1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Id. at 467. The claimant bears the burden of proof as to the first four of these steps. If he or she meets the burden of proving that he or she cannot return to his or her past work, the Secretary assumes the burden of proving the last step -- that there is other work that the claimant can perform. Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d at 231.
The ALJ's decision herein suffers from several major flaws and is not supported by substantial evidence in the record.
There is virtually no medical evidence in this record from the relevant period, although it is clear medical records exist. The only such report in the record is of Dr. Koloski, plaintiff's general physician who saw her in September 1986, apparently for the first time in about four years. The ALJ's decision is based on that report, on the 1987 report of the Secretary's consultant, Dr. Ejercito, who saw plaintiff once, and on the irrelevant and cursory 1987 reports of plaintiff's orthopaedist Dr. DeRamon. The ALJ, himself, noted the "paucity" of medical documentation at the hearing, where he was informed that plaintiff had seen Dr. DeRamon at least once every two weeks for at least four years. Although the ALJ gave plaintiff's attorney ten days to submit the evidence after the attorney stated, "I am morally certain that within a day I can obtain serial notes for each of those visits" (R 27), he had a duty to pursue the evidence himself when plaintiff's attorney failed to follow through rather than to simply render an opinion in its absence.
Because Dr. DeRamon was plaintiff's treating physician, his records and opinions are critical to a proper determination of plaintiff's claim. Although plaintiff's attorney failed to perform his duties to her, the ALJ is not excused from performing his own duties.
In Schisler v. Bowen ("Schisler II"), the Second Circuit approved a Social Security Ruling (SSR) instructing administrative law judges of the importance of and standards for obtaining treating source evidence:
. . . treating source evidence should always be requested and every reasonable effort should be made to obtain it. Treating sources should be requested to provide complete medical reports consisting of a medical history, clinical findings, laboratory findings, diagnosis, treatment prescribed and response to any treatment, prognosis, and a medical assessment; i.e., a statement of the individual's ability to do work-related activities. If the treating source provides an incomplete medical report, the adjudicator will request the necessary additional information from the treating source.
851 F.2d at 46-47 (emphasis added). "The ALJ has a duty to develop the facts fully and fairly, and must 'affirmatively assist the parties in developing the record.'" Walker v. Heckler, 588 F. Supp. 819, 824 (S.D.N.Y. 1984) (quoting Bluvband v. Heckler, 730 F.2d 886, 892 (2d Cir. 1984)). See also 20 C.F.R. §§ 404.944, 416.1444 (mandating that the ALJ "look fully into the issues" to develop a full record). The ALJ's duties are heightened when a claimant is pro se, but exist even when a claimant is represented by counsel." Walker v. Heckler, 588 F. Supp. at 824; see also Thorne v. Califano, 607 F.2d 218, 219 n.3 (8th Cir. 1979) (ALJ's duty to develop facts fully and fairly applies "even when claimant has counsel"); Masella v. Heckler, 592 F. Supp. 621, 624 (W.D.N.Y. 1984) ("The fact that a claimant is represented by counsel does not absolve the ALJ from his abiding responsibility to develop fully the facts of the claimant's case in a non-adversarial fashion consistent with the broadly remedial purposes of the Social Security Act.") Under ordinary circumstances, an ALJ may be entitled to presume that a claimant's counsel is making the claimant's "strongest case for benefits." Jones v. Bowen, No. 85 Civ. 9913 (RLC), 1986 WL 15332 at *2 n. 4 (S.D.N.Y. Dec. 31, 1986); see also Jantz v. Heckler, 616 F. Supp. 584, 588 (S.D.N.Y. 1985). However, it was clear in this case that Dr. DeRamon had treated plaintiff during the relevant period for conditions for which she claimed benefits and that records for examinations and treatments during this period had to exist, since they were created for the purpose of qualifying for and receiving Worker's Compensation benefits. (R 27). It was the ALJ's responsibility to "request the necessary additional information from the treating source," Schisler v. Bowen, 851 F.2d at 46-47, by contacting plaintiff's attorney to remind him to submit them, or to obtain them directly from Dr. DeRamon.
Curiously, although his decision rested on his finding that plaintiff had the residual functional capacity to perform her past work as a mental hygiene therapy aide, the ALJ adduced no evidence whatsoever as to the duties or exertional requirements of that job. It is, thus, difficult to understand how he reached his finding.
There is evidence in the record concerning her past work, although the ALJ did not refer to it in his decision. In her January 8, 1987 "Disability Report,"
plaintiff indicated that her duties as mental hygiene therapy aide included assisting patients in bathing, feeding and dressing, and, if necessary, restraining them. She estimated that the job entailed walking and standing up to five hours a day, occasional bending and reaching, and frequent lifting of weights up to 25 pounds (occasionally as much as 50 pounds), apparently in conjunction with assisting patients in and out of baths and beds. (R 67-68). Plaintiff's description is consistent with the definition in the Dictionary of Occupational Titles § 355.377-018 (4th Ed. 1977; 1986 Supp.) of the medical services job of "mental-retardation aide" (an alternate listing for which is "resident care aide"). Its required duties include "restraining disruptive residents to prevent injury to themselves and others," and its "physical demands" include "reaching" ("extending hands and arms in any direction") and "handling" ("seizing, holding, grasping, turning, or otherwise working with hand or hands"). The position is classified as "medium work."
There is no evidence at all that the ALJ referred to the Dictionary or anything else to determine what duties were required by the position.
According to Plaintiff's testimony, it would be impossible for her to perform such work. The ALJ, however, totally discredited plaintiff's testimony as to her pain and limitations. While it is within his authority to do so, given a proper record, his doing so was contrary to law, as will be discussed below. But, without regard to her testimony, simply the evidence of the Secretary's own consultant who examined plaintiff once is enough to indicate that plaintiff could well be precluded from performing this past work. The Secretary's own "objective" medical evidence establishes that she suffered from "chronic recurrent cervical thoracic muscle strain," and "low back pain syndrome with possible sciatic," positive Tinel's sign and possible carpal tunnel syndrome.
(R 100). The consultant also found "degenerative changes in the fingers" on her right hand. (Id.)
Thus, even looking solely at the evidence of the Secretary's consultant, I find that the ALJ's conclusion that plaintiff could perform her past work is not supported by substantial evidence. It would appear questionable, if not impossible, for a woman of plaintiff's age with chronic thoracic strain, lower back pain and constant numbness and/or pain in the nerve of her right wrist to lift objects of 50 pounds or frequently carry 25 pounds. (Plaintiff testified that even small objects, like a dish, suddenly just drop from her hands and that, when she bends, she is sometimes unable to straighten up. (R 31).) An inability to firmly grip, grasp, pull or hold with her right hand could well preclude the activities required by the job. Nor does it seem likely that she could assist patients in and out of baths and beds, much less restrain disruptive ones.
Finally, the ALJ's conclusion that plaintiff's pain "is not as severe or as incapacitating as she would have one believe and such pain should not interfere with performance of duties as a mental hygiene therapy aid" is also unsupported by this record.
An ALJ "must consider a claimant's subjective complaints of pain, although such complaints are not conclusive." Morris v. Bowen, No. 88 Civ. 0591 (KMW), 1989 U.S. Dist. Lexis 220 at *14 (S.D.N.Y. Jan. 12, 1989). As amended by the Social Security Disability Benefits Reform Act of 1984, 42 U.S.C. § 423(d)(5)(A) provides, in pertinent part:
An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph . . . would lead to a conclusion that the individual is under a disability.
If a medically ascertained impairment is found which could reasonably be expected to produce the pain alleged, i.e., one which does not in itself support a finding of disability apart from the pain, "the medically-established impairment alone would be sufficient to support a finding of disability, even if no further cause of . . . pain were established by objective, clinical evidence." Marcus v. Califano, 615 F.2d 23, 28 (2d Cir. 1979). Under such circumstances, an ALJ may disbelieve claims of severe, disabling pain "after weighing the objective medical evidence in the record, [claimant's] demeanor, and other indicia of credibility," id. at 27, whereupon he must set forth his reasons "with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Moreover, as Social Security Ruling 88-13 sets forth:
In evaluating a claimant's subjective complaints of pain, the adjudicator must give full consideration to all of the available evidence, medical and other, that reflects on the impairment and any attendant limitations of function. . . . In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual's subjective complaints solely on the basis of such personal observations.
Stieberger v. Sullivan, 738 F. Supp. 716, 741 (S.D.N.Y. 1990) (quoting SSR 88-13).
The ALJ gives no reason for rejecting plaintiff's claims of disabling pain, and this failure of explanation is all the more glaring in view of both the extent to which the record confirms or otherwise points to objective bases for plaintiff's complaints
and the ALJ's failure to obtain the most relevant medical evidence for this record.
Moreover, it is clear from the record, including references to documentation of Worker's Compensation benefits, that plaintiff left her former job due to injuries sustained while on duty at the mental hospital. Indeed, the record contains an Employee Performance Evaluation Program Appraisal and Rating Form for plaintiff for the period April 1, 1980 through October 1, 1980 that includes among its very favorable comments:
She has been plagued with wrist injury & out for 6-8 weeks during Admission service & period being evaluated. She has to be reminded at times to pace her work so as not to hurt her wrist. . . .
. . . . When Admission Unit opened she served as 1st Charge until her wrist injury obliged her to be absent. Her leadership qualities & her enthusiasm for her [patients] & for her work were missed then.
(R 106-07). Plaintiff is a 66-year-old woman who has worked her entire adult life, including 20 years at her last job until she suffered her injuries. Yet another significant factor that the ALJ should have taken into account but apparently ignored is her exemplary work history. It is well established in the Second Circuit that "a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of disability." Stieberger v. Sullivan, 738 F. Supp. at 742 (citing Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)).
For the foregoing reasons, I respectfully recommend that your Honor remand this matter to the Secretary with instructions that he develop the record to include the medical records from plaintiff's treating physician for the period of plaintiff's claimed disability; that he obtain from her treating physician an evaluation as to her residual functional capacity and an opinion as to disability; that he make the necessary examination of the requirements of plaintiff's former job as mental hygiene aide; that in considering plaintiff's subjective complaints of disabling pain he apply the correct criteria based on the evidence and set forth with the requisite specificity his reasons for either accepting or rejecting her complaints; that he give appropriate weight to plaintiff's age and work record; and that he otherwise take steps necessary to render a decision in accordance with the principles set out in this Report and Recommendation.
The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Vincent L. Broderick, to the opposing party and to the under signed. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Broderick. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam). See generally Fed. R. Civ. P. 6(a), 6(e).
Dated: New York, New York
April 14, 1992
SHARON E. GRUBIN
United States Magistrate Judge