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United States District Court, S.D. New York

March 13, 2004.

STANLEY HORTON, Plaintiff -against- JO ANN B. BARNHART, Commissioner of Social Security Defendant

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Plaintiff Stanley Horton ("plaintiff or "Horton") brings this action, pursuant to 42 U.S.C. § 405(g), to challenge the final determination by the Commissioner of Social Security ("defendant" or "Commissioner") that he was not "disabled" within the meaning of the Social Security Act. Defendant moves and plaintiff cross-moves for judgment on the pleadings. For the following reasons, plaintiff's motion is granted and defendant's motion is denied


 A. Facts

  Horton filed for Social Security Disability benefits and Supplemental Security Income on May 22, 2001, at which time he was 33 years old. His past relevant employment included work as a meat packer from 1999 to 2001 and as a garage attendant from 1987 to 1998. He alleged that he became disabled on April 13, 2001 a month before he applied for these benefits — which is when he was hit by a van.*fn1 The next day, he was treated in the emergency room of St. Barnabas Hospital, whore he was diagnosed with a right forearm contusion and advised to take Tylenol and to follow up with a family doctor.*fn2 On May 7, 2001, a magnetic resonance imaging ("MRT) was performed on his cervical spine, which revealed a posterior midline disc herniation Page 2 at C4-C5 and a straightening of the usual lordosis — i.e., an abnormal forward curvature of the spine in the lumbar region. On May 29, 2001, an MRI was performed on his lumbar spine, which noted straightening of the lumbar spine consistent with muscle spasm and midline disc herniation at L5-S1. Quoc Vo, a medical resident at St. Barnabas Outpatient Clinic, prepared a musculoskeletal medical report dated December 11, 2001 with respect to an evaluation performed on November 16, 2001. Dr. Vo noted that Horton complained of pain in his right shoulder and neck and in his lower back, related to the incident with the van on April 13, 2001.*fn3 Dr. Vo stated that the findings were that Horton had a right sacroiliac compression, mildly decreased motion of the sacrum, hypertonic right psoas muscle, and boggy left ankle. The evidence also included a functional-assessment questionnaire prepared on December 14, 2001 by Dr. Z. Pelkey of St. Barnabas Hospital, which stated that Horton was limited to lifting twenty-five pounds occasionally, standing and/or walking four and a half hours per day due to the muscle spasms being irritated by excessive use and lifting. Dr. Pelkey stated that the medical findings to support this assessment are somatic dysfunction of cervical, thoracic, lumbar spine sacrum involving the lower extremities and muscle spasms, and a history of discogenic disease.

  After his application was denied on September 6, 2001, Horton requested a hearing, which was held before Administrative Law Judge Walter Brudzinski on June 18, 2002. Horton, who was represented at the hearing by a non-attorney representative, testified that he stopped working because of the accident with the van on April 13, 2001 and that both the pain in his back and neck, as well as high blood pressure, resulted from the accident He stated that he received physical therapy for his back pain, that he could walk only about one and a half to two city blocks, and that he had trouble standing. He reported that he received help from his girlfriend, with whom he lived, for bathing and dressing, and that he did not sleep well at night due to the pain. He also stated that on a typical day he went outside and that he walked for recreation and to alleviate the pain in his back. While asked if he had any additional information, none was proffered. Horton1's testimony spans five pages of the transcript of the hearing. His representative asked only a few questions with respect to his use of a back brace. A vocational expert, Edna Clark, also testified before ALJ Brudzinski. Ms. Clark concluded that Horton could Page 3 not return to his past relevant work given the limitations on his functional capacity. However, she stated that even with these limitations Horton could work as a cashier, a counter clerk, or a surveillance-system monitor. Horton's representative asked no questions of the vocational expert.

  In addition to the medical records from St. Barnabas Hospital for the two visits he made to the emergency room and his treatment at South Bronx Medical, the evidence before the ALJ included reports from several consultative examinations. Horton was examined on September 24, 2001 by HS Systems which noted that he had intervertebal disc disorder of the lumbar region and that this condition required further treatment which was expected to last between one and three months. (This form, which does not indicate who authorized the finding, also indicates that Horton has other disorders of the cervical region and elevated blood pressure, none of which required treatment) Horton was also examined by Antero Sarreal, M.D. of Diagnostic Health Services, Inc., on June 11, 2001. In his report, Dr. Sarreal diagnosed Horton with 1) neck pain with radiculopathy of the right upper extremity, 2) low back derangement with atrophy of the right thigh, and 3) bilateral flatfeet. Horton complained of shoulder and neck pain on the day of the exam and stated that he then received chiropractic treatment six days a week. Horton noted that at that time he was independent in dressing/undressing and bathing, but received assistance with cooking, cleaning, and shopping. Dr. Sarreal also opined that Horton had a moderate limitation in prolonged standing and long distance ambulation but that he could perform light physical exertion with respect to pushing, pulling, and lifting and carrying heavy objects. Dr. Sarreal also found that there is frequent limitation in squatting, bending and climbing and minimal limitation in stooping, sitting and balancing.

  The evidence before the ALJ also contained a form letter dated September 11, 2001 from XL South Bronx Medical. Although the letter is unsigned, it indicates that it is from Dr. Mikhail Tetrok. According to the statement submitted in connection with the hearing, Horton saw Dr. Tetrok two times a week for physical therapy and acupuncture.*fn4 This letter states that "Stanley Horton is under my professional care for multiple, injuries sustained in a motor vehicle accident Page 4 which occurred on 4/13/01" and "[p]lease be advised that He/She is unable to work due to his/her physical condition from 4/13/01." where the underlined portions indicate those items that are handwritten into blanks left on the form. Finally, the record contained a "disability letter" on the letterhead of XL South Bronx Medical which is dated May 9, 2001 and indicates a diagnosis of "C & L [cervical and lumbar] radiculopathy" and that Horton is `"totally disabled, unable to work at this time." (Tr. 146.) This letter is signed, but the signature is illegible and there is no other indication about the author's identity.

  The ALJ found Horton not disabled within the meaning of the Social Security Act. Specifically, the ALJ found that Horton had impairments that were "severe" within the definition in the Regulations — a lumbar spine disorder, a cervical spine disorder, and asthma — but that he retained the residual functional capacity to perform work-related activities that involved light-exertion, such as work as a cashier n, a counter clerk, and a surveillance-system operator. The ALJ concluded that Horton's allegations of pain were not supported by the examinations. Specifically, he concluded that Horton was not prescribed pain or sleeping medicine nor a brace or cane — though he uses them. The ALJ gave "persuasive weight" to the opinion of treating physician Dr. Pelkey and gave less weight to the opinion of Dr. Tetrok, whose report consisted of boilerplate and was not supported by clinical notes or findings and the diagnosis of cervical and lumbar radiculopathy was not confirmed by objective testing. With respect to past work, it was clear that Horton could not perform work as a meatpacker, which required heavy lifting and for him to be on his feet all day. The ALJ credited the vocational expert's conclusion that Horton was unable to perform past relevant work as a parking-lot attendant due to his non-exertional limitations. The ALJ found that he needed to work in a clean-air environment and needed the option to be able to stand or sit as appropriate. Horton appealed to the Appeals Council on August 26, 2002, which declined his request for review.


  The Commissioner moves for judgment on the pleadings on the basis that substantial evidence exists for her determination that Horton's impairments did not prevent him from engaging in substantial gainful activity. In his cross-motion for judgment on the pleadings, Page 5 Horton does not respond to the Commissioner's argument with respect to the evidentiary support for her determination, and Horton's acquiescence on this point obviates the need to analyze this issue. Instead, Horton contends that the ALJ failed to develop the record, which deprived him of a full and fair hearing, and that the matter should be remanded to the Commissioner for further development of the evidence.*fn5

  Horton contends that because his representation by a non-lawyer representative was "nominal at best" the ALJ had an affirmative duty to develop the record, and that the ALJ failed to do this. Horton notes that although he stated that he continued to receive treatment at two hospitals, the ALJ did not ask any questions about his treatment at one of the hospitals (South Bronx Medical Center) nor make any effort to obtain medical records that were not then part of the record from the other hospital (St. Barnabas). Horton contends that the ALJ also failed to ask him the name of his treating physicians, nor ask other relevant questions, such as the frequency with which Horton saw Dr. Tetrok at South Bronx Medical Center, what his specialty was. Horton contends that the ALJ should have obtained the names of Horton's treating physicians and contacted them. Finally, Horton notes that the hearing was very brief and important details were not developed, such as the location and frequency of Horton's back pain, in part because his representative did not ask any questions of the vocational expert, even though her testimony was adverse to him.

  As Horton notes, the ALJ generally has an affirmative obligation to develop the administrative record, even when the claimant is represented by an attorney. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).*fn6 Where the claim is unrepresented by counsel, "the ALJ is under a Page 6 heightened duty `to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting cases). The mere fact that the medical evidence that Horton introduced was thin or that the hearing was short or that subjects of potential relevance were not pursued does not necessarily mean that the ALJ did not have a sufficient record before him or that he failed in his obligation to develop the record; it does not appear that Horton's medical records were voluminous or that substantial portions of these records were missing. Cf. Perez, 77 F.3d at 47-48 (rejecting claimant's contention that the ALJ failed to adequately develop the record given that he did not obtain certain records from his treating physician and other information from other doctors and concluding that "The ALJ had before him a complete medical history, and the evidence received from the treating physicians was adequate for him to make a determination as to disability.") In concluding that Horton was not disabled, ALJ Brudzinski characterized Dr. Pelkey as a treating physician and accorded persuasive weight to his opinion that Horton was able to lift twenty-five pounds occasionally and stand and/or walk as much as four hours per day. However, the record does not otherwise indicate the nature and extent of Dr. Pelkey's involvement and interactions with Horton. On the other hand, the ALJ gave lesser weight to the opinion of Dr. Tetrok, who administered chiropractic treatment to Horton on a regular basis, because the unsigned form letter on which he opined that Horton was unable to work was not supported by any clinical findings. Under Second Circuit case law, the ALJ should not have rejected Dr. Tetrok's opinion without first attempting to obtain more information to support his conclusion. See Rosa v. Callahan, 168 F.3d 72, 789 (2d Cir. 1999) (remanding to the Commissioner because the ALJ rejected a treating physician's diagnosis without attempting to Page 7 fill in clear gaps in the administrative record).*fn7 Moreover, the record does not indicate what efforts were made to determine the identity of the author of the May 9 "disability letter" that also opined that Horton was totally disabled. Although this letter too was a form letter and provided no clinical observations or findings, the opinion may have been medically valid and relevant to the ALJ's determination even if its author's identity was not discernible. The record before the Court does not indicate whether the ALJ made efforts to determine the identity of this author. On remand, the Commissioner should attempt to determine whether this person was a treating physician whose opinion may warrant some deference and whether there are clinical findings to support this conclusion.

  It may be that Dr. Tetrok's explanation of his conclusion will be (and would have been) insufficient to persuade the Commissioner that the extent of Horton's pain truly prevents him from performing even light-exertional work. However, it is certainly possible that Dr. Tetrok (and the unknown doctor, if a doctor) have forceful explanations to support the conclusions, which at present are conclusory. Moreover, these may give credence to Horton's subjective complaint of pain. See Conners v. Conn. General Life Insurance Co., 272 F.3d 127, 136 (2d Cir. 2001) ("It has long been the law of this Circuit that the subjective element of pain is an important factor to be considered in determining disability.'"); see also Echiaverria, 685 F.2d at 756 (finding objectionable ALJ's failure to inquire into or obtain corroboration of the degree of the claimant's pain and the extent to which it prevented him from working). Page 8


  For the foregoing reasons, defendant's motion is denied and plaintiff's cross-motion is granted and the matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for a further hearing consistent with this Opinion. The Clerk of the Court is instructed to close this motion and any remaining open motions and remove this case from my docket.


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