Opinion
No. 04 Civ. 1841 (SAS).
January 18, 2005
Christopher James Bowes, Esq., Center for Disability Advocacy Rights, Inc., New York, NY, for Plaintiff.
Lorraine S. Novinski, Assistant United States Attorney, New York, NY, for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Martin Colondres brings this action under section 405(g) of Title 42 of the United States Code ("Section 405(g)"), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying his application for supplemental security income ("SSI") benefits. The Commissioner has moved to remand to the Social Security Administration ("SSA") for further proceedings pursuant to the fourth sentence of Section 405(g). Colondres cross-moved for judgment on the pleadings and remand solely for the calculation and award of benefits. For the reasons set forth below, the decision of the Commissioner is vacated and the case is remanded for further administrative proceedings.
II. BACKGROUND
A. Procedural History
Colondres filed an application for SSI benefits based on disability on December 18, 2001. In his application, Colondres alleged that he was disabled and had been unable to work since April 1, 1999 due to chronic debilitating arthritis and because he frequently felt physically weak and depressed. He complained that he often fell while walking and that when he was depressed he lacked interest in any activity and did not leave his room. Colondres' application was denied on May 3, 2002. Upon request, a hearing was conducted before an administrative law judge (the "ALJ") on June 19, 2003, at which Colondres was present but unrepresented. On August 5, 2003, the ALJ issued a decision denying Colondres' application for benefits. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Colondres' request for review on December 16, 2003.
See Administrative Record ("Ad. Rec.") at 54-63. The Administrative Record was filed by the Commissioner with her motion for remand.
See id. at 55.
See id.
See id. at 30.
See id. at 33-35, 230.
See id. at 25.
See id. at 3-5.
B. Colondres' Personal History
Colondres was born on July 28, 1956 in Puerto Rico and was 47 years old at the time of the hearing before the ALJ. He is 5'10" and weighed 194 pounds at the time of the hearing. Colondres has a tenth grade education received in Puerto Rico. He is able to read and write in Spanish, but is unable to communicate in English. Colondres last worked for three years in the early 1970's as a machine operator in a factory but lost employment when the factory closed. He moved from Puerto Rico to New York in 1999 and, at that time, he found out that he was HIV positive. Colondres has a history of drug use and stated at the hearing that he used heroin and cocaine but stopped in 1999 when he found out that he had HIV. He rents a bedroom in a house and receives financial assistance from New York City.
See id. at 232.
See id. at 233.
See id. at 59.
See id. at 121.
See id. at 122.
See id. at 233.
See id. at 169, 235, 238.
See id. at 43, 237.
C. Medical Evidence
1. Overview of Colondres' Medical Treatment
Colondres' medical record in this case begins with a visit to the Neighborhood and Family Community Health Center (the "Health Center") in the Bronx, New York on December 27, 1999. From December 1999 to February 2002, Colondres was seen at the Health Center approximately thirty times. In December 1999, it was noted that Colondres was on methadone and that he was HIV positive, but that Colondres had no opportunistic infections and was on no medication. Hepatitis A, B, and C were also noted, but Colondres was not being treated for it. In a physical performed on January 19, 2000, it was noted that Colondres weighed 162 pounds.
See id. at 150, 189.
See id. at 150.
See id. at 189.
See id. at 189-90.
See id. at 195-96.
During his treatment at the Health Center, Colondres was diagnosed with, among other things, arthritis, hepatitis A, B, and C, upper respiratory infections, weight loss, elevated levels of fats in the blood and dry skin. It was consistently noted that Colondres' HIV was asymptomatic or stable and that he did not experience any opportunistic infections related to his HIV condition. In a report dated August 22, 2000, it was noted that Colondres refused to take antiretroviral medication for his HIV condition, and Colondres stated at the hearing that he was not taking any HIV medication. In February 2000, Colondres was referred to New Beginnings Mental Health Center ("New Beginnings") for treatment of depression.
2. Physical Assessments
See id. at 154-98.
See, e.g., id. at 194 (no opportunistic infections on January 19, 2000), 184 (HIV+ stable on April 13, 2000), 193 (HIV+ asymptomatic on January 22, 2001), 169 (HIV+ asymptomatic on April 30, 2001), 167 (HIV+ asymptomatic on May 22, 2001), 164 (HIV + stable on July 12, 2001), 163 (HIV+ asymptomatic on September 7, 2001), and 191 (HIV+ stable on February 1, 2002).
See id. at 176, 233.
See id. at 144-48, 187.
a. March 4, 2002 Consultative Internist Examination
On March 4, 2002, Dr. Michael Polak of Diagnostic Health Services, Inc. ("DHS"), examined Colondres, diagnosing him with HIV, depression, "status post TB chemoprophylaxis," and alcohol abuse. He also noted that Colondres had a twenty-two year history of heroin and cocaine use and that Colondres was on methadone and had not used drugs since 2000. Dr. Polak found that Colondres would be "mildly impaired" in doing activities requiring carrying, lifting, pushing, pulling, standing and walking and that Colondres' sensory, vision and hearing were not impaired.
Id. at 126-27.
See id. at 126.
See id. at 127.
b. May 3, 2002 Physical Assessment
In a May 3, 2002 report, a state agency medical consultant, who reviewed medical records but did not examine the claimant, stated on a Physical Residual Functional Capacity Assessment that Colondres could lift or carry twenty-five pounds frequently and fifty pounds occasionally, could stand or walk for six hours a day, and could sit for six hours a day. The report also pointed out inconsistencies in Colondres' statements to various examiners regarding his ability to clean, mop, make his bed and go shopping, his vision, and the level of education he received.
See id. at 220.
See id. at 224.
c. June 10, 2002 Physical Report
On June 10, 2002, a Medical Source Statement of Ability to do Work-Related Activities (Physical) was completed by the staff at the Health Center. The report was signed and stamped by a registered physician assistant and the name of Dr. Dunner, the medical director of the Health Center, was printed next to the signature of the physician's assistant. The report indicated that Colondres was limited to lifting or carrying ten pounds at a time, could stand or walk for at least two hours in an eight-hour workday, and had to alternate sitting and standing to prevent stiffness in his legs.
See id. at 78-81.
See id. at 81.
See id. at 78-81.
3. Mental Assessments
a. March 9, 2000 Psychiatric Evaluation Report
On March 9, 2000, Dr. Quentin Hyder of New Beginnings performed a psychiatric evaluation on Colondres and noted that Colondres exhibited a depressed mood and an anxious affect. Colondres was not hallucinating at the time of the interview, nor was he delusional or suicidal. Cognition, memory, orientation, insight and judgment were said to be unimpaired. Nonetheless, Dr. Hyder diagnosed Colondres with "major depression with psychosis."
See id. at 142-43.
See id. at 142.
See id.
Id. at 143.
b. March 1, 2002 Psychiatric Report
Dr. Namin Samad, a psychiatrist, began seeing Colondres on a monthly basis in February 2000. On March 1, 2002, Dr. Samad reported that Colondres suffered from major depression with psychosis. Colondres' symptoms included "frequent episodes of depression and anxiety despite medication therapy." Dr. Samad further reported that Colondres had a limited ability to perform all of the mental activities required of work, noting that he frequently forgot important appointments, had difficulty focusing attention and maintaining concentration and was socially isolated and appeared fearful of people.
See id. at 132.
See id.
Id.
See id. at 136-37.
c. March 4, 2002 Consultative Psychiatric Examination
On March 4, 2002, Dr. Eugene Allen of DHS, a psychiatrist, performed a consultative psychiatric evaluation on Colondres, diagnosing him with a "depressive disorder . . . with psychotic features." Dr. Allen noted that Colondres was seeing a psychiatrist once a month and being treated for depression and voices. Dr. Allen stated that Colondres' insight was fair, his judgment was adequate, and that he had a fair ability to understand, remember and carry out instructions and a fair ability to respond appropriately to supervision in a work setting.
Id. at 123.
See id. at 121.
See id. at 122.
d. April 12, 2002 Medical Consultant's Report
On April 12, 2002, Dr. Walia, a nonexamining state agency medical consultant who reviewed the evidence in the record indicated in a Mental Residual Functional Capacity Assessment that Colondres would be moderately limited in seven categories of mental functioning, including the ability to (1) understand and remember detailed instructions, (2) carry out detailed instructions, (3) maintain attention and concentration for extended periods, (4) accept instructions and respond appropriately to criticism from supervisors, (5) get along with coworkers or peers without distracting them or exhibiting behavioral extremes, (6) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, and (7) set realistic goals or make plans independently of others. In the remaining thirteen categories of mental functioning, Dr. Walia found that Colondres would not be significantly limited.
See id. at 199-200.
See id.
D. Administrative Hearing
At the administrative hearing on June 19, 2003, Colondres personally appeared without representation but with an interpreter. Colondres testified that he suffered from weight loss, arthritis, liver problems, high cholesterol and fatigue when walking. Colondres also testified that he had HIV but was not taking any medication. In response, the ALJ stated, "there's something going on here because . . . I've never had anybody with HIV who wasn't on the cocktail [a combination of medications used to treat HIV]." At the hearing, the ALJ did not have in his possession a current test that contained Colondres' CD-Four count or viral load (both indicators of the severity of HIV infection). The ALJ stated, "I can't decide until I get those numbers" and gave Colondres an addressed envelope to have his doctor send the ALJ the most recent test results. The ALJ did not receive these test results prior to his decision.
See id. at 230-32.
See id. at 233, 236.
See id. at 233.
Id. at 236.
See id. at 235-36.
Id. at 236.
See id. at 14.
E. The ALJ's Decision
The ALJ found that Colondres had not engaged in any gainful activity since the alleged onset of his disability. The ALJ also found that the medical evidence indicated that Colondres had several severe impairments: HIV, hepatitis A, B and C, arthritis and depression. These impairments, though severe, were found not to meet any of the listed impairments. Moreover, the ALJ determined that Colondres was able to perform a full range of light work, meaning he could lift and carry up to twenty pounds occasionally and ten pounds frequently, stand or walk up to six hours in an eight hour day and sit up to six hours in an eight hour day. The ALJ found that Colondres had depression with mild restriction of the activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace and no repeated episodes of decompensation. Colondres' residual functional capacity for light work, however, was not fount to be significantly compromised by his depression. Finally, the ALJ concluded "there are jobs, existing in significant numbers in the national economy, which the claimant is able to perform." Accordingly, the ALJ found that Colondres was not disabled at any time through the date of his decision. Moreover, the ALJ found that Colondres' allegations regarding his limitations were not totally credible.
See id. at 24.
See id. at 20.
See id. at 24.
See id.
See id.
Id.
See id. at 25. The ALJ used Medical-Vocational Rule 202.16 from 20 C.F.R. Part 404, Subpart P, Appendix 2.
See id. at 24.
III. LEGAL STANDARD
When reviewing a decision by the Commissioner, a court may enter "judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." Section 405(g) also provides that in reviewing a denial of disability benefits, the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 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."
42 U.S.C. § 405(g) (fourth sentence).
42 U.S.C. § 405(g). See also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks and citations omitted).
In deciding disability claims, the ALJ must follow a five-step process. First, the ALJ must consider whether the claimant is currently engaged in substantial gainful activity. Second, if he is not so engaged, the ALJ must determine whether the claimant has a "severe" impairment that significantly limits his physical or mental ability to do basic work activities. Third, if the claimant suffers from such a limitation, the ALJ must decide whether, based solely on the medical evidence, that limitation corresponds with one of the conditions listed in Appendix 1 of the regulations. If it does, the ALJ does not inquire into vocational factors such as age, education and work experience because the claimant is presumed to be disabled. Fourth, if the claimant does not have a listed impairment, the ALJ must determine whether the claimant has the residual capacity to perform his past relevant work despite his severe impairment. Fifth, if the claimant satisfies the burden of showing that he has a severe impairment that prevents him from performing his past work, the burden then shifts to the Commissioner to prove that the claimant retains the residual functional capacity to perform alternative work which exists in the national economy.
See 20 C.F.R. §§ 404.1520, 416.920.
See id.; see also Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).
Remand to the Commissioner for further development of the evidence is appropriate when "`there are gaps in the administrative record or the ALJ has applied an improper legal standard.'" Where, on the other hand, a court has "no apparent basis to conclude that a more complete record might support the Commissioner's decision," it is appropriate "simply to remand for a calculation of benefits." Finally, without unequivocal evidence in the record to support a finding of disability, delay in administrative proceedings alone is insufficient to justify a remand solely for the calculation of benefits.
Rosa, 168 F.3d at 82-83 (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) and Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)).
Rosa, 168 F.3d at 83.
See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996).
IV. DISCUSSION
The Commissioner argues that remand to the SSA is warranted in order to correct several errors in the ALJ's adjudication of Colondres' claim. Specifically, the Commissioner argues that the record fails to demonstrate that the ALJ confirmed Colondres' understanding that he had a right to be represented by an attorney or that he voluntarily waived that right and that "the record contains insufficient information to enable the Court to evaluate the ALJ's weighing of the medical evidence." The Commissioner argues that remand, rather than reversal and award of benefits, is warranted because the record does not contain sufficient information to determine whether Colondres is disabled. Colondres argues that the Commissioner's decision should be reversed and remanded solely for calculation of benefits. He asserts that remand for additional proceedings is not warranted because he meets an HIV listing and that there are no jobs he could possibly perform. For the reasons set forth below, remand for further administrative proceedings is necessary in order to determine whether Colondres is disabled.
See Memorandum of Law in Support of the Commissioner's Motion for Remand ("Def. Mem.") at 5.
See id. at 4.
See id. at 8.
See Memorandum of Law in Support of Colondres' Cross-Motion for Judgment on the Pleadings ("Pl. Mem.") at 22.
See id. at 14, 18.
A. Colondres' Right to Counsel
It is well established that a claimant is entitled to be represented by counsel at a hearing before an ALJ. The ALJ has the duty to ensure that the claimant is aware of his right to counsel and that waiver of counsel is knowing and voluntary. Here, a Notice of Hearing was mailed to Colondres with a section stating, "If you want to have a representative, please get one right away. You should show this notice to anyone you may appoint. You or that person should also call this office to give us his or her name, address, and telephone number." Though the notice specially noted that a Spanish interpreter would be at the hearing to assist Colondres, the notice was sent only in English. At the hearing, the ALJ did not once inform Colondres of the option of being represented by counsel or inquire whether Colondres made any attempt to secure counsel. The ALJ should have inquired as to whether Colondres understood his right to be represented and whether he desired additional time to secure representation. While the ALJ's behavior was inadequate, remand is only appropriate when the absence of counsel prejudiced the claimant. Therefore, if the ALJ fully developed the record and based his final determination on substantial evidence, any deficiency would be immaterial for purposes of remand.
See 20 C.F.R. §§ 404.1700, 404.1705. See also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) ("Although a claimant for SSI disability benefits is entitled to be represented by counsel if he so desires, the Secretary is under no obligation to furnish such counsel.").
See Alvarez v. Bowen, 704 F. Supp. 49, 52 (S.D.N.Y. 1989) ("[T]he ALJ must ensure that the claimant is aware of his right to counsel.") (citing Robinson v. Sec'y of Health Human Servs., 733 F.2d 255, 258 (2d Cir. 1984). See also Santiago v. Apfel, No. 98 Civ. 9042, 2000 WL 488467, at *5 (S.D.N.Y. Apr. 25, 2000); Rivera v. Apfel, No. 98 Civ. 3393, 2000 WL 1201545, at *2 (S.D.N.Y. Aug. 22, 2000); Losco v. Heckler, 604 F. Supp. 1014, 1020 (S.D.N.Y. 1985) ("Nor did the ALJ adequately ensure that plaintiff fully and knowingly waived his right to counsel or appreciated the role that legal representation would play at that stage of the proceedings.").
Ad. Rec. at 37. Though the record contains an Acknowledgment of Receipt after the Notice of Hearing, this acknowledgment was not signed by Colondres. See id. at 41.
See id. at 39.
See id. at 230-39.
See Alvarez, 704 F. Supp. at 52 ("A more thorough inquiry by the ALJ could have revealed [plaintiff's] desire to proceed with counsel, and allowed the ALJ to inform [plaintiff] of the possibility of adjourning the hearing until he obtained counsel.").
See Infante v. Apfel, No. 97 Civ. 7689, 2001 WL 536930, at *10 (S.D.N.Y. May 21, 2001).
See Santiago, 2000 WL 488467, at *5.
B. The ALJ's Duty to Fully Develop the Record
Due to the non-adversarial nature of a disability benefits hearing, the ALJ has an affirmative duty to develop the administrative record even where a claimant is represented by counsel. Here, the ALJ had a heightened duty to develop the record fully with respect to Colondres' mental and physical health because Colondres was unrepresented. However, the ALJ failed to obtain current test results regarding the severity of Colondres' HIV infection even though the ALJ acknowledged at the hearing that he would not be able to decide on Colondres' disability without them. The ALJ did direct Colondres to have his doctor provide the information but failed to take any further action after the test results were not received. This fails to satisfy the heightened duty to assist an unrepresented claimant in fully developing the record.
See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). The SSA regulations state, "before we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports." 20 C.F.R. § 404.1512(d).
See, e.g., Atkinson v. Barnhart, No. 03-6098, 2004 WL 206324 (2d Cir. Feb. 3, 2004) at *3 (citing Echevarria v. Sec'y of Health Human Servs., 685 F.2d 751, 755 (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.") (quotation marks omitted)).
See Ad. Rec. at 235-36 ("I'm going to give you an envelope . . . you've got to take it to your doctor and ask the doctor if he or she would at least give me a clue as to what is your CD-Four count, the last one and your viral load, those are critical numbers. . . . If he or she, the doctor, put your CD-Four count and viral load in here and any other comments that he or she wishes to make, okay? Now, don't forget, don't forget, you know, it has to be done. Because I can't decide until I get those numbers, there's nothing here. The only thing we had was almost . . . two years ago.").
See id. In his decision, the ALJ wrote, "At the close of the hearing, the record was held open to allow the claimant to submit additional evidence but nothing has been received." Id. at 14.
C. The Treating Physician Rule
The regulations require an ALJ to give controlling weight to a treating physician's opinion on the nature and severity of a claimant's impairments when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." When a treating physician's opinion is not given controlling weight, the ALJ must apply a series of factors in determining the weight to give such an opinion. These factors include: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the opinion's consistency with the record as a whole; and (3) whether the opinion is from a specialist. Under the same regulations, the ALJ must explain the weight it gives to a treating physician's opinion. "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand."
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
See id.
See id.
See 20 C.F.R. §§ 404.1527(d)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.").
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).
The record contains inconsistent assessments of Colondres' ability to perform work-related activities, and the weight given to each opinion affects the outcome of this case. The May 3, 2002 report of the nonexamining state agency medical consultant (it is not clear if this person is a physician) stated that Colondres could lift or carry twenty-five pounds frequently and fifty pounds occasionally, that he could stand or walk for six hours a day; and he could sit for six hours a day. This assessment is consistent with the ability to perform a full range of medium work. Dr. Polak assessed that Colondres would be "mildly impaired" in doing activities requiring carrying, lifting, pushing, pulling, standing and walking.
See Ad. Rec. at 220, 225.
See Ad. Rec. at 127.
Conversely, the June 10, 2002 report performed at the Health Center stated that Colondres was limited to lifting or carrying ten pounds at a time and could only stand or walk for at least two hours a day and that he had to alternate sitting and standing to prevent stiffness in his legs. This assessment indicates an ability to perform less than a full range of sedentary work. The report is signed and stamped by a registered physician assistant and Dr. Dunner's name is printed next to the assistant's signature. Since it is not clear whether the report is that of Dr. Dunner, Colondres' treating physician, or the physician assistant, it is unclear what weight to give this report.
See id. at 78-79.
See Ad. Rec. at 81.
An opinion from a treating physician that is well-supported by medical evidence may be entitled to controlling weight. See 20 C.F.R. § 416.927(d)(2). A physician assistant is not an acceptable medical source and such opinion is never entitled to such weight. See 20 C.F.R. § 416.913 (d)(1).
The ALJ treats the June 10, 2002 report as that of Dr. Dunner but dismisses it nonetheless because the ALJ found that the opinion "is not supported by any of the other evidence in the record or any new objective evidence." If the opinion was that of Colondres' treating physician, the ALJ should have attempted to contact the physician to seek additional information before rejecting the opinion for lack of support.
See Ad. Rec. at 19.
Id. at 22.
See 20 C.F.R. § 404.1512(e) ("When the evidence we receive from your treating physician . . . is inadequate for us to determine whether you are disabled . . . we will first recontact your treating physician . . . to determine whether the additional information we need is readily available."). See also Rosa, 168 F.3d at 79 ("[A]n ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." See Schaal, 134 F.3d at 505 ("Even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.")).
The Commissioner failed in this case (1) to inform Colondres of his right to counsel and ensure that Colondres knowingly and willingly waived this right; (2) to develop the record fully by obtaining recent test results related to Colondres' HIV infection; and (3) to contact Dr. Dunner for objective evidence to support the June 10, 2002 opinion if it were determined to reflect his opinion. These failures dictate that the ALJ's findings cannot be upheld because they are not supported by "substantial evidence."
D. Remand for Calculation of Benefits
Remand solely for calculation of benefits is warranted only where the record contains "persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose." Colondres argues that he meets listing 14.08N because he is HIV positive and has experienced repeated manifestations of involuntary weight loss, a skin disorder called xerosis, low testosterone and hepatitis as well as demonstrating a marked limitation in his ability to complete tasks in a timely manner due to deficiencies in concentration, persistence, and pace. Moreover, Colondres argues that his non-exertional mental impairments and HIV illness make it unlikely that there is any work he could perform.
Parker, 626 F.2d at 235.
Listing 14.08N requires:
Repeated manifestations of HIV infection (including those listed in 14.08A-M, but without the requisite findings, e.g., carcinoma of the cervix not meeting the criteria in 14.08E, diarrhea not meeting the criteria in 14.08J, or other manifestations, e.g., oral hairy leukoplakia, myositis) resulting in significant, documented symptoms or signs (e.g., fatigue, fever, malaise, weight loss, pain, night sweats) and one of the following at the marked level (as defined in 14.00D8):
1. Restriction of activities of daily living; or
2. Difficulties in maintaining social functioning; or
3. Difficulties in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.20 C.F.R. Part 404, Subpart P, Appendix 1, § 14.08N.
See Pl. Mem. at 14-18.
See id. at 21.
It is not clear from the record whether Colondres meets this listing and it would be beneficial to have more information from his treating physician in making this determination. Listing 14.08N requires repeated manifestations of HIV infection resulting in significant, documented symptoms and marked restriction or difficulty in one of the three types of functioning. As it stands, the record consistently notes that Colondres' HIV condition remained stable and that he was asymptomatic. Additionally, the ALJ noted and the record reflects that Colondres' weight increased from 162 pounds in January, 2000, to 194 pounds at the time of the hearing. Neither low testosterone nor xerosis are listed as manifestations of HIV in Listing 14.08A-M and Colondres provides no appropriate medical support for this assertion. Hepatitis infection alone is not sufficient to meet the listing unless there is evidence of chronic liver disease. Here, as the ALJ points out, the record does not document treatment for liver disease. It is not clear from the record whether any of the manifestations of HIV that Colondres alleges are sufficient to meet Listing 14.08N.
See footnote 22 and discussion supra.
See Ad. Rec. at 21, 196, 233.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 14.08A-M. Pl. Mem. at 16-17. Colondres states "Low testosterone is can be [sic] caused by the HIV virus" and points the court solely to a website statement that "[m]any men with HIV infection have low testosterone levels." Pl. Mem. at 17.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 14.08D(5) and 5.05.
See Ad. Rec. at 21.
Additionally, the evidence regarding whether Colondres demonstrated marked restrictions in one of the three types of functioning is conflicting. Dr. Samad, Colondres' treating psychiatrist, found that Colondres had only a limited ability to perform all of the mental activities required of work. On the other hand, Dr. Hyder, in a March 9, 2000 report, found that Colondres' cognition, memory, orientation, insight, and judgment were unimpaired. Dr. Allen found that Colondres had a fair ability to understand, remember and carry out instructions and a fair ability to respond appropriately to supervision in a work setting. Dr. Walia indicated that Colondres was not significantly limited in thirteen of twenty categories of functioning and was only moderately limited in the remaining seven. The ALJ noted that Colondres has "depression but most of Dr. Samad's report was within normal limits according to Dr. Walia." This conclusory statement does not adequately address Dr. Samad's opinion that Colondres was limited in all of the mental activities required of work.
See id. at 136-37.
See id. at 122.
See id. at 199-200.
Id. at 21.
See id. at 136-37, 200.
Alternatively, Colondres argues that whether or not he meets a listing, there should be a finding of disability because there is no work that exists in the national economy that he has the residual functional capacity to perform. The ALJ found that Colondres has no past relevant work experience or skills but that Colondres was not disabled under Medical Vocational Rule 202.16 because of his ability to perform light work. Because a determination of Colondres' ability to work hinges on the treatment of the various physical and mental assessments in the record, this determination can best be made on remand with a full and accurate record. Because the ALJ failed adequately to develop the record and explain his decision, and because "`further findings' would so plainly help to assure the proper disposition" of Colondres' claim, remand for further proceedings is appropriate.
See Pl. Mem. at 21 ("Simply stated, plaintiff's psychosis and HIV illness make it highly unlikely that there is any work he could perform.").
See Ad. Rec. at 25.
Rosa, 168 F.3d at 83 (citing Pratts, 94 F.3d at 39).
V. CONCLUSION
For the foregoing reasons, the Commissioner's motion is granted. The Commissioner's decision is vacated and the matter is remanded to the SSA pursuant to the fourth sentence of Section 405(g) for further proceedings consistent with this Opinion. On remand, the ALJ should: (1) inform Colondres of his right of counsel and ensure that this right is knowingly and willingly waived; (2) obtain the most recent test results regarding Colondres' HIV infection; (3) request a more detailed explanation from Colondres' treating physician as to his physical limitations and his ability to perform light and/or sedentary work activities; and (4) give a fuller assessment and explanation of the relative weight to be accorded to the opinions of the treating and consulting physicians and psychiatrists. The Clerk of the Court is directed to close these motions [docket # 7 and 10] and this case.
SO ORDERED.