OPINION AND ORDER
Plaintiff Gisela Devora brings this action pursuant to
42 U.S.C. § 405 (g) to obtain judicial review of the final decision
of the Commissioner of Social Security (the "Commissioner") denying her
disability and Supplemental Social Security benefits.*fn1 The
Commissioner has moved for judgment on the pleadings on the ground that
her decision was supported by substantial evidence. Devora opposes this
motion and has requested that the matter be remanded for a new hearing.
On February 21, 2002, the parties consented to determination of this case
by a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c).
For the reasons set forth below, the Commissioner's motion is denied and
Devora's motion for a remand is granted.
I. FACTUAL BACKGROUND
A. Procedural History
On October 19, 1998, Devora submitted applications for disability
benefits and for
supplemental security income benefits based on
disability. R. 58-61, 163-66.*fn2 These applications were denied
initially and on reconsideration. R. 37-40, 43-46. Subsequently, Devora
requested a hearing before an Administrative Law Judge ("ALJ"). R. 47.
The hearing was held on July 1, 1999. R. 19-34. Devora, who spoke through
an interpreter at the hearing, appeared without an attorney or any other
representative. R. 19, 21. On September 14, 1999, the ALJ issued a
decision finding that Devora was not entitled to disability benefits. R.
8-17. This decision became final on December 6, 2000, when the Appeals
Council denied Devora's request for review. R. 4-6. Devora presented a
timely complaint to the Pro Se Office of this Court on February 5, 2001.
An attorney filed a notice of appearance on behalf of Devora on May 2,
B. Evidence Presented at the Hearing
Devora was born on November 11, 1942, in Santo Domingo, Dominican
Republic. R. 24. She had been in the United States since 1977. R. 25. She
completed four years of school. R. 26. Devora does not speak any
English. R. 25.
Devora's previous employment was as a sewing machine operator and a
floor worker in a clothing factory. R. 25, 67, 87. She worked at these
positions from January 1977 to May 1998. R. 67, 87. Devora's work in the
clothing factory required seven hours a day of standing and one hour of
sitting. R. 67. The positions did not require any walking. R. 67. Devora
was not required to lift more than 10 pounds during her employment. R.
67. Devora stopped working in 1998, when she was laid off and began
collecting unemployment insurance benefits. R. 25, 26. According to the
interpreter at the hearing, Devora had stated to him while reviewing her
case file that her employer had laid her off "because she was ill on the
job and he saw that she wasn't strong and she wasn't able to do the job."
Devora stated that when she walks she gets a pain in the left side of
her neck. R. 30. She also testified that she could not stand up for any
length of time. R. 30. She stated that if she sits for a while she has to
lie down and if she stands for "a second" she has to sit back down. R.
30. She was also not able to carry anything and could "barely walk" due
to pain in her back. R. 30. She was able to lift 5 to 10 pounds. R. 30.
In terms of daily activities, Devora stated that she went to church.
R. 31. She was advised that she should walk for exercise. R. 32. She was
able to read and watch TV a little. R. 31. At home, she prepared meals
and washed dishes. R. 31-32. She was barely able to wash and dress
herself, at times because of "incredible" pain in her back. R. 32.
Sometimes her daughter or a friend would help her get dressed. R. 32. She
also complained of pain in the bottom of her foot and pain in the bone of
her right leg "like it's going to explode" if she stood for too long. R.
Devora stated that she had not been treated for depression. R. 30. She
took one 400 milligram tablet of Ibuprofen every six hours, two 40
milligram tablets of Monopril per day and 500 milligrams of calcium twice
a day. R. 27-28.
Devora claimed she had previously been treated for her impairments by a
Dr. Ralph Barrauco. R. 23. However, no records were received from Dr.
Barrauco in response to two separate requests made by the ALJ. R.
124-25. Devora then went
to Harlem Hospital, but ceased treatment there
because "they didn't understand me." R. 23. Subsequently, she began
treatment at Metropolitan Hospital Center. R. 23.
During her testimony, the ALJ requested that Devora have her doctor
fill out a form entitled "Medical Assessment of Ability to Do Work
Related Activities, Physical," R. 29-30, 32 33, stating that the form was
"very important." R. 29. The ALJ stated that there was a "good chance"
that she would be found disabled, but that she had to have the right
documentation. R. 29. He also stated that she should not "worry about it"
but should "just do the best" that she could to get her doctor to fill
out the form. R. 33.
2. Medical Records
Devora's medical records reflected that she was seen at Harlem Hospital
on October 6, 1998. R. 117-18. She reported a two-year history of joint
pain in both shoulders, the lower back, her wrists and knees. R. 118. She
was not in any distress during that examination. R. 118. The examining
physician found that Devora was obese and had a crepitant right knee but
that she did not have any swelling or reduction of range of motion. R.
118. The examining physician's assessment was that Devora was suffering
from obesity, arthritis and hypertension. R. 117. Devora was recommended
to lose weight, exercise and adhere to a low salt diet. R. 117. It was
also recommended that she take medicine for her high blood pressure. R.
On October 22, 1998, Devora began receiving treatment at Metropolitan
Hospital Center. R. 22, 76, 15 1-54. On her first visit, Devora's blood
pressure was 150/100. R. 152. She stated that she had not taken any
medication since October 6, 1998. R. 152. A week later when she was
examined, her blood pressure was listed as 140/90. R. 150. Devora denied
any headaches, dizziness, chest pain or shortness of breath. R. 150.
On December 31, 1998, also at Metropolitan Hospital Center, Devora
reported pain in her legs and hips that was worse with movement but
improved with rest and nonsteroidal inflammatory medication. R. 148. She
had crepitation in the knees, but she exhibited full range of motion and
there were no effusions. R. 149. Her blood pressure was 140/90 and she
weighed 219 pounds. R. 149. Devora's blood pressure medication was
changed and an exercise program was recommended. R. 149. She returned for
another blood pressure reading on January 14, 1999, where she reported
that she was taking her medication and had no complaints at that time.
R. 146. Her blood pressure was 150/100. R. 146.
Devora was seen by a dietician on February 15, 1999. R. 145. She was
measured to be 61" tall and weighed 216 pounds, which was 187% of her
desirable body weight. R. 145. She was instructed by the dietician on a
weight reduction diet, low fat cooking methods and healthy, balanced
meals. R. 145.
On February 26, 1999, Devora again visited Metropolitan Hospital Center
and presented with complaints of knee pain that increased with walking.
R. 140. She was found to have crepitus of the right knee and bilateral
pitting edema. R. 140. She denied any shortness of breath, palpitations or
chest pain. R. 140. Her blood pressure medication was increased; diet and
exercise were recommended for her obesity. R. 141. The treating physician
prescribed weight loss and Motrin as treatment for Devora's degenerative
joint disease. R. 141. Devora returned for refills of her medicine on
April 28, 1999, but
did not present any additional complaints at that
time. R. 138.
On her next visit to Metropolitan Hospital Center, which took place on
May 21, 1999, Devora's health problems were identified as hypertension,
obesity and degenerative joint disease. R. 134. Her weight had increased
to 219 pounds. R. 134. Her blood pressure was 140/96. R. 134. Crepitus of
her right knee with inflammatory signs and bilateral pitting edema were
also noted. R. 134. The record stated that Devora had been noncompliant
with her low cholesterol diet and her dietary restrictions were
reinforced. R. 135. When she returned on June 25, 1999 for a blood
pressure reading her blood pressure remained at 140/90. R. 133.
On July 21, 1999, at her examination at Metropolitan Hospital Center,
she was 217 pounds and her blood pressure was 130/90. R. 132. Devora
denied chest pain, shortness of breath or any other breathing problems.
R. 132. She presented with bipedal pitting edema. R. 132. Her treating
physician assessed Devora as having hypertension and hyperlipemia; he
recommended diet, exercise and weight loss. R. 132.
3. Examination by Consultative Physician
On November 4, 1998, Devora was examined by Dr. Grossman, a
consultative physician. R. 91-97. Devora reported a two year history of
back pain, joint pain and hypertension. R. 91. Devora's gait and station
were normal. R. 92. There was no spasm or tenderness in the spine and the
range of motion was normal. R. 92. Devora had full range of motion in all
joints and no swelling. R. 93. Her muscle strength was adequate and no
muscle wasting was present. R. 92. Devora was able to make a full fist
bilaterally, stand on her toes and perform a full squat. R. 93. An EKG
showed a normal sinus rhythm with a heart rate of 75. R. 94. X-rays
showed degenerative changes with joint effusion in the right knee and
degenerative, discogenic and positional changes in the lumbosacral
spine. R. 95. However, Dr. Grossman found that Devora's history of back
pain and joint pain were not correlated by his clinical findings. R. 93.
Her blood pressure was elevated, however, and she was advised to seek
medical attention in regard to that issue. R. 93-94. Dr. Grossman's final
opinion as to Devora's impairments was that she had no disability with
respect to functions such as lifting, carrying, sitting, standing or
walking. R. 94.
4. Re-Opening The Record
Following the July 1, 1999 hearing, the ALJ re-opened the record on
August 26, 1999, to admit into evidence medical records from Metropolitan
Hospital Center dated November 12, 1998 to August 23, 1999. R. 33.*fn3
On August 27, 1999, the ALJ re-opened the record once again to state that
"Exhibit 8-F — Medical assessment of ability to do work related
activities, physical," was "not going to be admitted as evidence because
the form was not filled out by the doctor." R. 34. The record was then
closed and the hearing transcript certified. R. 34.
C. The ALJ's Decision
On September 15, 1999, the ALJ issued his decision on Devora's claim
for disability benefits. The ALJ determined that Devora "has not been
under a "disability' under
sections 216(i) and 223 of the Social
Security Act since May 18, 1998 through the date of this decision." Id.
at 16. The findings of the ALJ in support of this decision were as
1. The claimant will be last insured for Title II
insurance benefits on December 31, 2002.
2. The claimant has not performed any substantial
gainful activity since May 18, 1998, the alleged
onset date of disability. 20 C.F.R. § 404.1571,
3. The claimant's impairment that is considered
"severe" under the Social Security Act is
degenerative joint disease. The claimant also has
the following "non-severe" impairments: 1)
hypertension; 2) obesity; and 3) hyperlipemia.
20 C.F.R. § 404.1520 (c), 416.920(c),
404.151521, 416.921, Social Security Ruling
4. The claimant's impairment does not meet or equal
the appropriate medical findings contained in
20 C.F.R. part 404, Appendix 1 to subpart P (Listing
5. The claimant's allegations of symptoms and
limitations are not supported by the objective
medical evidence or by her own statements,
admissions or testimony.
6. The objective medical evidence establishes that the
claimant has a current residual functional capacity
for exertionally light work as the term is defined
by the Regulations. 20 C.F.R. § 404.1567 (b),
7. The claimant can perform her past relevant work
experience, which included that of an industrial
sewing machine operator, which she performed for 7
years, and which she described as exertionally
light, unskilled work, and that of a floor
manager, which she performed for 12 years, and
which she described as exertionally light,
semi-skilled work. 20 C.F.R. § 404.1567,
404.1568, 416.967, 416.968.
8. The claimant has not been under a "disability" as
is defined in the Social Security Act at any time
since May 18, 1998, the alleged onset date of
disability, through the date of this decision.
20 C.F.R. § 404.1520, 4 16.920.
9. The claimant is not entitled to Title II period of
disability or disability insurance benefits, nor
is she eligible for Title XVI supplemental
security income benefits at any time since May
18, 1998, the alleged onset date of disability.
R. 16-17. The ALJ's decision became final on December 6, 2000, when the
Appeals Council denied Devora's request for review. R. 4-6.
II. THE APPLICABLE LEGAL STANDARDS FOR ACTIONS BROUGHT PURSUANT TO
42 U.S.C. § 405(g)
A. Standards Governing Evaluation of Disability Claims by the ALJ
An individual is determined to be disabled under the Social Security
Act if he or she cannot "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."
42 U.S.C. § 423 (d)(1)(A). The impairment suffered by the person must
be such that the individual
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, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423
(d)(2)(A). In determining whether an individual is disabled under the
Social Security Act, the Commissioner is required to evaluate the claim
by considering "(1) the objective medical facts; (2) diagnoses or medical
opinions based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the claimant's
educational background, age, and work experience." Mongeur v. Heckler,
722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).
The Commissioner is required to use the five-step process outlined in
regulations to the Social Security Act in considering a disability
claim. See 20 C.F.R. § 416.920; see also Curry v. Apfel, 209 F.3d 117,
122 (2d Cir. 2000) (describing five step evaluation process). In
evaluating the claim, the ALJ must first determine whether the claimant
is currently engaged in any "substantial gainful activity."
20 C.F.R. § 416.920 (b). If the claimant is not, the ALJ must decide
if the claimant has a severe impairment, which is an impairment that
"significantly limits [the claimant's] physical or mental ability to do
basic work activities." 20 C.F.R. § 416.920(c). If the claimant's
impairment is severe and is listed in 20 C.F.R. Part 404, Subpt. P, App.
1, or is equivalent to one of the listed impairments, a claimant must be
found disabled and the inquiry stops there. 20 C.F.R. § 416.920 (d).
If the claimant's impairment is not listed or is not equal to one of the
listed impairments, the Commissioner must review the claimant's residual
functional ability to determine if the claimant is able to do work he or
she has done in the past. If the claimant is able to do such work, he or
she is considered not to be disabled. 20 C.F.R. § 416.920(e).
Finally, if the claimant is unable to perform past work, the Commissioner
must decide if the claimant's residual functional capacity permits the
claimant to do other work. If the claimant cannot perform other work, the
claimant will be deemed disabled. 20 C.F.R. § 416.920 (f). The
claimant bears the burden of proof on all steps except the final one
(that is, proving that there is other work the claimant can perform).
Curry, 209 F.3d at 122.
B. Standard of Court Review
The scope of review of the Commissioner's final decision by a court is
limited to determining whether there is "substantial evidence" to support
the Commissioners determination. See 42 U.S.C. § 405 (g) ("[t]he
findings of the Commissioner . . . as to any fact, if supported by
substantial evidence, shall be conclusive"); accord Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence 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 (1971) (quoting Consol. Edison Co. v. NLRB.,
305 U.S. 197, 229 (1938)). The role of the reviewing court is therefore
"quite limited and substantial deference is to be afforded the
Commissioner's decision." Burris v. Chater, 1996 WL 148345, at *3
(S.D.N.Y. Apr. 2, 1996). This deference extends not only to factual
findings but also to conclusions, which can be drawn from those facts.
See Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968). If the reviewing
court finds substantial evidence to support the Commissioner's final
decision, that decision must be upheld, even where substantial evidence
supporting the claimant's position also exists. Alston v. Sullivan,
904 F.2d 122, 126 (2d
Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57
(2d Cir. 1982). Although the court is not to conduct a de novo review of
the underlying claim, Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991),
the reviewing court is required to "examine the entire record, including
contradictory evidence" in order "to determine whether the findings are
supported by substantial evidence." Brown, 174 F.3d at 62 (citation and
internal quotation marks omitted).
However, "where there is a reasonable basis for doubt whether the ALJ
applied the correct legal principles, application of the substantial
evidence standard to uphold a finding of disability creates an
unacceptable risk that a claimant will be deprived of the right to have
his disability determination made according to the correct legal
principles." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); see also
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999) (reviewing court
precluded from deferring to the Commissioner's decision where the
Commissioner has failed to apply the correct legal standard in reaching a
determination). Accordingly, the initial task of a court reviewing the
denial of Social Security disability benefits is to "satisfy [itself]
that the claimant has had a full hearing under the [Commissioner's]
regulations and in accordance with the beneficent purposes of the [Social
Security] Act." Echevarria v. Sec. of Health and Human Servs.,
685 F.2d 751, 755 (2d Cir. 1982) (citation and internal quotation marks
omitted). Where the reviewing court determines that an error of law has
deprived the claimant of a full and fair hearing, the court should
reverse the Commissioner's decision and remand the matter for a new
hearing. See Havas v. Bowen, 804 F.2d 783, 787 (2d Cir. 1986); Aubeuf v.
Schwelser, 649 F.2d 107, 116 (2d Cir. 1981).
C. Duty to Develop Record
An ALJ has an affirmative duty to develop the administrative record in
a disability benefits case. Tejada, 167 F.3d at 774. The non-adversarial
nature of a Social Security hearing requires the ALJ "to investigate the
facts and develop the arguments both for and against granting benefits."
Sims v. Apfel, 530 U.S. 103, 111 (2000). This duty applies even in cases
where the claimant is represented by counsel. See Perez v. Chater,
77 F.3d 41, 47 (2d Cir. 1996). When the claimant appears pro se as was
the case here, the ALJ has a heightened duty to develop the
administrative record prior to making a determination. See Cullinane v.
Sec. of Dep't of Health and Human Servs., 728 F.2d 137, 139 (2d Cir.
1984) (remand for new hearing appropriate where ALJ failed to assist pro
Z litigant in securing all relevant medical testimony); see also Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) ("[W]hen the claimant appears pro
se, suffers ill health and is unable to speak English well . . . [the
court has] a duty to make a searching investigation of the record to make
certain that the claimant's rights have been adequately protected.")
(citations and internal quotation marks omitted).
This duty to develop the administrative record requires the ALJ to make
"every reasonable effort to help [the claimant] get medical reports from
[his or her] own medical sources." Perez v. Chater, 77 F.3d at 47
(quoting 20 C.F.R. § 404.15 12(d)). The ALJ is authorized to issue
subpoenas to ensure not only the production of a claimant's medical
records, but also to obtain the testimony of necessary witnesses. See
42 U.S.C. § 405 (d).
The duty of the ALJ to develop the record is particularly important
when it comes to obtaining information from a
physician. This is because, in making a determination as to a claimant's
disability, the Commissioner must follow the "treating physician"
regulations located at 20 C.F.R. § 404.1527. These regulations state
If we find that a treating source's opinion of the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other
substantial evidence in your case record, we will give
it controlling weight.
20 C.F.R. § 404.1 527(d)(2). If the Commissioner does not give
controlling weight to the treating physician's opinion, the regulations
require the Commissioner to consider various factors in determining what
weight the treating physician's opinion should be given. Id. The
"treating physician" regulations have been approved by the Second
Circuit. Schisler v. Sullivan, 3 F.3d 563, 568-69 (2d Cir. 1993)
The ALJ's duty to develop the administrative record encompasses not
only the duty to obtain a claimant's medical records and reports but also
the duty to question the claimant adequately about any subjective
complaints and the impact of the claimant's impairments on the claimant's
functional capacity. See,e.g., Cruz, 912 F.2d at 11; Echevarria, 685 F.2d
at 755-56. Where the ALJ has failed to develop the administrative
record, remand for a new hearing is appropriate. See Rosa v. Callahan,
168 F.3d 72, 80-8 1, 83 (2d Cir. 1999).
III. ANALYSIS OF DEVORA'S CLAIMS
A. The ALJ's Duty to Develop the Record
Devora was treated almost every month at Metropolitan Hospital Center
for close to a year for the impairments that constitute her disability
claim. See R. 99-107, 132-52. The medical evidence in this case consisted
of the raw records from Metropolitan Hospital Center, Harlem Hospital
Center and the report of a consultative physician. R. 9 1-97, 99-107,
117-18, 12 1-22, 13 2-52. The ALJ recoguized that he had an obligation to
develop the record more fully: specifically, through a report from a
treating physician that would describe Devora's condition. Although the
Metropolitan Hospital records arrived only because of the ALJ's
subpoena, R. 128, no report from a treating physician was ever obtained.
The effort to obtain such a report is reflected in the following
colloquies with Devora:
ALJ: Would you be able to give the doctor a form
[setting forth the doctor's view on Devora's
ability to perform basic work activities] for,
for the doctor to fill out?
Devora: Which day?