Opinion
01 Civ. 3330 (WHP) (JCF)
May 31, 2002
REPORT AND RECOMMENDATION
The plaintiff, James Anderson, brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of a determination of the Commissioner of the Social Security Administration (the "Commissioner") denying his application for Supplemental Security Income ("SSI") payments. The Commissioner has moved to remand the case for further administrative proceedings. The plaintiff, proceeding pro se, has requested that this Court deny the motion, reverse the Commissioner's decision, and award benefits. For the reasons that follow, I recommend that the Commissioner's motion be granted and the case be remanded for further development of the record.
Procedural History
The plaintiff filed an application for SSI benefits on August 8, 1997. This application was denied initially and on reconsideration. Mr. Anderson then requested a hearing, which was initially scheduled to take place in July 1999. After Mr. Anderson failed to appear because he had not received adequate notice, the hearing was rescheduled and finally took place on September 9, 1999. At the hearing the plaintiff was represented by counsel. On October 25, 1999, the Administrative Law Judge (the "ALJ") issued his decision finding that Mr. Anderson was not disabled. This decision became final when the Appeals Council denied the plaintiff's request for review on December 27, 2000. Mr. Anderson subsequently commenced this action on April 20, 2001, and the Commissioner filed an answer in January 2002. The Commissioner then filed this motion for an order reversing the final decision and remanding the case for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Background
James Anderson is a thirty-nine year old resident of Manhattan. (Tr. 19, 43). He has a tenth grade education and last worked in 1995 as a security guard. (Tr. 54). Mr. Anderson contends that he is entitled to receive SSI benefits because of medical problems he has endured since 1995. (Tr. 50). His impairments include a cardiac condition, blurred-vision and dizziness, painful throbbing throughout the left side of his body, and asthma. (Tr. 7, 18, 22, 50, 56). The medical records, almost all from 1997, do little to explain Mr. Anderson's pain, indicating instead that he has generally few medical problems. (Tr. 64-121).
"Tr." refers to the Administrative Record filed by the Commissioner.
As a frequent out-patient of Harlem Hospital in 1997, Mr. Anderson underwent an x-ray, a blood pressure test, and an echocardiogram, all of which showed normal results. (Tr. 64-78).
Only his electrocardiogram ("EKG") revealed a possible medical condition: "early repolarization pattern." (Tr. 75). In addition, though neurological tests were normal, a doctor noted the possibility of either a personality or somatization disorder. (Tr. 65, 68). Overall these records showed that Mr. Anderson's complaints were "vague and tangential," that he was often "evasive and inconsistent," and that he probably had "exaggerated symptoms." (Tr. 67-68, 72). For example, during one exam he claimed he was unable to lift up his leg, yet he later hopped on it. (Tr. 67).
Early repolarization is a benign heart condition seen mostly in children, young adults, and black men. Dorland's Illustrated Medical Dictionary ("Dorland's") 1557 (29th ed. 2000).
Somatization is "the conversion of mental experiences or states into bodily symptoms." Dorland's 1663.
A patient with this disorder may simply complain of being sickly or may have specific symptoms, such as double vision, fainting, abdominal pain, bowel problems, painful menstruation, or sexual indifference. These complaints are often presented in a dramatic and exaggerated manner, but the patient is vague about the exact nature of the symptoms.
Miller-Keane Medical Dictionary (2000), available at, http://my.webmd.com/content/asset/miller keane 30696 (last visited May 28, 2002). Most people with the disorder are anxious and depressed. Id.
In October of 1997, Dr. Antonio Y. DeLeon, a consultative physician, performed tests that again showed Mr. Anderson to have normal blood pressure and respiratory function. (Tr. 79-81). The doctor noted that despite a probable history of mental illness and arthralgia of the back and left hip, Mr. Anderson had no limitation in activities that involved sitting, and only a slight limitation in other areas including walking, carrying, and lifting. (Tr. 81). In November, a second consultative doctor, Dr. Peter E. Graham, found that Mr. Anderson's pulmonary system was "grossly within normal limits" despite a "sub-maximal" treadmill exam. (Tr. 85, 88). Throughout 1999, a third physician, Dr. Ira Solomon, treated Mr. Anderson and found normal results after performing a stress test, an echocardiogram, and a physical examination. (Tr. 118-21). However an EKG did reveal "minimal voltage criteria for LVH [left ventricular hypertrophy]. [P]ossible early repolarization abnormality." (Tr. 120).
Arthralgia is "pain in a joint." Dorland's 151.
Ventricular hypertrophy is the enlargement of the ventricle "due to an increase in size of its constituent cells" and "chronic pressure overload," often accompanied by repolarization changes. Dorland's 859.
[T]he most common symptom is breathlessness, which results from the inadequate filling and emptying of the left ventricle. Another common sign is fainting during physical activity. This occurs when the brain does not get enough blood, despite a normal or rapid heartbeat. Patients also may have palpitations . . ., chest pain, or fatigue, especially during exercise or other forms of physical exertion.
National Heart, Lung, and Blood Institute, Facts about Cardiomyopathy (revised July 1997), available at http://www.nhlbi.nih.gov/health/public/heart/other/cardiomy.htm (last visited May 28, 2002) (describing Hyptertrophic Cardiomyopathy).
Discussion
A. Standard of Review
The scope of review of an SSI 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 ALJ'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). In this review, it is important to keep in mind that the Act "is a remedial statute which is to be `liberally applied.'" Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (citations omitted); accord Pagan on Behalf of Pagan v. Chater, 923 F. Supp. 547, 550 (S.D.N.Y. 1996).
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 [the claimant] 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 (the "SSA") has created a five step procedure for evaluating SSI disability claims. 20 C.F.R. § 416.920. First, the claimant must demonstrate that he is not currently engaged in a 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. Part 404, Subpt. P, App. 1 or is the substantial equivalent of a listed impairment, the plaintiff 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. The ALJ's Determination
In this case, the ALJ determined that Mr. Anderson met the first prong of the five part analysis, since he was not performing substantial gainful activity at the time of the claim. (Tr. 12).
The ALJ also conceded that Mr. Anderson's conditions do "impose some restrictions" and that he has "an underlying medically determinable impairment." (Tr. 12, 14). However, the ALJ concluded that Mr. Anderson's conditions do not meet or equal any of the medical conditions listed in 20 C.F.R. Part 404, Subpt. P, App. 1. (Tr. 15). The ALJ also found that the claimant retained the residual capacity to perform light work considering his age, education, and work experience. (Tr. 15).
The ALJ provided two reasons for his determination. First, he concluded that Mr. Anderson's complaints were not credible since they were "vague" and "exaggerated." (Tr. 14). The ALJ also found it suspect that the claimant specifically asked for a follow-up examination in order to "validate his claim for disability." (Tr. 14, 70). Second, the ALJ concluded that Mr. Anderson could perform light work based on explicit statements of Dr. DeLeon and a physician from Harlem Hospital. (Tr. 14, 72, 81). As a result, the ALJ found that Mr. Anderson was not disabled within the meaning of the Act. (Tr. 15).
However, during the thirteen minute hearing (the transcript of which takes up all of ten pages), the ALJ never conducted a detailed inquiry that might have yielded useful, precise information about Mr. Anderson's complaints, thereby failing to adequately develop the record. (Tr. 125-35). An ALJ has an affirmative duty, in light of the non-adversarial nature of benefits proceedings, to ensure that there is a complete and accurate record before making a determination. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). The ALJ must fully inquire into the relevant issues, receive evidence that touches upon such issues, and probe into all relevant facts to ensure that the record is sufficiently developed to support his decision. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). This duty to develop a record exists regardless of whether the claimant is represented by counsel. Shaw, 221 F.3d at 131; Pratts, 94 F.3d at 37. Specifically, an ALJ must obtain pertinent medical records, or at least inform the claimant of the need to locate them. Rudder v. Chater, No. 94 Civ. 8431, 1997 WL 297009, at *3 (S.D.N.Y. June 4, 1997); see also Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990).
Here the ALJ did not completely fulfill the responsibility to probe for relevant facts. For example, after learning that Mr. Anderson had been attending Columbia Presbyterian Hospital in the months prior to the hearing, the ALJ changed his line of inquiry, never requesting the medical records from Columbia Presbyterian nor asking questions about the claimant's current treatment other than to inquire about the frequency of his visits. (Tr. 130-35).
Rather than elicit critical information from the claimant, it seems that the ALJ instead opted to rely on the available medical records alone in making a determination in this case.
Unfortunately, those records make no mention of any visits to Columbia Presbyterian Hospital. Though it is possible that Dr. Solomon was the claimant's physician there, the records do not make this sufficiently clear. The medical records also fail to explain why Mr. Anderson received a prescription for BuSpar, an anti-anxiety medication, as he claims he did. (Tr. 57, 79). 1494 (last visited May 28, 2002).
BuSpar is the brand name for Buspirone, an anti-anxiety medicine used to reduce fear and tension. Side-effects may include drowsiness, dizziness, chest pain, confusion, blurred vision, and numbness or tingling in the extremities. Buspirone (revised Nov. 9, 2001), available at http://my.webmd.com/content/article/4046.
Instead of asking the plaintiff about the prescription directly, or simply asking him to provide the pertinent medical records, the ALJ pointed to the absence of information in concluding that Mr. Anderson's claims were exaggerated and not credible. (Tr. 14). Yet in his initial benefits claim on August 7, 1997, Mr. Anderson provided the name, telephone number, and address of a doctor that gave him a prescription to ease his "tension and to relax," which is exactly the same reason doctors prescribe BuSpar. (Tr. 57).
Although the ALJ failed to properly develop the record, there is no basis for yet concluding that Mr. Anderson is in fact disabled within the meaning of the Act. Explicit statements from some of his physicians that he can still perform light work weigh heavily in favor of the ALJ's determination that he should not receive SSI benefits. Moreover, there is nothing in the record that points to a specific medical condition listed in 20 C.F.R. Part 404, Subpt. P, App. 1. Finally, "`[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard,'" it is appropriate to remand for further development of the evidence rather than grant benefits outright. Rosa, 168 F.3d at 82-83 (citations omitted). Accordingly, this case should be remanded to explore why Mr. Anderson was given a prescription medication for personality disorders, and what information, if any, about his medical condition came to light during his visits to Columbia Presbyterian.
D. Remand
A claim may be remanded pursuant to either the fourth or sixth sentence of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 97-08 (1991). The fourth sentence provides that 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, with or without remanding the cause [sic] for a rehearing." 42 U.S.C. § 405(g).
The sixth sentence provides that [t]he court may, on motion of the Commissioner of Social Security made for good shown before the Commissioner files the Commissioner's answer, remand the case . . . for further action . . ., and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but 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). Here the defendant has properly made a motion to remand pursuant to sentence four, which requires entry of judgment. "Judgment" in this context does not necessarily require an ultimate determination in favor or against the plaintiff's claim for benefits. See, e.g., Tavarez v. Commissioner, Social Security Administration, No. 00 Civ. 4317, 2001 WL 238225, at * (S.D.N Y March 9, 2001) (granting Commissioner's motion to reverse his decision denying benefits and remanding case for further factual findings and to allow ALJ to evaluate conflicting evidence); Collado v. Apfel, No. 99 Civ. 4110, 2000 WL 257157, at *1-2 (S.D.N.Y. March 7, 2000) (same); Cleveland v. Apfel, 99 F. Supp.2d 374, 381 (S.D.N.Y. 2000) (reversing Commissioner's decision denying benefits and remanding case for rehearing for ALJ to develop more complete record). Although the fourth sentence "clearly foresees the possibility that a district court may remand a cause to the Secretary for rehearing, nonetheless such a remand order is a `judgment' in the terminology of § 405(g)." Finkelstein, 496 U.S. at 625 (reversing and remanding for rehearing).
Remand in this case must be pursuant to sentence four because the Commissioner has not satisfied the requirements for the two types of sentence-six remands. Under sentence six, remands may be granted "where the [Commissioner] requests a remand before answering the complaint or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n. 2 (1993) (citations omitted); see Melkonyan, 501 U.S. at 100 n. 2; Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990) ("The sixth sentence of § 405(g) plainly describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding."); see also Raitport v. Callahan, 183 F.3d 101, 104-05 (2d Cir. 1999).
Conclusion
For the reasons set forth above, I recommend that the Commissioner's decision denying benefits be reversed and that the case be remanded pursuant to 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 William H. Pauley III, Room 2210, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.