United States District Court, S.D. New York
August 18, 2005.
LEROY THOMAS, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, U.S.D.J.
Leroy Thomas brings this action pursuant to Section 205(g) of
the Social Security Act (the "Act"), 42 U.S.C. § 405(g). He seeks
review of the determination by the Commissioner of the Social
Security Administration (the "Commissioner"), finding him not
disabled and denying his application for Supplemental Security
Income ("SSI") benefits. Mr. Thomas argues that the decision of
the Administrative Law Judge (the "ALJ") was erroneous and not
supported by substantial evidence. The Commissioner has moved for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons set forth below, I
recommend that the Commissioner's motion be denied, and that the
case be remanded to the Social Security Administration for
further proceedings. Background
A. Personal History
Mr. Thomas was born on July 22, 1943. (Admin. R. at
58).*fn1 In the late 1950s, he completed the eleventh grade
and then attended barber school. (Admin. R. at 47-48). The
plaintiff received his barber's license and worked as a barber
and beautician until a few years before filing his SSI claim,
when pain made it impossible for him to continue. (Admin. R. at
48-49). For several years prior to that point, Mr. Thomas worked
a reduced schedule to accommodate his physical condition. (Admin.
R. at 49). Mr. Thomas' pain stems from two incidents. First, when
the plaintiff was eleven years old, he underwent surgery on his
left hip. (Admin. R. at 44). Mr. Thomas still experiences
soreness and pain from this surgery, which included insertion of
a pin. (Admin. R. at 44). He has said that this pain can be
excruciating and sometimes runs up his back. (Admin. R. at 44).
Second, in 1995, the plaintiff's leg locked, causing him to fall.
(Admin. R. at 42-43). As a result, he suffers from constant pain
in his right wrist. (Admin. R. at 44). This condition is
particularly problematic for Mr. Thomas because he is
right-handed. (Admin. R. at 46). The plaintiff, however, did not
seek medical attention for these conditions until 2001. (Admin.
R. at 34). Mr. Thomas did not do so because the pain was more manageable prior to that point, and since his childhood
surgery created a lingering reluctance to submit to medical
treatment. (Admin. R. at 34).
Mr. Thomas also suffers from asthma. (Admin. R. at 44). To
treat this condition, the plaintiff uses inhalers every day.
(Admin. R. at 45). He claims that his asthma makes him tired
after walking short distances and also increases his sensitivity
to certain air contaminants. (Admin. R. at 49-50, 53). For
example, Mr. Thomas identified one chemical used in the
hairdressing business that he could not tolerate because of his
condition. (Admin. R. at 53). Whenever this chemical was used,
the plaintiff would have to leave the room. (Admin. R. at 53).
Until recently, Mr. Thomas lived on the third floor of a
building that did not have an elevator. (Admin. R. at 46-47). In
2002, however, he was evicted for failure to pay rent in a timely
manner, and he has since lived in a shelter. (Admin. R. at
46-47). Mr. Thomas frequently takes the subway or bus when he
travels. (Admin. R. at 47, 52). He currently spends most of his
time at a senior citizens' center and in the library. (Admin. R.
B. Medical History
Mr. Thomas has visited several doctors since he originally
filed his application for SSI benefits. From 2001 through 2002,
Mr. Thomas visited a Dr. Singh, located on East 124th Street, on
three or four separate occasions. (Admin. R. at 32-34). Although Mr. Thomas met with Dr. Singh to discuss a rash, the plaintiff
also discussed his leg condition with the doctor. (Admin. R. at
In February 2002, the plaintiff first visited Harlem Hospital,
where he was examined by Dr. Ashmi Patel. (Admin. R. at 136-37).
Mr. Thomas complained of hip, back, and wrist pain, as well as
asthma and a growth on his right buttock. (Admin. R. at 136). In
March 2002, Dr. Patel's orders were reviewed by Dr. Baktash
Bootorabi, who noted degenerative changes in Mr. Thomas' right
wrist and left femoral head. (Admin. R. at 138-39). Dr.
Bootorabi, however, did not identify any fractures or
dislocations. (Admin. R. at 138-39).
In April 2002, Dr. Patel completed a Residual Functional
Capacity Questionnaire for Mr. Thomas' Social Security claim.
(Admin. R. at 114-19). Her diagnosis was that the plaintiff
suffered from asthma and degenerative arthritis. (Admin. R. at
114). The doctor also identified joint instability in Mr. Thomas'
left hip and right wrist, tenderness, and crepitus. (Admin. R. at
114). She wrote that the plaintiff's pain often interfered with
his attention and concentration, that he could not stand or sit
continuously for more than 30 minutes, and that he could only
lift and carry less than ten pounds. (Admin. R. at 115-17). As a
result of these observations, Dr. Patel concluded that Mr. Thomas
was incapable of performing even "low stress jobs." (Admin. R. at
115). In June 2002, Mr. Thomas was examined by Dr. Edmond Balinberg.
(Admin. R. at 120-22). Dr. Balinberg's records indicate that the
plaintiff was referred to him "by the Judge of Hearing and
Appeals." (Admin. R. at 120). Dr. Balinberg observed that the
plaintiff had a distorted gait and a leg length discrepancy.
(Admin. R. at 121). He also wrote that Mr. Thomas had some
difficulty transferring from a seated position on and off the
examining table. (Admin. R. at 121). Dr. Balinberg's prognosis
was that Mr. Thomas had a chronic condition. (Admin. R. at 122).
He went on to write: "Functional capacity to do work related
activities, this is a judge case. I fill in the form required by
the judge medical source statement ability to do work related
activities physical." (Admin. R. at 122). On that form, Dr.
Balinberg indicated that the plaintiff's lifting and carrying
abilities were affected by his impairment. (Admin. R. at 129). In
his opinion, Mr. Thomas could only occasionally lift or carry
twenty to fifty pounds. (Admin. R. at 129). Dr. Balinberg,
however, failed to indicate how much weight Mr. Thomas could
frequently lift or carry. (Admin. R. at 129). Dr. Balinberg also
indicated that Mr. Thomas' standing, walking, and sitting
abilities were affected by his impairment. (Admin. R. at 129-30).
In Dr. Balinberg's opinion, Mr. Thomas could only perform those
activities for about six hours in an eight-hour workday. (Admin.
R. at 1293-0). Finally, Dr. Balinberg indicated that the
plaintiff's bronchial asthma made him sensitive to several environmental
factors, including temperature extremes, noise, dust, vibration,
humidity, hazards, fumes, odors, chemicals, and gases. (Admin. R.
Mr. Thomas returned to Harlem Hospital in July 2002, and once
again met with Dr. Patel, whose notes indicate that the plaintiff
was "in process of trying to get SSI" and "wants to go to rehab."
(Admin. R. at 140). Dr. Patel also recorded that the plaintiff's
wrist and hip pain had improved through the use of medication.
(Admin. R. at 140). Despite these improvements, the doctor
referred Mr. Thomas for physical therapy and rehabilitation.
(Admin. R. at 141). Mr. Thomas first met with a physical therapy
consultant several weeks later. (Admin. R. at 142). In August
2002, he began physical therapy at the hospital. (Admin. R. at
Medical records submitted to the Appeals Council following the
ALJ's decision show that Mr. Thomas' physical and occupational
therapy continued until at least November 2002. (Admin. R. at
1557-4). These medical records also show repeated visits with
doctors at Harlem Hospital to supervise the plaintiff's progress.
Mr. Thomas again met with Dr. Patel in August and November 2002.
(Admin. R. at 153, 175). He also met with Dr. Roger Perard twice
in September 2002 and once in October 2002. (Admin. R. at 162,
169, 171). Finally, Mr. Thomas was examined by Dr. Jacquelin Emmanuel in September 2002 and Dr. Peter Flemister in November
2002. (Admin. R. at 152, 154, 168). These doctors noted Mr.
Thomas' pain and limited mobility, diagnosed him with either
osteoarthritis or degenerative joint disease, and recommended
physical therapy. (Admin. R. at 152, 153, 162, 171, 175).
C. Procedural History
Mr. Thomas filed an application for SSI benefits on November
14, 2000. (Admin. R. at 69-71). The application was initially
denied, and that decision was affirmed on reconsideration.
(Admin. R. at 58-63). Mr. Thomas then requested a hearing by an
ALJ. (Admin. R. at 65). His initial hearing was held on May 2,
2002, and he appeared pro se. (Admin. R. at 28). Prior to
that date, however, the ALJ had difficulty reaching Mr. Thomas to
schedule a medical examination. (Admin. R. at 31). The ALJ was
also unaware that Mr. Thomas had visited a doctor at Harlem
Hospital before the hearing and therefore had no records from the
examination. (Admin R. at 33). Finally, the ALJ was unable to
obtain records from the plaintiff's visits to Dr. Singh because
"there are probably twenty Dr. Singhs in New York, maybe more
than that." (Admin R. at 32). Therefore, the hearing was cut
short so more information could be collected. (Admin. R. at
A second hearing was held on October 7, 2002. (Admin. R. at
39). Again, Mr. Thomas was unrepresented. He testified that two
specialists at Harlem Hospital had recently discovered a hairline fracture of his right hand. (Admin. R. at 41-42). The plaintiff
went on to describe his medical and personal history. (Admin. R.
at 41-52). A vocational expert, Mr. Ramnouth, also testified
about the availability of several medium-exertion occupations in
both the local and national labor markets. (Admin. R. at 53-54).
The ALJ considered the case de novo, and on December 12,
2002, he issued a decision finding that the plaintiff was not
disabled. (Admin. R. at 9-20). In one sentence of his decision,
the ALJ dismissed the need to address the plaintiff's visits to
Dr. Singh, stating that the visits were "only for treatment of a
rash[.]" (Admin. R. at 14). Since there were no medical records
to support Mr. Thomas' claim before his visit to Harlem Hospital
in February 2002, the ALJ found that the plaintiff did not have a
severe impairment prior to that time. (Admin. R. at 17).
In evaluating Mr. Thomas' claim for benefits after February
2002, the ALJ chose to grant more weight to the opinion of Dr.
Balinberg than to Dr. Patel's. The ALJ did so, in part, because
he found Dr. Balinberg's evaluation to be much more thorough than
Dr. Patel's. (Admin. R. at 17). The ALJ also considered Dr.
Balinberg to be a "much more experienced" physician than Dr.
Patel. (Admin. R. at 18). To support that conclusion, the ALJ
said of Dr. Patel: "Although this physician's name is too common
to permit my looking him up in available medical resource books,
he is likely to be a resident in general medicine with limited
experience." (Admin. R. at 18). Finally, the ALJ wrote that the conclusions of Dr.
Balinberg found more support on the record. (Admin R. at 18).
Accepting Dr. Balinberg's conclusion that the plaintiff could
occasionally lift or carry twenty to fifty pounds, the ALJ found
that Mr. Thomas was able to perform up to medium exertional
activity even after February 2002. (Admin. R. at 18). Since
employment as a barber is considered light work, the ALJ
concluded that Mr. Thomas' wrist and hip conditions did not
prevent him from performing his past relevant work. (Admin. R. at
18). The ALJ also found that Mr. Thomas undercut his claim that
asthma prevented him from working as a barber by testifying that
he would resume work if his wrist and hip allowed. (Admin. R. at
18). Accordingly, the ALJ concluded that Mr. Thomas had the
residual functional capacity to perform his past relevant work
and was therefore not disabled. (Admin. R. at 20). As an
alternative holding, the ALJ wrote that, even if Mr. Thomas'
asthma did interfere with his previous employment, the plaintiff
would not be considered disabled because he could still find
other medium exertion jobs in the national and local economies
that would not require exposure to significant environmental
irritants. (Admin. R. at 19).
In February 2003, Mr. Thomas appealed the ALJ's decision to the
Appeals Council. (Admin. R. at 176-79). The appeal included new
medical records detailing his continuing physical therapy, as well as the revelation that he had been diagnosed with a
"debilitating psychiatric illness." (Admin R. at 149). Although
the Appeals Council was invited to request Mr. Thomas'
psychiatric records from Harlem Hospital, they do not appear in
the Administrative Record. (Admin. R. at 149). The ALJ's decision
became the final decision of the Commissioner when the Appeals
Council denied the plaintiff's request for review on April 3,
2003. (Admin. R. at 4-8). The plaintiff then filed this action.
A. Standard of Review
Under Rule 12(c) of the Federal Rules of Civil Procedure, a
party is entitled to judgment on the pleadings if he establishes
that no material facts are in dispute and that he is entitled to
judgment as a matter of law. Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir. 1999); Morello v. Barnhart, No. 01 Civ. 0743,
2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003); Carballo v.
Apfel, 34 F. Supp. 2d 208, 213 (S.D.N.Y. 1999).
The scope of review of a social security disability
determination involves two levels of inquiry. First, the court
reviews the Commissioner's decision to determine whether the
Commissioner applied the correct legal standard. Tejada v.
Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998). Second, the court must decide
whether the Commissioner's decision was supported by substantial
evidence. Tejada, 167 F.3d at 773; Balsamo, 142 F.3d at 79. Substantial
evidence in this context is "`more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Richardson v. Perales,
402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v.
National Labor Relations Board, 305 U.S. 197, 229 (1938));
accord Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "To
determine whether the findings are supported by substantial
evidence, the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which
conflicting inferences can be drawn." Mongeur v. Heckler,
722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam). In this review, it
is important to keep in mind that the Act "is a remedial statute
which must be `liberally applied.'" Vargas v. Sullivan,
898 F.2d 293, 296 (2d Cir. 1993) (citations omitted); accord Pagan
on Behalf of Pagan v. Chater, 923 F. Supp. 547, 550 (S.D.N.Y.
B. Determining Disability
A claimant is disabled under the Act and therefore entitled to
benefits if he can demonstrate that 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. § 423(d)(1)(A). The disability must be of "such severity that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national
economy[.]" 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration has created a five-step
procedure for evaluating SSI claims. 20 C.F.R. § 416.920. First,
the claimant must demonstrate that he is not currently engaged in
substantial gainful activity. 20 C.F.R. § 416.920(b). Next, the
claimant must prove that he has a severe impairment that
"significantly limits [his] physical or mental ability to do
basic work activities." 20 C.F.R. § 416.920(c). Third, if the
impairment is listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 or is
the substantial equivalent of a listed impairment, the claimant
is automatically considered disabled. 20 C.F.R. § 416.920(d).
However, if the claimant's impairment is neither listed nor
equals any listed impairment, he must prove that he does not have
the residual capacity to perform his past work.
20 C.F.R. § 416.920(e). Finally, if the claimant shows that he cannot engage
in his previous employment, the burden shifts and the
Commissioner must prove that there is other work the claimant
could perform. 20 C.F.R. § 416.920(f)(1); Rosa, 168 F.3d at 77;
Torres v. Shalala, 938 F. Supp. 211, 215 (S.D.N.Y. 1996).
C. Treating Physician Rule and Duty to Develop the Record
A treating physician's report is generally given more weight than other reports and will be controlling if it is
"well-supported by medically acceptable [evidence] and is not
inconsistent with the other substantial evidence in [the]
record." See C.F.R. § 404.1527(d)(2). "When other substantial
evidence in the record conflicts with the treating physician's
opinion, however, that opinion will not be deemed controlling.
And the less consistent that opinion is with the record as a
whole, the less weight it will be given." Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(d)(4)).
Moreover, factual and inferential findings (including the
ultimate finding of disability), credibility findings, and
inferences drawn from the conflicting medical evidence, are
"reserved to the Commissioner." See id.
In cases in which the Commissioner determines that a medical
source opinion is not controlling, the regulations nevertheless
require the ALJ to accord the physician's statements extra weight
based upon several factors. See 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2). The factors cited in the regulations include the
length of the treatment relationship, the nature of the
relationship, the consistency with other medical evidence in the
record, whether the opinion involves the speciality of the
physician, and any other factors that may be relevant. See
20 C.F.R. §§ 404.1527(d)(2), (6), 416.927(d)(2), (6). The ALJ must
provide good reasons for the lack of weight attributed to a
treating physician's opinion. See Schaal v. Apfel,
134 F.3d 496, 503-04 (2d Cir. 1998). Failing to provide such reasons
constitutes legal error. See id. at 505.
A court reviewing the Commissioner's decision must also be able
to satisfy itself that the claimant had "a full hearing under the
Secretary's regulations and in accordance with the beneficent
purposes of the Act." Echevarria v. Secretary of Health and
Human Services, 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold
v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972)). The ALJ
has an affirmative duty to develop the record in light of the
non-adversarial nature of a benefits proceeding. Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996). "This duty arises from
the Commissioner's regulatory obligations to develop a complete
medical record before making a disability determination." Pratts
v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citing
20 C.F.R. § 404.1512(d)-(f)). Where a claimant is unrepresented at the
hearing, the ALJ is under a heightened duty to ensure that all
the relevant facts are developed and considered. Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Echevarria,
685 F.2d at 755.
As other courts have stated:
When a claimant appears pro se, 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.
Almonte v. Apfel, No. 96 Civ. 1119, 1998 WL 150996, at *7
(S.D.N.Y. March 31, 1998) (quoting Peed v. Sullivan, 778 F. Supp. 1241
1246 (E.D.N.Y 1991)). "Until he satisfies this threshold
requirement, the ALJ cannot even begin to discharge his duties to
the pro se claimant under the treating physician rule."
Peed, 778 F. Supp. at 1246.
Here, the ALJ failed to make every reasonable effort to obtain
medical reports and opinions from Mr. Thomas' treating
physicians. Although Mr. Thomas told the ALJ that he had seen Dr.
Singh three or four times, none of Dr. Singh's files can be found
in the Administrative Record. The ALJ attempted to justify the
absence of these records by stating that Dr. Singh only treated
Mr. Thomas for a rash. This justification fails, however, because
Mr. Thomas had previously indicated that he visited Dr. Singh due
to his asthma and later testified that he spoke with Dr. Singh
about his leg condition. (Admin. R. at 32-33, 96-97). Any
difficulty locating Dr. Singh may have been ameliorated had the
ALJ not said to Mr. Thomas "that doesn't help me" when the
plaintiff mentioned the streets between which the doctor's office
was located. (Admin. R. at 32).
It also appears that the ALJ made no effort to seek an updated
opinion from Dr. Patel, despite evidence on the Administrative
Record that the doctor reexamined Mr. Thomas after submitting her
original Residual Functional Capacity Questionnaire. These
failures to develop the evidentiary record prevented the ALJ from properly discharging his duties under the treating physician
The ALJ's failure to fully develop the record can be seen
elsewhere. For example, when the plaintiff was describing how his
childhood surgery and a related discriminatory experience made
him "a little leery" of doctors, the ALJ interrupted, saying "we
don't have to go too much into that," and changed the topic.
(Admin. R. at 34). Such an exchange would be unremarkable if not
for the ALJ's singular reliance on Mr. Thomas' lack of medical
treatment to dismiss his claim for benefits.
The ALJ also never sought to supplement the incomplete medical
opinions submitted by Dr. Balinberg and Dr. Patel. While Dr.
Balinberg opined that the plaintiff could occasionally lift
twenty to fifty pounds, he failed to indicate how much weight Mr.
Thomas could frequently lift. (Admin. R. at 129). Similarly, Dr.
Patel failed to specify the weights Mr. Thomas could frequently,
occasionally and never lift. (Admin. R. at 117). Such information
was not insignificant to the ALJ's decision.
The ALJ held that Mr. Thomas was capable of medium work, which
is defined as work that involves lifting no more than fifty
pounds at a time with frequent lifting or carrying of objects
weighing up to twenty-five pounds. See 20 C.F.R. § 416.967(c).
While Dr. Balinberg's opinion makes clear that Mr. Thomas could
lift up to fifty pounds, it does not answer whether he could
frequently lift up to twenty-five pounds. Light work, on the
other hand, involves lifting no more than twenty pounds with frequent lifting or
carrying of up to ten pounds. See 20 C.F.R. § 416.967(b). A
person with Mr. Thomas' advanced age, limited education, and
nontransferable skills would be considered disabled if he was
only capable of light work, but would be considered not disabled
if he could also perform medium work. See 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Rules 202.02 & 203.12. The ALJ's failure to
clarify the doctors' opinions left a gap in the evidentiary
record that casts doubt on the validity of his decision.
Finally, the ALJ's efforts to locate information about Dr.
Patel were less than thorough. While Patel may be a common name
in the medical community, Dr. Patel's first name and place of
work are available in the Administrative Record. The ALJ's
failure to put these pieces of evidence together and uncover Dr.
Patel's medical experience is clear evidence that Mr. Thomas was
not afforded the procedural protections that all Social Security
claimants, and pro se claimants in particular, deserve.
D. Substantial Evidence Inquiry
Since the ALJ failed to adequately develop the evidence, it is
unnecessary to reach the question of whether the denial of
benefits was based on substantial evidence.
The fourth sentence of 42 U.S.C. § 405(g) provides that "[t]he
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, with or without
remanding the cause for a rehearing." Here, a remand is
appropriate for a further evidentiary hearing.
As shown by the foregoing analysis, the ALJ in this case erred
by insufficiently developing the record and thereby failed to
discharge his duties under the treating physician rule. These
legal errors are grounds for remanding the case to the
Commissioner. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d
Cir. 2004) ("We do not hesitate to remand when the Commissioner
has not provided `good reasons' for the weight given to a
treating physicians opinion and we will continue remanding when
we encounter opinions from ALJ's that do not comprehensively set
forth reasons for the weight assigned to a treating physician's
opinion."); Rosa, 168 F.3d at 82-83 ("Where there are gaps in
the administrative record . . . we have, on numerous occasions,
remanded to the [Commissioner] for further development of the
For the reasons set forth above, I recommend that the
Commissioner's motion for judgment on the pleadings be denied,
that the Commissioner's decision denying benefits be vacated and
that the case be remanded under the fourth sentence of
42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a),
and 6(e) of the Federal Rules of Civil Procedure, the parties
shall have ten (10) days to file written objections to this Report and
Recommendation. Such objections shall be filed with the Clerk of
the Court, with extra copies delivered to the chambers of the
Honorable Kimba M. Wood, Room 1610, and to the chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York
10007. Failure to file timely objections with preclude appellate
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