Opinion
00 Civ. 9584 (GEL).
April 18, 2002
Shirley Jones, pro se, for Plaintiff Shirley Jones.
John E. Gura Jr., Assistant United States Attorney, Southern District of New York, (Mary Jo White, United States Attorney, of Counsel), for Defendant, Jo Anne Barnhart.
OPINION AND ORDER
Plaintiff Shirley Jones brings this action seeking to reverse the Commissioner of Social Security's (the "Commissioner") final decision that she was not eligible for Supplemental Security Income ("SSI") benefits based on disability, as provided for in Title XVI of the Social Security Act ("the Act"). Jones claims that she is disabled due to chest pain, diabetes, hypertension, joint pain, and depression. The Commissioner found that at the time of the final administrative decision, Jones had the ability to perform sedentary work and, hence, was not entitled to SSI benefits.
Plaintiff names as defendant Larry G. Massanari, who was the acting Commission of Social Security when the complaint was filed. Jo Anne B. Barnhart, the current Commissioner, is automatically substituted as the defendant pursuant to Fed.R.Civ.P. 25(d)(1).
The Commissioner moved on August 24, 2001. for an order granting judgment on the pleadings and dismissing plaintiffs complaint. For the reasons set Forth below, the Commissioner's motion is denied and the case is remanded to the Commissioner for further proceedings.
BACKGROUND
Jones was forty-four years old when she applied for disability benefits on May 19, 1998. (Tr. 50, 54-56.) She has a general equivalency diploma and last worked in 1998 as a clerical worker for the New York City Department of Consumer Affairs in exchange for public assistance benefits. (Tr. 22, 65-66, 101.) After initial administrative denials for 551 benefits, a hearing was held before Administrative Law Judge ("ALJ") William Kirchgaessner, who decided on March 26, 1999, that plaintiff was not disabled. (Tr. 12-16.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiffs request for review on September 1, 2000. (Tr. 4-6.) See 42 U.S.C. § 405(h) (2001). This action followed.
"Tr." refers to pages of the administrative record Filed by the Commissioner as part of his answer. See 42 U.S.C. § 405(g) (2001).
DISCUSSION
I. The Applicable Law
A. Motion for Judgement on the Pleadings
In deciding a Rule 12(c) motion for judgment on the pleadings, the court applies "the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." D'Alessio v. New York Stock Exchange, 258 F.3d 93 (2d Cir. 2001) (citing Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996)). The Court may dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
B. Determining Disability
In order for a claimant to be deemed "disabled" under the Act, she must demonstrate her inability 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) (2001). Moreover, the impairment must be:
of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for h[er], or whether [s]he would be hired if [s]he applied for work.42 U.S.C. § 423(d)(2)(A) (2001).
As promulgated in 20 C.F.R. § 404.1520 (2001), the Commissioner is required to apply a five-step procedure in evaluating disability claims. This procedure was recently articulated by the Second Circuit as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider h[er] disabled without considering vocational factors such as age. education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimants severe impairment, [s]he has the residual functional capacity to perform h[er] past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).
C. Burden of Proof
The disability claimant bears the burden of proof on the first four issues laid out above. Once claimant's burden has been satisfied, the burden shifts to the Commissioner to establish the fifth step, that work exists in the national economy that the claimant can perform. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working") (citing Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
In most cases, the Commissioner attempts to satisfy her burden in the final step by reference to the medical vocational guidelines ("the grids") laid out in 20 C.F.R. Part 404, Subpart P, Appendix 2 (2001).See, Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); see also Rosa, 168 F.3d at 78 (2d Cir. 1999) (quoting Bapp). "The grids "take into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience.' Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy." Rosa, 168 F.3d at 78 (quoting Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996)). Generally, when the grid analysis adequately describes a particular claimant's profile, grid determinations are dispositive on the issue of disability. However, "exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant's physical limitations." Id. For instance, "sole reliance on the [grids] may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform." Zorilla, 915 F. Supp. at 667. When the grids do not adequately describe a particular claimant's profile the Commissioner must "introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp, 802 F.2d at 603. Thus, "application of the grid guidelines and the necessity for expert testimony must be determined on a case-by-case basis." Id. at 605.
Exertional limitations are defined as those that "affect only [claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b) (2001). A nonexertional limitation is one that affects the claimant's "ability to meet the demands of jobs other than the strength demands." 20 C.F.R. § 404.1569a(c)(1) (2001).
D. Standard of Review
Under the Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405(g) (2001). Thus, a district court may remand, modify, or reverse an ALJ's decision only if the ALJ has misapplied the appropriate legal standard, or if his finding is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) ("We set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.") (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The statutory standard of substantial evidence in the Social Security benefits context has been defined as, "`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. NLRB, 305 U.S. 197.229 (1938)). The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to his inferences and conclusions. See Figueroa v. Apfel, 99 Civ. 3185, 2000 U.S. Dist. LEXIS 5759 at *16-*17 (S.D.N.Y. Apr. 28, 2000). Moreover, such inferences and conclusions must be affirmed even where the Court's own analysis may differ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) ("`[T]he court may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review'") (quoting Valente v. Sec'y of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
B. Procedural Requirements
Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. See generally Santiago v. Massanari, 00 Civ. 3847, 2001 U.S. Dist. LEXIS.9881 at *24-*25 (S.D.N.Y. July 16, 2001).
For example, the substantial evidence standard might lead one to expect that a district court must affirm the decision of an ALJ who accepts the medical judgment of a consultative physician who unequivocally finds a claimant fit for work. Yet, the Commissioner has adopted regulations that give greater, and under some circumstances controlling, weight to the opinion of a claimant's treating physician, and set forth a particular methodology that must be followed in deciding whether to accept or reject such an opinion. 20 C.F.R. § 404.1527(d)(2) (2001). These regulations will be enforced by courts. See Rosa, 168 F.3d at 78-79; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Moreover, ALJs are not ordinarily permitted to rely on their own evaluation of test results or medical histories to reject a treating physician's opinion, for a "circumstantial critique by [a] non-physician, however thorough or responsible, must be overwhelmingly compelling" to justify a denial of benefits. Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 862 (2d Cir. 1990).
Nor may an ALJ rely, as factfinders in adversarial proceedings customarily do, on the absence of probative evidence supporting the opinions of a claimant's expert, without making an affirmative effort to fill any gaps in the record before him. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.") (citations omitted). "In fact, where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history `even when the claimant is represented by counsel.'" Rosa, 168 F.3d at 79 (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
Where the claimant is proceeding pro se, the ALJJ has an enhanced duty to assist the claimant in affirmatively developing the record by scrupulously and conscientiously probing into, inquiring of, and exploring for all the relevant facts to insure that a pro se claimant's rights are protected. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citing Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980));Echevarria v. Sec'y of Health and Human Services, 685 F.2d 751, 755-56 (2d Cir. 1982); Grubb v. Chater, 992 F. Supp. 634, 638 (S.D.N.Y. 1998) (citations omitted). In Echevarria, the Second Circuit found the hearing before an ALJ inadequate because of significant gaps" in the record, which included that the ALJ failed to adequately explore the nature and extent of the claimant's subjective symptoms and failed to inform the plaintiff that the medical evidence supplied was insufficient to make a determination of employability, among others. 685 F.2d at 755-56. At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that he considers the claimant's case unpersuasive and suggest that she produce additional evidence or call her treating physician as a witness. Grubb, 992 F. Supp. at 638 (citingFlanders v. Chater, 93 Civ. 5671, 1995 WL 608287 (S.D.N.Y. Oct. 17, 1995)).
Moreover, the Second Circuit has provided very specific instructions as to the type of evidence on which an ALJ can rely, in particular circumstances, in considering whether a claimant retains a capacity for productive employment: "[W]hen a claimant's nonexertional impairments significantly diminish his ability to work — over and above any incapacity caused solely from exertional limitations — so that he is unable to perform the full range of employment indicated by the medical vocational guidelines, then the [Commissioner] must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp, 802 F.2d at 603.
ALJs, unlike most factfinders, may even be precluded from relying uncritically on their subjective assessment of a claimant's credibility. Because "the subjective element of pain is an important factor to be considered in determining disability," Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citation omitted), the Commissioner is required to evaluate the credibility of subjective evidence against objective medical evidence as well as demeanor and other indicia of credibility. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). District courts have rejected ALJ findings that summarily reject claimants' assertions of subjective symptoms as not "fully credible" in light of objective evidence, Lewis v. Apfel, 62 F. Supp.2d 648, 651 (N.D.N Y 1999), or even as inconsistent with negative diagnostic tests, McLay v. Apfel, 99 Civ. 3505, 2001 WL 197879 at *3 (S.D.N.Y. Feb. 20, 2001).
Finally, the ALJ may turn out to be wrong even when he was right at the time the decision was rendered. Medical reports sent to the Appeals Council, so long as they concern the time period in question, become part of the record for judicial review, even when the Council has denied review. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
In light of rules such as these, a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully developed and evaluated to determine whether the Commissioner fully complied with all the relevant regulations.
II. Application to this Case
A. The ALJs Decision
Applying.the five-step evaluation described above, the ALJ found that Jones was not engaged in substantial gainful activity. (Tr. 15.) The ALJ next found that Jones suffered from diabetes mellitus controlled by diet, hypertension and obesity, and complained of musculoskeletal pain, but also found that her subjective complaints were overstated and not credible. Id. The ALJ's decision nowhere references any claim of psychological or emotional conditions that might bear on Jones' ability to work. The ALJ further decided that Jones' impairments were not listed in Appendix I to 20 C.F.R. § 404, Subpart P, Regulations No. 4. Id. Since claimant had no past relevant work experience, the ALJ did not address the issue of whether she could perform her past work. Id. Finally, the ALJ concluded that Jones had the residual functional capacity to perform other work within the economy, more specifically, the full range of at least sedentary work, which occasionally involves standing, walking, and lifting items, not more than ten pounds at a time. Id.; 20 C.F.R. § 416.967(a). The ALJ thus determined that Jones was not disabled and accordingly denied her application for benefits.
B. Claimant's Position
Jones contends that the ALJ's denial of SSI benefits was incorrect. She maintains that although she is disabled, her record does not show her to be disabled because the ALJ failed to fully develop the record. Jones points to four issues that she claims the ALJ was obliged to develop in consideration of her claim, but overlooked: (1) the severity of her arthritis; (2) the severity of pain she experienced; (3) the findings of her treating physician; and (4) a psychiatric evaluation that, as of the time of the hearing, she had scheduled for a future date. She further maintains that the Social Security Administration erred in failing to consider the later diagnosis of the psychiatric evaluation.
While the. first three matters do not justify reversal of the Commissioner's findings, the fourth requires further proceedings.
1. Arthritis
Jones asserts that the ALJ erred by failing to develop the record on the severity of the arthritis in her hands. Although she testified to the ALJ that she had been diagnosed at Columbia Presbyterian hospital as having crippling arthritis (Tr. 25), Jones maintains that the ALJ failed adequately to develop the record because he "did not ask claimant follow up questions on the `crippling arthritis' of the hands," nor attempt to obtain the treatment notes from the hospital. (Pl. Mem. 2-3.)
The record, however, demonstrates that Jones' assertion is inaccurate. After Jones mentioned the diagnosis of crippling arthritis, the ALJ inquired about which part of her body was affected; the effect of the arthritis on her ability to lift; the heaviest weight she could pick up; and whether she could carry something that weighs ten or fifteen pounds. (Tr. 25-26.) Although this may not have been the most exhaustive or sympathetic line of questioning, it does demonstrate that the ALJ attempted to find out whether the nature of the arthritis experienced was severe enough to prevent Jones from carrying out certain types of work. The inquiry was an adequate exploration of the facts relating to this ailment, and Jones fails to identify any fact that further inquiry would have elicited that would have affected the outcome.
2. Pain
Jones also maintains that the ALJ did not sufficiently inquire about the pain she experienced, although once again, the record reveals that she testified about pain, and was questioned on that subject by the ALJ. (Tr. 23, 25, 27, 31; Pl. Mem. 3.) The ALJ is required to evaluate "all . . . symptoms, including pain." However, the transcript demonstrates that the ALJ did inquire several times about Jones' pain, including questions about whether Jones experienced pain (Tr. 25), where the pain was located (Id.), how the pain affected her ability to engage in activities such as lifting and walking (Id. 25-26), whether she took medication for the pain she experienced (Id. 27), whether the medication she took helped to control her pain Id. 27-28, 31), and the types of daily activities that she typically completed (Id. 26-27). This inquiry into claimant's experience of pain and its effects on her activities is in accordance with the guidance of the federal regulations on the topic, 20 C.F.R. § 416.929, which require the ALJ to determine, when medical records indicate an impairment that could "reasonably be expected" to cause symptoms such as pain, the "intensity and persistence" of the symptoms in order to determine how the symptoms limit a claimant's capacity for work. 20 C.F.R. § 416.929(c)(1). The ALJ did all that was required, and adequately developed the record regarding Jones' experience of pain. This argument therefore provides no basis for reversing the Commissioner's decision.
3. Treating Physician
Jones next asserts that the ALJ erred in failing to obtain a medical report from her treating physician, Dr. Nicole Gordon and, further, "did not ask one question about this doctor." (Pl. Mem. 2.) The ALJJ's decision makes clear that, although the ALJ did not identify Jones' treating physician by name, several of Dr. Gordon's reports were discussed in the decision, including reports dated February 7, 1998, and June 26, 1998. (Tr. 12, 13.) Evidence of that consideration notwithstanding, the ALJJ did not advise the claimant that he considered her case unpersuasive and suggest that she produce additional evidence or call Dr. Gordon as a witness, as courts have suggested should be done before a pro se claimant's application is denied. See Grubb, 992 F. Supp. at 638 (citing Flanders v. Chater, 1995 WU 608287 (S.D.N.Y. 1995)).
Grubb is distinguishable, however, in that there, the claimant's treating physician had specifically stated that the claimant was unable to work in several written documents, which is not the case here. In none of the reports that are part of the record has Dr. Gordon ever concluded that Jones cannot work. Rather, Dr. Gordon's reports only note Jones' symptoms. As discussed above, the absence of probative evidence cannot be conclusive, particularly when considering a pro se claimant's case.Cruz, 912 F.2d at 11. As claimant's medical records do show Dr. Gordon to be the closest approximation to a treating physician for Jones, the ALJ might well have done better to have advised Jones that he found her case unpersuasive and would deny her application unless she produced additional evidence from Dr. Gordon or called her as a witness.
Nevertheless, even at this late date, Jones presents no additional information from Dr. Gordon, or any reason whatsoever to believe that further inquiry by the ALJJ would have led to additional evidence of disability. On this record, therefore, there is no reason to disturb the ALJ's conclusion based on his failure to seek additional records or testimony from Dr. Gordon.
4. New Evidence
Jones also argues that the case should be remanded in light of new evidence that was not presented at the hearing. Three pieces of new evidence were submitted by Jones for consideration by the Appeals Council. (Tr. 239-46.) Most significant for this appeal is a psychiatric evaluation from Dr. Joseph Weiner dated September 7, 1999, diagnosing claimant with major depression and post traumatic stress disorder. (Tr. 246.) Dr. Weiner, the Chief of Primary Care Psychiatry at the Phillips Ambulatory Care Center at Beth Israel Medical Center, concluded that Jones was "not able to work" and that "her symptoms are chronic and are expected to last at least a year." (Id.)
Although claimant formulates her objections regarding the scheduled psychiatric evaluation as a failure to adequately develop the record, the question of the scheduledibut-notcompleted psychiatric evaluation is more appropriately considered under the rubric of new evidence.
The two additional pieces of new evidence include a record from HS Systems dated September 21, 1999, advising claimant to seek further evaluation for elevated blood chemistries and an abnormal urinalysis (Tr. 245), and take-home instructions from St. Luke's Emergency Department dated March 22, 2000, for treating back pain (Tr. 239-43). Neither is significant enough to meet the second requirement of the new evidence test.
As noted above, additional medical evidence provided to the Appeals Council may be considered by the Court, even when the Council has denied review. Perez, 77 F.3d at 45. To determine whether a case should be remanded under 42 U.S.C. § 405(g) for consideration of such new evidence, the Second Circuit has devised a three-part test. See Jones, 949 F.2d at 60. The claimant must show that the evidence is
(1) "new" and not merely cumulative . . . (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. . . . The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. . . . Finally, claimant must show (3) good cause for her failure to present the evidence earlier.Id. (citations omitted); see also Lisa v. Sec'y of the Dep't of Health and Human Services, 940 F.2d 40, 44 (2d Cir. 1991) (when diagnosis emerges after close of administrative proceedings that sheds considerable new light on the seriousness of a claimant's condition, evidence of that diagnosis is material and justifies remand); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988); Sharpe v. Sullivan, 802 F. Supp. 938, 942 (W.D.N.Y. 1992) (finding evidence of subsequent treatment "clearly probative" of claimant's credibility regarding complaints of pain).
Applying this test to the new evidence offered by Jones leads to the conclusion that this case must be remanded on these grounds.
The first requirement is satisfied by Jones' new evidence, as the psychiatric evaluation was not available at the time of the ALJ's decision, and provides new information not previously contained in any of the other doctors' reports. Hence, it is appropriately considered new, noncumulative, evidence.
The materiality standard presents a closer question. As stated, in order to satisfy the materiality requirement, additional evidence must both relate back to the time period for which benefits were denied, i.e., before the ALJJ's decision, and have the potential to have affected the Commissioner's decision had it been presented earlier.Tirado, 842 F.2d at 597. It is apparent that the psychiatric evaluation by Dr. Weiner could have affected the Commissioner's decision. The report, if further developed and believed, could tend to support a finding of per se disability under 20 C.F.R. Part 404, Subpart P, Appendix I, § 12.04, entitled "Affective Disorders." While Dr. Weiner's opinion alone might or might not prove persuasive to the Commissioner, and even if believed, might or might not make out all the elements of a disability under § 12.04 or some other provision, the information is certainly relevant to a potential argument for disability that was never argued to or adequately considered by the ALJ. Certainly, then, if the material relates to the relevant time frame, it is information that could have affected the ALJ's decision, at least by leading him to seek additional information to explore claimant's mental condition.
An SSI claim remains in effect only through the decision of the ALJ. 20 C.F.R. § 416.330. See also Grubb, 992 F. Supp. at 637 (additional evidence must relate back to period prior to ALJ's decision).
Dr. Weiner's report, however, makes no reference to the date of onset of the alleged mental conditions. The very brief report, dated September 7, 1999, nearly six months after the ALJ's decision, states only that as of that date, Jones "has" the stated diagnosis and "is" unable to work. (Tr. 246.) It thus provides no indication whether the evidence relates to the period during which claimant's application was pending. Evidence that Jones has become disabled since the Commissioner's decision might support a new application for benefits, but would not justify disturbing the Commissioner's rejection of the prior application.
If claimant became disabled after her previous application xvas rejected, she would only be entitled to benefits from the date that she next flIed, or flIes, an SSJ benefits application. 20 C.F.R. § 416.335 (2001) (SSI benefits are not payable for any month before the month in which the application was filed).
Considering the additional evidence in light of the record as a whole, however, it would be reasonable to conclude that the diagnosis related back to the period before the ALJJ's decision. Dr. Weiner's report evidently was the product of a referral that had been made before that decision, and indeed before the hearing on Jones' claim in February 1999. The transcript of that hearing shows that Jones told the ALJ that "they want me . . . to come in . . . for psychiatric evaluation." (Tr. 32.) Instead of inquiring about the reason for the scheduled evaluation, the ALJ merely asked Jones whether she was currently seeing a psychiatrist. Jones responded that she currently was not, but that she has been told that she experienced frequent stress. (Id.) The ALJ asked whether the stress was related to her children, and concluded the proceeding when Jones answered affirmatively. (Id.) Moreover, the stressful events in question, which may well have led to the diagnosis in Dr. Weiner's report, included an episode in which Jones' son was taken to the emergency room with a collapsed lung, which took place on February 7, 1998, a year before the hearing and well within the relevant time period for this appeal. (Tr. 78, 84.) Thus, it is possible that claimant's mental problems began some time between February 7, 1998, and September 7, 1999, when Dr. Weiner's diagnosis was made.
Of course, it is not the Court's function to decide whether Jones' emotional difficulties existed before March 1999, nor whether, assuming they did, her condition was sufficiently serious to render her disabled. In any event, this record surely does not compel such conclusions. There might be reason to reject Dr. Weiner's conclusions; even if Dr. Weiner was correct, it is perfectly possible that Jones' condition worsened between March and September; and whatever the nature of Jones' mental condition before March 26, 1999, that condition might not support a conclusion of disability. The record is sufficient, however, to meet the materiality standard set forth in Jones v. Sullivan. There is more than enough in this record to support an inference that the September 1999 diagnosis was based on the symptoms, already apparent in February 1999, that provoked the referral that led to the diagnosis. If Jones did have a disabling affective disorder at some time before the ALJJ's decision, she would be entitled to SSJ benefits beginning on the date she became disabled. The ultimate significance of the information is for the Commissioner, and not this Court, to determine. Since the evidence arguably relates to the relevant time period, and unquestionably provides information highly relevant to claimant's disability claim, the Court must conclude that it is material.
The third requirement, whether claimant provided good cause for her failure to present the evidence earlier, is also satisfied. Claimant's pro se status alone goes far to meet this burden. There are situations where a claimant's pro se status is not enough to establish good cause, but this is typically where the ALJJ has explicitly given adequate notice of the importance of supplying medical reports regarding functional capacity as of the time when claimant was insured and where the claimant actually did submit relevant reports. See, e.g., Lisa, 940 F.2d 40;Jones, 949 F.2d at 61. In distinction, claimant here was not advised by the ALJ of the importance of supplying him with medical reports relating to the appropriate time frame and the consequences of failure to do so. In addition, claimant's alleged mental illness, if it is indeed established to have begun during the relevant time period, further supports the conclusion good cause is established for claimant's failure to obtain a medical diagnosis that properly references the onset of her illness. Finally, there is no indication that Jones was dilatory in pursuing a psychiatric evaluation. She was referred before the hearing, and advised the ALJ at the hearing that she was in the process of seeking the evaluation. (Tr. 32.) Rather than postponing decision in order to be able to consider the result of that consultation, the ALJ proceeded to decide the case, without developing this aspect of the record.
Finally, it is important to understand what is at stake here. Remanding the case to permit consideration of Dr. Weiner's diagnosis of psychological disability does not require the Commissioner to grant any benefits, or even to engage in any procedural efforts that would not be necessary anyway. Claimant has every right to file a new application for SSI benefits, based on her alleged present mental disability, and to present Dr. Weiner's opinion in support of that application. If the Court were to affirm the Commissioner's decision in this case, any lawyer would of course advise her to do exactly that. The Commissioner will then be required to determine whether Dr. Weiner is correct that Jones' psychological condition disables her from work. In that case, however, if the Commissioner agreed with Dr. Weiner, claimant would only be entitled to benefits from the date of her new application, regardless of when she first became disabled. By remanding the case, and keeping claimant's prior application alive, the Commissioner will be enabled, if she does find a disability, to award benefits from the date the disability began. If the Commissioner determines, after considering the appropriately time-referenced evidence of mental illness, that claimant is not disabled, no benefits will be awarded in any case.
If Jones is not disabled, she should not receive benefits. But if she is disabled, and has been for some time, it would be inequitable to disqualify her from benefits for the full period of her disability because she was not aware of the technical requirement that evidence of her incapacity to work should specify the date of the onset of her incapacity. For these reasons, the case is remanded to the Social Security Administration to adequately develop the record and reconsider the Commissioner's finding that claimant was not disabled.
CONCLUSION
Defendant's motion for judgment on the pleadings is denied, and the case is remanded to the Commissioner for consideration of whether the additional evidence submitted by claimant regarding her alleged mental disability supports a finding of eligibility for benefits.