United States District Court, Eastern District of New York
October 21, 1991
ROBIN SMITH, S.S. # 064-48-7602, PLAINTIFF,
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 1383(c)(3) to review a
final decision of the defendant Secretary of Health and Human
Services (the "Secretary of HHS") in which the Secretary denied
the application of plaintiff Robin Smith for Supplemental
Security Income ("SSI") benefits under Title XVI of the Social
Security Act. For the reasons stated below, the decision of the
Secretary is reversed.
1. Procedural Posture
Ms. Smith first applied for SSI benefits on June 25, 1986
(Tr. 39-48); she claimed disability by reason of asthma,
"nerves", and drug addiction. The denial of her application was
affirmed by an Administrative Law Judge ("ALJ") after a hearing
at which Ms. Smith appeared pro se. (Tr. 4-10). Review of the
decision of the ALJ was denied by the Office of Hearings and
Appeals of HHS. (Tr. 1A-2).
Ms. Smith then brought suit in the Eastern District of New
York under docket number CV-87-3320. By order dated February
10, 1988, Judge Costantino remanded the case "so that a fuller
examination may be made of plaintiff's ability to work with
regard to her asthmatic condition." (Tr. 218). The Appeals
Council of HHS vacated the decision of the ALJ and remanded the
case to a second ALL (Tr. 174-176). Ms. Smith failed to appear
at a new hearing held before the second ALJ; he subsequently
concluded that she was not disabled and was not entitled to SSI
benefits. (Tr. 151-159). The Appeals Council accepted the
decision of the second ALL (Tr. 150). Ms. Smith thereupon filed
the present suit under docket CV-90-1044; she is now
represented by counsel.
2. Evidence of Plaintiff's Disability
Ms. Smith is a black female in her middle thirties. Her
education extends only to the ninth grade, and she has not
received a high-school equivalency certificate. She has worked
only once in her life when she spent six months in 1982
assembling components for radio switches. (Tr. 84). There is
evidence that she has been addicted to heroin since her early
teens and that she engaged in prostitution from a very early
age to support her drug habit. She dropped out of school at age
14 to give birth to her first child, and she has since then
delivered four other children; she has also had two elective
abortions. It appears that all of her children have been placed
in the custody of her relatives. One examining
neuropsychologist, Dr. Roman Pabis, remarked of her:
She was physically and psychologically abused
since her childhood. Physical suffering and
beating received from her
pimps, johns, and drug dealers was for her an
inevitable "normal" by product [sic]. She did not
know a different life. She was exposed to the most
ugly [sic] and morally depraved section of the
life in the City of New York.
As to her claims of disability, there is a disappointing
absence of evidence from any treating physician in the
administrative record. Indeed, even when her case was remanded
by Judge Costantino, Ms. Smith failed to provide reports or
affidavits from any treating physician. It is disturbing in
this regard that the ALJ who conducted Ms. Smith's first
hearing in 1987 — a hearing at which she appeared pro se —
appears to have told her that a report from a physician who may
have been treating her for asthma was not necessary. (Tr.
37-38). He asserted this on the basis of her representation
that the report simply listed the medicines that had been
prescribed for her; however, whether or not this physician's
report may have provided additional relevant evidence is
impossible to discern from the transcript. Thus, only the
reports of examining and consulting physicians are available
A. Evidence Regarding Physical Impairment
Ms. Smith was an outpatient at Brookdale Hospital Medical
Center on March 29, 1985 for matters concerning a pregnancy
test. (Tr. 99-116). At that time, an examination revealed that
her lungs were clear. (Tr. 114). A chest x-ray conducted at the
hospital on April 14, 1985 confirmed that her lungs were not
significantly abnormal. (Tr. 102). After two visits to St.
Mary's Hospital in March of 1986 for gynecological problems,
she was diagnosed by the hospital as having bronchial asthma,
and she was instructed to continue taking Tedral.*fn1
Ms. Smith was examined by Dr. Howard Finger on September 11,
1986 with respect to her complaints about bronchial asthma.
(Tr. 133-137). She recounted a history of asthma since
childhood and reported that her asthma is exacerbated by
physical exertion, damp weather, and upper respiratory tract
infections. She reported that she has severe asthma attacks
approximately once a month, and that, at best, she can walk
only a few blocks before experiencing shortness of breath. She
also told Dr. Finger that she has a "nervous condition" and
reported heaviness in her legs because of varicose veins. She
denied any current cocaine and alcohol abuse, but she
acknowledged a past history of intravenous heroin and cocaine
use. Ms. Smith told Dr. Finger that she was in a methadone
program at the time of the examination and that she received 30
milligrams of methadone each day.
Dr. Finger's examination of Ms. Smith revealed needle track
marks on her upper extremities. He also noted expiratory
wheezing and remarked that expiration was moderately prolonged.
(Tr. 134). He diagnosed clinically apparent bronchial asthma,
a history of intravenous heroin and cocaine use, and atypical
chest pain. (Tr. 135-136).
B. Evidence Regarding Mental Impairment
Ms. Smith was also examined by Dr. Jorge Oldan, a
psychiatrist, on the same day that she saw Dr. Finger.*fn2
(Tr. 123-125). She told Dr. Oldan that she was at the time
participating in a methadone program, but that she had used
heroin and cocaine during the past year. He determined that she
exhibited no thought disorder, delusions, hallucinations,
phobias, suicidal ideation, or obsessive ideas. He thought her
affect appropriate, her memory intact, and her concentration
normal. He determined that she exhibited good judgment for
social situations and that she was able to care for herself as
well as to interact with others.
Ms. Smith was also examined by Roman Pabis, Ph.D., a
neuropsychologist, on March 14, 1988.*fn3 (Tr. 261-263). Among
other matters, Dr. Pabis reported that, at the time of his
examination, Ms. Smith was "drug-free." However, he offered no
evidence of this conclusion, and it thus appears to be
predicated entirely on Ms. Smith's own reports to him.
Dr. Pabis also noted that Ms. Smith's affect was
"restricted". He reported that she "was not able to respond to
people with the normal range of emotions." He noted anxiety,
depression, and occasional suicidal ideation. He found that she
had experienced at times "auditory hallucinations" and
delusions "about people who could control her from a distance."
He found her intelligence to be in the low average range. He
determined that her personality functioning was deficient and
had never advanced beyond adolescence. He noted "antisocial
trends" that "result in disturbing her ability to function in
the society as a productive and self supporting [sic] member."
Dr. Pabis found, as associated features of this disorder:
anxiety, tension, depression, inability to tolerate boredom,
and "the conviction that other people are hostile toward her."
He noted, however, that "[h]er interpersonal difficulties and
dysphoria persisted into adulthood although now her flagrent
[sic] antisocial behaviors have diminished."
Dr. Pabis further diagnosed Ms. Smith as having "several
features characteristic of Borderline Personality disorder." He
Those features include a pattern of unstable
interpersonal relationships, impulsiveness in
substance abuse, sexual promescuity [sic], marked
shifts from baseline mood to depression, anxiety
and marked and persistent identity disturbances
manifested by uncertainty about her self-image,
long-term goals, type of friends, and recurrent
suicidal ideations and attempts. In addition, she
has little initiative, is dependent, and
self-defeating. She also allowed herself to be
abused in amasochistic [sic] manner. (Tr.
262-263). Finally, he observed that she "might be
ready to start the rehabilitation process
[although it] will be long and slow." (Tr. 263).
Again, the entirety of Dr. Pabis' diagnosis was
drawn from one examination of Ms. Smith.
3. The Administrative Determinations
Finally, several matters from the administrative proceedings
are noteworthy. First, Ms. Smith appeared pro se at her initial
hearing with the ALJ on April 24, 1987. The transcript from
that hearing clearly raises a reasonable question as to whether
Ms. Smith was using heroin or cocaine at the time. At first,
she indicated that she had not used drugs for three months
prior to the hearing (Tr. 28); then, she indicated that she may
have used them the evening before the hearing (Tr. 29-30). Ms.
Smith told the ALJ that she could not remember the last time
she had been "drug-free" (Tr. 33) and that she was not at that
time enrolled in a drug-treatment program. (Tr. 30).
Nonetheless, the ALJ remarkably concluded in his decision that
"her drug problem is responding to the program she is
attending" (Tr. 7) and that "she has been on the program for
the past 3 or 4 years." (Tr. 8).
As to her asthma, the ALJ determined that it was "not
manifested by the pulmonary function findings that would meet
listings level severity." (Tr. 7). To this end, the ALJ
indicated that he found the report of Dr. Finger, an examining
physician, to be the "report that is most illumative [sic] of
the claimant's condition. . . ." (Tr. 8). His decision
The Administrative Law Judge has considered all
the medical evidence in the record, whether or not
specifically referred [sic] to in this decision.
Great weight is given to the report from the
consultative examiners. . . . These reports show
that the claimant has asthma that is exacerbated
by heavy physical exertion. There is nothing in
the record to indicate that the claimant would be
precluded from standing and walking for short
periods of time. The claimant
would be unlimited in her ability to sit. In
addition she should be able to lift and carry
light amounts of weight. In addition claimant has
a history of substance abuse. She is in a
Methadone maintenance [sic] program at the present
time and according to the consultative
psychiatrist she is making good response to this
program. There is no indication of any mental
pathology contained in the record. Thus, the
claimant's substance abuse would not further
diminish her occupational base.
In the decision of the second ALJ — after remand of the case
from Judge Costantino and after a second hearing — Ms. Smith
was again determined not to be disabled. The decision cited the
reports from Brookdale and from St. Mary's hospitals to the
effect that Ms. Smith's asthma was not so severe as to rise to
the level of disability. (Tr. 155). Further, the second ALJ
noted the report of Dr. Pabis, but he concluded that Dr. Pabis
had not documented any disabilities. In fact, the second ALJ
remarked, apparently on the basis of Dr. Pabis' own statement
in his examination record: "Although claimant had a history of
drug abuse, claimant was maintained on the methadone regimen
and at the time of the evaluation, to wit, March 1988, claimant
was drug free." (Tr. 156). He concluded that neither her asthma
nor her drug abuse — nor both together — prevented her from
engaging in "sedentary work activity." (Tr. 157-158).
An individual is eligible for SSI benefits if he
demonstrates, inter alia, that:
[H]e is unable 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 twelve months. . . .
42 U.S.C. § 1382c(a)(3)(A). Further, he must have a "physical
or mental impairment . . . of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.
. . ." 42 U.S.C. § 1382c(a)(3)(B).
A federal district court has jurisdiction to review decisions
as to SSI benefits under 42 U.S.C. § 405(g) (which is made
applicable through 42 U.S.C. § 1383(c)(3)). The court may
review the decision of the Secretary only to determine whether
there is "substantial evidence" in the administrative record to
support the determination of the Secretary. 42 U.S.C. § 405(g).
See Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984)
("[A]bsent legal error by the Secretary, her decision cannot be
set aside if it is supported by substantial evidence.").
"Substantial evidence" is that which "a reasonable mind might
accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Hence, the task
before the court on this motion is to determine whether the
administrative record contains evidence that "a reasonable mind
might accept as adequate to support [the] conclusion" that Ms.
Smith is not disabled.
However, that standard is not satisfied in this case: There
is no substantial evidence that Ms. Smith is not disabled. As
a threshold matter, the opinion of a treating physician is
entitled to careful consideration. Bluvband, 730 F.2d at
893-94; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978)
("The 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.") As a
necessary corollary, the opinions of "examining physicians" are
entitled to very little weight. Bluvband, 730 F.2d at 893-94.
Thus: "[T]he report of a consulting physician who examined the
claimant once does not constitute `substantial evidence' upon
the record as a whole. . . ." Hancock v. Secretary of Health,
Education, and Welfare, 603 F.2d 739, 740 (8th Cir. 1979). See
also Selig v. Richardson,
379 F. Supp. 594, 601 (E.D.N.Y. 1974). Here, however, there is
not a single report from a treating physician. Rather, all the
physicians who submitted evidence in this case saw Ms. Smith
only once; yet, the Secretary determined that these reports
should be given "great weight". (Tr. 9). The conclusory reports
of Drs. Finger, Oldan, and Pabis — predicated as they are on
single encounters with Ms. Smith — hardly constitute
Further, when Ms. Smith did mention the existence of a report
by the physician who was treating her for asthma, the ALJ told
her it was not necessary that she submit a copy of it. (Tr.
37-38). This failure by the ALJ to secure the report of the
sole treating physician about whom anything at all was known
demonstrates a remarkable disregard for the "treating
physician" rule; moreover, it is a sufficient basis for remand.
Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980) (failure
of ALJ to advise a pro se plaintiff that he "should obtain a
more detailed statement from his treating physician" requires
Also, the ALJ was under a duty to ensure that Ms. Smith "had
`a full hearing under the Secretary's regulations and in
accordance with the beneficent purpose of the Act.'"
Echevarria v. Secretary of Health and Human Services,
685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health,
Education, and Welfare, 463 F.2d 38, 43 (2d Cir. 1972)).
Because she appeared pro se, the ALJ had a heightened duty "`to
scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts. . . .'" Hankerson, 636 F.2d
at 895 (quoting Gold, 463 F.2d at 43). In these duties, the ALJ
failed entirely: Despite contradictory statements by Ms. Smith
both to the examining physicians and to the ALJ himself, he did
not "scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts" as to whether or not
she was enrolled in a drug treatment program, whether or not
she was taking methadone, whether or not she had used heroin
and cocaine in the recent past, and whether or not she was
under the influence of drugs at the time of the hearing.
Indeed, despite her statements that indicated that she was not
involved in a drug treatment program and that she was in fact
taking drugs at the time of the hearing, both ALJs concluded
that she was proceeding satisfactorily in a treatment program
and that, accordingly, her addiction did not constitute a
disability. But the transcript of the hearing before the first
ALJ clearly reveals that there is not substantial evidence to
support this conclusion; he himself exhibited suspicion that
she was under the influence of drugs at the hearing. (Tr. 29)
That transcript likewise demonstrates that the ALJ neglected
his duty to develop and consider "all the relevant facts"
concerning Ms. Smith's drug abuse.
Furthermore, the ALJs failed to apply the proper standards in
determining whether or not Ms. Smith's substance abuse
constituted a disability. As an initial matter, it is not in
dispute that substance abuse can constitute a disability.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.09. Also,
because the regulations consider both alcoholism and drug abuse
to be "substance addiction disorders," it is fair to borrow
from the case law regarding alcoholism in order to consider the
standards for drug abuse as a disability.
The rule in the Second Circuit as to disability by reason of
substance abuse was set forth in Rutherford v. Schweiker,
685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103
S.Ct. 1207, 75 L.Ed.2d 447 (1983). The court there stated:
[C]hronic alcoholism can be disabling if it
results in serious personality disorders . . . or
in a substantial physical impairment. However, if
there is a continuing interrelationship between
the excess consumption of alcohol and the
disability, such that termination of the former
will end the latter, the issue for the Secretary
is whether the claimant has lost the voluntary
ability to control his drinking. Adams v.
Weinberger, 548 F.2d 239, 244 (8th Cir. 1977).
Here, there is no contention that Ms. Smith has a "serious
personality disorder" or a "substantial physical impairment" by
reason of her drug addiction. Rather, the relevant inquiry is
that of the second half of the Rutherford test. Hence, the
question for the Secretary in her case is "whether [Ms. Smith]
has lost the voluntary ability to control [her drug use]."
Indeed, because the issue here is whether Ms. Smith's drug
abuse constitutes a disability in itself, the rule of
Rutherford imposes a duty on the ALJ "to determine whether
plaintiff could control" her abuse of heroin and cocaine. Wolf
v. Secretary of Health and Human Services, 612 F. Supp. 289, 291
(W.D.N.Y. 1985). What the court remarked of alcoholism in
DeCarolis v. Secretary of Health and Human Services,
724 F. Supp. 71, 75 (W.D.N.Y. 1989) is equally true of other
substance abuse: "[I]nability to control drinking is a
disabling disease if it prevents the claimant from engaging in
substantial gainful employment" (emphasis added). See also
Cooper v. Bowen, 815 F.2d 557, 560 (9th Cir. 1987) ("[T]he
uncontrollable addiction to alcohol — so uncontrollable as to
impair the alcoholic's gainful activity — has been held to be
disabling, even with no evidence of physiological damage.").
These cases state clearly for the Secretary precisely what
inquiry is to be engaged when Ms. Smith claims that her drug
addiction constitutes a disability: The question is whether or
not she has so lost control of her drug use that she cannot
engage in substantial gainful employment. However, the
administrative record is devoid of any attempt by the ALJs to
satisfy this inquiry; they did not pursue Ms. Smith's oral
reports that she was no longer in a drug-treatment program and
that she may have taken drugs the evening before the first
hearing. Rather, they dismissed her credibility and relied on
the reports of examining physicians to the effect that she was
"drug-free".*fn4 Thus, the ALJs plainly ignored the Second
Circuit mandate of Rutherford and its progeny, and they did not
make the requisite inquiry concerning Ms. Smith's claim of
Furthermore, the ALJs did not engage the inquiry set forth in
the relevant administrative regulations. Under 20 C.F.R. Part
404, Subpart P, Appendix 1, Section 12.09, the severity of a
disability claimed because of "the regular use of substances
that affect the central nervous system" must be evaluated in
terms of several listed disorders. Those disorders in turn must
be evaluated in accord with more detailed regulations. However,
the ALJs attempted none of these evaluations: Thus, they
ignored not only the dictates of the federal judiciary; they
also ignored the directives of the Department of Health and
The decision of the Secretary must be supported by
substantial evidence on "the record as a whole." Fiorello v.
Heckler, 725 F.2d 174, 176 (2d Cir. 1983). In this case, the
record as a whole does not provide "substantial evidence" that
Ms. Smith is not disabled because of her drug addiction:
Although bare conclusory statements of examining physicians
state that Ms. Smith was "drug-free" and involved in a drug
treatment program, the transcript of the first hearing
demonstrates that Ms. Smith may well have been under the
influence of drugs even at the hearing itself. The first ALJ
suspected as much. (Tr. 29). Thus, the determinations by both
ALJs that Ms. Smith was undergoing successful treatment for her
drug problem and that she was, accordingly, not under a
disability, cannot be said to be supported by "substantial
evidence". The evidence is not such that "a reasonable mind
might accept as adequate." Indeed, the ALJs had a duty to
develop more fully the evidence on this matter, but they
ignored their obligation and simply seized upon the vacuous
reports of two physicians who examined
Ms. Smith only once. Further, the ALJs ignored the relevant
legal standards to assess Ms. Smith's claimed disability: They
disregarded the inquiry set forth by the Second Circuit in
Rutherford, and they disregarded the inquiry set forth by the
Secretary in 20 C.F.R. Part 404, Subpart P, Appendix 1, Section
In view of the numerous errors, both substantive and
procedural, made in the administrative proceedings, the only
appropriate relief is reversal of the decision of the Secretary
and institution of SSI benefits for Ms. Smith. Indeed, when
pressed at oral argument on this motion, the Secretary conceded
as much: He agreed with the court both that Ms. Smith is unable
to perform "any . . . kind of substantial gainful work which
exists in the national economy" and that no purpose would be
served by remand of this case; he also agreed with the court
that reversal is appropriate.
For the foregoing reasons, the decision of the defendant
Secretary is reversed and benefits are to be awarded to the