position was standing, while his most uncomfortable position was
sitting. At the time of the examination, Elias was taking Vicodin
medication. Dr. Choi also noted that while Elias was depressed,
he was alert and oriented. Also, significantly, he had full range
of motion of his cervical spine and his range of motion of his
extremities and muscle strength were grossly normal. However, the
range of motion of his lumbar spine was restricted. Elias also
experienced decreased sensation in his left extremities. His deep
tendon reflexes were normal and equal. Dr. Choi made a diagnosis
of myofascial pain syndrome associated with degenerative disc
disease of the lower spine due to injury. She recommended
acupuncture to decrease Elias' pain.
On January 11, 1995, Elias applied for Social Security
Disability benefits. On February 11, 1995, Dr. Choi prepared a
report at the request of the Office of Disability Determination.
In her report, Dr. Choi indicated that she first examined Elias
on June 29, 1994, and thereafter saw him three times a week,
although the frequency of visits had been reduced to once every
two weeks at the time of the report. Dr. Choi's findings included
decreased sensation of the left extremities, normal and equal
deep tendon reflexes, no atrophy, no motor deficit, and positive
straight leg raising on the left at eighty degrees at rest. Dr.
Choi noted that Elias did not have significant abnormality in
gait, and did not require an assistive device to walk.
In the opinion of Dr. Choi, Elias could not continue to work as
a cab driver, but importantly, she concluded that Elias could
perform light work. Dr. Choi specified that Elias could lift and
carry a maximum of twenty pounds, and stand and/or walk, as well
as sit, up to six hours a day.
On February 23, 1995, at the request of the Administration, Dr.
S. Dutta, a surgeon, conducted a consultative examination. After
physically examining Elias, Dr. Dutta made a diagnosis of a
herniated disc at the L4-5 level with left lumbar radiculopathy.
Significantly, Dr. Dutta also concluded that Elias was able to
perform limited desk work on a part time basis.
C. The Hearing
Elias appeared pro se before the ALJ on June 12, 1996. At the
time of the hearing, Elias was solely under the care of a
chiropractor and was taking Vicodin medication. Elias testified
that he lived with his wife. He also testified that he had pain
in the middle of his back, as well as in his shoulders. Elias
claimed that he had difficulty sleeping, and that the Vicodin
made him feel "half dead." He was able to dress himself, although
his day often consisted of "wandering around" as he lacked
concentration. Elias would sometimes go with a friend to "visit
people or go to church." He did not perform housework, nor did he
shop. Elias further stated that he could not sit and stand for
prolonged periods, and that he did not walk much. As such, Elias
submits that he was entitled to disability benefits from December
31, 1993 through July 23, 1996, the period between the date Elias
alleges he became disabled and the date of the ALJ's decision.
D. The ALJ's Decision
On July 23, 1996, the ALJ issued a written decision denying
Elias' application for benefits, concluding that "the claimant
was not under a disability as defined in the [Social Security]
Act at any time throughout the date of this decision." The ALJ
found that Elias was able to perform light work. Specifically,
the ALJ held that "the claimant is severely impaired by cervical
and lumbar myofascial syndromes but, retains a residual
functional capacity compatible with the performance of light
work. . . ." The ALJ also held that "the claimant is not disabled
within the framework of Rule 202.14 of Table No. 2, Appendix 2,
Subpart P, Part 404 of the Regulations," as it "mandates a
finding of not disabled for a high school graduate, who is
closely approaching advanced age, despite
a lack of transferable work skills." In addition, the ALJ noted
Elias' subjective symptomatology, but concluded that because they
"are largely unsubstantiated by the medical evidence, such
symptomatology cannot be characterized as debilitating."
Elias appealed, and on October 9, 1997, the Appeals Council
denied his request for review pursuant to
20 C.F.R. § 404.970. The central issue before this Court, therefore, is
whether the Commissioner's decision, affirmed by the ALJ and the
Appeals Council, that Elias was not disabled between December 31,
1993 and July 23, 1996, is supported by substantial evidence. In
addition, the Court will consider whether the ALJ erred by not
requesting the presence of a vocational expert to determine
whether the plaintiff could perform light work and, whether the
plaintiff received a fair hearing as he appeared before the ALJ
without the benefit of counsel.
A. Standard for Rule 12(c) Motion for Judgment on the
Under Rule 12(c) of the Fed.R.Civ.P. the Court must apply the
same standard of review as applicable to a motion to dismiss
under Rule 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d
Cir. 1994); S.O. Textiles v. A & E Products Group, 18 F. Supp.2d 232,
238 (E.D.N.Y. 1998). Under this test "the Court must accept
the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the non-movant; it should not
dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Sheppard, 18 F.3d at 150 (quoting
Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v.
Bernard M. Baruch College, 835 F.2d 980, 982 [2d Cir. 1987])
B. Scope of District Court's Review of ALJ's Findings
Judicial Review of an ALJ's ruling denying Social Security
benefits is limited. Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998). In examining the ALJ's decision "it is not the
[Court's] function to determine de novo whether the [plaintiff]
is disabled". Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(quoting Pratts v. Chater, 94 F.3d 34, 37 [2d Cir. 1996])
(internal quotation marks omitted). Rather, the district court
must "review the Commissioner's decisions to determine whether
they are supported by substantial evidence." Snell v. Apfel,
177 F.3d 128, 132 (2d Cir. 1999) (citing 42 U.S.C. § 405[g]
; Rivera v. Sullivan, 923 F.2d 964, 967 [2d Cir. 1991]).
"Substantial evidence is `such evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Snell, 177
F.3d at 132 (quoting Richardson v. Perales, 402 U.S. 389, 401,
91 S.Ct. 1420, 28 L.Ed.2d 842 ). Substantial evidence is
more than a mere scintilla. Schaal, 134 F.3d at 501 (quoting
Richardson, 402 U.S. at 401, 91 S.Ct. 1420 ) (citations
omitted). "It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Id.
Where the findings are supported by adequate evidence "the
Court should not substitute its judgment for that of the
Commissioner." Yancey, 145 F.3d at 111; see also Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). The determinations of
the Commissioner will be conclusive if supported by substantial
evidence and where there is no legal error. 42 U.S.C. § 405(g);
Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981); Smith
v. Shalala, 856 F. Supp. 118, 121 (E.D.N.Y. 1994). Finally, the
ALJ has an affirmative obligation to develop the administrative
record even when the claimant is represented by counsel.
Schaal, 134 F.3d at 505.
C. Right to Counsel and a Full and Fair Hearing
Prior to determining if the Commissioner's decision is
supported by substantial evidence, the Court must ascertain
whether Elias received a full and fair hearing. See Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Rivera v. Chater,
942 F. Supp. 178, 183 (S.D.N.Y. 1996). A claimant is entitled to be
represented by counsel at a disability hearing, and the ALJ must
ensure that the claimant is aware of that fundamental right.
See 20 C.F.R. § 404.916(b)(2); Robinson v. Secretary of Health
and Human Servs., 733 F.2d 255, 257 (2d Cir. 1984). The Court
finds that the ALJ adequately informed Elias of his right to
representation. At the hearing, the ALJ asked Elias, "You're here
. . . without an attorney or representative . . . I assume . . .
that you wish to represent yourself?" Elias responded, "Yes."
See Rivera, 942 F. Supp. at 183 (claimant acknowledged at the
hearing that she wished to proceed without counsel).
Further, in a pro se case, the ALJ has a heightened duty to
affirmatively develop the record to ensure that the claimant's
rights are adequately protected. See Cruz, 912 F.2d at 11;
Rivera, 942 F. Supp. at 183. Unlike the situation in Echevarria
v. Secretary of Health and Human Servs., 685 F.2d 751, 755 (2d
Cir. 1982), where the ALJ failed to adequately explore the nature
and extent of the claimant's subjective symptoms, and unlike the
facts in Rivera, 942 F. Supp. at 184, where the ALJ failed to
inquire into the scope of the activities in which the claimant
currently engaged, in the instant case the ALJ fulfilled his duty
to carefully and conscientiously probe and explore all the
relevant facts. During the hearing, the ALJ asked Elias about his
work as a cab driver, the nature of his impairments, his
symptoms, his treatment, as well as his daily activities and
routine. Without the benefit of counsel, Elias nonetheless
received a full and fair hearing.
D. Qualifying for Social Security Disability Benefits Under
the Social Security Act
In order to qualify for disability benefits, "an individual
must be 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 12 months.'" Brown v. Apfel, 174 F.3d 59, 62 (2d
Cir. 1999) (quoting 42 U.S.C. § 423[d][A] ). The
claimant is disabled "only if his physical or mental impairments
are 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. § 423(d)(2)(A).
In evaluating a claimant's disability, the Federal Regulations
provide a detailed five-step analysis that has been summarized by
the Second Circuit as follows:
First, the Secretary considers whether the claimant
is currently engaged in substantial gainful activity.
If he is not, the Secretary next considers whether
the claimant has a "severe impairment" which
significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 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. Under the cases previously
discussed, the claimant bears the burden of proof as
to the first four steps, while the Secretary must
prove the final one.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)
(quoting Berry v. Schweiker,