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JONES v. APFEL

September 20, 1999

RUTH C. JONES, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Pauley, District Judge.

  MEMORANDUM AND ORDER

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.

BACKGROUND

Prior Proceedings

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.

Testimony at the Hearing

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 stopped treatment 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. 35 .)

Documentary Evidence

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.

The ALJ's Decision

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.)

DISCUSSION

Standard of Review

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.

Applicable Law

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)).

Analysis

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.

Developing the Record

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).

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 weight.

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 Act.

Treating Physician Rule

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.

New Evidence

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.

CONCLUSION

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 denied.

SO ORDERED.

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.

For the reasons set forth below, because the Administrative Law Judge failed to adequately develop the medical record, particularly concerning Jones's psychiatric treatment, I recommend that the Court grant Jones's motion for judgment on the pleadings to the extent of remanding to the Commissioner to further develop the record, and deny the Commissioner's motion.

PROCEDURAL BACKGROUND

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.

FACTS

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
    Without Counsel

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:

  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
  attorney?

CLMT [JONES]: Yes.

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 ...


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