying. The doctor also indicated that Rosa was incapable of either sitting or standing for more than one to two hours during the course of an eight-hour work day.
The Commissioner sent Rosa for a second consultative examination by another orthopedist, Dr. A. Sarreal, on August 16, 1995. In his report, Dr. Sarreal recorded that Rosa was "independent in dressing, bending and sitting" and that she "got on and off the examining table independently with slight discomfort." (Medical Report by Dr. A. Sarreal (8/16/95) [hereinafter Sarreal Report].) In his clinical observations, Dr. Sarreal noted a normal range of motion in Rosa's left shoulder but recorded slightly reduced motion and sensation in her right shoulder and on her right side. The doctor also noted that while Rosa's "[f]inger and hand dexterity and manipulation [were] good," she had a "diminished ... grasp on the right hand." Additionally, Dr. Sarreal detected "tenderness" in Rosa's right neck area and "upper trapezius muscle." As for Rosa's "lower extremities," Dr. Sarreal reported a range of motion within "normal limits" and an absence of redness or swelling. Based upon these findings, Dr. Sarreal reached the following conclusions regarding Rosa's condition: "My medical opinion regarding this individual's ability to do work-related physical activities due to the neck right trapezius and low back pain; lift, carry, stand, walk, push and pull; limited." Dr. Sarreal also reported that Rosa's prognosis was "fair."
In late February 1995, Rosa applied for disability benefits on the basis of her injuries. The Commissioner denied Rosa's application, both initially and on reconsideration. Rosa then requested a hearing, and appeared before Administrative Law Judge Mary Cerbone on March 15, 1996. Rosa was represented by a "legal service assistant" and testified with the aid of an interpreter. During the twenty-minute hearing, Rosa recounted her background and work experience. She went on to describe the incident in which she was injured and the treatment she received. Rosa explained that as of the time of the hearing, she was still visiting Dr. Ergas and that he had prescribed a pain medication, Naprosyn, and certain nightly exercises.
In describing her injuries, Rosa complained of constant physical pain and occasional headaches. In particular, Rosa testified that her right side felt "very dull and heavy, like if my right side was dead." She The ALJ issued a decision denying Rosa's claim on April 18, 1996. The ALJ found that Rosa had not engaged in substantial gainful activity since the onset of her alleged disability and that she had "severe musculoskeletal impairments" preventing her from performing her past relevant work. The ALJ also found, however, that Rosa "retained the residual functional capacity to perform a full range of sedentary work activity." The ALJ based this conclusion entirely upon her evaluation of Dr. Ergas's dictated notes and medical assessment and the two reports completed by the consulting physicians, Drs. Seo and Sarreal. The ALJ did not obtain any records from Bellevue, where Rosa was treated initially, nor from Dr. Acevedo, the physical therapist identified by Rosa as the doctor who treated her for over a year beginning almost immediately after her injury.
claimed that she could not stand for more than fifteen minutes at a time, that she was unable to bend or kneel, and that she could not remain seated for more than fifteen or twenty minutes without experiencing back pain. Rosa also described weakness and numbness in her right hand. As a result of her injuries, Rosa complained that she was unable to go out except for medical appointments and occasional church visits, that she needed her daughter to bathe her, and that she had to rely on friends and relatives to attend to her household chores and shopping.
The ALJ cited several reasons for rejecting Dr. Ergas's assessment that Rosa was incapable of sedentary work. Primarily, the ALJ reasoned that Dr. Ergas's one-page medical assessment was contradicted by the information in his underlying notes. For instance, Dr. Ergas reported that Rosa's x-rays, taken more than a year after Rosa sustained her injuries, were negative. Dr. Ergas's notes also indicated that Rosa had "good range of motion in the cervical spine, with slight tenderness only at the extremes of range of motion." The ALJ further emphasized that Dr. Ergas did not report any muscle spasms "to corroborate any loss of motion" described elsewhere in his report. Moreover, the ALJ found that Dr. Ergas failed to report any "positive neurological signs ... other than a single notation of weakness affecting the right shoulder." On the basis of these considerations, the ALJ concluded that Dr. Ergas's notes did "not contain objective evidence of such advanced abnormalities as could be expected to result in [the] extensive limitations" reported by the doctor in his medical assessment.
The ALJ also based her denial of benefits on the reports submitted by the consulting physicians. Although Dr. Seo's and Dr. Sarreal's findings "did not necessarily corroborate each other," the ALJ found that each doctor described findings that were "consistent with [Rosa's] ability to perform a full range of sedentary work activity." The ALJ noted that "Dr. Seo reported that [Rosa] had reduced sensation in the right C6 and C7 distribution, whereas Dr. Sarreal found sensation to be reduced in the right C8 distribution." Also, "whereas Dr. Seo ... found sensation to be reduced in the right S1 distribution, Dr. Sarreal did not report such a finding." Additionally, Dr. Sarreal reported that Rosa had reduced strength "on extension of the right extensor halluces longus, although Dr. Seo found motor strength to be intact in the lower extremities." In short, although Drs. Seo and Sarreal reported findings that were not fully consistent, the ALJ found it significant...
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