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September 2, 1980

Richard CHIAPPA, Plaintiff,

The opinion of the court was delivered by: SOFAER

This appeal presents a persistent problem that arises in disability cases. It is the repeated failure of Administrative Law Judges (ALJs) to make specific findings as to (1) the weight they have given to the reports or letters of the applicant's physician; and (2) the credibility of the applicant's testimony, particularly claims of disabling pain. Reviewing courts should not have to guess about such fundamental matters. Nor should they have to infer the ALJ's determinations from suggestive or ambiguous comments, or to imply them from conclusions that permit more than one finding. Telling someone that he or she is unconvincing is far from pleasant work, but it is the essence of a judge's burden. The failure of ALJs to make such findings in disability cases is among the principal causes of the delay and uncertainty that plague applicants, attorneys, government and courts in this area of the law. It can and must be remedied.

This is not to say that every witness must be found truthful or a liar. The ALJ, like any finder of fact, may accept or reject all the testimony of a witness, or any part of that testimony. Indeed, the ALJ must be free to admit that he or she cannot determine the truth on a given point, and then decide the issue according to the burden of proof. But ALJs must let the parties and the reviewing courts know, in some intelligible fashion, where they stand on the pivotal issues of fact posed by the applications they adjudicate.

The plaintiff in this action seeks judicial review of the final decision of the Secretary of Health, Education, and Welfare (the "Secretary"), which upheld the decision of the ALJ terminating plaintiff's disability benefits insurance as of November 30, 1976. 42 U.S.C. § 405(g). Richard Chiappa is a thirty-four year old man who worked as a New York City police officer until he was shot in the left arm on June 7, 1973. The shot resulted in a compound fracture of that arm. In December 1973, due to instability of his left arm, plaintiff fell and fractured his right elbow. In July 1974, he underwent an operation for his left arm in which a bone graft was performed and a metal plate inserted. He sustained another, mild fracture of the left arm in February 1978. The metal plate was removed from his left arm on April 11, 1979, after which he resumed employment. (Exh. A)

 Chiappa applied for disability insurance benefits on October 2, 1973 based upon the severity of the injury to his left arm. He eventually was awarded disability insurance for a period beginning June 17, 1973. (R. 57) In November 1976, however, after reviewing plaintiff's record, the Social Security Administration, Bureau of Disability, determined that his disability had ceased as of September 1976, and that his benefits should be terminated after November 1976. (R. 60) The termination of benefits was confirmed after reconsideration. On March 8, 1978, a de novo hearing was held to review the termination of benefits, and on March 22, 1978, the ALJ found that plaintiff was no longer under any disability as of November 1976. The ALJ's decision became the final decision of the Secretary when it was approved by the Appeals Council on June 23, 1978.

 Plaintiff seeks disability benefits from November 30, 1976, when his disability insurance benefits were terminated, through June 15, 1979, when he resumed work. Plaintiff moves for reversal or remand to the Secretary, claiming that the ALJ applied the wrong legal standard in evaluating both the medical reports from his physician, and his complaints of pain; that the ALJ conducted the hearing improperly and thus based his decision on insufficient facts; and that letters from his attending physician submitted for the first time to this Court constitute "good cause" to remand as authorized by 42 U.S.C. § 405(g). Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 If the Secretary has applied the proper legal principles, judicial review is of course limited to an assessment of whether the findings of fact are supported by substantial evidence. Parker v. Harris, 626 F.2d 225, at 231 (2d Cir. 1980). Nevertheless, the entire record must be examined to insure there is a sound evidentiary foundation for the ALJ's findings and that his decision is rational. Among the factors to consider are: 1) objective medical facts and clinical findings; 2) diagnoses and medical opinions based on those facts; 3) subjective evidence of pain and disability testified to by the claimant and others; and 4) the claimant's educational background, age, and work experience. Id. at 231-232. Furthermore, where evidence has not been properly evaluated because of an erroneous view of the law, the determination of the Secretary may not be upheld. Marcus v. Califano, 615 F.2d 23, 28 (2d Cir. 1979). Under the stringent standards established in this Circuit and others, the ALJ has failed to make clear that he properly weighed the evidence, and he failed to allow the pro se plaintiff a full opportunity to develop relevant evidence at the hearing.

 The Second Circuit has repeatedly emphasized that special weight must be given to medical reports submitted by an applicant's attending physician. Here, Chiappa's doctor, Irving Mauer, concluded, among other things, that plaintiff was disabled. *fn1" E. g., Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980). Instead of analyzing and evaluating this report, the ALJ seems to have relied exclusively on the report of the agency-appointed physician, Dr. Otto Gordon. *fn2" No doubt this was because much of Dr. Mauer's report was conclusory, and thus deserving of less weight than specific clinical findings. 20 C.F.R. § 404.1526; see, Laffoon v. Califano, 558 F.2d 253 (5th Cir. 1977). But the ALJ was required to give more attention to Dr. Mauer's opinion, in light of the Second Circuit rule that "(t)he expert opinions of a treating physician as to the existence of a disability are binding on the factfinder unless contradicted by substantial evidence to the contrary." McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 705 (2d Cir. 1980). Accord, Allen v. Weinberger, 552 F.2d 781, 785 (7th Cir. 1977) ("The opinion of the examining physician that the claimant is totally disabled, though phrased as an ultimate conclusion on the question presented is entitled to consideration as an indication of how severe a patient's impairment was at the time of the examination.") ALJs would avoid this problem if they simply accepted the fact that they have an obligation, virtually amounting to an affirmative duty, to create a record which clearly shows their awareness of the Second Circuit rule governing the opinions of treating physicians. *fn3"

 The ALJ in this case also failed to evaluate plaintiff's claims of pain. We know that subjective claims of pain alone can establish disability. Marcus v. Califano, supra, 615 F.2d at 27. Even objective medical evidence does not preclude a finding of disability, since disabling pain may be psychologically induced. Thus, to resolve this issue properly, it is insufficient for the ALJ simply to report that "(t)he medical evidence shows conclusively that claimant has recovered from the surgical procedures . . ." and "(t)he medical evidence does not establish . . . the impairment is disabling." (R. 13) This reasoning, taken with his failure to discredit plaintiff's claims of pain, makes it entirely possible that the ALJ applied an incorrect legal standard. See id. at 28-29; see also Spicer v. Califano, 461 F. Supp. 40, 48 (N.D.N.Y.1978); Dunbar v. Califano, 454 F. Supp. 1261, 1267 (W.D.N.Y.1978).

 The failure to evaluate plaintiff's claims of pain is particularly troublesome where, as here, the claimant established he was unable to return to his former occupation, and the burden of proof had thus shifted to the agency to demonstrate that he could engage in substantial gainful activity. In this case, Chiappa claimed he suffered disabling pain, sometimes at frequent intervals, and felt that his anticipated poor work attendance would prevent him from holding a job. (R. 37) The extent to which a disability may prevent regular work attendance is a relevant factor in determining whether a claimant is able to engage in substantial gainful activity:

"Ability to work only a few hours a day or to work on an intermittent basis is not ability to engage in a "substantial gainful activity' . . . ." This is not to say that the Board must demonstrate that a claimant is capable of working an eight hour day for under certain circumstances part time employment may constitute substantial gainful activity. (Citation omitted.) But the Board must demonstrate that a claimant can engage in "substantial services with reasonable regularity in some competitive employment...."

 Goodson v. Railroad Retirement Board, 194 U.S. App. D.C. 74, 595 F.2d 881, 883 (D.C.Cir.1979), quoting Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir. 1973). See also Cooke v. Celebrezze, 365 F.2d 425, 428 (4th Cir. 1966) (prospective employer's fear of absenteeism militates against abstract judgment that jobs are available for claimant).

 Yet, the ALJ conducted the hearing as though work attendance was irrelevant. He specifically refused to allow plaintiff to ask the vocational expert at the hearing whether absenteeism would affect employability, stating that "obviously" the expert witness could not answer that question. But it is far from obvious why the expert could not answer. See Yawitz v. Weinberger, 498 F.2d 956, 959 (8th Cir. 1974) (attorney described the intermittent pain his client suffered to a vocational expert, who then testified the pain would interfere with employment). The hearing transcript demonstrates that Chiappa was denied an opportunity to pursue his point (R. 46):

ADM. LAW JUDGE:-do you have any questions you'd like to ask the doctor?
CLAIMANT: You know, there's no doubt, sir, on those days where I haven't any pain, that I could do probably those jobs and many others. But, it's not the question that I'm posing. The question that I'm posing is of all these jobs that are available to me, how long are they going to employ me if I take 2 days off a week, or one day off a week, or if, you ...

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