United States District Court, Southern District of New York
March 14, 2003
LEON P. ROSE, PLAINTIFF
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge
OPINION & ORDER
Leon Rose ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) for an Order and Judgment reversing a final determination of the Commissioner of Social Security (the "Commissioner") finding Plaintiff not disabled between January 1, 1996 and June 30, 1996 and therefore not entitled to disability benefits under Title II of the Social Security Act (the "Act").
The Commissioner now moves for judgment on the pleadings. Plaintiff cross-moves for remand for further administrative proceedings. Plaintiff argues that the Administrative Law Judge ("ALJ") failed to fully inform him of his right to representation and failed to obtain available lay testimony on Plaintiff's condition prior to the expiration of his insured status. Plaintiff also claims that the case should be remanded because of the existence of new evidence showing that he was disabled during the time period in question. For the reasons set forth below, Plaintiff's motion for a remand is granted.
Plaintiff applied for disability insurance benefits on August 19, 1998. The application was denied initially and upon reconsideration. Plaintiff was granted a hearing on May 11, 1999. On May 14, 1999, the ALJ issued a decision finding that Plaintiff was not disabled on or prior to June 30, 1996, the date Plaintiff last met the Act's insured status requirement. The decision became the final decision of the Commissioner on November 14, 2000, when the Appeals Council denied Plaintiff's request for a review. On February 26, 2001, Plaintiff appealed the Commissioner's decision in this Court. On July 30, 2001, the Commissioner filed a motion for judgment on the pleadings. In response, Plaintiff filed a cross motion on June 18, 2002, for remand for further administrative proceedings.
In a separate proceeding, Plaintiff applied for Supplementary Security Income ("SSI") benefits on January 22, 1997 and was found, after a hearing, to be disabled as of that date.*fn1 Although this decision concerns the period after January 22, 1997 and is based on medical evidence obtained at that time, the ALJ's findings are nevertheless instructive as to Plaintiff's likely condition in 1996, prior to the expiration of his insured status. At the hearing, Chief ALJ Zamora found that Plaintiff's records "describe a history of numerous physical problems including treatment for poorly controlled hypertension, chest pain, and shortness of breath since at least 1996." Judge Zamora also found Plaintiff to have had a "longstanding history of end stage asymmetric glaucoma, retinopathy in both eyes, and optic neuropathy. . . . [and] a history of sensory deficit in both hands, pulmonary disease, and prostrate problems." Finally, Judge Zamora cited, as credible, Plaintiff's testimony that he ceased working in 1993 due to problems in his right foot and eyes. ALJ Altz, who presided over Plaintiff's 1999 hearing, was aware of these findings.
In order to be eligible for disability insurance benefits, Plaintiff must establish that he became disabled on or before June 30, 1996, the last date he satisfied the insured status requirements of the SSA. 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. § 404.131. The central issue before the Court is whether the ALJ adequately developed the record to determine whether Plaintiff was disabled from his alleged onset date of January 1, 1996 through June 30, 1996, the last date he was insured.
Plaintiff, who claims that he is disabled due to high blood pressure, dizziness, migraine headaches, glaucoma, numbness in the right foot, and numbness in both hands, was born on November 2, 1944, and is now 59 years old. He attended school through the twelfth grade. After working as a truck driver for 20 years, Plaintiff stopped working in 1990 and received unemployment benefits. He resumed work in 1993 and worked for less than a year before stopping again. According to Plaintiff, the problems with his hands and eyes commenced in 1995. He did not see any doctors in 1995 because he hoped that his condition would get better over time.
In 1996, while having a tooth pulled, Plaintiff was informed that he had high blood pressure. Plaintiff did not seek medical care for the condition at that time, again hoping that the condition would get better. Plaintiff first sought treatment in November 1996, when he began to feel worse and to see "flashes."
On appeal, Plaintiff offers, among other things, affidavits from his common-law wife, son, cousin and two friends, all of whom state that Plaintiff was physically impaired as of 1995.
I. Scope of Review
Under the Act, the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). In reviewing the Commissioner's decision, the Court will set aside the "decision only where it is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
The Court may remand an appeal from the final decision of the Commissioner when "there are gaps in the administrative record and further development of the evidence is required, or when the ALJ has misapplied legal standards or did not make explicit findings." 42 U.S.C. § 405(g).
II. Statutory Requirements for Eligibility
To establish disability within the meaning of the Act, a claimant must prove: (1) that he is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment is demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. § 423(d), 1382c(a)(3).*fn2
The Commissioner must consider the following factors in determining whether a claimant is disabled: "(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 to by himself and others who observed him, and (4) the claimant's age, educational background, and work history." Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Ultimately, though, a "physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a claimant's] statement of symptoms." 42 U.S.C. § 404.1508.
III. Application of the Legal Standard
Plaintiff argues initially that he did not make an informed decision as to whether to waive his right to counsel. A claimant is entitled to be represented by counsel at a hearing before an ALJ. See 20 C.F.R. § 404.1700, 404.1705. The ALJ has a duty to inform the claimant of this right at the start of the hearing. 20 C.F.R. § 404.916. See also Santiago v. Apfel, No. 98 Civ. 9042, 2000 WL 488467, *5 (S.D.N.Y. Apr. 25, 2000); Alvarez v. Brown, 704 F. Supp. 49, 52 (S.D.N.Y. 1989). In addition, the ALJ must ensure that if a claimant chooses to proceed pro se, waiver of the right to representation is knowing and voluntary. Taveras v. Apfel, No. 97 Civ. 5369, 1998 WL 557587, *3 (S.D.N.Y. Sept. 2, 1998). Moreover, when a claimant appears pro se, the ALJ has a "`duty. . . . to scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts. . . .'" on behalf of the claimant. Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (quoting Gold v. Sec'y of Health & Human Servs., 463 F.2d 38, 43 (2d Cir. 1972).
Plaintiff had arranged for an attorney to represent him at the May 11, 1999 hearing. That attorney, however, abruptly left prior to the start of the hearing, telling Plaintiff that he would not represent him because he "had no case." At the start of the hearing, the ALJ informed Plaintiff of his right to counsel in the following colloquy:
Q Now there are some things about your right to
representation and my role that I want to tell you
about. First of all you have a right to have
representation, but it isn't required in order to go
ahead with your hearing today. If you don't like the
decision I make, any appeal you take is going to be
based on the papers in the file and the testimony of
the hearing. Now there are free legal services
organizations available to handle this kind of case as
you are obviously aware, if you're eligible for free
services. In addition to the Bronx Legal Services
there's also the Legal Aid Society. Now it's part of
my job to make sure that the record is complete. What
that means is that if there are medical records or
other records I need to make a decision that I don't
have then we have people on staff that can collect
those records. If there is something I think you can
get easily I'll ask you to get it, and I'm not going
to make my decision until I have all the records I
need. Now it's also part of my job to question
witnesses carefully to get the information I need to
make a decision. Now if you have a representative that
person would also gather documents for you, question
witnesses at the hearing and make arguments on your
behalf in the case. Now do you understand the things
that I've said to you?
Q Then do you want to try to get counsel or do you
want to go ahead with your hearing?
A I want to go ahead.
Q Okay. Why?
A Because he represent, represented me with the SSI
Q Oh, I see. Okay.
A And they approved the SSI that what's —
Q That, (INAUDIBLE). Okay let the record reflect that
the Claimant has been informed fully of the right to
representation and has elected to waive the right to
Notwithstanding this colloquy, Plaintiff claims that his decision to proceed without counsel was not informed, that it was based on "a mistaken belief that a favorable outcome on an SSI claim necessarily meant a favorable outcome on the SSDI claim." Plaintiff argues that given his "explanation to the ALJ as to why he wished to proceed without counsel, it is clear that [he] had no understanding of this right [to counsel] or of the ramifications of waiving it."
Although the ALJ had told Plaintiff at the outset of the proceeding that the fact that he had prevailed on his SSI claim did not mean that he would automatically prevail on his disability claim, the pro forma nature of the ALJ's advise to Plaintiff concerning his right to counsel and the ALJ's failure to question Plaintiff's proffered reason for waiver of counsel suggest that Plaintiff did not make a knowing and voluntary waiver of counsel. The fact that Plaintiff had arranged to have counsel at the hearing and was abandoned by that counsel immediately before the hearing, suggests that the decision to proceed without counsel was made in haste and was not fully informed.
Even if the ALJ failed to ensure knowing and voluntary waiver of counsel, a remand is warranted only if the absence of counsel resulted in prejudice to the claimant or unfairness in the proceeding. Alvarez v. Bowen, 704 F. Supp. 49, 52-53 (S.D.N.Y. 1989). A claimant is prejudiced by lack of counsel if the ALJ fails "to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts. . . ." Robinson v. Sec'y of Health & Human Servs., 733 F.2d 255, 258 (2d Cir. 1984) (internal citation omitted). Determining whether Plaintiff was prejudiced by the absence of representation is, therefore, "bound up in the inquiry of whether the ALJ properly conducted the hearing and adequately developed the record." Id. Under these circumstances, "the reviewing court must make a `searching investigation' of the record to ensure that the claimant's rights were protected." Id.
A review of the very brief record developed by the ALJ, compels the conclusion that the ALJ did not adequately explore the issue of whether the Plaintiff's acknowledged disability had commenced prior to the expiration of his coverage.
With the exception of a brief query about Plaintiff's employment history, the ALJ focused entirely on the absence of contemporaneous medical evidence at Plaintiff's 1999 hearing. The ALJ did not ask meaningful questions of the Plaintiff concerning the disabling nature of his conditions prior to the time that he first sought medical treatment nor did he seek lay testimony from Plaintiff's family or friends about Plaintiff's daily activities, his symptoms, and his functional limitations. The hearing record as to Plaintiff's condition in 1996 is therefore scant, as evidenced by the short ten-page transcript of the proceedings. See Rodriguez v. Callahan, 971 F. Supp. 150, 153-154 (S.D.N.Y. 1997) ("The ALJ failed to perform his affirmative duty of assistance to Rodriguez in several ways. For example, the ALJ spent very little time questioning Rodriguez as evidenced by the transcript, which consumes just over 7 pages."); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) ("The scant record herein, which consists of a thirteen-page transcript, reveals a host of lost opportunities to explore the facts.").
While it is true that an ALJ is not required to seek lay testimony in every case, Richardson v. Perales, 402 U.S. 389, 402 (1971); Yancey v. Apfel, 145 F.3d 106, 113 (2d Cir. 1998), in the peculiar circumstances of this case, where there was no contemporaneous treatment of the allegedly disabling conditions, lay testimony about Plaintiff's daily activities during the relevant period could have provided meaningful evidence as to his condition. Under the Act, the ALJ must consider, in addition to medical evidence, "the claimant's subjective evidence of pain and physical incapacity as testified to by himself and others who observed him." Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Subjective evidence of pain is not only probative on the issue of disability, but it "may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other `objective' medical evidence." Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) (citations omitted). See also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980); Smith v. Apfel, 69 F. Supp.2d 370, 378-379 (N.D.N.Y. 1999) ("Throughout the evaluation process, the ALJ must consider subjective complaints of pain and other symptoms.") (citing 404.1529(a)(d), 416.929(a), (d)).
In addition, since there was no contemporaneous treatment record, the ALJ should have considered the possibility of retrospective diagnosis and testing. See Martinez v. Massanari, No. 01 Civ. 2114, 2003 WL 179771, *4 (S.D.N.Y. Jan. 27, 2003). The absence of contemporaneous medical evidence does not automatically preclude a finding of disability. See Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989) ("Arnone's post-1980 evidence is not irrelevant to the question whether he had been continuously disabled since 1977."). See also Perez v. Chater, 77 F.3d 41, 49 (2d Cir. 1996); Selig v. Richardson, 379 F. Supp. 594, 600 (E.D.N.Y. 1974). Although a claimant must establish the existence of physical or mental impairment "by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [his] statement of. . . . symptoms," 20 C.F.R. § 404.1508, this medical evidence need not be contemporaneous.
"A treating physician's retrospective medical assessment of a patient may be probative when based upon clinically acceptable diagnostic techniques." Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996). See also Shaw v. Chater, 221 F.3d 126, 133 (2d Cir. 2000) ("Just because plaintiff's disability went untreated does not mean he was not disabled."). In fact, under the treating physician rule "a retrospective diagnosis by a treating physician is entitled to controlling weight unless it is contradicted by other medical evidence or `overwhelmingly compelling' non-medical evidence." Martinez v. Massanari, No. 01 Civ. 2114, 2003 WL 179771, *6 (S.D.N.Y. Jan. 27, 2003).
"The Act expressly provides that the Commissioner, before making a determination of disability, is responsible for developing a complete medical history of the claimant and for making every reasonable effort to obtain medical evidence from claimant's treating physicians." Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997) (citing 42 U.S.C. § 423(d)(5)(B)). At the hearing, the ALJ must "inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters." 20 C.F.R. § 404.927. See also Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir. 1981). When the information on the record is inadequate, the ALJ "must attempt to re-contact the claimant's medical sources and, if necessary, arrange for consultative examinations with other medical sources, for clarification or supplementation." Martinez v. Massanari, No. 01 Civ. 2114, 2003 WL 179771, *4 (S.D.N.Y. Jan. 27, 2003) (citing 20 C.F.R. § 404.1512(e)(1)).
Retrospective reports from Plaintiff's current treating physicians and lay testimony about his daily activities, symptoms and functional limitations would have been probative on the issue of disability. Moreover, the ALJ indicated to Plaintiff at the outset of the hearing that he was "not going to make [his] decision until [he had] all the records [he] need[ed]," and that it was part of his job to question witnesses carefully, to get the information he needed to make a decision. The ALJ's failure to obtain this evidence left a gap in the administrative record.
Given Plaintiff's failure to seek medical treatment for his allegedly disabling conditions prior to the time his disability insurance terminated, a forceful argument can be made that the Plaintiff was not disabled prior to that time. However, that determination could not rationally be made on the record before the ALJ. Therefore, a remand to conduct an additional hearing is appropriate to develop a full record of the facts relevant to Plaintiff's condition in 1996.
For the foregoing reasons, Plaintiff's motion for a remand is granted and the Commissioner's motion for judgment on the pleadings is denied.