Opinion
99 Civ. 8767 (SHS) (JCF).
December 13, 2000.
REPORT AND RECOMMENDATION
The plaintiff, Wayne Holad, brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405 (g), seeking review of a determination of the Commissioner of the Social Security (the "Commissioner") denying his application for Supplemental Security Income ("SSI") payments. The Commissioner has moved to remand the case to readjudicate the plaintiff's claim in accordance with a recently decided Second Circuit case. The plaintiff, proceeding pro se, has requested that this Court reverse the Commissioner's decision based on the record. For the reasons that follow, I recommend that the decision of the Commissioner be vacated and that the Commissioner's motion for remand be granted.
Background
Wayne Holad is a fifty-year-old resident of Manhattan. (Tr. 20, 40). He graduated from high school and has completed some college coursework. (Tr. 16). From approximately 1972 until 1990, he was employed as a chauffeur. (Tr. 16, 20, 45). He was injured in an automobile accident on August 2, 1990, and has not been gainfully employed since then. (Tr. 45).
"Tr." refers to the Administrative Record filed by the Commissioner.
Procedural History
On March 1, 1995, Mr. Holad applied for Supplemental Security Income ("SSI") payments. The claim was denied, and no request for reconsideration was filed. (Tr. 15). Mr. Holad filed another application for SSI payments on June 27, 1996, alleging that he was unable to work due to pain in the back and neck. (Tr. 15). His application was denied initially and on reconsideration. (Tr. 15). Mr. Holad then requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 15). The hearing, at which the plaintiff was represented by counsel, was held on June 5, 1997. (Tr. 38- 65). On August 26, 1997, the ALJ issued a decision holding that Mr. Holad was not disabled based on findings concerning his age, education, work experience, and residual functional capacity. (Tr. 15-16). Mr. Holad filed a request for review of the ALJ's decision on October 14, 1997. The Commissioner's decision became final on April 6, 1999 when the Appeals Council declined to review the ALJ's determination. (Tr. 3-4).
There appears to have be some confusion about what happened with the 1995 case. Mr. Holad stated during the administrative hearing on his current claim that the Commissioner had lost his file and that he was instructed by a Social Security representative to file another application in 1996. (Tr. 49).
The plaintiff filed the instant complaint on June 18, 1999. He also filed a motion for interim benefits on October 26, 1999. In response, the Commissioner filed a cross-motion to dismiss the entire claim as time-barred. On January 18, 2000, the Honorable Sidney H. Stein, U.S.D.J., granted the Commissioner's cross- motion, finding that the complaint was filed four days past the statute of limitations. However, Judge Stein gave the plaintiff the opportunity to assert any grounds to justify the tolling of the statute of limitations, and when Mr. Holad did so, Judge Stein reinstated the action.
On May 31, 2000, the Commissioner filed the motion to remand. In response, Mr. Holad requested that the ALJ's decision be reversed because substantial evidence in the record supported a finding of disability. In particular, the plaintiff complains that (1) the evidence does not support the ALJ's finding that Mr. Holad was capable of light work; (2) the ALJ improperly classified the plaintiff under the Medical-Vocational Guidelines; (3) the ALJ did not give proper consideration to a finding of disability by the Workers' Compensation Board or to the doctors' reports submitted in connection with the Workers' Compensation case; (4) the ALJ did not properly consider the severity of pain that the plaintiff suffers or the medications he uses; (5) the ALJ did not adequately weigh the value of the report by the plaintiff's treating physician; (6) the ALJ failed to produce a vocational expert; and (7) there are new medical records that should be considered in determining whether the plaintiff is disabled. (Affirmation of Wayne Holad dated June 19, 2000 ("Holad Aff.") at 1-4). In the alternative, Mr. Holad argues that if the case is remanded, it should be assigned to a different ALJ, the Court should retain jurisdiction, and a record of the remanded proceedings should be sent to him and to the Court. (Holad Aff. at 4). The plaintiff also renews his request for interim benefits.
The plaintiff lists several other overlapping contentions that have been distilled into the claims listed above.
Discussion
A. Standard of Review for Disability
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. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Lugo v. Chater, 932 F. Supp. 497, 500 (S.D.N Y 1996). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. See Rosa, 168 F.3d at 77;Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Lugo, 932 F. Supp. at 500; see also 42 U.S.C. § 405(g) (providing that "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive[.]"). Substantial evidence 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)); see Rosa, 168 F.3d at 77;Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). "[T]o determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence[.]" Brown, 174 F.3d at 62 (quotation and citation omitted).
A claimant seeking disability benefits under the Social Security Act is considered disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). In order to determine whether a claimant is disabled, the ALJ follows a five-step process outlined in regulations promulgated under the Social Security Act. See 20 C.F.R. § 416.920; see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (describing five-step process in parallel statutory provision for disability benefits); Rosa, 168 F.3d at 77 (same); Balsamo, 142 F.3d at 79-80 (same). First, the ALJ determines if the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. § 416.920(b). If he is not, the ALJ must decide if the claimant has a severe impairment, one that "significantly limits [the] physical or mental ability to do basic work activities[.]" 20 C.F.R. § 416.920(c). If the claimant's impairment is severe and is either listed in 20 C.F.R. Part 404, Subpt. P, App. 1, or is equivalent to a listed impairment, the claimant must automatically be found disabled without considering vocational factors such as age, education, and work experience. See 20 C.F.R. § 416.920(d). If the claimant's impairment is severe but is not listed or equal to a listed impairment, a finding of not disabled is directed if his residual functional capacity permits him to do the work he did in the past. See 20 C.F.R. § 416.920(e). If the claimant is unable to perform his past work, the ALJ must decide if there is other available work that the claimant is able to perform based on his residual functional capacity. See 20 C.F.R. § 404.1520(f)(1). The claimant bears the burden of proof with respect to the first four steps in the analysis. If the claimant demonstrates an inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant can perform. See Rosa, 168 F.3d at 77; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
B. Remand or Reversal
The defendant argues that the case should be remanded to the Commissioner for a rehearing in light of a recent Second Circuit opinion, Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), which was decided after the ALJ issued his opinion in Mr. Holad's case. (Memorandum of Law in Support of Defendant's Motion for a Remand ("Def. Memo.") at 4).
The Commissioner cites Clark v. Commissioner of Social Security, 143 F.3d 115 (2d Cir. 1998), in support of his position.(Def. Memo. at 5). In Clark, however, the Court of Appeals simply remanded the case to the district court to reconsider the plaintiff's claim in light of a new Second Circuit case decided after the ALJ had rendered his decision. Id. at 118. The Clark decision does not address the standards for remanding a case to the Commissioner.
A remand for further administrative proceedings is appropriate where the Commissioner has failed to support his decision by substantial evidence or where the ALJ has applied an improper legal standard. See Rosa, 168 F.3d at 82-83 ("Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence") (internal quotation and citations omitted); Pratts, 94 F.3d at 39 ("Because we find the ALJ's denial of benefits was not supported by substantial evidence and was based upon legal error, we remand Pratts' case to the Commissioner"). However, "where th[e] [c]ourt has had no apparent basis to conclude that a more complete record might support the Commissioner's decision, [it] ha[s] opted simply to remand for calculation of benefits."Rosa, 168 F.3d at 83 (citation omitted); see also Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 644 (2d Cir. 1983) (where reversal is based on failure to develop record and finding is not supported by substantial evidence then "no purpose would be served by our remanding the case for rehearing unless the [Commissioner] could offer additional evidence").
1. The Curry Decision and Substantial Evidence
In Curry, the court ruled that the Commissioner did not prove by substantial evidence that there existed work that the claimant could perform. See 209 F.3d at 124. The ALJ concluded that the claimant was able to perform sedentary work. In reaching his decision, the ALJ had relied on a report by a consulting physician, which stated in part, "impairment is: [l]ifting and carrying moderate; standing and walking, pushing and pulling and sitting mild." Curry, 209 F.3d at 123. The court found this medical opinion to be "so vague as to render it useless in evaluating whether [the claimant could] perform sedentary work." Curry, 209 F.3d at 123.
The same question addressed in Curry is at issue in this case, namely, whether the Commissioner has proven by substantial evidence that there is available work that Mr. Holad can perform based on his residual functional capacity. The ALJ, who found Mr. Holad capable of light work, relied on the opinion of a consulting physician, Dr. Ananya Banerjee, that described the plaintiff's residual functional capacity in vague terms. (Def. Memo. at 4). Indeed, Dr. Banerjee's report was strikingly similar to the doctor's report in Curry. For example, Dr. Banerjee stated merely, "This individual's range of physician exertion is as follows: [l]ifting, carrying, standing walking, pushing, pulling, light[;] sitting, moderate." (Tr. 150). Given the ALJ's reliance on Dr. Banerjee's opinion, the Commissioner has failed to prove by substantial evidence that the plaintiff is able to perform light work under the standards set forth in Curry.
Despite his own request for a remand, the Commissioner also argues that substantial evidence in the record supports his decision denying benefits. (Def. Memo. at 4). All of the medical reports in the record, however, suffer from the same imprecision the Curry court found problematic. On March 31, 1992, Dr. Allen Chamberlin, a consultant for the Workers' Compensation Board, found Mr. Holad "capable of performing sedentary type work" but advised that the plaintiff "not drive an automobile." (Tr. 128). On October 2, 1991, Dr. David Weiss, another consultant for the Workers' Compensation Board, wrote in his report on Mr. Holad that, "[c]laimant could return to work in a sedentary position; he cannot return to work as a chauffeur at this time." (Tr. 138). Dr. Robert Feldman, Mr. Holad's treating physician, stated on June 22, 1992 that Mr. Holad was "totally permanently disabled" (Tr. 131), but on August 7, 1996, the doctor reported that the plaintiff was "permanently partially disabled." (Tr. 156). There is nothing in Dr. Feldman's reports indicating Mr. Holad's exertional limitations or suggesting what type of work the plaintiff could perform.
Furthermore, the reports do not address the specific exertional requirements set forth in the regulations accompanying the Social Security Act and in Social Security Ruling 83-10. The regulations classify residual functional capacity into five categories (very heavy, heavy, medium, light, and sedentary work) and set forth requirements for each. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 §§ 201.00-204.00. These categories indicate the extent to which the claimant can meet the exertional requirements of certain jobs and are based on the claimant's ability to sit, stand, walk, lift, carry, push, pull, and perform other physical functions. See 20 C.F.R. § 416.945(b). Mr. Holad was found capable of light work (Tr. 21), which means that under the regulations, he should be able to lift up to 20 pounds at a time, to frequently lift or carry objects weighing up to 10 pounds, and to do "a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm and leg controls." 20 C.F.R. § 416.967(b). In addition, Social Security Ruling 83-10 requires that an individual capable of light work be able to stand or walk for up to six hours out of an eight-hour workday. See SSR 83-10, 1983 WL 31251 (S.S.A.), at *6. None of the medical reports, including those from Mr. Holad's treating physician and the doctors who examined him in connection with his Worker's Compensation claim, address Mr. Holad's ability to satisfy these criteria any more concretely than the report by Dr. Banerjee. (Tr. 127-30, 131-32, 136-38, 155-56). Thus, the Commissioner has failed to support his decision by substantial evidence.
The lack of substantial evidence in support of a decision denying a claim would usually merit a finding of disability and a remand for calculation of benefits. See Rosa, 168 F.3d at 83. However, if there were other evidence in the record or new evidence offered to suggest that Mr. Holad is not disabled, then the case should be remanded for a rehearing to allow the ALJ to make that determination. See Torres v. Shalala, 938 F. Supp. 211, 216 (S.D.N.Y. 1996) (where the Commissioner concedes that ALJ's determination was "erroneous as a matter of law," case should be remanded "[b]ecause the record contains sufficient evidence to provide a rational inference" that the claimant is not disabled and "ALJ must first be afforded the opportunity to make that determination") (citations omitted); see also Rosa, 168 F.3d at 83. Here, the Commissioner seeks to introduce new and expanded medical evidence that would presumably demonstrate that Mr. Holad is not disabled in accordance with the Curry requirements. (Def. Memo. at 5-6).
2. Medical-Vocational Guidelines
If the claimant suffers only from exertional impairments, then the ALJ can demonstrate that there is other work that the claimant can perform by resorting to the applicable Medical- Vocational Guidelines (the "grids"). See Rosa, 168 F.3d at 78;Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). Compare 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a) ("Where . . . a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule [in the grids], the rule directs a conclusion as to whether the individual is or is not disabled") with 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e) ("The rules [in the grids] do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments."). The plaintiff, who suffers only from exertional impairments, argues that the ALJ incorrectly found him not disabled by improperly classifying him under the grids. (Holad Aff. at 3).
The grids "take into account the claimant's residual functional capacity in conjunction with the claimant's age, education, and work experience" and direct a conclusion as to whether the claimant is disabled or not disabled and able to work in the national economy. Rosa, 168 F.3d at 78; see also Pratts, 94 F.3d at 38. There is a grid for most residual functional capacity classifications. Each grid is broken up into three age groups: Advanced Age (55 and over); Closely Approaching Advanced Age (50-54), and Younger Individual (45-18). See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table Nos. 1-3. To determine the claimant's age under the grids, one must look to the claimant's age at the time of the ALJ's decision. See Russell v. Commissioner of Social Security, 20 F. Supp.2d 1133, 1134 (W.D.Mich. 1998) ("For purposes of determining age under the grids, the claimant's age as of the time of the [ALJ's] decision governs.'") (citing Varley v. Secretary of Health Human Services, 820 F.2d 777, 780 (6th Cir. 1987); see also Rich v. Apfel, No. 97 2288, 1998 WL 458056, at *11 (S.D.N.Y. Aug. 5, 1998) (assumes claimant's age at time of ALJ's decision controls); Pizzonia v. Chater, No. 96 Civ. 4261, 1997 WL 436486, at *8 (S.D.N.Y. Aug. 1, 1997) (same); Crean v. Sullivan, No. 91 Civ. 7038, 1992 WL 183421 (S.D.N.Y. July 2,, 1992) (same). But see Brackett v. Chater, No. 94 Civ. 6102, 1996 WL 26579, at *2 n. 2 (S.D.N.Y. Jan. 24, 1996) (implies that the determinative age under the grids is the plaintiff's age at the time he applied for benefits).
There are three grids — one for sedentary, one for light, and one for medium work. There are no grids for heavy and very heavy work.
The grid for sedentary work further divides Younger Individual into two groups — age 45-49 and age 18-44. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1.
Although the ALJ found Mr. Holad capable of light work, Mr. Holad maintains that he has a residual functional capacity for sedentary work and that his present age, as opposed to his age at the time of the ALJ's decision, should be used in employing the grids. (Holad Aff. at 3). Mr. Holad further argues that the applicable grid mandates a finding of disabled based on his residual functional capacity for sedentary work, his present age, his educational background, and his non- transferable job skills. (Holad Aff. at 3). Mr. Holad was 47 years old when the ALJ rendered his decision, making him a Younger Individual under the grids. A Younger Individual with a high school education and non-transferable work skills is not disabled under the applicable grids if he is capable of doing either sedentary or light work.See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1, Rule 201.21; 20 C.F.R. Pt. 404, Supt. P, App. 2, Table No. 2, Rule 202.21. Given that the plaintiff has a high school education, and assuming, as he contends, that his job skills are non-transferable, Mr. Holad has failed to demonstrate that the ALJ's determination under the grids was improper. Whether he was found capable of sedentary or light work, Mr. Holad still would have been considered not disabled under the grids. Thus, his request for a finding of disability based on the use of the grids alone must be denied.
Indeed, application of the grids indicates that the plaintiff might be found not disabled if the case is remanded. On remand, Mr. Holad would be classified as an individual Closely Approaching Advanced Age because the ALJ would be rendering a new decision. See Varley, 820 F.2d at 780; Russell, 20 F. Supp.2d at 1134. In the grid for sedentary work under this age classification and the educational classification for a high school graduate, a claimant is considered not disabled if he has work skills that are transferable. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1, Rule 201.15. This grid also mandates a finding of not disabled for an individual with the same age and educational classifications who has recently completed coursework that provides for entry into sedentary work regardless of the skill level of his previous work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1, Rules 201.13 201.16. The ALJ never addressed the appropriate skill level of Mr. Holad's former work or the transferability of the plaintiff's skills because it was not determinative under the grid classification for a Younger Individual capable of light work. (Tr. 21). Similarly, the ALJ did not fully investigate whether Mr. Holad's enrollment in college would lead to direct entry into sedentary work because this inquiry was also irrelevant under the grid for light work. (Tr. 21, 57-60).
There is enough evidence in the record to suggest that Mr. Holad may be capable of sedentary work. Nevertheless, there are also indications that with the further development of evidence Mr. Holad may be found not disabled under the grid for sedentary work. Thus, the case should be remanded for a rehearing given the possibility that the plaintiff may be found not disabled.
3. Workers' Compensation Finding
Mr. Holad next contends that the ALJ failed to properly consider the findings of the Workers' Compensation Board. (Holad Aff. at 1 ¶¶ (a)-(b), 2 ¶(c), 3 ¶(j)). The ALJ may not rely on determinations of disability by other governmental agencies, but must make an independent assessment based on Social Security law.See 20 C.F.R. § 416.904; DeJesus v. Chater, 899 F. Supp. 1171, 1177 (S.D.N.Y. 1995) (finding of "disabled" by Workers' Compensation Board is not controlling). However, the ALJ should give consideration to the entire medical record, including reports made by doctors over the course of other claims. See 20 C.F.R. § 416.927(d) ("Regardless of its source, [the ALJ] will evaluate every medical opinion [he] receives").
In this case, the Workers' Compensation Board found Mr. Holad partially disabled based on the reports of two orthopedists, Dr. Allen Chamberlin and Dr. David Weiss, who found him unable to return to his previous job but capable of sedentary work. (Tr. at 128, 138). There is nothing in the ALJ's decision to indicate that he disagreed with the orthopedists' diagnoses: the ALJ incorporated Dr. Chamberlin's finding of partial, mild disability, but failed to specifically address the doctor's conclusion that Mr. Holad was capable only of sedentary work; and he did not mention Dr. Weiss' report at all. (Tr. at 17, 19). While the finding of disability by the Board does not translate into a determination of disability under the Social Security laws, the ALJ should have given consideration to the doctors' findings that Mr. Holad was capable of no more than sedentary work. However, all of these reports lack the specificity required under Curry. Again, Mr. Holad's request for a reversal of the Commissioner's decision and entry of judgment of disability must be denied.
Furthermore, as mentioned previously, even if these reports conclusively demonstrated that Mr. Holad is only capable of sedentary work, he still would not have been considered disabled under the grids as a Younger Individual and, on remand, could be found not disabled as an individual Closely Approaching Advanced Age. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1; Rules 201.13, 201.15, 201.16, 201.21, 201.22.
Also, as stated above, even though there is enough evidence in the record to suggest that Mr. Holad may be capable of sedentary work, there is the possibility that with the further development of evidence he may be found not disabled under the grid for sedentary work. Thus, the case should be remanded for a rehearing so that the Commissioner can make the appropriate determination.
A. Terms of Remand
1. Retention of Jurisdiction
A claim may be remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g), which requires entry of judgment, or the sixth sentence, which does not require entry of judgment and allows the court to retain jurisdiction. See 42 U.S.C. § 405 (g) ; see also Shalala v. Schaefer, 509 U.S. 292, 296-300 (1993) (describing the two types of remand); Melkonyan v. Sullivan, 501 U.S. 89, 97-103 (1991) (same); Sullivan v. Finkelstein, 496 U.S. 617, 625-27 (1990) (same); Torres, 938 F. Supp. at 217 (same). Contrary to the Commissioner's argument, it is more appropriate that this Court retain jurisdiction and remand the case pursuant to the sixth sentence of 42 U.S.C. § 405 (g).
The fourth sentence of 42 U.S.C. § 405(g) reads in full: "[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."
The sixth sentence of 42 U.S.C. § 405(g) provides that:
The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, 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; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which the Commissioner's action in modifying the additional record and testimony upon which the Commissioner's action in modifying or affirming was based.
The remand provision of the fourth sentence is designed for the entry of judgment in the claimant's favor followed by remand only for the calculation of benefits. See Torres, 938 F. Supp. at 217. The Commissioner clearly does not seek this outcome here. Furthermore, the Commissioner has filed a pre-answer motion seeking a remand for the ALJ to rehear the case in light of a recent decision, a posture that squarely falls within the parameters of a sixth-sentence remand. See 42 U.S.C. § 405(g) ("The court may, on motion of the Commissioner . . . made for good cause shown before the Commissioner files [an] answer, remand the case . . . ."); Torres, 938 F. Supp. at 218 (sixth sentence remand designed to give the Commissioner the "opportunity to reconsider a decision denying benefits without having to defend [his] decision by answering the complaint").
Indeed, the Second Circuit in the Curry case, on which the Commissioner relies, reversed the Commissioner's decision and directed the district court to remand the case pursuant to the fourth sentence § 405(g) for calculation of benefits. See Curry, 209 F.3d at 124.
The sixth sentence also authorizes the district court to remand a case on a claimant's motion if the claimant demonstrates that there is new and material evidence and shows good cause for making the motion. This type of sixth sentence remand is "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." Finkelstein, 496 U.S. at 626.
Under the sixth sentence, the only requirements are that the Commissioner file his motion prior to answering the complaint, which the Commissioner has done, and demonstrate good cause for the motion. See 42 U.S.C. § 405(g); Balsamo, 142 F.3d at 82;Carroll, 705 F.2d at 643-44; Torres, 938 F. Supp. at 217. The Commissioner has demonstrated good cause by acknowledging that the ALJ improperly relied upon an incomplete medical opinion.See Torres, 938 F. Supp. at 217 (The Commissioner "demonstrated good cause by acknowledging legal error").
Thus, this Court should remand the case pursuant to the sixth sentence of § 405(g) and should retain jurisdiction until the Commissioner has had an opportunity to conduct further administrative proceedings.
2. Reassignment
The plaintiff next argues that the Court should order that a different ALJ hear his case on remand. (Holad Aff. at 4). Generally, it is within the Commissioner's discretion to reassign a case on remand. See Sarchet v. Chater, 78 F.3d 305, 308 (7th Cir. 1996); Travis v. Sullivan, 985 F.2d 919, 924 (7th Cir. 1993); Muse v. Sullivan, 925 F.2d 785, 791 (5th Cir. 1991);Hartnett v. Apfel, 21 F. Supp.2d 217, 222 (E.D.N.Y. 1998); Joe v. Apfel, No. 97-CV-72S, 1998 WL 683771, at *5 (W.D.N.Y. July 10, 1998). If, however, the ALJ has demonstrated bias or prejudice endangering the claimant's right to a full and fair hearing, "courts have not hesitated to order the Commissioner to transfer the case to a different ALJ on remand." Hartnett, 21 F. Supp.2d at 222; see, e.g., Winfrey v. Chater, 92 F.3d 1017, 1026 (10th Cir. 1996); Ventura v. Shalala, 55 F.3d 900, 902-05 (3d Cir. 1995); Kedrick v. Sullivan, 784 F. Supp. 94, 102-03 (S.D.N Y 1992). But see Franks v. Sullivan, 802 F. Supp. 1067, 1068 (S.D.N.Y. 1992) (ordering remanded case be heard by different ALJ because originally assigned ALJ failed to follow instructions on first remand); Smith v. Heckler, No. 82 Civ. 4021, 1985 WL 3845, *2-3 (S.D.N.Y. Nov. 8, 1985) (same).
In this case, the plaintiff makes no allegations of bias or prejudice against the ALJ, nor is there any evidence in the record to suggest such a finding. Therefore, there is no basis for reassigning Mr. Holad's case to a different ALJ.
3. Transcript
The plaintiff further requests that a copy of the transcript of the remanded proceeding be sent to him and to the Court. Pursuant to the sixth sentence of § 405(g), a copy of the transcript of the hearing will automatically be sent to the Court; the Court need not order such action. The plaintiff is also entitled to receive a copy of the transcript, but he must pay for it. See 20 C.F.R. § 416.1474; 416.1565(o). Payment may be waived upon a showing of good cause. Id.
4. Interim Benefits
Finally, the plaintiff argues that he should be awarded interim benefits. (Holad Aff. at 4). There is no statutory provision for granting interim benefits in a case where there has been no prior determination of disability. See Day v. Schweiker, 685 F.2d 19, 24 (2d Cir. 1982), rev'd on other grounds sub. nom. Heckler v. Day, 467 U.S. 104 (1984); Luna v. Apfel, No. 99 Civ. 4149, 2000 WL 964937, at *8. (S.D.N.Y. July 12, 2000). Nevertheless, courts have exercised their equitable power to award interim benefits to new claimants whose applications were subject to "egregious delay or other outrageous behavior by the Commissioner." Luna, 2000 WL 964937, at *8; see, e.g., Rivera v. Apfel, 99 F. Supp.2d 358, 363, 367-68 (S.D.N.Y. 2000) (delay of over 2 years to produce administrative record with "glaring deficiencies"); Jefferson v. Bowen, No. 84 Civ. 5664, 1986 WL 14928, *3 (S.D.N.Y. Dec. 22, 1986) (delays included production of unusable transcript after six-month delay, subsequent remand for de novo hearing, seven month wait for decision after first remand, second remand by Appeals Council); Weiser v. Secretary of Health and Human Services, 645 F. Supp. 602, 604 (S.D.N.Y. 1986) (five year delay including two hearings and two appeals); Cohen v. Heckler, 599 F. Supp. 837, 837 (S.D.N.Y. 1984) (Secretary received extensions totaling seven months in which to answer and then was unable to prepare hearing transcript because records were lost). But see Doughty v. Bowen, 839 F.2d 644, 647 (10th Cir. 1988) (district court does not have authority to award interim benefits to new applicants); Taylor v. Heckler, 769 F.2d 201, 202 (4th Cir. 1985) (same). In this case, the plaintiff has not demonstrated that there has been either an egregious delay or any outrageous behavior by the Commissioner. Therefore, Mr. Holad's application for interim benefits should be denied. Nevertheless, the Commissioner should move expeditiously to rehear the plaintiff's case.
Conclusion
For the reasons set forth above, I recommend that the Commissioner's motion to remand the case be granted but that the Court retain jurisdiction until the Commissioner submits a revised decision. On remand, the ALJ should hear any additional evidence and render a determination consistent with the this Report. The plaintiff's request for interim benefits should be denied. 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 Sidney H. Stein, Room 1010, 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.
Respectfully submitted,
Copies mailed this date to:
Wayne M. Holad 105 Duane Street, #12A New York, New York 10007
Lorraine S. Novinski, Esq. Assistant United States Attorney 100 Church Street New York, New York 10007