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O'CONNOR v. HECKLER

July 22, 1985

MAURICE O'CONNOR, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant


The opinion of the court was delivered by: MOTLEY

OPINION MOTLEY, CH. J.

Plaintiff brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. Section 405(g) to review a final determination by the Secretary of Health and Human Services (the "Secretary"). Upon reversal of an award determination by the Administrative Law Judge ("ALJ"), plaintiff's application for federal disability insurance benefits was denied. Plaintiff appeals, alleging that the Secretary's denial of benefits is unsupported by substantial evidence and is arbitrary and capricious.

 Subsequently, both parties have filed motions for judgment on the pleadings under Fed. R. Civ. P. 12(c). On review, the court finds that the Appeals Council erred in relying, in part, on the summary and evaluations of a previously vacated opinion in order to reach a final determination. Reliance on such procedurally tainted evidence may have violated plaintiff's substantive right to a fair assessment of his claim. Therefore, this case is remanded to the Appeals Council for a new decision based only on relevant evidence.

 FACTS :

 The history of the present action spans more than a decade. In September, 1973, plaintiff Maurice O'Connor, while on duty as a marine engineer for the New York City Fire Department, slipped and fell on a fireboat. As a result, O'Connor suffered back and neck injuries and was reassigned to light duty. In May, 1974, the Fire Department Medical Board determined that the plaintiff was "permanently partially disabled." O'Connor was thus retired from his twenty year career with the Fire Department and granted an accident disability pension.

 In 1975, O'Connor applied for disability benefits and was denied at the initial filing of his application as well as upon reconsideration. The following year, O'Connor requested a hearing before an ALJ to determine his entitlement to disability benefits under the Act. Plaintiff appeared pro se before ALJ Aaron Waldman in July, 1976. While numerous doctors reported that O'Connor suffered from physical impairment, no evidence was submitted that the plaintiff's injuries were totally disabling. ALJ Waldman thus determined that O'Connor was not entitled to benefits and the Appeals Council of the Social Security Administration upheld that decision.

 O'Connor renewed his application for benefits in August of 1978. Again, his application was denied. At yet another administrative hearing, held in April, 1980, plaintiff appeared pro se. ALJ Emmanuel Poverstein considered the case de novo, received medical evidence supportive of plaintiff's claim, but determined that O'Connor was not disabled within the meaning of the Act. O'Connor's petition to the Appeals Council for review of this decision was denied.

 Plaintiff then filed the instant action seeking judicial review of the Secretary's decision. The court found that ALJ Poverstein had conducted an insufficient inquiry into plaintiff's pro se claim, the result being an inadequate record upon which to base judicial review. In noting that "an administrative law judge has an affirmative duty to assist a pro se litigant in developing his case," No. 81-2430, slip op. at 9 (S.D.N.Y. September 15, 1982), the court remanded the case for further development. Specifically, the Secretary was ordered to inquire further into 1) the nature, extent and frequency of O'Connor's pain and 2) whether the plaintiff was capable of performing specific jobs which exist in the national economy. *fn1"

 Following the District Court's order, the Appeals Council entered its own "Order of the Appeals Council Remanding Court Case to an Administrative Law Judge" on November 29, 1982. The substance of that order was that the Council "vacates its denial of the claimant's request for review and the decision of the administrative law judge and remands this case to an administrative law judge for further proceedings consistent with the Order of the Court." (Tr. 200) (emphasis added). By this action, the Secretary did more than simply refer O'Connor's case for a new hearing. She vacated and rendered a nullity the opinion of ALJ Poverstein.

 A third administrative hearing on the O'Connor case was conducted by ALJ Neil Ross in July, 1983. This hearing differed from previous hearings in that plaintiff was not represented by counsel. Additionally, medical evidence was put forward which, for the first time, provided clinical support for O'Connor's claim that he suffered from both physical and mental impairment.

 ALJ Ross found that O'Connor did not have a listed disability within the meaning of the Act. As such, he "retains the maximum functional capacity to perform some sedentary jobs." (Tr. 193). However, ALJ Ross also found O'Connor to have a severe physical impairment which significantly limited his ability to sit, stand, walk, lift or carry objects for prolonged periods of time. In weighing other factors such as O'Connor's age, lack of transferrable skills, work history, education, complaints of persistent pain, and presence of "strong psychogenic overlay", ALJ Ross returned a recommended decision to the Appeals Council that O'Connor was entitled to disability benefits.

 The Appeals Council reversed. In its decision of May, 1984, there is considerable reference to the vacated opinion of ALJ Poverstein. In its own language, the Appeals Council states that its evaluation of the evidence has incorporated "the summary and evaluation of the medical evidence and the hearing testimony detailed in the prior administrative law judge's decision of May 6, 1980." (Tr. 185) (emphasis added).

 The Appeals Council fails to mention that the district court had already considered the record developed at the 1980 hearing as "inadequate." It also fails to explain why it gave any weight to an opinion that it had previously vacated. Plaintiff again appealed, alleging that the Secretary's new decision was unsupported by ...


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