stated that he used medications including Prozac, Flurazepam and painkillers and muscle relaxants and wore a cervical collar every day.
Plaintiff said that he felt pain if he walked more than a block, stood for longer than ten minutes or sat for longer than twenty minutes. He stated that lifting more than three or four pounds caused spasms.
Plaintiff testified that because of his condition he could not drive, dress himself without assistance, help with household chores, or read for more than a few minutes.
Plaintiff says that the ALJ erred by (1) relying on the opinion of Dr. Simon, a consultative examiner, (2) not arranging for the testimony of a vocational expert and (3) utilizing the Appendix 2 grids. The court may overturn the Secretary's determination only when it is not supported by substantial evidence. 42 U.S.C. § 405(g).
Plaintiff says that the ALJ should not have relied on the opinion of Dr. Simon because (1) the Administration did not provide him with plaintiff's medical records, (2) his examination of plaintiff was cursory, and (3) the ALJ denied plaintiff an opportunity to cross-examine him.
The Administration will pay for a consultative examination in a situation, among others, where "a conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved." 20 C.F.R. § 404.1519a(b)(4). If such an examination is procured, the Administration gives the examiner "any necessary background information" about the claimant's condition, 20 C.F.R. § 440.1517, and the examiner is obliged to allow sufficient time to "take a case history and perform the examination, including any needed tests." 20 C.F.R. § 440.1519n.
In this case, the ALJ concluded that plaintiff was capable of the full range of sedentary work based largely upon Dr. Simon's skimpy report on February 23, 1993 that plaintiff's impairments caused "minimal physical restrictions."
But Dr. Head's report, based on a thorough review of plaintiff's medical records as well as an October 27, 1992 physical examination, stated that plaintiff was significantly restricted in his range of motion in the cervical region. Moreover, Dr. Esteban's reports from the same and following year indicated "spasm and tenderness of the paravertebral cervical and thoracolumbar regions" with "some limitation of motion" and "decreased sensation."
In addition, plaintiff repeatedly questioned whether Dr. Simon had received adequate information to evaluate plaintiff's condition, and requested an opportunity to cross-examine Dr. Simon.
The court determines that in these circumstances, the ALJ abused his discretion in failing to subpoena Dr. Simon to testify at the hearings. See Cruz v. Shalala, 887 F. Supp. 553, 1995 U.S. Dist. LEXIS 5832, 1995 WL 302505 at *1 (E.D.N.Y. 1995). Because Dr. Simon did not indicate whether he received or reviewed plaintiff's medical records, including those of plaintiff's treating physician, Dr. Esteban, plaintiff's objections to the reliability of Dr. Simon's report were "sufficiently controversial to merit cross-examination." Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir. 1981), quoting McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 704 n.2 (2d Cir. 1980).
For the ALJ, without the advice of a medical witness, to dismiss the significance of the reports of the doctors finding plaintiff disabled and rely so heavily on the perfunctory report of Dr. Simon who did not even have the MRI and CAT records before him suggests that the ALJ unjustifiably transmogrified himself into a neurologist and psychiatrist.
All of plaintiff's doctors were retained by the Fire Department until Dr. Head. Yet some of those retained took plaintiff's injuries more seriously than the ALJ, who never even referred to their reports in his decision. This omission is disturbing not only because some of those reports conflicted with Dr. Simon's assessment, but also because they document plaintiff's consistent allegations of severe pain. The record does not depict a plaintiff who was a malingerer. He worked consistently from the date of his graduation from high school, sometimes at two jobs. His descriptions of his subjective symptoms should not have been passed over so lightly. See Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983).
The court concludes that the ALJ's decision is not supported by substantial evidence because plaintiff did not receive a fair and objective assessment of his case. The court need not now consider plaintiff's claims regarding the need for expert vocational testimony or misapplication of the Appendix 2 Grids.
The court will remand the case for further proceedings. When the Council after the first hearing vacated the ALJ's decision and pointed out its patent inadequacies, the Council remanded for a further hearing before "an" ALJ. This court now directs that the further proceedings be held before a different ALJ.
In so directing the court need not accept the characterizations by plaintiff's counsel of the propensities of ALJ Jacobs. It is enough that he has been twice reversed, once by the Council and once by this court. The court has the power to require that the hearing be before a different ALJ without any intellectual commitment to a result. See Kendrick v. Sullivan, 784 F. Supp. 94, 103 (S.D.N.Y. 1992); Spears v. Heckler, 625 F. Supp. 208 (S.D.N.Y. 1985).
The ALJ shall grant plaintiff's request to subpoena Dr. Simon to testify at the hearing.
Case remanded for further proceedings consistent with this opinion.
Dated: Brooklyn, New York
July 7, 1995
Eugene H. Nickerson, U.S.D.J.
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