The opinion of the court was delivered by: Pauley, District Judge.
The plaintiff, Ruth Jones ("Jones") brings this action against
the Commissioner of Social Security ("Commissioner") pursuant to
§ 205(g) of the Social Security Act, as amended,
42 U.S.C. § 405(g), seeking review of a final decision denying her disability
benefits. This matter was referred to a magistrate judge. Both
parties moved for judgment on the pleadings under Rule 12(c) of
the Federal Rules of Civil Procedure. The magistrate judge
recommended that the plaintiff's motion for judgment on the
pleadings be granted to the extent of remanding the action to the
Commissioner to further develop the record, and that the
Commissioner's motion for judgment on the pleadings be denied.
Neither party filed objections to the magistrate judge's report
and recommendation ("Report").
After a de novo review, this Court agrees that the ALJ failed
to adequately develop the record in reaching his determination of
Jones' residual functional capacity, and thus adopts the
magistrate judge's report.
On March 8, 1994, Jones applied for Social Security
Supplemental Security Income ("SSI") benefits on the basis of
psychiatric problems, diabetes and joint pain. (R. 41-44.)*fn1
That application was denied on August 17, 1994. Jones' request
for reconsideration on the basis of physical and mental
disability was subsequently denied on May 24, 1995. (R. 77-80.)
On February 12, 1996, Jones appeared pro se at a hearing before
an Administrative Law Judge ("ALJ"). On June 20, 1996, the ALJ
found that Jones was not disabled under the Social Security Act
because she retained the residual functional capacity to return
to her previous work, or to engage in other work which exists in
the national economy. (R. 9-16.) On February 5, 1998, the Appeals
Council denied Jones' request for a review of the ALJ's decision,
rendering the ALJ's decision final. (R. 4.) On March 25, 1998,
Jones, represented by the Legal Aid Society, commenced this
action under Section 205(g) of the Social Security Act.
Jones was born on March 1, 1945. At the time of the hearing,
she had achieved an eleventh grade education. She was taking
Impurity 100 Insulin for her diabetes, and Duptap (phonetic) for
her nerves. At the time of the hearing, Jones was living with her
cousin, Cora Tapp, for a few months. (R. 23, 27, 31, 33.) Jones
testified that she experienced daily episodes of weakness,
falling, painful arthritis, sudden blackouts, unexplained weight
loss, and blurry vision. (R. 27-30.) Jones testified that she had
been treated for her diabetes during 1994 and 1995 by Dr. Coven
at the Soundview Health Clinic, but that she was presently
looking for another physician. (R. 31, 35.) She testified that
she was treated for her arthritis by Dr. Coven as well, but had
since she left the Soundview Health Clinic. (R. 29.) She also
stated that she was being treated for "her nerves" by a
psychiatrist at Bronx Mental Health Services. (R. 30.) The record
reveals that Jones started receiving treatment from the
psychiatrist in February 1996. (R. 23.) Jones also stated that
she had last worked as a home attendant for an elderly woman in
1983. (R. 26.) This job involved bathing the woman, as well as
shopping and cooking for her. It also involved lifting the
elderly woman whom Jones described as "very heavy." (R. 27.)
Jones' cousin, Cora Tapp, ("Tapp") with whom she lived, also
testified at the hearing. She stated that Jones had lost
considerable weight, and that she needed help with routine daily
activities, such as grocery shopping, and running errands. (R.
33.) She also corroborated Jones' testimony regarding her sudden
blackouts, adding that it would be necessary to place a piece of
candy under Jones' tongue to revive her during a those times. (R.
In reaching his decision, the ALJ relied on four patient notes
signed by Dr. A. Egbunike from Bronx Lebanon Family Practice
Center ("Bronx Lebanon"), and an x-ray report by Dr. J.C.
Tourlitsas, also from Bronx Lebanon. The first patient note,
dated February 24, 1994, indicated that Jones had a history of
depression for the past four years, and recommended iron sulphate
for her anemia. (R. 125.) The second patient note, dated March 1,
1994, diagnosed her with "uncontrolled" diabetes and reflected
that she was being treated for depression with Hydroxyzine. The
x-ray report, dated March 2, 1994, indicated that Jones suffered
from hypertension and diabetes. (R. 129.) However, her heart,
lung and pleuro-diaphragm were normal. (R. 129.) The third
patient note, dated March 29, 1994, stated that while Jones'
hypertension was under control, her diabetes remained
uncontrolled. (R. 124) The fourth patient note, dated April 27,
1994, stated that Jones' diabetes appeared to be controlled, that
her hypertension was well-controlled, and that she was still
seeing a psychiatrist and being treated with Hydroxyzine. The
note also recommended that Jones continue to take iron sulphate
for her anemia. (R. 123.)
The ALJ also reviewed three consultative physical examination
reports, conducted on behalf of the Commission, dated March 4,
1994, July 1, 1994 and April 18, 1995, and three consultative
psychiatric examination reports, dated March 8, 1994, July 1,
1994 and April 18, 1995. In addition, the ALJ considered two
residual functional capacity assessments, dated August 24, 1994
and May 10, 1995.
At the conclusion of the hearing, the ALJ asked Jones to obtain
three medical reports: a physical report from Dr. Coven of the
Soundview Health Clinic, where Jones had been treated during 1994
and 1995; a physical report from Dr. Walsh of Bronx Lebanon, and
a mental report from the Bronx Mental Health Services. (R.
36-38.) The ALJ specifically stated that Dr. Coven from Soundview
Health Clinic would be considered Jones' treating physician. (R.
25.) He also acknowledged both Dr. Walsh and the unidentified
psychiatrist examined Jones only once, and thus, might not "be in
a position to give a report if they've only seen [Jones] once or
twice." (R. 25.)
The ALJ encouraged Jones' cousin to help her get the reports,
and instructed Jones that if he did not hear from her in thirty
days, he would "consider the record closed." (R. 38.) At the
expiration of the thirty days, the ALJ wrote to Jones, stating
that if he did not hear from her within ten days, he would "issue
a decision." (R. 160.)
Medical Evidence Submitted to the Appeals Council
On August 15, 1996, Dr. Walsh submitted a report, dated August
14, 1996, to the Appeals Council. (R. 161-68.) The report stated
that a physical examination of Jones conducted on August 9, 1996,
was normal, except for an enlarged liver and anemia. (R. 163.)
Dr. Walsh found that Jones could stand, walk, lift and carry,
despite her impairments. He also found that she could
occasionally carry up to 20 pounds a day and that she could sit
for eight hours a day; and for three hours without interruption.
(R. 167.) Dr. Walsh also found that Jones could occasionally
climb, kneel, crouch, stoop, balance and crawl, and that her
impairments did not prevent her from reaching, handling,
speaking, feeling, pushing, pulling or hearing. (R. 167.) The
only environmental limitation on working noted by Dr. Walsh, was
the minimization of temperature extremes. (R. 168.)
This Court conducts a de novo review of the findings or
recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1)(C). In deciding a motion for judgment on the pleadings,
the court may consider only the factual allegations in the
complaint and answer. Fed.R.Civ.P. 12(c). A party is entitled to
judgment on the pleadings only if it establishes that no material
facts remain to be resolved, and that it is entitled to judgment
as a matter of law. See Carballo v. Apfel, 34 F. Supp.2d 208,
213 (S.D.N.Y. 1999) (citing Juster Assocs. v. Rutland,
901 F.2d 266. 269 (2d Cir. 1990)).
The Social Security Act provides that the "findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive." See 42 U.S.C. § 405(g); see
also Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Reynoso v.
Apfel, 1998 WL 61002, at *6, 1998 U.S. Dist. LEXIS 1549, at *17
(S.D.N.Y. 1998). "Substantial evidence" in this context is "more
than a mere scintilla. It means such relevant evidence as 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) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938));
see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
In determining whether the Commissioner's conclusions are
supported by substantial evidence, the reviewing court "must
first be satisfied that the claimant has had a full hearing under
the Commissioner's regulations and in accordance with the
beneficent purposes of the Act." Cruz v. Sullivan, 912 F.2d 8,
11 (2d Cir. 1990). Moreover, the Act must be construed liberally
because it is a remedial statute that is intended to include,
rather than exclude, potential recipients of benefits. Id.
In evaluating disability claims, the Commissioner is required
to use the five-step process promulgated in 20 C.F.R. § 404.1520
and 416.920. First, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity. Second,
if the claimant is
not so engaged, the Commissioner must determine whether the
claimant has a "severe impairment" which significantly limits his
ability to work. Third, if the claimant does suffer such an
impairment, the Commissioner must determine whether it
corresponds with one of the conditions presumed to be a
disability by the Social Security Commission. If it does, then no
further inquiry is made as to age, education or experience, and
the claimant is presumed to be disabled. If the impairment is not
the equivalent of a condition on the list, the fourth inquiry is
whether the claimant is nevertheless able to perform his past
work. If he is not, the fifth and final inquiry is whether the
claimant can perform any other work. The burden of proving the
first four elements is on the claimant, while the burden of
proving the fifth element is on the Commissioner. See Felicie v.
Apfel, 1998 WL 171460, at *2, 1998 U.S. Dist. LEXIS 5068, at *4
(S.D.N.Y. 1998) (quoting Bush v. Shalala, 94 F.3d 40, 44-45 (2d
Cir. 1996)). The Commissioner satisfies his burden at the fifth
step by resorting to the applicable vocational guidelines/grids.
20 C.F.R. Pt. 404, Subpt. P., App. 2 (1986). Although the grid
results are generally dispositive, exclusive reliance on them is
inappropriate where the guidelines fail to describe the full
extent of the claimant's physical limitations. Montes-Ruiz v.
Chater, 1997 U.S.App. LEXIS 32217, at *78 (2d Cir. 1997).
In addition, in determining whether a claimant is disabled, the
Commissioner must consider: 1) objective medical facts and
clinical findings; 2) diagnoses and medical opinions of examining
physicians; 3) the claimant's subjective evidence of pain and
physical incapacity as testified by himself and the individuals
who observed him; and 4) the claimant's age, educational
background, and work history. Brunson v. Apfel, 1998 WL 557593,
*4, 1998 U.S. Dist. LEXIS 13551, at *10 (S.D.N.Y. 1998) (quoting
Carroll v. Secretary of Health and Human Servs., 705 F.2d 638,
642 (2d Cir. 1983)).
In this action, the magistrate judge found that the ALJ failed
to assist Jones in obtaining the medical reports of her treating
physicians, Dr. Coven at Soundview Health Clinic, Dr. Walsh at
Bronx Lebanon, and the unidentified psychiatrist at Bronx Mental
Health Services. Report at 32. Recognizing the ALJ's
affirmative duty to obtain medical evidence from a plaintiff's
treating physician, the magistrate judge found that the ALJ had
failed to adequately develop the record, and recommended that the
action be remanded to the Commissioner for further fact-finding.
Id. This Court adopts the report and recommendation of the
magistrate judge with respect to Dr. Coven, but does not agree
that Dr. Walsh from Bronx Lebanon and the psychiatrist from Bronx
Mental Health Services are treating physicians.
It is well settled in this Circuit that the ALJ, unlike a judge
at trial, must affirmatively develop the record in light of the
essentially non-adversarial nature of a benefits proceeding.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (quoting
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996.) (quoting
Echevarria v. Secretary of Health and Human Servs.,
685 F.2d 751, 755 (2d Cir. 1982))). Under the regulations, the Secretary
must develop the plaintiff's "complete medical history," and make
"every reasonable effort" to help the plaintiff get the required
medical reports. 20 C.F.R. § 404.1512(d). "Every reasonable
effort" has been defined by the regulations to require an initial
request for medical evidence from the medical source, and a
follow-up request, followed by a ten-day extension, if the
requested evidence has not been received within ten to twenty
calendar days. 20 C.F.R. § 404.1512(d)(1).
However, in cases involving pro se plaintiffs, this affirmative
duty is heightened.
See Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). The ALJ
must take all reasonable steps to obtain past and current medical
evidence and assessments from treating sources identified by a
pro se plaintiff, in order to complete the administrative record.
Almonte v. Apfel, 1998 WL 150996, at *4, 1998 U.S. Dist. LEXIS
4069, at *11 (S.D.N.Y. 1998). "Reasonable efforts" in this
context entails more than merely requesting reports from the
treating physicians. It includes issuing and enforcing subpoenas
requiring the production of evidence, as authorized by
42 U.S.C. § 405(d), and advising the plaintiff of the importance of the
evidence. Id. 1998 WL 150996, at *7, 1998 U.S.Dist LEXIS at
*20-21. The ALJ must also enter these attempts at evidentiary
development into the record. Id. 1998 WL 150996, at *4, 1998
U.S.Dist LEXIS at *11-12.
In this action, the administrative record lacks any medical
report from Dr. Coven, Jones' treating physician. The ALJ failed
to issue a subpoena to Dr. Coven. See Almonte, 1998 WL 150996,
at *4, 1998 U.S. Dist. LEXIS 4069, at *11. The ALJ also neglected
to ask Jones any questions about her psychiatric condition or how
it affected her ability to work. In Bosmond v. Apfel, 1998 WL
851508, 1998 U.S. Dist. LEXIS 19078 (S.D.N.Y. 1998), the court
noted that remand would be appropriate where the ALJ disregarded
the plaintiff's testimony or medical evidence, and simultaneously
failed to inquire further into facts that could support the
plaintiff's contentions. Remand would also be appropriate where
the ALJ's neglect in pursuing information led to gaps in the
record. Id. 1998 WL 851508, at *9, 1998 U.S.Dist. LEXIS at *29.
Here, the ALJ failed to obtain Dr. Coven's report, even though
it would have provided relevant information about Jones' medical
condition. The magistrate judge stated that the ALJ left it
entirely to the plaintiff to obtain the necessary reports.
Report at 32. Although the ALJ complied with the minimum
requirements of the regulations by re-contacting Jones and giving
her a ten-day extension, this approach is insufficient to satisfy
the heightened duty required for pro se plaintiffs. The ALJ then
issued a decision based solely on consultative medical
evaluations and his own subjective observations of Jones in
court, without affording Jones the benefit of medical records
from her treating physician, or according her testimony any
Such omissions have formed a basis for remand in the past. See
Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998). In Schaal, the
plaintiff's case was remanded because the ALJ made no effort to
obtain medical records from a physician identified by the
plaintiff as her treating physician during the relevant time.
Id. at 499. See also Montes-Ruiz v. Chater, 1997 U.S.App.
LEXIS 32217 (2d Cir. 1997) (ALJ did not adequately develop the
record when he failed to obtain reports from medical facilities
where claimant had been treated for back problems.) Where there
are gaps in the administrative record, remand to the Commissioner
for further development of the evidence is appropriate. Rosa v.
Callahan, 168 F.3d 72, 82 (2d Cir. 1999) (quoting Pratts v.
Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980))).
In this case, Dr. Coven was treating Jones at the time she
first applied for SSI benefits in 1994, and continued treating
her through 1995, for the condition alleged in her application.
It was incumbent upon the ALJ to actively seek out medical
reports from him. The magistrate judge was correct in finding
that such an omission simply cannot result in a "well-supported"
finding that Jones was not disabled under the Social Security
Although the term "treating physician" is not defined in the
Social Security Act, Coty v. Sullivan, 793 F. Supp. 83, 85
(S.D.N.Y. 1992), the Second Circuit defined the term in Schisler
v. Bowen, 851 F.2d 43
(2d Cir. 1988). A "treating physician" is the claimant's "own
physician, osteopath or psychologist (including outpatient clinic
and health maintenance organization) who has provided the
individual with medical treatment or evaluation, and who has or
who had an ongoing treatment and physician-patient relationship
with the individual." Id. at 47. Having treated Jones' diabetes
for two years on an ongoing basis, Dr. Coven falls within this
definition. Because Dr. Walsh from Bronx Lebanon, and the
psychiatrist at Bronx Mental Health Services had examined Jones
only once, they lacked an ongoing physician-patient relationship
with her and therefore do not fall within the definition of
"treating physician". Although the ALJ acknowledged that Dr.
Walsh and the psychiatrist "might not be in a position" to submit
reports on Jones, (R. 25), the magistrate judge identified them
as treating physicians. (Report at 32). This Court disagrees with
that finding and therefore does not adopt the magistrate judge's
report with respect to Dr. Walsh and the psychiatrist.
The opinion of a treating physician is given controlling weight
if it is well supported by medical findings and not inconsistent
with substantial evidence. Rosa v. Callahan 168 F.3d 72, 78 (2d
Cir. 1999) (quoting Clark v. Commissioner of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998) (citing
20 C.F.R. § 404.1527(d)(2)))). Section 223(d)(5) of the Social Security Act
requires that the Secretary attempt to obtain medical evidence
from the treating physician prior to evaluating medical evidence
obtained from any other source on a consultative basis.
[Emphasis added.] 42 U.S.C. § 423(d)(5). The Second Circuit held
these regulations to be binding on the courts. Schisler v.
Sullivan, 3 F.3d 563 (2d Cir. 1993). The ALJ was therefore
obligated not only to obtain the treating physician's reports,
but to do so prior to evaluating the reports of the consultative
physicians. In this case, the ALJ failed to do this.
Dr. Walsh's report, dated August 14, 1996, was submitted as new
evidence to the Appeals Council. Additional evidence submitted to
the Appeals Council is part of the administrative record. See
Perez v. Chater, 77 F.3d 41, 45 (1996); see also
20 C.F.R. § 404.970(B), 416.1470(B). Although Dr. Walsh's report supports the
ALJ's decision, Walsh's report is not indicative of Jones'
condition for the entire relevant period for which she applied
for benefits. Alleging that her disability began on January 1,
1994, Jones applied for SSI benefits on March 8, 1994, more than
two years prior to Dr. Walsh's report. Thus, the reports of Dr.
Coven, are indispensable.
For the reasons set forth, this Court adopts the report of the
magistrate judge, remanding the action to the Commissioner for
further fact-finding in accord with this order. Jones' motion for
judgment on the pleadings is granted to the extent of the remand,
and the Commissioner's motion for judgment on the pleadings is
REPORT AND RECOMMENDATION
Plaintiff Ruth Jones brings this action, pursuant to section
205(g) of the Social Security Act (the "Act"),
42 U.S.C. § 405(g), challenging the final decision of the Commissioner of
Social Security (the "Commissioner") to deny her disability
benefits. Both parties have cross-moved for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). Although Jones was not
represented by counsel before the Commissioner, she is
represented in this proceeding by the Legal Aid Society.
On March 8, 1994, Jones applied for Social Security
Supplemental Security Income ("SSI") benefits on the basis of
psychiatric problems, diabetes and joint pain. (Administrative
Record filed by the Commissioner [hereafter, "R."], at 41-44.)
Jones's application was denied on August 17, 1994. (R. 63-66.)
Jones's request for reconsideration, on the basis of physical
(disability and pain) and mental disability (R. 67), was denied
on May 24, 1995. (R. 77-80.) At Jones's request (R. 81), a
hearing was held before an administrative law judge ("ALJ") on
February 12, 1996. (R. 18-40.) Jones was not represented by an
attorney at that hearing. (R. 20-21.) On June 20, 1996, the ALJ
issued his decision finding that Jones was not disabled. (R.
9-17.) The ALJ's decision became the final decision of the
Commissioner when the Appeals Council denied Jones's request for
review on February 5, 1998. (R. 4-6.) This action followed.
A. The Hearing Before the ALJ
On February 12, 1996, the ALJ held a hearing on Jones's SSI
application. (R. 18-40.) Jones and her cousin, Cora Tapp,
testified. (Id.) At the time of the hearing, Jones was 50 years
old. (R. 26.)
1. Jones's Request for Counsel and Her Decision to Proceed
At the commencement of the hearing, the ALJ noted that Jones
appeared pro se and asked if she wanted an attorney. (R. 20.)
Jones said yes, and then was essentially talked out of it by the
ALJ: You're here today without a representative and
typically a representative is an attorney. Do you
understand that you have the right to have an
ALJ: And do you wish to have an attorney here?
[JONES]: I wouldn't mind. When I called them, you
know, they told me that today was the only day I
could get so I told her if I got out I would call her
and make an appointment with her today because —
ALJ: Well, who are you referring to when ...