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United States District Court, Southern District of New York

April 14, 2003


The opinion of the court was delivered by: Sidney H. Stein, United States District Judge


Joseph Brown brings this action pro se pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge a final determination by defendant Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner"), denying him Social Security Disability Insurance ("SSDI") and Supplemental Security Insurance benefits ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, defendant's motion is denied and the case is remanded for further proceedings consistent with this Opinion.


A. Administrative Proceedings

On March 15, 2000, Brown filed an application with the Social Security Administration ("SSA") for SSDI and SSI payments. (R. 40-42).*fn1 The application was denied initially and upon reconsideration. (R. 37-39, 48-52, 158-162). At Brown's request, administrative law judge Michal Lissek (the "ALJ") reviewed that determination de novo at a hearing on November 30, 2001, subsequently finding that Brown was not disabled and thus not entitled to either of the benefits he sought. (R. 16). On April 19, 2002, the Appeals Council denied Brown's request for review of the ALJ's decision, which thereby became the final decision of the Commissioner. (R. 4-5).

1. Brown's Testimony

At the administrative hearing, Brown testified that he was 48 years old and living under the care of his mother, Correen Brown. (R. 23-24). Brown's education consists of at least some high school. (R. 24). Brown testified that he receives public assistance as his primary source of income; however, he has been excused from its work requirements because of letters from his physicians. (R. 35).

Brown's most recent employment was as a parking attendant at a Manhattan garage operated by Gramercy Parking Terminal, Inc. from 1978 to 1993. (R. 24). According to Brown, his employment terminated because the garage had been sold to New York City during one of his hospitalizations. (R.25). His subsequent attempts to work at various garages were unsuccessful due to his "inability to get in and out of cars." (R. 25-26).

Brown further testified that he is claiming disability benefits on the basis of several physical impairments, including a seizure disorder, back disorder, and uncontrollable hiccups. (R. 26, 34). Although he regularly takes Dilantin, a medication prescribed by his treating physician, Dr. Singh, for his seizure disorder, Brown testified that he suffered an attack even while medicated. (R. 26-27). When questioned by the ALJ, Brown maintained that these seizure attacks were unrelated to alcohol abuse. (R. 32).

2. Witness Testimony

Henderson Morton, apparently a lay witness on behalf of Brown, testified that Brown is susceptible to attacks related to his throat and breathing. (R. 30). Morton further testified that Brown suffers from random seizures associated with ventilation and temperature changes, unrelated to alcohol abuse. (R. 31-32). Rather, Morton opined that these attacks were more likely caused by Brown's alleged thyroid condition or lack of proper diet. (R.32).

B. Medical Evidence

1. Treating Physician's Report

The record does not contain the receipt of any medical treatment prior to January 21, 1994, when Brown was admitted to Montefiore Hospital. At Montefiore Hospital, he was diagnosed with a large mass within the left lobe of the thyroid gland. (R. 113).

Dr. Singh submitted medical records dated from March 4, 1996 to January 6, 2000, indicating that Brown suffers from a seizure disorder, thyroid goiter hiccups, small hiatal hernia, and Barrett's esophagus. (R. 115-119). On March 4, 1996, Brown was treated in the hospital emergency room at Lincoln Medical and Mental Health Center for convulsive seizures. (R. 121-125). The attending physician noted that Brown's seizures ended once his sodium level corrected; in addition, he opined that the seizures were most likely caused by alcohol abuse. (R. 123). An endoscopy report completed on March 7, 1996 revealed that Brown suffers from severe Barrett's esophagus. (R. 126).

On October 17, 1999, Dr. Singh performed a CT scan of Brown's chest, revealing a heterogeneous mass in the left lobe of the thyroid. (R. 118). Because it had not changed over the past five years, the mass was considered benign. Id. On January 6, 2000, Dr. Singh subsequently diagnosed the mass as indicative of thyroid goiter. (R. 115).

Based on that CT scan, Dr. Singh also concluded that Brown's remaining lungs were clear, with no evidence of pleural effusion. (R. 117). Upon examining the upper abdomen, Dr. Singh noted that neither the lung nor spleen was enlarged. However, she reported that Brown had a small hiatal hernia with mild esophageal thickening. Id.

On April 5, 2001, Dr. Singh performed a medical assessment of Brown's ability to do work-related activities. (R. 152-154). She diagnosed Brown with chronic obstructive pulmonary disease ("COPD"), thyroid goiter, seizure disorder, and esophagitus. (R. 153). Based on these limitations, she opined that Brown is limited to occasionally*fn2 carrying 5-10 lbs. (R. 152). However, his ability to stand or sit are unaffected by these impairments. Id.

Additionally, Dr. Singh opined that Brown is unable to climb or balance, and can occasionally stoop, crouch, kneel or crawl. Id. Based on diagnosing COPD and seizure disorder, Dr. Singh recommended that Brown avoid environments involving heights, moving machinery, temperature extremes, chemicals, dust, fumes, humidity, or vibration. Id.

2. Consultative Physicians' Reports

a. Dr. Polak's Report

On December 27, 2000, Dr. Polak, a consultative internist, diagnosed Brown with chronic lower back pain and a seizure disorder. (R. 133). X-rays indicated degenerative changes in Brown's lumbosacral spine; other findings suggested enlargement of the thyroid. Id.

Dr. Polak also diagnosed Brown with alcoholism partly based on his admitted history of alcohol abuse (which he claimed ended eight years earlier). Id. Brown also admitted that he had smoked a pack of cigarettes every day for eighteen years. Id.

Dr. Polak concluded that Brown's lungs are clear, with no wheezes, rhonchi, or rales. (R. 132). In examining Brown's musculoskeletal system, Dr. Polak concluded that Brown's station and gait are normal, to the extent that he has "no difficulty transferring from a seated position on and off the examining table." Id. In examining Brown's back, Dr. Polak found no presence of deformity or paravertebral spasms; the range of motion on flexion is 0-70 degrees. Id. Dr. Polak also reported that Brown's "finger/hand dexterity" is "intact." Id. Additionally, Dr. Polak found no deformity or paravertebral spasms in Brown's back. Id.

Based on these findings, Dr. Polak recommended that while Brown is "mildly impaired for carrying/lifting, pushing/pulling, bending or sitting," he can perform activities involving dexterity, walking, or sitting. (R. 133). Dr. Polak noted that "consideration should be taken into account that [Brown] suffers from breakthrough seizures." Id.

b. Dr. Gondolo's Report

On January 5, 2001, Dr. Gondolo, a consultative neurologist, diagnosed Brown with a seizure disorder and lumbosacral spine sprain and strain. (R. 138). In the history of Brown's illnesses, Dr. Gondolo noted that Brown was unable to say how many seizures a month he suffered, but that he sustained several injuries during these episodes. (R. 137). Dr. Gondolo recommended that Brown continue his Dilantin treatments, and added a prescription for Phenobarbital for his seizures.

Dr. Gondolo also reported that Brown's gait and motor capacities are normal. Id. Consequently, the doctor concluded that Brown is moderately limited in "lifting and carrying, walking because of the lumbosacral sprain and strain." Id. However, this prognosis was "guarded due to the frequency of the seizures without an aura." Id.

3. State Agency Physician's Report

On February 21, 2001, Dr. Rios, a state agency physician, reviewed the medical evidence concerning Brown's alleged impairments. (R. 140-151). In Dr. Rios' opinion, Brown could lift fifty pounds occasionally, and twenty-five pounds frequently; he should be able to stand and/or walk for a total of about six hours in an eight-hour workday; and his ability to push and/or pull was unlimited. Although Brown did not suffer from manipulative, visual, or communicative limitations, Dr. Rios opined that Brown faced both postural and environmental limitations due to his seizure history. (R. 143-147).

According to Dr. Rios, Brown's subjective descriptions of his symptoms were not credible based on inconsistent statements regarding his history of alcohol abuse, urine incontinence, and injuries related to his alleged seizures. (R. 148). Additionally, Dr. Rios disagreed with Dr. Gondolo's opinion that Brown's alleged lumbosacral sprain and strain imposed moderate limitations in lifting, carrying, and walking; he noted that Dr. Gondolo failed to provide clinical findings to support that determination. (R.149). However, he did adopt Dr. Polak's opinion that Brown was mildly impaired in carrying, lifting, pushing, pulling, bending, or sitting (with limitation in climbing and working with hazardous machinery) based on the offered clinical findings. Id.

C. The ALJ's Decision

The ALJ denied Brown's application for SSDI and SSI benefits pursuant to the procedure set forth in 20 C.F.R. § 404.1520, 416.920 in a written decision dated November 30, 2001. (R. 11-16). The ALJ found that Brown had not engaged in substantial gainful activity since October 31, 1997. (R. 15). In addition, Brown met the special insured status requirements of the Act on October 31, 1997, continuing through December 31, 1997. Id.

The ALJ found that Brown suffers from both a severe orthopedic and neurological disorder. Id. Although medical evidence suggested Brown also has benign thyroid goiter, gastrointestinal disorders, and severe pain in the lower back region, these impairments did not rise to the level of severity contemplated by the clinical criteria listed in the Appendix 1, Subpart P. Regulation 4. Id. After considering the entire medical record, the ALJ also rejected Brown's subjective complaints concerning the frequency, intensity, and duration of his multiple symptoms as not credible. Id.

The ALJ thus determined that while medical evidence supported Brown's inability to return to his past relevant work as a parking attendant, he could perform a full range of sedentary work.*fn3 Id. The ALJ also rejected Dr. Singh's diagnosis of seizure disorder and COPD as impairments imposing "non-exertional limitations that could significantly compromise or erode Brown's occupational base for a complete and wide range of sedentary work activity," because of insufficient clinical and medical records and hospital admissions supporting the existence of alleged impairments. Id.

Finally, the All determined that based on Brown's status as a "younger person," a high school education, and past unskilled work experience, the issue of transferability of work skills was irrelevant. Id. In sum, the ALJ concluded that Brown was not disabled, as defined in the Act, at any time through the date of his decision. Id. As noted above, the Appeals Council subsequently denied Brown's request for review of the ALJ's determination, which thus became the final decision of the Commission. (R 4-5).


A. Standard of Review

This court's review of the denial of social security benefits is limited to a determination whether there is "substantial evidence" to support the Commissioners s decision. 42 U.S.C. § 405(g) ("The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . ."); accord Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). Substantial evidence is defined as "`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. 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. "The substantial evidence test applies not only to findings of basic evidentiary facts but also the inferences and conclusions drawn from such facts." Lecler v. Barnhart, No. 01 Civ. 8659, 2002 WL 31548600, at *4 (S.D.N.Y. Nov. 14, 2002) (quoting Tillery v. Callahan, 1997 WL 767561, at *2 (S.D.N.Y. Dec. 11, 1997)). Additionally, a court "`may not substitute its own judgment for that of the [Commissioner], even if it might have reached a difference result upon a de novo review.'" Lecler, 2002 WL 31548600, at *4 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984))

Ultimately, "`the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. 1999) (quoting Burris v. Chater, No. 94 Civ. 8049, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996). This Court will not disturb a decision supported by substantial evidence unless "the decision was the product of legal error." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); accord Jones, 66 F. Supp.2d at 536.

B. The Definition of Disability Pursuant to the Act

An individual is "disabled" for the purposes of SSDI and SSI benefits claims when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or medical impairment . . . 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), 1382c(3)(A); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques," 42 U.S.C. § 423(d)(3), and it must be "of such severity that [the claimant] is 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." Id. § 423(d)(3); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77.
1. The SSA's Five-Step Evaluation Process for Disability

The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987); 20 C.F.R. § 404.1520, 416.920. The U.S. Court of Appeals for the Second Circuit articulated this sequence as follows:

1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work that the claimant could perform.
Shaw, 221 F.3d at 132 (citing DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)).

Once the claimant has satisfied the burden of proof on the first four steps, the burden shifts to the Commissioner on the fifth step — to show that there is alternative substantial gainful employment in the national economy that the claimant can perform. Id. In determining whether the claimant is disabled, the Commissioner "must consider four factors: (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." Jones v. Barnhart, No. 02 Civ. 0791, 2003 WL 941772, at *8 (S.D.N.Y. Mar. 7, 2003) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999)).

2. Residual Functional Capacity

For the purposes of step four, residual functional capacity ("RFC") assesses what a claimant is capable of doing despite functional limitations and environmental restrictions caused by one or more impairments. 20 C.F.R. § 416.945(a). Determination of the claimant's RFC depends on a consideration of all relevant evidence, including physical abilities; symptoms such as pain; descriptions, including those by the claimant, of limitations that go beyond symptoms or objectively proven impairments; and environmental restrictions imposed by impairments. § 416.945. Specifically, the ALJ must ascertain the claimant's strength limitations, or exertional capacity — including the ability to sit, stand, walk, lift, carry, push, and pull. § 416.969a(a). Non-exertional limitations include difficulty in "tolerating some physical feature(s) of work, including dust or fumes." § 416.969a(v).

In evaluating REC, the "ALJ's findings must specify the functions plaintiff is capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient." Melchior v. Apfel, 15 F. Supp.2d 215, 218 (N.D.N.Y. 1998) see Lecler, 2002 WL 31548600, at *5 ("In making any determination as to a claimant's disability, the Commissioner must explain what physical functions the claimant is capable of performing"); Ferraris v. Heckler, 728 F.2d 582, 586-588 (2d Cir. 1984) ("the ALT should make specific findings of exactly what [the claimant] can do"); see also § 416.946. The Second Circuit has found that "failure to specify the basis for a conclusion as to residual functional capacity is reason enough to vacate a decision of the Commissioner." Lecler, 2002 WL 31548600, at *6; see White v. Secretary of Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990); see also Ferraris, 728 F.2d at 586-88.

The SSA applies a medical-vocational grid to determine disability status when (1) the claimant's impairment and related symptoms, such as pain, only impose exertional limitations in "meeting the strength requirements of a job"; and (2) the claimant's vocational profile is listed in an Appendix 2 Rule. § 416.969a(b). However, if combined exertional and non-exertional limitations exist, the Appendix 2 Rules provide only a framework for disability determination unless a rule directs a conclusion of disability. § 416.969a(d). Thus, when the claimant is incapable of the full range of a certain category of work, such as sedentary work, he "must be evaluated on an individualized basis since the medical-vocational grid used by the ALJ does not apply to claimants who cannot do sedentary work." Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989). Where an individualized evaluation is warranted, "the Secretary's burden can be met only by calling a vocational expert to testify as to the plaintiff's ability to perform some particular job." Id.

C. The ALJ's Duties in Fully Developing the Record

In evaluating whether the Commissioner's findings are supported by substantial evidence, the district court must engage in a preliminary review ensuring that the "claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972). Specifically, "it is the rule in [the Second Circuit] that `the ALJ, unlike a judge in a trial, must . . . affirmatively develop the record' in light of `the essentially non-adversarial nature of a benefits proceeding,'" even if the claimant is represented by counsel. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria, 685 F.2d at 755); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).

Where, as is the case with Brown, the claimant appears without legal representation, the ALJ bears a "duty `to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (quoting Gold, 463 F.2d at 43). In such cases, the ALJ must "adequately protect a pro se claimant's rights `by ensuring that all of the relevant facts [are] sufficiently developed and considered.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Hankerson, 636 F.2d at 895).

If the ALJ has not adequately developed the record, it is "appropriate for the district court to remand the matter to the Social Security Administration for further development of the evidence." Selmo v. Barnhart, No. 01 Civ. 7374, 2002 WL 31445020, at *7 (S.D.N.Y. Oct. 31, 2002); see also Parker v. Harris, 626 F.2d 225, 235 (2d. Cir. 1980) (authorizing remand to the Secretary where there are "gaps in the administrative record" or the application of "improper legal standards").

In Brown's case, the ALJ failed to develop an evidentiary record in accordance with requisite standards for findings of fact at step four — where the ALJ found that Brown was able to perform a full range of sedentary work, and was thus not disabled. Specifically, the AM improperly neglected (1) to obtain more complete medical records from Dr. Singh with respect to her diagnosis of COPD; and (2) to question Brown more thoroughly regarding his subjective symptoms and pain. As this Court cannot evaluate whether the Commisioner's denial of benefits was based on substantial benefits, this case is remanded to the ALJ for further development of the record.

1. The ALJ Was Obligated to Obtain More Detailed Medical Records from Brown's Treating Physician
First, the ALJ erred in failing to advise Brown to obtain more detailed medical reports from his treating physician, Dr. Singh, before rejecting her diagnosis of COPD. The Second Circuit has consistently applied the SSA regulation's "treating physician" rule, stating that "in the absence of substantial contradictory evidence, the opinion of the claimant's treating physician is binding on the Secretary." Hankerson, 636 F.2d at 896. See Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). Particularly where the claimant appears pro se, the ALJ is "not entitled to ignore the undisputed opinion of claimant's treating physician" simply because it is unaccompanied by "objective test results." Hankerson, 636 F.2d at 896. Indeed, "before the ALJ can reject an opinion of a pro se claimant's treating physician because it is conclusory, basic principles of fairness require that he inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement." Id. at 896; see Cruz, 912 F.2d at 12 (The Second Circuit has "repeatedly stated that when the ALJ rejects the findings of a treating physician because they were conclusory or not supported by specific clinical findings, he should direct a pro se claimant to obtain a more detailed statement from the treating physician."); see also Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1981) ("[b]efore denying [claimant's] application, the ALJ was obligated, at the very least, to advise [the pro se claimant] that he considered his case unpersuasive, and to suggest that he produce additional medical evidence or call [his treating physician] as a witness.")

The ALJ's "responsibility to assist a [pro se] claimant in obtaining [his] medical records carries particular importance in light of the well-established treating physician rule, which requires an ALJ to grant special deference to the opinions of a claimant's treating physicians." Mejias v. Apfel, 57 Soc.Sec.Rep.Serv. 914, 1998 WL 651052, at *6 (S.D.N.Y. Sept. 23, 1999). Specifically, the "combined force of the treating physician rule and of the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability . . . Until [she] satisfies this threshold requirement, the ALJ cannot even begin to discharge [her] duties to the pro se claimant under the treating physician rule." Jones, 66 F. Supp.2d at 538-39 (quoting Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991)); see Rodriguez v. Apfel, 1997 WL 691428, at *5 (remanding where ALJ failed to assist claimant in "obtaining comprehensible records" in order to present a "cogent overview of his medical history.")

To satisfy this duty, an ALJ is authorized to issue subpoenas requiring the production of any evidence relating to a matter under his or her consideration. See 42 U.S.C. § 405(d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner"); Treadwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983); Mejias, 1998 WL 651052, at *6; Carroll v. Secretary of Health & Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995).

Here, the ALJ failed to satisfy her duty to ensure Brown's rights as a pro se claimant because she neglected (1) to obtain more detailed medical findings from Dr. Singh regarding COPD; or (2) to advise Brown that she found Dr. Singh's diagnosis of COPD unpersuasive and that he should obtain further medical evidence or call Dr. Singh as a witness. Although Brown's failure to seek medical attention for pulmonary-related symptoms significantly undercuts a finding of disability, this fact alone is insufficient to support a determination of disability if the medical record is incomplete. See e.g., Rose v. Barnhart, 2003 WL 1212866, at *6 (S.D.N.Y. 2003) (remanding where the ALJ failed to obtain complete medical records for alleged disabling impairments although claimant never sought medical attention during the period of claimed disability).

Ultimately, this omission in the record is not insignificant, considering that Dr. Singh concluded that COPD limited Brown's exposure to environments involving heights, moving machinery, temperature extremes, chemicals, dust, fumes, humidity, and vibration. (R. 154). See Jones 66 F. Supp.2d at 539-40 (remanding where the ALJ improperly neglected to issue a subpoena to claimant's treating physician for production of relevant medical reports); Castro v. Apfel, 1998 WL 846749, at *9 (S.D.N.Y. Dec. 2, 1998) (remanding where the ALJ improperly refused to obtain further information from claimant's treating physician); Echevarria, 685 F.2d at 756 (remanding where the ALJ ignored medical evidence and pro se claimant's subjective complaints regarding stomach problems, and simultaneously failed to request medical reports that could support claimant's contentions); Brandon v. Bowen, 666 F. Supp. 604, 607 n. 2 (S.D.N.Y. 1987) (finding that ALJ failed to satisfy his duty to develop the record in refusing to subpoena "certain pertinent medical records").

Upon remand, the ALJ is directed to obtain a more detailed report from Dr. Singh. Specifically, the ALJ should determine whether Dr. Singh's opinion is "supported by any clinical or laboratory diagnostic evidence," as well as "what effect, if any, [Brown's] impairments have on his ability to perform any or all work-related activities." Cleveland v. Apfel, 99 F. Supp.2d 374, 380 (S.D.N.Y. 2000)(remanding and directing the ALJ to obtain more complete report from claimant's treating physician).

2. The ALJ Was Obligated to Question Brown More Thoroughly Regarding His Pain and Symptoms
The law requires the ALJ to "explore the nature and extent of [the claimant's] subjective symptoms." Selmo, 2002 WL 31445020, at *8 (case remanded where there was "virtually no discussion in the ALJ hearing of the nature and extent of [claimant's] pain and other subjective symptoms") (quoting Jiminez v. Massanari, 2001 WL 935521, at *10 (S.D.N.Y. Aug. 16, 2001); see Cruz 912 F.2d at 11-12 (failure to satisfy duty to prose claimant where ALJ did not probe into the severity of claimant's pain and symptoms); Echevarria, 685 F.2d at 755 (claimant did not receive fair and adequate hearing where, inter alia, "the ALJ did not fully inquire into . . . the full degree of pain and the extent to which it prevents [plaintiff] from working."); see also Fernandez v. Schweiker, 650 F.2d 5, 9 (2d Cir. 1981) (ALJ failed to satisfy duty where "[c]laimant was only perfunctorily questioned . . . as to her ailments").

As a critical part of the ALJ's examination of the claimant, 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.'" Rose, 2003 WL 1212866, at *5 (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Indeed, the Social Security Administration has indicated that "careful consideration must be given to any available information about symptoms," because "symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone." Social Security Ruling ("SSR") 95-5p, 1995 WL 670415, at *1 (S.S.A. Oct. 31, 1995).

In reviewing the ALJ's decision, the Court must ensure that the ALJ "could effectively exercise [her] `discretion to evaluate the credibility of . . . (the) claimant . . . (in order to) arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of pain alleged by the claimant." Hankerson, 636 F.2d at 896 (quoting Marcus, 615 F.2d at 27); see Gonzalez v. Apfel, 113 F. Supp.2d 580, 587 (S.D.N.Y. 2000) (questioning insufficient where relevant issue arose during pro se claimant's examination but the ALJ did not pose "a thorough set of follow-up questions"); see also Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290, at *4 (S.D.N.Y. Feb. 20, 1998) (duty to pro se claimant not satisfied where "[t]he record is replete with instances where the ALJ failed to question plaintiff fully — or at all — concerning critical aspects of his claim").

In Brown's case, there was virtually no discussion during the administrative hearing concerning the nature and extent of his pain and other subjective symptoms. When questioning Brown about his seizure disorder, the ALJ first asked whether Brown was taking medication. Her next question was whether the seizures were under control, to which Brown responded that he had suffered one attack while medicated. Rather than probing into the circumstances of that attack, or the frequency, severity, and duration of other seizures, the ALJ proceeded to question Brown about his possible alcoholism.

The record is replete with instances such as these where the ALJ failed to pursue opportunities to evaluate further Brown's subjective complaints. At one point, the ALJ's examination of Brown proceeded as follows:

Q: Okay, do you also have back pain, Mr. Brown?

A: That's right.

Q: Why don't you tell me about it?

A: Sometimes I get some [Inaudible] I get [Inaudible]. It hurts that bad.
(R. 34). Instead of asking follow-up questions to clarify these responses, the ALJ asked Brown a general question as to whether he had additional information in helping her make the decision. When Brown responded that he was being treated for hiccups at Beth Israel Hospital, the ALJ again made no further inquiries regarding the frequency, severity and source of these hiccup attacks.

By neglecting to clarify or probe into these responses, the ALJ failed to develop an adequate record. The ALJ's conclusory findings at step four, although they may be supported by evidence in the record, do not comport with legal standards for findings of fact. See Johnson, 817 F.2d at 986 ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no 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."). Upon remand, the ALJ should make specific findings regarding Brown's credibility with respect to his symptoms, pain, and functional limitations.

D. Consideration of New Evidence Not Contained in Administrative Record

Brown seeks to introduce three documents as new evidence for consideration on remand: (1) a statement by Dr. Singh dated October 18, 2001, listing the various prescriptions Brown was at that time using and (2) the reports of two physicians documenting the injuries Brown allegedly suffered in connection with a motor vehicle accident on November 9, 2001. However, the Commissioner opposes these documents on the ground that Brown has not demonstrated good cause for "failing to submit the new evidence at an earlier stage of the proceedings." See Commissioner Mem. ¶ 18.

Ordinarily, evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner. See, e.g., 42 U.S.C. § 405(g) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security. . . ."); Castro, 1998 WL 846749, at * 10 n. 11 (new evidence not considered because "this court is limited in its review to the record before the Commissioner"), report & rec. adopted by 1998 WL 846749 (S.D.N.Y. Dec. 2, 1998); Grubb v. Chater, 992 F. Supp. 634, 637 n. 3 (S.D.N.Y. 1998) (new evidence not considered because "[a] court's review of the Commissioner's decision is to be based upon the administrative record"); Madrigal v. Callahan, 96 Civ. 7558, 1997 WL 441903, at *7 (S.D.N.Y. Aug. 6, 1997) ("in reviewing decisions of the Commissioner, this Court cannot consider new evidence not made part of the administrative record.")

This Court may remand to the Commissioner to consider new evidence "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Second Circuit has summarized the three-part showing required by this provision as follows:

[A]n appellant must show that the proffered evidence is (1) `new' and not merely cumulative of what is already in the record, and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. Finally, claimant must show (3) good cause for [his] failure to present the evidence earlier.
Jones, 949 F.2d at 60 (citations omitted) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)); accord, e.g., Lisa v. Secretary Dep't of Health & Human Servs., 940 F.2d

40, 43 (2d Cir. 1991); Rosado v. Sullivan, 805 F. Supp. 147, 157 (S.D.N.Y. 1992); Timmons v. Sullivan, 88 Civ. 6612, 1989 WL 156300, at *8-9 (S.D.N.Y. Dec. 19, 1989). We now turn to a consideration of each of the three documents.

1. Dr. Singh's October 18, 2001 Statement

Dr. Singh's statement, dated October 18, 2001, is not "new" since it recites the medical prescriptions already listed in the administrative record. Therefore, there is no need to consider it separately.

2. Medical Evaluations In Connection With Brown's Alleged Motor Vehicle Accident
The two remaining documents submitted by Brown consist of several medical evaluations conducted by Dr. Hausknecht, a neurologist, and Dr. Rigney, a radiologist, in December of 2001. Taken together, these reports indicate that Brown allegedly suffered injuries to the spine in connection with a motor vehicle accident on November 9, 2001. Thus, this information is new and not merely "cumulative" of the administrative record.

a. Materiality

To satisfy the materiality standard, additional evidence "must also relate back to the time period for which benefits were denied, that is, before the ALJ's decision"; specifically, the period between October 22, 1997 to November 30, 2001.*fn4 Wiggins v. Barnhart, 82 Soc.Sec.Rep.Serv. 395, 2002 WL 1941467, at *8 (S.D.N.Y. Aug. 21, 2002); Vitale v. Apfel, 49 F. Supp.2d 137, 142 (S.D.N.Y. 1999) (Where a plaintiff "seeks disability benefits for a past term of disability, the plaintiff must prove he became disabled before the expiration of his insured status"); Grubb, 992 F. Supp. at 637 n. 3 (S.D.N.Y. 1998) (denying review of new evidence containing medical findings unrelated to the relevant period of disability); see also 20 C.F.R. § 416.330(a claimant's "application will remain in effect from the date it is filed until we make a final determination on [his] application, unless there is a hearing decision on [his] application," in which case it stays in effect until the hearing date).

Dr. Rigney examined Brown on November 26, 2001, concluding that Brown suffered a "loss in signal intensity of all cervical disc to varying degrees," "changes of vertebral spondylosis," and "fullness of soft tissues" perhaps related to his thyroid. His second examination, conducted on December 5, 2001, revealed that Brown experienced vertebral spondylosis, loss in signal intensity of all lumbar discs, and posterior bulging in his spine. Given that Dr. Rigney's first report is dated shortly before the ALJ's decision, it clearly relates to the relevant period. Dr. Rigney's second report implicitly states an opinion of Brown's condition during the relevant period, as it is a continuation of the first examination. See Vitale, 49 F. Supp.2d at 142 ("While the existence of a pre-existing disability can be proven by a retrospective opinion, such an opinion must refer clearly to the relevant period of disability and not simply express an opinion as to the claimant's current status."); see also Jones, 949 F.2d 57, 59-60 (2d Cir. 1991).

Dr. Hausknecht's medical report is dated December 19, 2001, a few weeks after the ALJ's decision. However, it specifically refers to the examination, rehabilitation, and treatment for the allegedly debilitating spinal injuries Brown sustained during a motor vehicle accident on November 9, 2001. In his report, Dr. Hausknecht concluded that because of the accident, Brown suffered a "20-25% loss of lateral flexion in the cervical spine bilaterally" and a "20-25% loss of forward flexion in the lumbar spine." Dr. Hausknecht's report thus states an opinion about Brown's condition within the relevant time period. See Wiggins, 2002 WL 1941467, at *8 (a new medical report by claimant's treating physician must "expressly or implicitly, state any opinion about plaintiff's condition during the relevant period" of claimed disability). Additionally, since both Dr. Rigney's and Dr. Hausknecht's reports evaluate Brown's ability to sit, both reports present a reasonable possibility that the Commissioner would have decided the case differently.

b. Good Cause

To demonstrate "good cause" in failing to present evidence in a prior proceeding, the claimant must show that such evidence "surfaces after the Secretary's final decision and the claimant could not have obtained the evidence during the pendency of that proceeding." Espinar v. Shalala, 94 Civ. 6849, 1995 WL 679236, at *8-9 (remanding for consideration of new evidence reporting diagnosis by claimant's treating physician written months after the Secretary's final decision). In addition, the claimant "must adequately explain her failure to incorporate the proffered evidence into the administrative record." Lisa, 940 F.2d at 46. Thus, Brown "must go beyond showing that the proffered evidence did not exist during the pendency of the administrative proceeding. Rather, [he] must establish good cause for failing to produce and present the evidence at that time." Id. at 46.

The Commissioner does not contend that Brown should have presented these documents before the ALJ's decision on November 30, 2001; rather, the Commissioner argues that Brown made no attempt to submit them when filling out the form for review of the ALJ's decision. See Commissioner Mem. ¶ 18. Specifically, the SSA's request form for review of the hearing decision advises claimants to submit evidence at that time, or to request an extension of time for submitting such evidence. (R. 6). Brown completed this form on December 13, 2001, thereby, according to the Commissioner, receiving notice to attach new evidence or request an extension.

Generally, a party seeking equitable tolling of procedural deadlines bears the burden of establishing that "extraordinary circumstances prevented him from filing on time." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citing Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996)). In addition, Brown must show that he acted with "`reasonable diligence' in pursuing [his] application during the period [he] seeks to toll." Rodriguez v. Barnhart, No. 01 Civ. 3411, 2002 WL 31875406, at *3 (S.D.N.Y. Dec. 24, 2002) (citing Johnson, 86 F.3d at 12).

Within the Social Security context, the Supreme Court has declared that section 405(g) of the Act was designed by Congress to be "`unusually protective of claimants.'"*fn5 Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). Indeed, "given the protective nature of the social security statute, [the district court] should hesitate before dismissing plaintiff's claim on technical procedural grounds." Rodriguez, 2002 WL 31875406, at *3. see Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) ("technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.") (Title VII)).

The timeline of events beginning from Brown's hearing in front of the ALJ to Dr. Hausknecht's medical examination presents a unique situation. On November 1, 2001, Brown attended his hearing before the ALJ. (R. 17-36). Eight days later, Brown was allegedly involved in a motor vehicle accident. Dr. Rigney then examined Brown in connection with the alleged injuries on November 27, 2001. Three days later, the ALJ issued her decision. (R. 16). On December 5, 2001, Dr. Rigney completed his evaluation of Brown. On December 13, 2001, Brown filed his appeal to the SSA. (R. 6). Finally, Dr. Hausknecht completed his evaluation of Brown six days after that.

The compressed nature of the events indicates the presence of "extraordinary circumstances" preventing Brown from submitting the reports in a timely fashion. Assuming, arguendo, that Brown had sustained disabling injuries, it would be unduly harsh to penalize a pro se plaintiff for failing to recognize the legal importance of obtaining and submitting evidence related to the accident, merely days after it occurred.

Accordingly, upon remand, the medical reports submitted by Dr. Rigney and Dr. Hausknecht are to be considered as part of the administrative record.


For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied and this case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) in order for the ALJ to further develop the record, including considering the medical reports submitted by Dr. Rigney and Dr. Hausknecht.


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