clinical psychologist, Thomas C. Dickinson. Ph.D. Dr. Dickinson
had the impression that plaintiff was borderline retarded, and
that he could suffer from anxiety disorder and alcohol dependency
(R. at 254). Using the Weschsler Adult Intelligence Scale,
plaintiff earned scores that would place him in the moderately
retarded range in comparison with his age peers (R. at 253).
Other intelligence tests lead to similar results (See R. at
253). According to Dr. Dickinson, plaintiff was unable to do
simple things like read alphabet letters or simple numbers such
as "3" and "5," and he could not count a set of seven pennies.
Plaintiff was unable to tell Dr. Dickinson how many months made
up a year, the colors of the American flag, name the President of
the United States or the Mayor of Buffalo, or match block
patterns or assemble simple puzzles of a boy or a face (R. at
Following a second psychological examination, Dr. Mitchell
Parker concluded that he was unable to assess plaintiff's
intellectual potential (R. at 256). Because of plaintiff's
inability to complete the tests due to fear and anxiety, Dr.
Parker concluded that his assessment could not be seen as a
"valid estimate" (R. at 256). However, Dr. Parker was left with
the impression that plaintiff was a man with extremely limited
abilities (R. at 257).
Plaintiff filed an application for Supplemental Security Income
(SSI) on February 11, 1993 (R. at 125-28). Plaintiff's request
for SSI was based on complaints of migraine headaches and back
problems. The Social Security Administration denied plaintiff's
request on July 8, 1993 (R. at 129-37). It was explained that
plaintiff's condition was not severe enough to keep him from
working based on his age, education, training, and work
experience (R. at 137).
Rather than appeal the July 8, 1993, decision, plaintiff filed
a new application for SSI on February 22, 1994 (R. at 147-53).
Plaintiff's second application was denied on March 4, 1995 (R. at
154-57). On May 3, 1995, plaintiff filed a request for
reconsideration, arguing that the Social Security
Administration's determination was "contrary to the law and
facts" (R. at 158-59). On June 28, 1995, the Social Security
Administration affirmed the prior finding that plaintiff was not
disabled (R. at 170-73).
Plaintiff requested a hearing by an Administrative Law Judge
("ALJ") on September 6, 1995, and a hearing was held on December
4, 1995 (See R. at 68-124). On March 26, 1996, the ALJ, Bruce
R. Mazzarella, issued a decision holding that plaintiff was not
entitled to SSI on March 26, 1996 (R. at 34-60). The ALJ found
that plaintiff's allegations of migraine headaches and back pain
were out of proportion to the clinical and laboratory findings.
In addition, the ALJ found that plaintiff's "alleged complaints
and functional limitations are grossly exaggerated, inconsistent
over time and with his physical appearance, and unsupported by
medical evidence" (R. at 59). Based on plaintiff's "functional
capacity, age, education, and work experience," the ALJ concluded
that plaintiff is not disabled (R. at 59).
Plaintiff requested review of the ALJ's decision (R. at 29-31).
Plaintiff's request was denied by the Social Security Appeals
Council on October 4, 1996 (R. at 26-27). Additional
correspondence and evidence was then sent to the Appeals Council
on plaintiff's behalf (R. at 5-25). On December 17, 1996, the
Appeals Council notified plaintiff that it would stand by its
initial decision (R. at 4).
On February 18, 1997, plaintiff filed this action pursuant to
42 U.S.C. § 405(g). Defendant moved for judgment on the pleadings
pursuant to Rule 12(c), and plaintiff cross-moved for judgment on
the pleadings (Items 12, 15, 18). Defendant then moved to amend
the prior motion for judgment on the pleadings, seeking to remand
the proceedings to the Commissioner
of Social Security for further administrative proceedings
pursuant to the sixth sentence of 42 U.S.C. § 405(g) (Item 21).
Oral argument was held before the undersigned on November 5,
1998. In addition, the parties supplemented the record by filing
letter briefs with the court on December 10, 1998 (Items 25, 26).
I. Scope of Judicial Review
A party may seek review of decisions made in a hearing by the
Commissioner of Social Security in district court.
42 U.S.C. § 405(g). As part of the Commissioner's answer, the Commissioner is
file a certified copy of the transcript of the record
including the evidence upon which the findings and
decision complained of are based. The court shall
have power to enter, upon the pleadings and
transcript of the record, a judgment affirming,
modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be
conclusive, and . . . the court shall review only the
question of conformity with such regulations and the
validity of such regulations.
Id. Substantial evidence is defined as evidence which a
"reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971); see also Diaz v. Shalala,
59 F.3d 307, 314 (2d Cir. 1995). Therefore, the scope of judicial
review is limited. Mitchell v. Chater, 918 F. Supp. 675, 681
(W.D.N.Y. 1995). It is not within the court's powers to determine
whether the plaintiff is actually disabled. Rivera v. Chater,
942 F. Supp. 178, 182 (S.D.N.Y. 1996). Instead, the court must
consider "whether the record, read as a whole, yields such
evidence as would allow a reasonable mind to accept the
conclusions reached" by the Commissioner. Sample v. Schweiker,
694 F.2d 639, 642 (9th Cir. 1982). The Commissioner's findings
must be affirmed so long as they are not the product of legal
error. Rivera, 942 F. Supp. at 182.
The district court is not limited to just affirming, modifying,
or reversing the Commissioner's decision. The court may,
on motion of the Commissioner . . . remand the case
to the Commissioner of Social Security for further
action by the Commissioner of Social Security, and it
may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is
material and that there is good cause for the failure
to incorporate such evidence into the record in a
42 U.S.C. § 405(g). Remand under sentence six of § 405(g) is
appropriate when there is new evidence which is material, and
there was good cause for failing to incorporate this evidence
into the earlier proceeding. Lisa v. Secretary of DHHS,