Vargas v. Sullivan
| Decision Date | 05 March 1990 |
| Docket Number | No. 325,D,325 |
| Citation | 898 F.2d 293 |
| Parties | , Unempl.Ins.Rep. CCH 15310A Paula VARGAS, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee. ocket 89-6146. |
| Court | U.S. Court of Appeals — Second Circuit |
Paula Vargas, New York City, pro se.
Kathleen A. Zebrowski, Sp. Asst. U.S. Atty., S.D.N.Y., New York City (Benito Romano, U.S. Atty. S.D.N.Y., Nancy Kilson, Asst. U.S. Atty., New York City, of counsel) for defendant-appellee.
Before VAN GRAAFEILAND, PIERCE and PRATT, Circuit Judges.
Paula Vargas appeals pro se from a judgment of the United States District Court for the Southern District of New York which affirmed the Secretary of Health and Human Services' denial of Supplemental Security Income to appellant. See Vargas v. Bowen, 712 F.Supp. 331 (S.D.N.Y.1989). We reverse and remand to the Secretary for calculation of benefits.
When Mrs. Vargas, a native of Puerto Rico, applied for Supplemental Security Income in 1986, she was forty-five years old. She was an illiterate widow who had received only a first grade education. She could speak Spanish but could not read or write it. She could neither speak nor understand English and could neither read nor write it. She had not worked for at least fifteen years, the only period considered by the Secretary in determining disability. See 20 C.F.R. Sec. 416.965(a).
At the hearing before the Administrative Law Judge on March 5, 1987, Mrs. Vargas was represented by a legal assistance representative of the Bronx Legal Aid Society, whose participation in the hearing consisted primarily of the following two questions:
Q. You have been coughing through the hearing Ms. Vargas, do you feel any discomfort now?
A. Yes.
Q. Why don't you explain to us what it is your [sic] are feeling right now?
A. I don't feel very well, I feel congested. I can't breathe very well.
In response to questions asked by the A.L.J., Mrs. Vargas testified that she lived in a basement apartment in the Bronx with her son and daughter. According to Mrs. Vargas, her daughter did all the housework; Mrs. Vargas did not do the dishes, make the beds, dust, wash clothes or cook. Mrs. Vargas' daughter also helped her Because Mrs. Vargas had no previous work experience, the issue to be determined by the A.L.J. was whether she could engage in any substantial gainful activity that existed in the national economy. 20 C.F.R. Sec. 404.1505(a). To make this determination, the A.L.J. was required to consider Mrs. Vargas' "residual functional capacity" and her "age, education and work experience." Id. To assist the A.L.J. in this task, the Secretary has classified work in the national economy as "sedentary," "light," "medium," "heavy," and "very heavy." 20 C.F.R. Sec. 416.967. We are concerned with only the first two of these classes.
dress because her back hurt and she couldn't lift her arms very much. Mrs. Vargas didn't leave the apartment except to go to the doctor and to attend church about once a month with her son. She could ride on the subway only if she had someone with her. Mrs. Vargas complained of pain in her back, chest and knees. She said she could stand for an hour but then had to lie down. She could not use her legs to push and pull. She could not bend or kneel. She could lift five to ten pounds but didn't lift anything; her son did it for her. She couldn't see well--"my eyes are dark."
A sedentary job is one which involves sitting and only an occasional amount of walking and standing. It involves lifting no more than ten pounds at a time and occasionally lifting or carrying small articles. 20 C.F.R. Sec. 416.967(a). Light work involves a good deal of walking or standing, or, when it involves sitting most of the time, some pushing and pulling of arm or leg controls. It involves "lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds." To be considered capable of performing a full or wide range of light work, a claimant such as Mrs. Vargas "must have the ability to do substantially all of these activities." Sec. 416.967(b); see also 20 C.F.R. Sec. 404.1567(b).
To further assist the A.L.J. in determining whether a claimant such as Mrs. Vargas is disabled, the Secretary also has prepared tables which reflect the analysis of "various vocational factors (i.e., age, education, and work experience) in combination with the individual's residual functional capacity" to determine what, if any, class of work the individual is capable of performing. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Sec. 200.00; see generally Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Table No. 1 deals with claimants who are limited by their residual functional capacity to sedentary work. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Sec. 201.00. Table No. 2 deals with claimants whose residual functional capacity limits them to the performance of light work. Id. Sec. 202.00. If Mrs. Vargas' residual functional capacity limited her to sedentary work, she was governed by Table No. 1 and had to be found disabled as a 45-year-old unskilled illiterate. Id., Rule 201.17. If her residual functional capacity permitted her to perform light work, under Table No. 2, Rule 202.16 she would not be considered disabled because she was not yet "closely approaching advanced age, 50-54." See Sec. 202.00, supra, paragraph (d). It was in selecting the appropriate Table that the A.L.J. went awry.
At the time of Mrs. Vargas' hearing on March 5, 1987, her attending physician was Dr. Pedro Pajela, who had been treating her for the preceding three months and had "an ongoing treatment and physician-patient relationship" with her. See Schisler v. Bowen, 851 F.2d 43, App. A at 46 (2d Cir.1988). Dr. Pajela's opinion on the subject of Mrs. Vargas' medical disability, i.e., "diagnosis and nature and degree of impairment" was binding on the A.L.J. unless contradicted by substantial evidence. Id. at 47. In Dr. Pajela's PHYSICIAN'S REPORT FOR CLAIM OF DISABILITY DUE TO PHYSICAL IMPAIRMENT, he described Mrs. Vargas' symptoms as follows:
She is known to have essential hypertension since 3 years ago, diabetes mellitus since 1970 and bronchial asthma since 1972. On 2/17/86 she complained of pain in the left shoulder of 3 days duration, mild to moderate. She has been having recurrent low back pain in the past 3 years.
Dr. Pajela's diagnosis was that Mrs. Vargas had bronchial asthma, diabetes mellitus, hypertension essential, and sprains of her left shoulder and lumbo-sacro spine. The doctor's report indicated that he was prescribing medication for these several conditions which might result in palpitation, dizziness and drowsiness and that she would have to lie down for about one hour every day to relieve her low back pain.
In completing the residual functional capacity assessment portion of his report, Dr. Pajela indicated that Mrs. Vargas could sit up to two hours at a time and a total of six hours in an eight-hour day. She could stand up to one hour at a time and a total of four hours in an eight-hour workday. She could walk up to thirty minutes at a time and a total of two hours in an eight-hour workday. She could lift and could carry up to five pounds frequently, between six and ten pounds occasionally, and never more than ten pounds. She could reach occasionally but could never bend, squat, crawl or climb. Dr. Pajela concluded that Mrs. Vargas could not travel alone on the subway or a bus and should not be exposed to unprotected heights or moving machinery, to marked changes in temperature or humidity, or to dust, fumes, and gases. His prognosis was that "she needs continuing treatment." There was no substantial evidence to contradict Dr. Pajela's residual functional capacity assessment, which was fully supported by his diagnosis and prognosis.
Dr. Constancia Bueno-So, who had seen Mrs. Vargas at one to three month intervals for about a year ending on July 14, 1986, prepared a report on a New York State Department of Social Services form on July 17, 1986, in which she said, as Dr. Pajela later did, that Mrs. Vargas was suffering from diabetes mellitus and chronic bronchial asthma. From a clinical standpoint, Dr. Bueno-So stated that physically there were no remarkable findings. She offered no opinion, however, as to Mrs. Vargas' ability to work and did not make a residual functional capacity assessment.
Despite Dr. Pajela's uncontradicted residual functional capacity assessment, the A.L.J. erroneously concluded that Mrs. Vargas could "stand and walk at least six hours in an eight-hour day...." To arrive at this conclusion, the A.L.J. had to interpret Dr. Pajela's report to mean that, after Mrs. Vargas completed the four hours of standing permitted by Dr. Pajela, she could undertake an additional two hours of walking. Thus, said the A.L.J., she could "stand and walk at least six hours in a eight-hour day." This was a distortion of the attending physician's report. To walk, a person must stand; the two hours of walking must be included in the four hours of standing, not added to it.
The A.L.J. completely rejected other portions of Dr. Pajela's residual functional capacity assessment by stating that...
To continue reading
Request your trial
-
Rosado v. Sullivan
...evidence. Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.1986); see also Wagner v. Secretary, 906 F.2d at 861; Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir.1990); Hidalgo v. Bowen, 822 F.2d 294, 296-97 (2d Cir.1987); Johnson v. Bowen, 817 F.2d at 985-86; Havas v. Bowen, 804 F.2d 783, 785-86 ......
-
Fishburn v. Sullivan
...evidence. Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.1986); see also Wagner v. Secretary, 906 F.2d at 861; Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir.1990); Hidalgo v. Bowen, 822 F.2d 294, 296-97 (2d Cir.1987); Johnson v. Bowen, 817 F.2d at 985-86; Havas v. Bowen, 804 F.2d 783, 785-86 ......
-
Correale-Englehart v. Astrue
...consultant did not have a complete record before him. E.g., Pratts v. Chater, 94 F.3d 34, 38 (2d Cir.1996) (citing Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir.1990); Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Moreover, even if the treating physician's opinion conflicts with other medical ......
-
Ianni v. Barnhart, 02-CV-74A.
...Security Act is a remedial statute which must be `liberally applied'; its intent is inclusion rather than exclusion." Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir.1990) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983)) (further internal quotation omitted). See also Williams v.......
-
Case survey
...find is hardly a basis for competent evaluation without a personal examination of the claimant. (citing cases). Vargas v. Sullivan , 898 F.2d 293, 295-96 (2d Cir. 1990) Further, in the face of the overwhelming record evidence of disability, the findings of the non-examining reviewing doctor......
-
Issue Topics
...examination of the claimant.’” Pagan on Behalf of Pagan v. Chater , 923 F. Supp. 547, 555 (S.D.N.Y. 1996), quoting Vargas v. Sullivan , 898 F.2d 293, 295 (2d Cir. 1990). The general rule is that the written reports of medical advisors who have not personally examined the claimant deserve li......
-
Assessment of disability issues
...examination of the claimant.’” Pagan on Behalf of Pagan v. Chater , 923 F. Supp. 547, 555 (S.D.N.Y. 1996), quoting Vargas v. Sullivan , 898 F.2d 293, 295 (2d Cir. 1990). In Pagan , the court noted that the Supreme Court specifically endorsed the use of medical advisors for explaining medica......
-
Issue topics
...examination of the claimant.’” Pagan on Behalf of Pagan v. Chater , 923 F. Supp. 547, 555 (S.D.N.Y. 1996), quoting Vargas v. Sullivan , 898 F.2d 293, 295 (2d Cir. 1990). The general rule is that the written reports of medical advisors who have not personally examined the claimant deserve li......