DelValle v. Apfel
Opinion of the Court
ENDORSEMENT ORDER
Upon review and pursuant to 28 U.S.C. § 636(b) and Rule 2 of the Local Rules for United States Magistrate Judges (D.Conn.), Magistrate Judge Martinez’s recommended ruling on pending motions [doc. # 14] is hereby ACCEPTED.
SO ORDERED.
RECOMMENDED RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S • MOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
The plaintiff, John DelValle, filed this action seeking review, pursuant to 42 U.S.C. § 405(g), of the decision of the Commissioner denying his claim for disability benefits under the Social Security
I. PROCEDURAL HISTORY
On March 14, 1993, the plaintiff filed an application for disability benefits, claiming that he was disabled as of August 2, 1991 due to a heart condition and back pain. (R.
II. BACKGROUND
A. The Plaintiffs Testimony
The plaintiff testified
The plaintiff went on to say that:
he left employment in 1991 because of a heart attack. He returned to work for about one week, but experienced chest pain, back pain, headaches, and dizziness ... He alleged that he had pain constantly and it often spread through his back, neck, arms, and hands ... He also described episodes of shortness of breath while in bed, sitting down and arising from either position. As for his back pain, [the plaintiff] stated he had muscle spasms in his back, legs, shoulders, and arms for many years. In addition, [he] experiences a sensation of pins and needles in his knees, shoulders, mid back, and stomach, particularly when sitting or standing for a prolonged period. Lastly, [the plaintiff] testified that he is depressed and feels his condition is worsening.... He alleges that Dr. Carbone at Bridgeport Community Health Center discussed the possibility of back surgery to remove a tumor ...
(R. at 18.)
[The plaintiff] further testified about his functional abilities as being limited daily according to how he feels. Activity tends to intensify his discomfort and he was directed by his doctor about ten to twelve years ago not to exercise. Presently, he is able to walk, but after about five minutes a burning sensation develops in his chest. Whether he can lift depends on from what height. In a comfortable seat, [the plaintiff] explained that he could sit for one-half*217 hour and between ten and fifteen minutes in a hard seat. Furthermore, since his stroke, [the plaintiff] claims that he has had memory problems, both short term and long term.
(R. at 19.)
[The plaintiff] testified that on a daily basis he experiences problems sleeping ... but has refused his doctor’s recommendation to take medication. His daily activities include cooking, doing laundry, cleaning, shopping, visiting with friends, and going to church... [The plaintiff] continues to drive and has no problems caring for his personal needs. He even stated in a disability report that during visits with friends they occasionally take walks.
(R. at 19.)
B. Medical Expert’s Testimony
The ALJ next heard testimony from a medical expert,
Dr. Kiss next addressed the plaintiffs spinal condition. Dr. Kiss testified that the record was lacking in clinical evidence. (R. at 39-40.) He did note, however, that the plaintiff had a history of low back pain and that a diagnostic imaging report in his records revealed a significant abnormality. (R. at 40.) He noted that the records revealed disc herniation with intraspace narrowing. (R. at 41.) He was unable to interpret the MRI film that was in the records, but nevertheless guessed that it might reveal the presence of a tumor and that the condition could very well be painful. (R. at 41.) He also stated that, before he could render his medical opinion as to whether the plaintiffs back condition rendered him disabled, “[w]hat we would need would be a good examination documentation, examination and impression and recommendations.” (R. at 40.)
C. The Medical Records
The plaintiffs medical records reveal that in or about 1984, he was diagnosed with severe coronary disease and underwent catheritization. (R. at 137-38.) He
On August 2, 1991, the plaintiff was again hospitalized for complications due to his heart condition. He was admitted to General Hospital Center in Passaic, New Jersey after an episode of orthostatic
On August 21, 1991, the plaintiff had an MRI which revealed a congenitally narrow lumbar canal from L1-L2 through L4-L5. (R. at 125.) In addition, the MRI revealed a small disc protrusion at L5-S1 that was consistent with a diffuse bulge of the annulus fibrosis.
The plaintiff again experienced chest pain in March, 1992. He was admitted to Yale-New Haven Hospital with complaints of chest pain radiating into his back, shortness of breath and dizziness. (R. at 127.) He was under the care of Dr. Lee and Dr. Drucker, who determined that the plaintiff had sustained a subendocardial myocardial infarction. (R. at 137-38.) Tests upon admission revealed a depressed ejection fraction
On November 9, 1992, the plaintiff was evaluated by Dr. Ayoub, an internist. (R. at 234.) The plaintiff said he had suffered two heart attacks and a stroke and that he was fully recovered except for occasional numbness on the left side of his face and left leg. (R. at 234.) He reported frequent palpitations and dizziness as well as chest pain radiating into his extremities. (R. at 234.) The plaintiff also said he was experiencing moderate chest pain which radiated into his left arm. (R. at 235.) Upon examination, Dr. Ayoub concluded that the plaintiff suffered coronary artery
From April to October 1993, the plaintiff was treated at the Bridgeport Community Health Center for follow-up care. (R. át 152-58.) His heart condition remained fairly stable during that time although' 'he periodically complained of back pain. (R at 152-58) At approximately the same time, he was treated at the Bridgeport Hospital Outpatient Clinic. (R. at 159-62.) The medical notes indicate that his condi-. tion was stable. (R. at 159-62.)
The plaintiff had a stress test on May 27, 1993. (R. at 163.) He exercised for 9 minutes before stopping and complaining of fatigue and back pain. (R. at 163.) An ■ EKG revealed a right bundle branch block with a left axial deviation and evidence of a myocardial infarction. (R. at 163.) The test did not. reveal evidence of ischemia.
On June 6, 1993, the plaintiff was admitted to Bridgeport Hospital with complaints of chest pain. (R. at 149.) He was released to Dr. Carbone’s care. (R. at 149.) On June 16, 1993, a multi-gated cardiac scan revealed evidence of multi-vessel disease with moderate reduction in global function. (R. at 164.)
On November 9, 1992, Dr. Lee examined the plaintiff and determined that his cardiac condition was stable. (R. at 135.) Dr. Lee placed the plaintiff on chronic medication with an eye toward reducing his risk for future coronary thrombosis and stroke. (R. at 137.) He was advised to refrain from moderate to heavy levels of exertion and to avoid conditions of excess stress. (R. at 137.)
On May 19, 1993, the plaintiff was evaluated by Dr. Mark Waynik, a psychiatrist. (R. at 131.) He complained of episodic insomnia, decreased concentration, depression and mild anxiety. (R. at 131.) Dr. Waynik determined that he suffered from dysthymia
The plaintiff was next evaluated by Dr. Anand, an internist, on May 28, 1993. (R. at 144-46.) Dr. Anand noted that, upon examination, the plaintiff was able to walk, sit and stand “for a fair length of time.” (R. at 144.) He further noted that he did not, suffer an impairment of his speech, hearing or vision. (R. at 144.) The plaintiff complained of low back pain, which Dr. Arand reported to be a “mild, nagging kind of pain” for which the plaintiff took no medication. (R. at 144.) After an examination which included x-rays of the plaintiffs chest and back, Dr. Arand diagnosed cardiomegaly
By August 1993, the plaintiffs heart condition was again stabilized. (R. at 153.)
On January 27, 1994, the plaintiff was admitted, via the emergency room, to St. Joseph’s Hospital in Paterson, New Jersey. (R. at 168.) He presented with complaints of severe chest pain and was diagnosed with cardiac arrhythmia. (R. at 168.) He was tested, evaluated and released on February 2, 1994 with instructions to follow up with his own doctor in Connecticut. (R. at 171.)
The plaintiff reported to the Bridgeport Community Health Center for follow up care on numerous occasions from March 9, 1994 to July 15, 1994. (R. at 191-92.) On July 18, 1994, he had another stress test.
In a letter dated April 26, 1994, Drs. Watts and Babb, treating physicians, related that since the plaintiffs heart attack in 1992, he was doing well and only had one episode of chest pain. (R. at 200.) The plaintiff denied experiencing any other symptoms. (R. at 200.) On April 25, 1994, he was examined by Dr. Babb and the findings were unremarkable although he did express concern about the plaintiffs cholesterol levels and ejection fractions.
In October of 1994, the plaintiff continued to complain of back pain and an MRI was performed. (R. at 450.) It revealed right central disc herniations at C5-C6 and C6-C7 along with slight compression and rotation and displacement of the spinal cord. Lesions were also noted at C5-C6 and C6-C7. (R. at 450.)
III. STANDARD OF REVIEW
The scope of review of a social security disability determination involves two levels of inquiry. The court must first decide whether the Commissioner applied the correct legal principles in making the determination. Next, the court must consider whether the determination is supported by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
Substantial evidence is evidence that a reasonable mind would -accept as adequate to support a conclusion; it is more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Yancey v. Apfel, 145 F.3d 106, 110 (2d Cir. 1998). The substantial evidence rule also applies to inferences and conclusions that are drawn from findings of fact. See Gonzalez v. Apfel 23 F.Supp.2d 179, 189 (D.Conn. 1998); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y. 1977). The court may not decide facts, reweigh evidence or substitute its judgment for that of the Commissioner. See Dotson v. Shalala, 1 F.3d 571, 577 (7th Cir. 1993). The court must scrutinize the entire record to determine the reasonableness of the ALJ’s factual findings. Furthermore, “[wjhere there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a plaintiff will be deprived of the right to have [his] disability determination made according to correct legal principles.” Schaal v. Apfel 134 F.3d 496, 504 (2d Cir. 1998)(quoting Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(1). “Disability” is defined as an “inability 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).
The determination of whether a plaintiff has a “disability” is a five-step process. See 20 C.F.R. § 404.1520. First, the agency must determine whether the plaintiff is currently employed. See 20 C.F.R. §§ 404.1410(b), 404.1572(b). If he is, the claim is disallowed. See 20 C.F.R. § 404.1520(b). If the plaintiff is not working, the agency must next determine whether he suffers from a severe mental or physical impairment; if none exists, the
DISCUSSION
A. The ALJ’s Findings and Conclusions
The ALJ applied the five step evaluation process. First, he found that the plaintiff was not currently employed. Second, he found that the plaintiff suffered from two severe impairments: coronary heart disease and disc disease.
Next, the ALJ found that although the plaintiff was no longer able to work as a machine operator, he had the residual functional capacity to perform work at a light level of exertion. In reaching this conclusion, the ALJ assessed the plaintiffs credibility and weighed his testimony against the objective medical evidence. He found that the plaintiffs subjective complaints were not credible, that his heart condition was stable and that the only restrictions imposed upon him were to avoid moderate to heavy lifting. (R. at 17, 19.) Finally, the ALJ found that, based on the plaintiffs education, skills and age, there were a significant number of jobs that he was capable of performing. (R. at 21.)
B. The Cross Motions
The plaintiff raises two grounds in support of his request for remand. First, he claims that the new evidence submitted to the Appeal Council warrants a remand because it substantiates his claim that he is disabled. Second, he claims that there is substantial evidence in the record to support a finding of disability.
1. New Evidence
The plaintiff asserts that his case should be remanded so that the ALJ may consider two new medical reports which support
In Perez v. Chater, the Second Circuit held that “new evidence submitted to the Appeals Council following the ALJ’s decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ’s decision.” 77 F.3d 41, 45 (2d Cir. 1996). Such is the case here; after the ALJ rendered his decision denying him benefits, the plaintiff submitted two additional medical reports to the Appeals Council. These reports are thus part of the administrative record this court.
The government, in making its argument that the new evidence should not be considered, relies on Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) and Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991). The government’s reliance on these cases is misplaced.
In Tirado, the Second Circuit held that before a court may consider new evidence which was not first presented during the administrative proceedings, a social security plaintiff must demonstrate good cause for his failure to present the evidence earlier. See, 842 F.2d 595, 597 (2d Cir. 1988); Jones v. Sullivan, 949 F.2d 57; see also 42 U.S.C. § 405(g).
A plaintiff ordinarily must demonstrate good cause when he, for the first time on appeal to the district court, presents new medical evidence in support of his claim. That statutory requirement, however, is inapplicable here where the plaintiff submitted the new reports during the administrative process. As explained by the Second Circuit,
In promulgating § 404.970(b) and § 416.1470(b), the Secretary expressly authorized plaintiffs to submit new evidence to the Appeals Council without a “good cause” requirement. Cf. 42 U.S.C. § 405(g)(stating that the district court may order additional evidence to be taken before the Secretary, but only upon a showing “that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.”) The only limitations stated in these rules are that the evidence must be [1] new and [2] material and [3] that it must relate to the period on or before the ALJ’s decision. This regulation was promulgated by the Secretary to provide plaintiffs a final opportunity to submit additional evidence before the Secretary’s decision became final. Accordingly, ignoring this new evidence on judicial review would undermine the purpose of the regulation.
Perez v. Chater, 77 F.3d at 45.
The test as set forth in Perez is clearly met here. “New” evidence is simply that evidence which has not been considered previously during the administrative process. See Bomes v. Schweiker, 544 F.Supp. 72, 75 (D.Mass. 1982); Szubak v. Secretary of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Moreover, to be considered “new” evidence, the medical reports may not be cumulative to those already contained in the record. See Tirado v. Bowen, 842 F.2d at 595. The two reports at issue here are clearly “new” evidence. The record was practically devoid of medical evidence concerning the plaintiffs back condition. Indeed, the ALJ noted the lack of such evidence. Second, the reports are clearly material.
The court also notes that the new reports are likely to impact the ALJ’s findings regarding the plaintiffs credibility, and thus may influence his findings as to whether the plaintiffs heart condition amounts to a disability and whether the plaintiff has the residual functional capacity to perform work. See R. at 19 (rejecting the plaintiffs complaints of functional limitations as to his heart condition and finding that “there is no objective medical evidence that confirms the subjective complaints and functional limitations to the extent to which [the plaintiff] alleges.”); R. at 21 (“[The plaintiffs] subjective allegations of functional limitations are not credible, particularly regarding his back pain prior to September, 1994.”)
Considering the entire medical record, in conjunction with the two additional reports, the court concludes that remand is proper. Upon remand, the Commissioner is directed to evaluate the evidence, including the two new reports, to determine whether the plaintiffs medical conditions constitute disabilities within the meaning of the Social Security Act.
2. Substantial Evidence
The government claims that the ALJ’s decision should stand because there is substantial evidence in the record to uphold the ALJ’s finding that the plaintiff failed to prove the second criteria of the Listing for ischemic heart disease. See fn. 2. The plaintiff, on the other hand, maintains that there is substantial evidence in the record to support a finding that his cardiac condition constitutes a disability.
IV. CONCLUSION
For the foregoing reasons, the court recommends that the Plaintiffs Motion for Summary Judgment (doc. # 8) be GRANTED and the Defendant’s Motion for Order Affirming the Decision of the Commissioner (doc. # 11) be DENIED.
Any party may seek the district court’s review of this recommendation. See 28 U.S.C. § 636(b)(written objections to proposed findings and recommendations must be filed within ten days after service of same); Fed.R.Civ.P. 6(a), 6(e) & 72; Rule 2 of the Local Rules for United States Magistrate Judges, United States District Court for the District of Connecticut; Thomas v. Arn, 474 U.S. 140, 156, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (failure to file timely objections to Magistrate Judge’s recommended ruling waives further review of the ruling).
September 2,1999.
. The record of the administrative proceedings related to this case will be referred to as "R”.
. In his ruling, the ALJ refers to testimony that the plaintiff allegedly gave at the hearing. The transcript that was provided to the court does not contain such references; it is apparent that the court reporter had trouble with the tapes of the hearing and the referenced portions may be missing. In any event, because the plaintiff does not challenge the accuracy of the ALJ’s recitation of his testimony, the court assumes that the ALJ’s recitation of the plaintiff's testimony is accurate.
. Dr. Kiss appeared and testified at the hearing in the capacity of a medical advisor. He was retained by the Social Security Administration to review the plaintiff's medical records and to render his opinion as to whether the plaintiff was disabled.
. Section 4.04C (20 C.F.R. Pt. 404, Subpt. P, App. 1 (1998)) provides in pertinent part: Ischemic heart disease, with chest discomfort associated with myocardial ischemia ... while on a regimen of prescribed treatment ... with one of the following....
C. Coronary heart disease, demonstrated by angiography ... and an evaluating program physician, preferably one experienced in the care of patients with cardiovascular disease, has conclude that performance of exercise testing would present a significant risk to the individual with both 1 and 2:
1. Angiographic evidence revealing:
a. 50 percent or more narrowing of a non-bypassed left main coronary artery; or
b. 70 percent or more narrowing of another non bypassed coronary artery; or
c. 50 percent or more narrowing involving a long (greater than 1 cm) segment of a nonbypassed coronary artery; or
d. 50 percent or more narrowing of at least 2 nonbypassed coronary arteries; or
e. Total obstruction of a byp,ass graft vessel; and as demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical activity, even though the individual is comfortable at rest.
2. Resulting in marked limitation of physical activity, as demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort or ordinary physical activity, even though the individual is comfortably at rest.
. “Orthostatic” is defined as "pertaining to or caused by standing erect.” Dorland’s Illustrated Medical Dictionary, p. 1194 (28th ed. 1994).
. “Syncope” is defined as "a fainting or swooning; a sudden fall- of blood pressure or failure of the cardiac systole, resulting in cerebral anemia and subsequent loss of consciousness.” Stedman’s Medical Dictionary, p. 1382 (5th ed. 1982).
. "Spondylosis” is defined as "vertebral an-kylosis; this term is often applied nonspecifi-cally to any lesion of the spine of a degenerative nature.” Stedman's Medical Dictionary, p. 1322.
. "Annulus” is defined as “a ring or ringlike structure.” Dorland’s Illustrated Medical Dictionary, p. 87.
. “Ejection Fraction” is defined as "systolic volume/end diastolic volume. [Blood pressure — the pressure of the blood on the walls of the arteries.. .the maximum pressure occurs near the end of the stroke output.. .and is termed.. .systolic pressure.. .the minimum pressure occurs late in the ventricular diastole and is termed.. .diastolic pressure.]” Dorland's Illustrated Medical Dictionary, p. 1350.
. "Ischemia” is defined as “deficiency of blood in a part, usually due to functional constriction or a dual obstruction of a blood vessel.” Dorland’s Illustrated Medical Dictionary, p. 861.
. "Dysthymia” is defined as "a mood disorder characterized by depressed feeling (sad, blue, low, down in the dumps) and loss of interest or pleasure in one’s usual activities and in which the associated symptoms have persisted for more than two years but are no severe enough to meet the criteria for major depression.” Dorland's Illustrated Medical Dictionary, p. 519.
."Cardiomegaly” is the enlargement of the heart. See Dorland’s Illustrated Medical Dictionary at pp. 268, 802.
. At the time of his last test, the plaintiffs ejection fraction registered at 34%. (R. at 201.)
. The ALJ found that the plaintiff’s history of disc disease dated back to only September 1994.
. The first report, dated July 22, 1993 is authored by Dr. Myron E. Brazin, a board
The second report, dated July 22, 1993, was authored by Dr. Horia H. Schwartz as part of a neurological and psychiatric consultation.1 (R. at 493-94.) At the time of the examination, the plaintiff reported persistent low back pain which radiated into his legs. He was often awakened by pain. He found standing and walking difficult and had greatly reduced his activities in light of his symptoms. His pain affected his ambulation and he walked more slowly and rested often. He reported staying at home more frequently and needed assistance with tasks such as getting in and out of cars and kneeling or bending. Upon physical examination, Dr. Schwartz noted a reduced range of motion! He was diagnosed with permanent residuals of contusions and strain of the lumbosacral spine coupled with mild myofascitis and radiculopathy in the IA-SI root. Dr. Schwartz concluded that the suffered a permanent residual disability of 30%. His prognosis was poor, particularly in light of the plaintiff's cardiac condition. Dr. Schwartz found him to be 100% disabled. (R. at 493-94.)
. The court notes that the plaintiff has confused his burden of proof on appeal to this court. The issue on appeal is not whether there is substantial evidence to support a finding of disability. Rather, the Social Security Act states that ''[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....” See 42 U.S.C. § 405(g). It is possible that in a particular case, there is substantial evidence to support both a claim for disability or a decision denying the claim. Plaintiffs who argue on appeal that they are entitled to a remand because their allegations of disability are supported by substantial evidence are "missing the mark.” Hon. Thomas P. Smith and Patrick M. Fahey, Some Points on Litigating Title II and Title XVI Social Security Disability Claims in United States District Court, 14 QLR 243, 249 (citing Cintron v. Bowen, No. B-86-195, slip op. at 2 (D.Conn. Nov. 21, 1986)).
Reference
- Full Case Name
- John DELVALLE v. Kenneth S. APFEL, Commissioner of Social Security
- Cited By
- 3 cases
- Status
- Published