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SAMUELS v. BARNHART

United States District Court, Southern District of New York


May 13, 2003

SARAH SAMUELS, PLAINTIFF, AGAINST JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge

OPINION AND ORDER

Sarah Samuels appeals pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking review of the Commissioner of Social Security's (the "Commissioner") decision to deny her Supplemental Security Income ("SSI") disability benefits. Both parties move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons stated below, Samuels' claim is remanded to the Commissioner.

I.

Sarah Samuels was born on July 15, 1944. (Tr. 60) She attended school through the tenth grade (Tr. 93) and also attended a vocational school from 1960 to 1961 (id.). Samuels has no significant work history. On her application for SSI benefits, she reported working in a factory as a seasonal worker making Christmas decorations while attending vocational school. (Id.) In 1980, she worked for several days, going door-to-door taking records for the census bureau. (Id.) Around 1984 or 1985 she worked as a home attendant. (Id.) She did not say how many days a week or over what period she worked in this job. (Id.) Samuels also apparently worked as a foster mother for two years in the early 1990s (Tr. 222), and had a "PWP" job assignment.*fn1 (Tr. 43, 116, 147)

In October 1996, Samuels filed an application for SSI benefits. (Tr. 81-88)*fn2 She reported that she was HIV positive and suffered from hypertension and herpes. (Tr. 81) In January 1997, after her application for benefits was denied (see Tr. 49), Samuels requested reconsideration of her claim (see Tr. 97). At that time, Samuels said that she experienced drowsiness, fatigue, severe back pain, and weakness of both knees. (Id.) Samuels' request for reconsideration was denied in April 1997. (Tr. 54) In October 1997, when she requested a hearing on her claim, Samuels said: "I have limited use of my hands caused by my arthritis which is also in my back. I lay in the bed all day from this pain and the weakness from my HIV." (Tr. 58) She said also: "My pain in wrists and spine hurts so bad that I have trouble getting out of bed. My HIV T-cell count is 535 and I am weak and drowsy." (Tr. 109)

Samuels appeared pro se at her hearing before the Administrative Law Judge ("ALJ") on March 11, 1998. (Tr. 39)*fn3 The transcript of the hearing totals only 7 and 1/4 pages. (See Tr. 39-46) Samuels testified that she could read and write, and that she had achieved a GED. (Tr. 40) Samuels said that her back bothered her all the time and sometimes hurt so badly that she could not get out of bed. (Tr. 41) She said that she took pain medication for her back, but it was "killing" her right then, despite the medication. (Tr. 42) According to Samuels, the pain had kept her from traveling to Pennsylvania the previous month for the funeral of her brother-in-law. (Id.) Samuels complained also of arthritis which would start in her hand, come up to her neck, and move down to her buttocks. (Tr. 41) She said that sometimes she could hardly pick up a loaf of bread — she would pick it up and it would drop out of her hand. (Id.)

In a decision dated May 8, 1998, the ALJ denied Samuels benefits. (Tr. 16-31) The ALJ concluded that Samuels' complaints about pain and weakness were "not fully credible," principally because he found a lack of medical evidence in the record that supported her complaints. (Tr. 22-26)

Evidence that was in the record before the ALJ shows that Samuels had a history of hypertension (see, e.g., Tr. 159-161), and in September 1996 she was diagnosed with HIV and herpes zoster, otherwise known as shingles.*fn4 (Tr. 179) Treatment notes from the Spellman Center at St. Clare's Hospital, where Samuels was treated from October 1996 until at least May 1998 (Tr. 155-204, 228-70), show that Samuels was diagnosed with new onset diabetes mellitus in January 1997 (Tr. 160). Samuels' HIV was treated with antiretroviral drugs (Tr. 164) and remained "asymptomatic." (Tr. 161, 165, 174)

Treatment notes from the Spellman Center contain some evidence that Samuels was experiencing pain. A treatment note from November 19, 1996 states that Samuels was taking Motrin for pain. (Tr. 165) On January 17, 1997, a doctor recommended Tylenol instead of Motrin for Samuels' "postherpetic pain" (Tr. 159), and noted that Samuels had a history of "lumbago" (i.e., back pain) at the herpes zoster site. (Tr. 159) Treatment notes in November and December 1997 refer to "arthritis." (Tr. 197-98) One treatment note appears in the record for which the date is illegible. This note mentions that Samuels took Tylenol for "arthritis" and states, "will give Tylenol Codeine." (Tr. 203)

On March 2, 1998, Dr. Coleman of the Spellman Center reported that Samuels' HIV, hypertension, and diabetes mellitus were stable. (Tr. 228) He noted a history of arthritis but said Samuels was "fully functional" and "doing well." (Id.)*fn5 Dr. Coleman noted that he had first seen Samuels in January 1998. (Id.)

Based on the treatment records from the Spellman Center, as well as the reports of consulting doctors — which are described below — the ALJ concluded that Samuels was not disabled under the regulations. However, the ALJ did not have a full set of Samuels' medical records before him. Additional treatment records were submitted to the Appeals Council by a lawyer helping Samuels with her appeal (Tr. 274-76),*fn6 and these notes provide support for Samuels' complaints about pain and weakness.

Missing from the record before the ALJ were treatment notes from Dr. Shapiro, who treated Samuels from 1990 until October 1996. (Tr. 142).*fn7 In September 1996, Dr. Shapiro wrote that Samuels had "severe blisters, rash [right] lower back, leg, vulva," and she diagnosed this condition as herpes zoster. (Id.) Dr. Shapiro prescribed Tylenol with Codeine. (Id.) Two weeks later, Dr. Shapiro noted that the blisters had spread to Samuels' right chest and were "very extensive, severe." (Id.)

Included in the record before the ALJ were treatment notes from the Spellman Center from October 1996 to March 1997, and from November 1997 to March 1998. (See Tr. 155-204, 228-242) However, missing were notes from April 1997 to October 1997. These notes were submitted to the Appeals Council*fn8 and several contain evidence that Samuels suffered from conditions that cause pain and weakness. In particular, an April 11, 1997 treatment note indicates that Samuels complained of pain and numbness in the upper extremities. (Tr. 247) At that time, she was diagnosed with new onset peripheral neuropathy.*fn9 (Id.) Another treatment note shows that on May 13, 1997, Samuels complained of "arthritis on hands/[undecipherable]." (Tr. 250) Physical examination revealed "positive" findings regarding wrist motion with "stiffness." (Tr. 250) Motrin was prescribed. (Id.) On June 10, 1997, Samuels was told to try Tylenol instead of Motrin for her "postherpetic neuralgia,"*fn10 as the Motrin might increase her blood pressure and affect her kidney. (Tr. 252) A note on September 5, 1997, said: "Renew order . . . tylenol for arthritis." (Tr. 257) In October 1997, Samuels visited the Spellman clinic seeking a refill of Tylenol for "arthritic pain." (Tr. 244)*fn11 None of these notes were before the ALJ.

The record before the ALJ did contain reports of several examinations performed by consulting physicians. On February 16, 1996, Samuels was examined by Dr. Lachman. (Tr. 116-18) Samuels reported to Dr. Lachman a history of high blood pressure and a chronic cough. (Tr. 116) Samuels said she got short of breath when walking, and could walk only one to 1-1/2 blocks before stopping. (Id.) Dr. Lachman said that Samuels "ambulates and gets on and off the examination table without assistance." (Id.) The examination revealed no limitation in the range of motion for any muscle or joint; there was no muscle atrophy; motor strength was full bilaterally; there were no sensory deficits; Samuels' gait was normal; and there were no rashes on the skin. (Tr. 117) Dr. Lachman's impression was that Samuels suffered from hypertension and chronic bronchitis, which he thought was due to cigarette smoking. (Id.) He concluded: "This patient should be able to perform light physical duties. It is possible that her chronic bronchitis could be affected by exposure to chemical irritants. She should stop smoking and reduce her moderate alcohol intake to be in better health and be more productive." (Tr. 118)

Dr. Graham examined Samuels on November 20, 1996. (Tr. 147-49) Dr. Graham's report noted that Samuels had worked four months prior to that date as a PWP worker, but she stated she was unable to work because of "tiredness" and because she could not "lift heavy things." (Tr. 147) Samuels reported also that she was HIV positive and described becoming fatigued easily. (Id.) She said that she was able to walk about 4 to 5 blocks before stopping. (Id.) The examination showed a normal range of motion of the spine with no tenderness or muscle spasm; there was a full range of motion in all joints with no pain; muscle strength was adequate; there was no muscle atrophy; dexterity was normal; and Samuels was able to make a full fist and able to perform a full squat. (Tr. 148) Dr. Graham concluded that Samuels was able to "sit, stand, walk, lift, carry, handle objects, hear, speak, and travel." (Tr. 149) Dr. Graham examined Samuels again on December 2, 1997. (Tr. 207-09) Samuels described becoming tired after walking 4 to 5 blocks. (Tr. 207) Samuels described her history of HIV, hypertension, and diabetes. (Id.) The remainder of Dr. Graham's findings were similar to those in 1996. He concluded: "This patient is able to sit, stand, walk, lift, carry, handle objects, hear, speak, and travel." (Tr. 209)

On January 5, 1998, Dr. Robotti conducted a psychiatric examination of Samuels. (Tr. 222-23) Dr. Robotti stated that Samuels was "fairly well dressed and well groomed," she was "pleasant and cooperative and well-mannered," and her speech was "relevant and coherent." (Tr. 222) There were no delusions, hallucinations, or suicidal or homicidal ideation, insight and judgment were fair, mood was euthymic, affect was broad-ranged and appropriate, she was fully oriented, and her recent and remote memory were intact. (Id.) Dr. Robotti stated that Samuels showed no limitation in understanding, memory, sustained concentration, persistence, and social interaction and adaptation. (Id.) Dr. Robotti's impression was that Samuels suffered from dysthymic disorder*fn12 and alcohol dependence in remission. (Tr. 223) Dr. Robotti noted that Samuels was HIV positive and had arthritis. (Id.) Dr. Robotti concluded: "The patient can manage her own funds and continue medical follow up for human immunodeficiency virus." (Id.)

Also on January 5, 1998, Samuels underwent an intelligence evaluation by Dr. Hoffman. (Tr. 224-25) Dr. Hoffman noted that Samuels said that her arthritis interfered with her daily living ability. (Tr. 224) On the Bender-Gestalt test for assessing organic brain function, Dr. Hoffman found that Samuels' errors showed moderate rather than mild or severe organicity in the graphomotor domain. (Id.) The errors related to integration and angulation. She showed difficulty in spacing her answers appropriately, and anxiety. (Id.) On the Wechsler Adult Intelligence Scale, Samuels earned a Verbal IQ of 90, a Performance IQ of 74, and a Full Scale IQ of 82. (Tr. 225) Dr. Hoffman said that "[t]hese scores indicate average, borderline, and low-average ranges of intelligence respectively." (Id.) Dr. Hoffman found: "The claimant showed high average ability in short-term memory for numerals. She displayed average ability in conceptual reasoning. She showed low-average ability in oral comprehension." (Id.) He found further: "She displayed borderline ability in her fund of general knowledge, word mastery, arithmetic, and symbolic reasoning via hand-eye coordination. She displayed deficient functioning in social reasoning, matching three-dimensional patterns to two-dimensional representations, attention to visual details, and solving puzzles via hand-eye coordination." (Id.) Dr. Hoffman concluded: "The claimant does show the ability to achieve competitive employment, although she would probably need help in managing her funds independently." (Id.) He said: "It is recommended that the claimant be encouraged to seek competitive employment relying on her relative strength in verbal intelligence." (Id.)*fn13

In February 1998, a non-examining physician reviewed Samuels' file. (Tr. 210-217) This physician addressed Samuels' HIV status and "affective disorder" (Tr. 210) and concluded that she could occasionally (one-third of an 8-hour work day) lift and carry 50 pounds and frequently (two-thirds of an 8-hour work day) lift and carry 25 pounds (Tr. 211). The physician further believed that Samuels could stand and walk for 6 hours during an 8-hour period. (Id.)

Another non-examining physician evaluated Samuels' mental impairment in February 1998 and concluded that it "moderately" limited her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (Tr. 218) She was also "moderately" limited in her ability to interact with the general public and moderately limited in her ability to set realistic goals and make plans indepedently. (Tr. 219) This doctor concluded that Samuels was "capable of low contact work activities." (Tr. 220)

II.

The SSI Program established by Title XVI of the Social Security Act, codified at 42 U.S.C. § 1381 et seq. (2000), provides benefits to those who are indigent and disabled. See Bowen v. City of New York, 476 U.S. 467, 470 (1986). The Social Security Act considers someone disabled if he is unable "to 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. § 1382c(a)(3)(A) (2000). The person must be unable not only to do his previous work but also, "considering his age, education, and work experience, [to] 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." Id. § 1382c(a)(3)(B).

The Commissioner has established a five-step process for evaluating disability claims. See 20 C.F.R. § 416.920 (2002). The procedure has been described by the Second Circuit as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment . . . listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work [that] the claimant could perform.
Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)) (alterations in original); see also Melville v. Apfel, 198 F.3d 45, 65 (2d Cir. 1999). The claimant bears the burden of proving that he is not engaged in substantial gainful activity, that he has a severe impairment, and that either his impairment meets one of the listings or he cannot perform his past work. "`Once a claimant proves that his severe impairment prevents him from performing his past work, the [Commissioner] then has the burden of proving that the claimant still retains the residual functional capacity to perform substantial gainful work which exists in the national economy.'" Curry, 209 F.3d at 123 (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)) (alteration in original)

In reviewing Samuels' claim, the ALJ first determined that Samuels was not engaged in substantial gainful activity. (Tr. 21) Second, the ALJ concluded: "the claimant does have a severe' impairment because clinical and laboratory findings demonstrate the presence of a medical condition which significantly limits her ability to perform basic work activities such as lifting and carrying." (Id.) Third, the ALJ considered Samuels' HIV, back pain, hypertension, diabetes, and dysthymic disorder, and found that Samuel did not have an impairment listed in Appendix 1 of the regulations. (Id.)

Before proceeding to steps four and five, the ALJ determined Samuels' residual functional capacity ("RFC"). (Tr. 22) A claimant's RFC is defined as what she can do despite her limitations, and is an issue at steps four and five of the evaluation process. See 20 C.F.R. § 416.945(a).

In assessing Samuels' RFC, the ALJ considered Samuels' complaints about pain "running down to her hands and down her back into her legs." (Tr. 22) But, he said: "[L]aboratory diagnostic tests have not revealed abnormalities consistent the claimant's allegations of totally disabling symptoms. are no x-ray, CT scan, or MRI results which indicate the of a condition reasonably consistent with the claimant's description of the frequency, intensity and limiting effects of the symptoms. And physical examinations have provided, at best, only weak support." (Tr. 22)

The ALJ noted that Samuels' HIV was asymptomatic, her diabetes mellitus was controlled by medication, and her hypertension was only mild. (Id.) The ALJ noted that Samuels alleged back problems and arthritis, but he found there was "no objective support for either of these complaints." (Tr. 23) The ALJ stated:

The claimant was able to ambulate and get on and off the examination table without assistance. Physical examinations have consistently revealed full range of motion of all joints without pain, swelling, redness, or heat. Muscle strength was adequate, symmetrical and commensurate with body build. There was no muscle atrophy. The claimant could make a full fist bilaterally; her hand dexterity was normal; she could stand on her toes; and she could perform a full squat. The claimant's gait and station were also normal. There was no gross spinal deformity, tenderness, or spasm. Straight leg raising was negative, and the neurological examination was completely intact.
(Tr. 23) (citations omitted) The ALJ cited the reports of consulting physician Dr. Lachman, who examined Samuels on February 16, 1996 (Tr. 116-18), and reports by consulting physician Dr. Graham, who examined Samuels on November 20, 1996 (Tr. 147-149), and on December 2, 1997 (Tr. 207-09).

Regarding Samuels' psychiatric and intelligence evaluations, the ALJ said:

[A] psychiatric evaluation of the claimant resulted in the diagnosis of dysthymic disorder. However, it is clear from the evaluation that this diagnosis was made based on the claimant's complaints and not on any clinical signs. In fact, the claimant appeared fairly well dressed and well groomed. She was pleasant and cooperative and well-mannered; her speech was relevant and coherent; there was no evidence of delusions, hallucinations, or suicidal ideations; and her insight and judgment were fair. While the claimant's mood was euthymic, her affect was appropriate and she was oriented times three. Both recent and remote memory were intact. There were no limitations shown with respect to claimant's understanding and memory, sustained concentration and persistence, or social interaction and adaption. And an intelligence evaluation revealed the ability to achieve competitive employment. The claimant received a full scale IQ score of 82 on the WAIS-R, which represents intellectual functioning in the low average range.
(Tr. 23) (citations omitted).

The ALJ recognized that the regulations provide for further evaluation of the claimant's complaints when the complaints exceed those which would be expected from an evaluation of the medical evidence. (Id.) However, the ALJ determined that "[e]ven considering the evidence of record independent of the objective medical findings, the claimant's testimony with respect to the extent and severity of the subjective complaints is not fully credible." (Tr. 24) The ALJ provided a number of reasons for this conclusion.

First, the ALJ said that Samuels' treating doctors did not restrict her activities "to the extent expected for a totally disabled individual." (Tr. 24) Second, the ALJ said that Samuels' described daily activities were "not limited to the extent one would expect, given the complaints of disabling symptoms." (Id.) In particular, the ALJ noted that Samuels reported doing household maintenance, taking public transportation, watching television, playing cards, listening to music, and paying bills. (Id.) Third, the ALJ said that Samuels had given conflicting information about her activities. She testified at the hearing that she needed help with her housework, but stated elsewhere in the record that she could do it all herself. (Id.) The ALJ noted also that Samuels said on one occasion that she had not worked in 15 years, but she contradicted this statement in conversations with physicians. (Id.) The ALJ concluded that although these examples might not show an intention to mislead, "they suggest that the information provided by the claimant in general may not be entirely reliable." (Id.) The ALJ said also that SSA employees did not report observing Samuels having any difficulty when completing or filing her application for benefits, and examining physicians did not observe that Samuels had any difficulty getting about or functioning during the examinations. (Tr. 24)

The ALJ continued, "[A]s noted earlier in this decision, the claimant alleged an impairment for which there was absolutely no objective medical support. Such an allegation raises some question as to the reliability of the claimant's statements more generally." (Tr. 24-25) The ALJ apparently was referring to Samuels' complaints of back problems and arthritis, as he had stated earlier in his opinion that "there [was] no objective support for either of these complaints." (Tr. 23) The ALJ noted also that although Samuels testified that she experienced disabling back pain, she did not include this information in her application for benefits. (Tr. 25) He found further that Samuels "has not generally received the type of medical treatment expected for a totally disabled individual." He found, "the record reflects no actual treatment for back problems or arthritis" and "the office visit note reflect numerous occasions on which the claimant did not specify any particular disabling complaint." (Tr. 25)

The ALJ added that "the fact that [Samuels] continues to smoke and use alcohol suggests that she does not consider her condition to be serious." (Tr. 25) He said that the record showed that Samuels had a sporadic work history, even prior to the date of her alleged disability, which raised "the question of whether the continuing unemployment is actually due to medical impairments or whether other reasons explain the claimant's lack of work." (Id.) The ALJ noted that the RFC assessments of Samuels by the non-examining consulting physicians were consistent with his findings. (Tr. 25-26) Finally, the ALJ said that Samuels' examining and treating physicians indicated that she was capable of performing work activity. (Tr. 26)

The ALJ concluded: "The claimant has the residual functional capacity to perform the physical exertion requirements of work except for lifting or carrying more than 20 pounds occasionally or more than 10 pounds frequently. There are no nonexertional limitations." (Tr. 27)

After determining Samuels' RFC, the ALJ found at step four that "owing to the claimant's sporadic work record, the undersigned concludes that she has no past relevant work for the purposes of this determination." (Tr. 26) Therefore, the ALJ moved to the fifth step.

The ALJ recognized that at step five, "the burden shifts to the Commissioner to show that other jobs exist in significant numbers in the national economy which she can perform, consistent with her medically determinable impairments, functional limitations, age, education, and work experience." (Id.) The ALJ found that at 53 years old, Samuels was "approaching advanced age" under 20 C.F.R. § 416.963. (Tr. 26) He found next that because Samuels had only completed the tenth grade, her education level was "limited" under 20 C.F.R. § 416.964(b) and he found that Samuels had no transferable work skills. (Id.) Based on these findings, the ALJ concluded:

With a residual functional capacity for the full range of light work, 20 C.F.R. § 416.969 provides for a directed conclusion using the Medical-Vocational Guidelines in Appendix 2, Subpart P, Regulations No. 4. Vocational Rule 202.10, Table No. 2, directs a conclusion of "not disabled". Therefore, the Administrative Law Judge finds that the claimant was not "disabled" at any time through the date of this decision.
(Tr. 26-27)

III.

A court may set aside a decision of the Commissioner to deny disability benefits under the Social Security Act only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). 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.'" Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A. RFC Determination

When the ALJ determined Samuels' RFC, he did not have all of her medical treatment notes in the record. The ALJ did appear to notice a gap in the record. He said: "And the claimant has not generally received the type of medical treatment expected for a totally disabled individual. The record reflects significant gaps in the claimant's history of treatment." (Tr. 25) In the record before the ALJ were notes from the Spellman Center from visits at least once a month from October 1996 though March 1997. There also were notes — from visits at least every month — from November 1997 through March 1998. Before discounting Samuels' complaints of pain based on a lack of medical evidence, the ALJ should have determined whether the gap in the treatment notes was due to a lack of visits by Samuels or due to his not having had all the records before him.

The ALJ has an affirmative duty to develop the record. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). This duty is present even when a claimant is represented by counsel, Perez, 77 F.3d at 47, but it is heightened when a claimant proceeds pro se. See Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751 (2d Cir. 1982) ("Where, as here, the claimant is unrepresented by counsel, the ALJ is under a heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.") (citations and internal quotation marks omitted). In this case, the ALJ failed to develop the record adequately regarding Samuels' RFC. After noting the gap in the treatment notes, the ALJ should have asked Samuels if she had visited the Spellman Center during this period, and if she had, he should have attempted to get these records.

The treatment notes submitted to the Appeals Council are part of the record on review. "[T]he new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). "When the Appeals Council denies review after considering new evidence, we simply review the entire administrative record, which includes the new evidence, and determine, as in every case, whether there is substantial evidence to support the decision of the Secretary." Id. at 46.

Several treatment notes that were missing from the record before the ALJ are highly relevant to whether Samuels' complaints about pain were credible. In determining Samuels' RFC, the ALJ dismissed Samuels' complaints as "not fully credible" because he found "no objective support" for these complaints. (Tr. 23) However, treatment notes submitted to the Appeals Council indicate that on April 11, 1997, Samuels complained of pain and numbness in the upper extremities and was diagnosed with new onset peripheral neuropathy. (Tr. 247) Peripheral neuropathy can be caused by diabetes mellitus and HIV infection. See Merck Manual, supra, at 1491. Samuels was diagnosed with HIV in September 1996 (Tr. 179) and with diabetes mellitus in January 1997 (Tr. 160). On May 13, 1997, Samuels complained of arthritis in the hands and examination showed "stiffness" and "positive findings" as to wrist motion. (Tr. 250) On June 10, 1997, Samuels was told to try Tylenol instead of Motrin for her "postherpetic neuralgia." (Tr. 252) Postherpetic neuralgia can result from herpes zoster, see Merck Manual, supra, at 1492, and Samuels was diagnosed with herpes zoster in September 1996 (Tr. 273). Postherpetic neuralgia and peripheral neuropathy can cause symptoms consistent with Samuels' complaints of pain and weakness. See Merck Manual, supra, 1294, 1492-93. Thus, these records, which were not before the ALJ, provide support for Samuels' complaints about pain and weakness.

From these treatment notes alone I cannot determine the severity of Samuels' conditions, or determine how doctors reached their conclusions that Samuels suffered from these conditions. However, these treatment notes do show that the ALJ failed to develop the record adequately. The ALJ's findings regarding Samuels' credibility cannot be sustained without further inquiry into the conditions that may have caused her to experience pain and weakness.

In addition, several of the other reasons the ALJ gave for finding Samuels not credible are not persuasive, especially in light of the new evidence submitted to the Appeals Council. The ALJ concluded that "the record reflects no actual treatment for back problems or arthritis." (Tr. 25) However, several treatment notes that were in the record before the ALJ contradict this finding. Notes in January 1997 show that Samuels' doctor recommended Tylenol instead of Motrin for "postherpetic pain." (Tr. 159) An undated treatment note says "Arthritis taking Tylenol. Will give Tylenol Codeine [undecipherable]." (Tr. 203) In addition, treatment notes that were not before the ALJ provide further evidence that Samuels was being treated for pain. Dr. Shapiro's treatment notes from September 1996 show that Samuels was prescribed Tylenol with Codeine for her herpes zoster. (Tr. 273) Spellman Center treatment notes from June 10, 1997 show that Samuels was told to try Tylenol instead of Motrin for her "postherpetic neuralgia." (Tr. 252) A note in September 1997 said "Renew order . . . tylenol for arthritis." (Tr. 257)

The ALJ questioned Samuels' credibility because she had provided conflicting information regarding her disabling conditions — when she applied for benefits in October 1996 she said she did all of her housework, but she testified in March 1998 at the hearing that she needed help with housework. (Tr. 24) However, Samuels may have had an increase in pain and weakness in these intervening months. Indeed, the treatment notes show that she developed postherpetic neuralgia and peripheral neuropathy in April and June 1997. The ALJ also said that Samuels failed to report disabling back pain at the time she filed her application for benefits in October 1996. (Tr. 25) Again, however, more severe pain may have developed at a later point. The ALJ failed to explore this possibility at the hearing.

The ALJ lists a number of other reasons for concluding that Samuels' complaints about pain were not credible, including among other things, that examining physicians did not see her having trouble functioning, her various daily activities were not "limited to the extent one would expect, given the complaints of disabling symptoms," she had given inconsistent accounts of her work history, and her sporadic work history raised "the question of whether the continuing unemployment is actually due to medical impairments or whether other reasons explain the claimant's lack of work." (Tr. 25)

Although some of these observations do weigh against finding that Samuels is limited to the extent she claims she is, the ALJ, in finding Samuels' complaints "not fully credible," put primary reliance on a lack of medical evidence in the record that supported Samuels' complaints. The treatment notes regarding Samuels' postherpetic neuralgia and peripheral neuropathy — contained in the records submitted to the Appeals Council — are clearly relevant to whether Samuels' complaints about pain and weakness are credible. I must review the ALJ's decision in light of the evidence before the Appeals Council to determine whether the ALJ's decision was supported by substantial evidence. Reviewing the record including the additional treatment notes, I find that the ALJ's determination regarding Samuels' RFC cannot be sustained.

On remand, there should be further development of the record. The ALJ should determine the degree to which Samuels suffered from postherpetic neuralgia and peripheral neuropathy, and the date that Samuels began to suffer from these conditions. Samuels' complaints about pain and weakness should be reassessed in light of the medical evidence.

B. Nonexertional Limitations

Samuels argues that the ALJ erred in relying on the Medical-Vocational Guidelines, commonly called "the grids," to satisfy the Commissioner's burden at step five of the process for determining disability. I agree that the ALJ applied the grids without adequately considering the effect of Samuels' intellectual limitations on her work capacity. The case must be remanded on this basis as well.

At step five, once a disability claimant has shown that he is prevented from doing his past work as a result of a severe impairment, the Commissioner has the burden of proving that the claimant "still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy." Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).

The Commissioner generally carries this burden by relying on the Medical-Vocational Guidelines, or grids, set forth in 20 C.F.R. pt. 404, subpt. P, app. 2 (2002). See Bapp, 802 F.2d at 604. The grids take into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(a); 20 C.F.R. § 416.969a(a) (2002); Rosa v. Callahan, 168 F.3d 72; 78 (2d Cir. 1999). Based on these factors, the grids indicate whether the claimant can engage in any other substantial gainful work which exists in the national economy. See 20 C.F.R. § 416.969a(a); Rosa, 168 F.3d at 78. The grids divide work into five categories based on the exertional requirements of the different jobs. Specifically, the grids divide work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling. See 20 C.F.R. § 416.969a(a).

"`Generally speaking, if a claimant suffers only from exertional impairments, e.g., strength limitations, then the Commissioner may satisfy her burden by resorting to the applicable grids. For a claimant whose characteristics match the criteria of a particular grid rule, the rule directs a conclusion as to whether he is disabled.'" Rosa, 168 F.3d at 82 (quoting Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996)).

However, the grids do not alone determine a claimant's disability status if the claimant suffers not only from exertional impairments but also from nonexertional impairments, i.e., non-strength limitations.*fn14 See Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996); see also Bapp, 802 F.2d at 604-05 (in case of exertional and nonexertional limitations, "the grid rules may not be controlling" and do not "provide the exclusive framework for making a disability determination"). In such a case, if a claimant's nonexertional impairments "significantly diminish" the range of work otherwise allowed by his exertional impairments, the grids do not accurately reflect his disability status. See Bapp, 802 F.2d at 605-06. A nonexertional impairment "significantly diminishes" a claimant's range of work when it causes an "additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Id. at 606; accord Pratts, 94 F.3d at 39. If a claimant's range of work is significantly diminished, the Commissioner must present testimony from a vocational expert showing that there are still jobs in the national economy for someone with the claimant's limitations. See Bapp, 802 F.2d at 606; see also Pratts, 94 F.3d at 39.

The ALJ found that Samuels had the residual capacity to perform the full range of light work and had no nonexertional limitations. (Tr. 27) In addition, the ALJ found that Samuels was "approaching advanced age," had a limited education, and had no transferable work skills. (Id.) Given these findings, he applied the grids and determined that the grids directed a finding of "not disabled." (Id.)

Samuels argues that her low IQ is a significant nonexertional limitation that precluded reliance on the grids. Samuels points to Dr. Hoffman's intelligence evaluation as demonstrating that her intellectual abilities are significantly compromised. (Pl.'s Mem. at 14) The ALJ mentioned Dr. Hoffman's report when considering Samuels' RFC. Regarding this report, the ALJ stated only: "[A]n intelligence evaluation revealed the ability to achieve competitive employment. The claimant received a full scale IQ score of 82 on the WAIS-R, which represents intellectual functioning in the low average range." (Tr. 23) The ALJ appears to conclude that Samuels' mental impairments would not affect her employability because Dr. Hoffman said that Samuels showed "the ability to achieve competitive employment."

However, Dr. Hoffman's statement must be read in the context of his whole report. His sentence about "competitive employment" reads in full: "The claimant does show the ability to achieve competitive employment, although she would probably need help in managing her funds independently." (Tr. 225) Dr. Hoffman, the only person to assess Samuels' intellectual capacity with standardized tests, found that Samuels had a Performance IQ of 74, which he classified as "borderline." (Id.) She had borderline ability in her fund of general knowledge, word mastery, arithmetic, and symbolic reasoning via hand-eye coordination, and she displayed deficient functioning in social reasoning, matching three-dimensional patterns to two-dimensional representations, attention to visual details, and solving puzzles via hand-eye coordination. (Id.) Finally, her performance on the Bender-Gestalt indicated moderate — rather than severe or mild — organicity in the graphomotor domain. (Tr. 224) Dr. Hoffman concluded: "It is recommended that the claimant be encouraged to seek competitive employment relying on her relative strength in verbal intelligence." (Tr. 225)

From Dr. Hoffman's report, it is apparent that Samuels has intellectual limitations. Under the regulations, mental limitations are nonexertional limitations. See 20 C.F.R. § 416.969a(c); 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e). Plainly, intellectual limitations can affect the range of employment opportunities available to a person. See De Leon v. Sec'y of Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984) ("Surely a borderline IQ has a bearing on employability, even as a mop-pusher, porter, or maintenance man.")

The regulations required the ALJ to consider the combined effect of Samuels' mental and physical limitations on her work capacity before using the grids. See Pratts, 94 F.3d at 39; Bapp, 802 F.2d at 605-06. Dr. Hoffman undertook no such evaluation of the combined effect of Samuels' impairments. Rather, he evaluated only Samuels' intellectual capacities. Dr. Hoffman's statement regarding Samuels' ability to "achieve competitive employment" is not sufficient evidence on which to base the conclusion that Samuels' mental limitations had no effect whatsoever on her opportunity for employment. To the extent that the record did not contain enough information to make the determination regarding the effect of Samuels' intellectual limitations on her work capacity, the ALJ had an affirmative duty to develop the record. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751 (2d Cir. 1982).

I cannot conclude from the ALJ's opinion that he applied the proper legal standard in evaluating Samuels' intellectual limitations. The ALJ should have recognized that Samuels had a nonexertional limitation, and then before turning to the grids he should have considered whether Samuels' intellectual abilities significantly limited the range of work permitted by her exertional limitations. See Lee v. Shalala, 872 F. Supp. 1166, 1170-71 (E.D.N.Y. 1994) (remanding case when the ALJ applied the grids without considering the effect of low IQ on work capacity); see also Williams v. Barnhart, No. 01 Civ. 353, 2002 WL 618605, at *6 (S.D.N.Y. Apr. 18, 2002); Gallivan v. Apfel, 88 F. Supp.2d 92, 99 (W.D.N.Y. 2000); Shane v. Chater, No. 96-CV-66, 1997 WL 426203, at *15 (N.D.N.Y. Jul. 16, 1997); Cangelosi v. Chater, No. 94-CV-2694, 1996 WL 663161, at *6-7 (E.D.N.Y. Nov. 5, 1996).

C. Disposition

Samuels argues that remand solely for the calculation of benefits is the proper course here, instead of remand for further proceedings, because the Commissioner failed to meet his burden at step five. Samuels cites Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), where the Second Circuit found that remand solely for calculation of benefits was appropriate when the Commissioner had failed to sustain his burden of proving that the claimant could perform work that existed in the national economy.

The Second Circuit has held that reversal rather than remand is proper when the record already "provides persuasive proof of disability" and "further evidentiary proceedings would serve no purpose." Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); see also Rosa, 168 F.3d at 82-83 ("[W]here [the Second Circuit] has had no apparent basis to conclude that a more complete record might support the Commissioner's decision, we have opted simply to remand for a calculation of benefits."). However, "[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the Second Circuit has], on numerous occasions, remanded to the [Commissioner] for further development of the evidence." Parker, 626 F.2d 235; accord Rosa, 168 F.3d at 82-83; Pratts, 94 F.3d at 39.

In this case, treatment notes mentioning postherpetic neuralgia and peripheral neuropathy — which were given to the Appeals Council — cut strongly against the ALJ's findings regarding Samuels' RFC. There has been no fact finding with respect to these conditions, and Samuels' credibility must be reassessed in light of this evidence. In addition, the ALJ failed to consider adequately the effect of Samuels' intellectual limitations on her work capacity. Therefore, remand for further development and consideration of the evidence is appropriate. See, e.g., Pratt, 94 F.3d at 39 (remanding case for ALJ to conduct a re-evaluation as to whether the Commissioner had demonstrated that claimant's ability to perform the full range of light work was not significantly diminished by his nonexertional impairments).

On remand, the ALJ should conduct further fact finding and consider the effect of Samuels' arthritis, postherpetic neuralgia, and peripheral neuropathy on her RFC. Samuels' subjective complaints of pain and weakness must be reconsidered in light of this new evidence. In addition, there should be further fact finding with respect to whether Samuels' mental limitations significantly diminish the range of work available to her. If, under this standard, it appears that the range of work available to Samuels is significantly diminished, the Commissioner then must produce either testimony from a vocational expert or other similar evidence showing the existence of jobs in the national economy for someone with Samuels' limitations. See Pratt, 94 F.3d at 39.

This case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.*fn15 Samuels moves also for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (2000). Samuels' counsel is directed to submit an application for attorneys' fees under the EAJA, based on contemporaneous time records, as required by New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983).*fn16

There is one further matter that bears mention. The ALJ issued his opinion in this matter on May 8, 1998, when Samuels was 53 years old. On July 15, 1999, Samuels turned 55. Applying the ALJ's factual findings, the grids now direct a finding of disabled. Under Table 2 of the grids, if a claimant is capable of "light work," is of "advanced age" (i.e., 55 or over), has limited education, and has no transferable work skills, then Rule 202.01 directs a finding of disabled. See 20 C.F.R. pt. 404, subpt. P, app. 2, tbl. 2, rule 202.01 (2002).

Samuels states in her Memorandum that because the grids direct a finding of disabled after her 55th birthday, "[t]his leaves only the 33-month period from October 1996 through July 15, 1999 in question." (Pl.'s Mem. at 20 n. 5) The Commissioner says in her Memorandum: "The ALJ's decision currently before the Court for review addressed only the period through the date of the decision — May 8, 1998. For a determination of whether she satisfied the requirements for disability at some later date, plaintiff would have to file a new application." (Def.'s Mem. at 26 n. 10) Samuels does not respond directly to this point in her Reply Memorandum; she argues only that this court should find that she has been disabled since October 1996 and remand solely for the calculation of benefits. I do not know whether Samuels has received SSI benefits since July 15, 1999, her 55th birthday. If she has not received benefits since that date, the Commissioner is directed to award them.

For the reasons stated above, this case is remanded to the Commissioner for further proceedings consistent with this opinion.


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