Appeal from a judgment of the Eastern District of New York, Edward R. Neaher, Judge, affirming a determination of the Secretary of Health and Human Services denying appellant's application for Social Security Disability Insurance and Supplemental Security Income under 42 U.S.C. §§ 402, et seq. and 1631, et seq. Reversed and remanded. Judge Meskill dissents in a separate opinion.
Mansfield and Meskill, Circuit Judges, and Pratt, Circuit Judge.*fn* Meskill, Circuit Judge, dissenting.
MANSFIELD, Circuit Judge:
Domingo Echevarria appeals from a judgment of the United States District Court for the Eastern District of New York, 528 F. Supp. 977, Edward R. Neaher, Judge, affirming a determination of the Secretary of Health and Human Services ("Secretary") denying Echevarria's application for Social Security Disability Insurance and Supplemental Security Income ("SSI") under 42 U.S.C. §§ 402, et seq. and 1631, et seq. The principal issue on appeal is whether the administrative law judge ("ALJ") fulfilled his special obligation to protect the rights of unrepresented claimants by fully uncovering all the relevant facts. Because in our view there was a failure to develop a full and adequate record, we reverse and remand for a new administrative hearing.
Echevarria was born in 1926 in Puerto Rico and has an eighth grade education obtained there. He reads and writes in Spanish but knows very little English. He was born with a congenital foot deformity that was only partially corrected by surgery in 1952. He claims that this condition still prevents him from walking long distances or standing for long periods of time. He also suffers from a congenitally unstable back. From 1963 to October 1976 he worked in a women's handbag factory lining and stapling purses. Beginning around 1971, in addition to the pains associated with his congenital ailments, he began to suffer increasingly from arthritic pains affecting his back, knees, shoulders, ankles and hands, leading to frequent absences from work. His employer apparently accommodated Echevarria's physical problems by assigning him easier work, including tasks that minimized standing, resulting in his job becoming predominantly sedentary.
In October 1976 Echevarria experienced an acute flare-up of active rheumatoid arthritis in his feet and other parts of his body that caused him to leave his job. After receiving treatment he sought to return to work a month later but could not because the factory was closing. For some 39 weeks thereafter he received unemployment compensation while unsuccessfully looking for work.
Echevarria's application for disability and SSI benefits was denied both initially and upon reconsideration. A hearing was then held before ALJ Forsmith on October 13, 1978. Echevarria was unrepresented by counsel but was accompanied by Eduardo Gonzalez, a social services coordinator for the Community Development Agency, who attended the hearing only to testify on Echevarria's behalf but was, after a colloquy with the ALJ, pressed into service as his representative and did not testify.*fn1 Echevarria answered the ALJ's questions through an interpreter, but was not questioned by Gonzalez; nor did he call any witnesses.
Echevarria stated that he had difficulty walking and climbing stairs, that he could not bend his knees to squat and was limited to 15-20 pounds. He stated that the pain from his various ailments "bothers [him] a lot" and often left him very tired. He also testified about stomach pains for which he was being treated and for which X-rays had been taken but were not yet available. The ALJ, however, stated that the hearing would proceed without the medical report on his stomach pains since they represent a new condition not included in the original benefits application. Although Echevarria testified that he thought he could perform a sedentary job, which he "would have tried," and that within 5-6 months after the flare-up he probably could have performed his former job, he also pointed to the serious pain he suffered from arthritis, which required his use of strong anti-pain pills, and suggested that at best he could work only if his employer were willing to accommodate his various problems.
After Echevarria testified, the ALJ called the only two witnesses: Dr. Plotz, a medical advisor, and Mrs. Grupsmith, a vocational expert. Dr. Plotz, who had not examined Echevarria, reviewed the reports of the five physicians who had treated him at various times. Of these, only two commented on Echevarria's ability to do work.*fn2 Dr. Falk, who treated him on a monthly basis from the Fall of 1976 through March 1977, diagnosed mild rheumatoid arthritis, prescribed medication, and stated that Echevarria "may not be able to work until this [arthritic] flare is controlled." Dr. Bryant, in a letter dated August 2, 1978, diagnosed traumatic arthritis and gave a prognosis that "the patient's condition will worsen in due time and may result in his disability."
None of these examining doctors were called to testify or asked to evaluate the reports of the others. Instead, Dr. Plotz, who was reviewing the medical reports for the first time at the hearing, testified as an expert witness that "there are really no medical conditions which would support the diagnosis of disabling arthritis or anything else" and that Echevarria was fully capable of normal walking and of standing on his feet for eight hours a day. Gonzalez questioned Dr. Plotz only briefly, and seemed confused about whether Dr. Plotz or the ALJ would ultimately decide the issue of disability. The ALJ also questioned the vocational expert, Mrs. Grupsmith, who, apparently without having examined Echevarria or conducted any tests, presented conclusory testimony based only on her general knowledge of sedentary jobs. Gonzalez, who questioned her only cursorily, focused on the practical difficulties of obtaining work in light of the prevailing unemployment rate, a factor wholly irrelevant to the issue of disability. See 42 U.S.C. § 1382c(a) (3) (B).
In a decision dated November 30, 1978, the ALJ affirmed the denial of benefits on the grounds that Echevarria's impairment was not severe, that he retained capacity to perform sedentary work, and that he could return to his prior relevant occupation. After the Appeals Council declined to review this determination, rendering it final, Echevarria commenced this action in district court which was referred to Magistrate John L. Caden, who issued a report recommending that this action be remanded in light of new regulations since promulgated.*fn3 20 C.F.R. §§ 404.1501, et seq. In a Memorandum of Decision and Order dated December 22, 1981, Judge Neaher rejected this recommendation and granted judgment for the Secretary, dismissing Echevarria's complaint.
An applicant for disability payments must show that his impairment is of such severity that he cannot perform his previous work or "engage in any other kind of substantial gainful work which exists in the national economy," 42 U.S.C. § 1382c(a) (3) (B). However, in deciding whether the Secretary's conclusions on this issue are supported by substantial evidence, which is the test on review, 42 U.S.C. § 1383(c) (3) (incorporating 42 U.S.C. § 405(g)), we must first satisfy ourselves that the claimant has had "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972). The need for this inquiry arises from the essentially nonadversarial nature of a benefits proceeding: the Secretary is not represented, and the ALJ, unlike a judge in a trial, must himself affirmatively develop the record. Schauer v. Schweiker, 675 F.2d 55, slip op. at pp. 2053, 2057 (2d Cir. 1982); Gold v. Secretary of HEW, supra, 463 F.2d at 43. Where, as here, the claimant is unrepresented by counsel, the ALJ is under a heightened duty "'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (quoting Gold v. Secretary of HEW, supra, 463 F.2d at 43). A reviewing court must determine whether the ALJ "adequately protect[ed] the rights of [a] pro se litigant by ensuring that all of the relevant facts [are] sufficiently developed and considered." Hankerson, supra, 636 F.2d at 895.
Applying these standards, we conclude that Echevarria did not, because of significant "gaps" in the record, receive a "fair and adequate hearing before the Secretary." Hankerson, supra, 636 F.2d at 897. The ALJ failed adequately to explore the nature and extent of Echevarria's subjective symptoms. A claimant's testimony about pain and suffering "is not only probative on the issue of disability, but 'may serve as the basis for establishing disability, even when such pain is unaccompanied by positive clinical findings or other "objective" medical evidence. . . .'" Hankerson, supra, 636 F.2d at 895 (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). Accord, Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981). Here, despite numerous references in the medical records and testimony by Echevarria concerning his subjective symptoms of serious pain, the ALJ did not fully inquire into what specifically caused Echevarria to leave his job or the full degree of the pain and the extent to which it prevents him from working. In addition, the ALJ, knowing Gonzalez initially intended only to testify, did not seek corroboration from him about Echevarria's subjective symptoms; had Echevarria been represented by counsel, this is a subject "any lawyer prepared for a hearing . . . would realize . . . most required supporting testimony." Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. 1981). Finally, rather than summarily dismissing as irrelevant Echevarria's testimony about his stomach pains, a more diligent inquiry would have revealed that these pains were the adverse effects of the drug (Motrin) prescribed for the arthritis, and thus were directly related to Echevarria's attempts to control the arthritis that initially forced him to leave his job.
Moreover, as in Hankerson, the proper course would have been to direct Echevarria to obtain a more detailed statement from the treating physicians, Dr. Falk and Dr. Bryant, before rejecting their pessimistic prognosis about his ability to work. Of the five treating physicians' reports, only two commented on the issue of disability: Dr. Falk stated that Echevarria "may be unable to work until this flare is controlled," and Dr. Bryant reported that the "traumatic arthritis . . . will worsen in due time and may result in his disability." While these findings are not conclusive, the duty to protect the rights of pro se claimants by developing "all the relevant facts" calls for much more than a reliance on the contrary conclusions of a non-treating medical advisor. As we stated in Hankerson, supra :
Before the ALJ can reject an opinion of a pro se claimant's treating physician because it is conclusory, basic principles of fairness require that he inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement." 636 F.2d at 896.
This was not done here. "In the absence of substantial contradictory evidence, the opinion of the claimant's treating physician is binding on the Secretary." Id. See also McLaughlin v. Secretary of HEW, 612 F.2d 701, 705 (2d Cir. 1980) (contrary views of medical advisor entitled to less weight unless substantial evidence contradicts treating physician's conclusion); Strickland v. Harris, 615 F.2d 1103, 1109 (5th Cir. 1980) (report of non-examining physician alone does not constitute substantial evidence). Moreover, for reasons already indicated, the ALJ should have requested medical reports concerning Echevarria's stomach problems, since they are highly relevant to Dr. Falk's prognosis that Echevarria's ability to work turns on the effectiveness of treatment.
An inquiry also should have been conducted into whether Echevarria's former employment was made possible only by special accommodation on the part of his employer that would not be matched by potential future employers. The record fails to disclose the reasons for Echevarria's increasingly frequent work absences and his having been given easier tasks as his ailments became more serious. Indeed, the record does not reveal what specific tasks Echevarria could and did perform for his former employer, or what tasks he was forced to abandon as his arthritis became more severe. This ...