attempt to obtain sedentary work. Instead, the plaintiff stated that he "was retired by the state."
The administrative law judge, who found plaintiff's testimony not credible, albeit without discussion, is the only officer who has heard plaintiff's testimony live, and is accordingly able to evaluate it based on demeanor evidence as well as plausibility. See United States v. Zafiro, 945 F.2d 881 (7th Cir. 1991), aff'd 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993); United States v. Brach, 809 F. Supp. 1128 (SDNY 1993).
Although such evaluation may be less conclusive than if made by an entirely independent officer,
such evaluation must be given significant weight in combination with plaintiff's failure to provide further evidence connection with benefits sought under a governmental program which only exists to the extent provided by Congress. Wagner v. Secretary, 906 F.2d 856, 860 (2d Cir. 1990).
In creating such programs Congress may, within broad limits, establish procedures for its administration which must be respected by the courts. See generally Bartlett v. Bowen, 259 U.S. App. D.C. 391, 816 F.2d 695 (DC Cir.), reinstated en banc 824 F.2d 1240, 263 U.S. App. D.C. 260 (DC Cir. 1987); Marozsan v. United States, 852 F.2d 1469, 1477-79 (7th Cir. 1988) (en banc); Sullivan, "Unconstitutional Conditions," 102 Harv. L. Rev. 1413 (May 1989); Jones, "The Rule of Law and the Welfare State," 58 Colum. L. Rev. 143 (1958).
The administrative law judge relied on various medical reports unfavorable to plaintiff's disability claim as constituting substantial evidence. However, these reports would have been insufficient to constitute "substantial evidence" if plaintiff had not admitted to his ability to work, or if the treating physician prepared a report favorable to plaintiff. Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986); Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir. 1990).
Though no basis alone is sufficient, the combination of the Secretary's evidence contrary to plaintiff's claim, the administrative law judge's evaluation of plaintiff's testimony, and perhaps most significantly the plaintiff's admission of his ability to work, is sufficient to support the agency's denial of plaintiff's claim.
It might be argued that since the above analysis diverges somewhat from that articulated by the agency, the matter should be remanded for reconsideration pursuant to SEC v. Chenery Corp, 318 U.S. 80, 87 L. Ed. 626, 63 S. Ct. 454 (1942), which denied courts the authority, at least in most circumstances, to affirm agency action on grounds not articulated by the agency. See Mayo v. Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990). Existence of primary authority or primary jurisdiction of an agency does not, however, require remand if the outcome is sufficiently clear. United States v. Chesapeake & Ohio Ry, 352 U.S. 77, 1 L. Ed. 2d 140, 77 S. Ct. 172 (1956); Skinner & Eddy Corp v. United States, 2149 U.S. 557 (1919); River Plate & Brazil Conferences v. Pressed Steel Car Co, 227 F.2d 60, 63 (2d Cir. 1955); International Travel Arrangers v. Western Airlines, 623 F.2d 1255 (8th Cir. 1980); Note, 58 Colum. L. Rev. 673 (1958).
In 1993 Fed.R.Civ.P. 1, calling on courts to seek the "just, speedy and inexpensive" determination of every action, was amended to provide that all procedural rules should be "administered" as well as "construed"
to that end. Remanding for clarification of the administrative decision where the outcome is foregone would add to expense and delay with no benefit to the administration of justice, and thus run counter to this authoritative and recent pronouncement. See In re Pan Am, 16 F.3d 513 (2d Cir. 1994); In re River Foal, 161 Bankr. 568 (SDNY 1993); see generally Judicial Improvements Act of 1990, public Law 101-650, 104 Stat. 5089, enacting 28 U.S.C. 473.
Dated: White Plains; New York
VINCENT L. BRODERICK, U.S.D.J.