Opinion
99 Civ. 9536 (DAB) (JCF)
January 24, 2001
MEMORANDUM AND ORDER
Charles S. Roda seeks review pursuant to 42 U.S.C. § 405(g) of a decision by the Commissioner of Social Security denying his application for disability benefits and Supplemental Security Income ("SSI"). The Commissioner has moved to remand the case for further administrative proceedings. Mr. Roda has opposed the motion. The parties consented to refer this case to me for final disposition pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the Commissioner's motion is granted.
Background
Mr. Roda is sixty years old and has lived in the same apartment for the last thirty years. (Tr. 37). He served in the armed forces from 1963-1969 and holds a Masters in Business Administration in Marketing from the City University of New York. (Tr. 38-39). Although Mr. Roda has taken steps toward becoming a certified teacher, he has not done so because there is little demand for marketing teachers in the New York public school system. (Tr. 39-40). Instead, he has spent most of his career teaching college courses. (Tr. 40-41). The last time that the plaintiff worked, he taught courses at City University and substituted part-time at Bronxville High School. (Tr. 41).
"Tr." refers to the Administrative Record attached to the Commissioner's Answer.
Starting in July 1985, Mr. Roda began experiencing symptoms of focal dystonia. (Tr. 29). This condition is characterized by severe muscular cramping, often brought on by physical exertion. (Tr. 47-48). Shortly after the onset of his symptoms, the plaintiff saw several physicians, and was definitively diagnosed by the end of 1986. (Tr. 30-31). Mr. Roda then stopped working full-time and worked on a part-time basis on and off until 1996. (Tr. 32).
The plaintiff describes his ailment as severe cramping in his left arm brought on by certain physical activities. Mr. Roda claims that any activity may trigger the condition and that once the condition has set in, any continued physical exertion worsens and prolongs the pain. (Tr. 47-48). In order to ameliorate this condition, he refrains from any exertional activity. (Tr. 50). Mr. Roda saw a doctor for the last time in July 1990 and was told that there is no effective treatment for dystonia. (Tr. 55-56). He claims that there is no need to continue seeking appointments with physicians because his condition is untreatable. (Tr. 56).
When Mr. Roda is not working, he writes to the extent that he is able and attempts to have his work published in local periodicals. (Tr. 57). He visits friends on occasion, is able to take care of own personal needs, and does routine household tasks on his own. (Tr. 58-61).
Mr. Roda filed an application for disability insurance benefits on October 17, 1995. (Tr. 93-95). The application was denied initially and on reconsideration. (Tr. 96-97, 106-07, 113-16). The plaintiff then requested a hearing before an administrative law judge ("ALJ"). (Tr. 117-18).
Mr. Roda's hearing was held on April 11, 1997. He described his condition and pointed out to the ALJ the cursory nature of the examination he received from Dr. Chandra Sharma, the Social Security Administration examining physician. (Tr. 63). He also argued that Dr. Sharma's findings were in direct opposition to his own testimony and to the prognosis he received from his treating physicians (Tr. 62-63). Finally, Mr. Roda claimed that the Social Security Administration never tried to obtain any of his medical records. (Tr. 64-65).
The ALJ's Decision
The ALJ issued his decision on July 21, 1997, finding the plaintiff not disabled based on a variety of factors. He concluded that Mr. Roda engaged in substantial work activity in every year except for the period between 1990 and 1994. (Tr. 18). The ALJ relied on Social Security Ruling 82-52, which states that when claimant returns to work before approval of the award and prior to the lapse of the twelve-month period after onset, disability must be denied. (Tr. 18). Furthermore, the ALJ found that the medical evidence since 1990 indicated no existence of disability. (Tr. 19).
The ALJ then proceeded to determine that the claimant's condition imposes some limitations on his ability to perform basic work functions. However, the judge found that Mr. Roda's ailment was not equivalent to impairments listed in the regulations which would automatically indicate a finding of disability.
In evaluating the medical records, the ALJ did not find enough clinical evidence to support a finding of disability. Mr. Roda's 1986 CAT scan showed only mild cortical and cerebellar atrophy. (Tr. 20). Other medical evidence supported a diagnosis of dystonia, but the ALJ discounted it because there were no indications of coordination abnormalities or other external manifestations of this ailment. (Tr. 20). Instead, the judge relied on Dr. Sharma's finding of "no disability." Dr. Sharma had concluded that the claimant's symptoms were intermittent and that he should avoid stressful situations, like a classroom. (Tr. 20). It is notable that the ALJ did not make any mention of the residual functional capacity report prepared by a Dr. Rosenberg, a state agency medical consultant employed by the Social Security Administration. Dr. Rosenberg's report indicated that Mr. Roda would have a more limited ability to do work than that indicated by Dr. Sharma's findings. (Tr. 99-102). Finally, the ALJ discounted the claimant's testimony as not entirely credible. (Tr. 22).
The ALJ found that the claimant has unlimited residual functional capacity, compromised by dystonic symptoms which prevent the performance of work in stressful situations. (Tr. 21). Relying on this finding, the ALJ determined that Mr. Roda retains the capacity to do heavy work, pursuant to 20 C.F.R. § 204.00, and even though he can no longer perform his past work, there are other jobs readily available to him in the national economy. (Tr. 22). The Commissioner's determination became final when the Appeals Council denied Mr. Roda's request for review of ALJ's decision on May 18, 1999. (Tr. 3-4).
Discussion
The Commissioner contends that the determination should be remanded because the ALJ did not: (1) consider the opinion of a state agency medical consultant, (2) evaluate a consulting physician's opinion in accordance with the applicable legal standards, and (3) obtain the testimony of a vocational expert. (Defendant's Memorandum of Law in Support of the Commissioner's Motion for Remand for Further Administrative Proceedings ("Def. Memo.") at 4). These requirements reflect the recently revised regulations for evaluating medical opinions. (Def. Memo. at 4-5).
The revised regulations went into effect on April 6, 2000. The changes to 20 C.F.R. § 404.1527 416.927 were adopted "to clarify how [administrative law judges] and the Appeals Council were to consider opinion evidence from state agency medical and psychological consultants . . . and [other] medical experts[.]" Employees' Benefits, 65 Fed. Reg. 11,866, 11,866 (March 7, 2000) (to be codified at 20 C.F.R. § 404.1527 416.927).
The Commissioner argues that, under the Social Security Administration's revised approach, the ALJ was under an obligation to reconcile the opinions of Dr. Rosenberg, the state agency medical consultant, and Dr. Sharma, the SSA examining physician. (Def. Memo. at 6). Dr. Sharma and Dr. Rosenberg differed regarding Mr. Roda's residual functional capacity to do certain forms of work. (Def. Memo. at 6).
Moreover, the Commissioner argues the ALJ should have made use of vocational expert testimony in deciding Mr. Roda's case. (Def. Memo. at 7). Since the ALJ determined that Mr. Roda suffered from a nonexertional impairment over and above any exertional limitation, a medical vocational expert's testimony was required. (Tr. 21); See Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir. 1986) (holding that whenever nonexertional impairment significantly limits range of work permitted by exertional limitations, medical vocational expert testimony is required). The Commissioner maintains that the Social Security Administration should be given the opportunity to revisit its decision in light of these standards. Accordingly, the Commissioner urges that remand is appropriate. (Def. Memo. at 4-5, 7).
The plaintiff argues that the district court is better able than the Social Security Administration to render a fair and impartial judgment and requests that this Court order an additional medical examination by an expert in dystonia. (Plaintiff's Memo Opposing Commissioner's Motion to Remand at 2).
A. Reversal or Remand
Remand is appropriate where there are gaps in the administrative record or where an unclear or improper legal standard has been applied. See Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999); Schaal v. Apfel 134 F.3d 496, 504-05 (2d Cir. 1998); Parker v. Harris 626 F.2d 225, 235 (2d Cir. 1980).
Reversal without remand is called for only where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose." Parker, 626 F.2d at 235 (citation omitted). It is not the function of the district court to determine the plaintiff's disability de novo. Id. at 231. Rather, the court should award benefits without giving the Social Security Administration an opportunity to cure its errors solely in the situation when "application of the correct legal standard could lead to only one conclusion." See Schaal, 134 F.3d at 504. In other words, reversal is warranted where remand would be a futile gesture. See Simmons v. United States Railroad Retirement Board, 982 F.2d 49, 57 (2d Cir. 1992).
Without a fully developed record in this case, it is impossible to say that further evidentiary hearings would serve no purpose. See Carroll v. Secretary of Health and Human Services 705 F.2d 638, 644 (2d Cir. 1983) (holding that where ALJ may consider new and material evidence and has good cause for remand, reversal is inappropriate). Both Mr. Roda and the Social Security Administration should be given an opportunity to reconcile the existing medical evidence and to produce any further medical records from the plaintiff's treating physicians that might aid the ALJ in making his determinations.
B. Issues on Remand
Under the applicable regulations, the Commissioner must consider a number of factors in determining the weight to give a medical source opinion. These factors include: (1) the length and nature of the treatment relationship; (2) the frequency of examination; (3) the extent to which the opinion is supported by evidence, particularly evidence procured by medically acceptable clinical and laboratory techniques; (4) the consistency of the opinion with the record as a whole; and (5) the specialization of the medical source. See 20 C.F.R. § 404.1527(d)(2) 416.927(d)(2); see also Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998); Schaal, 134 F.3d at 503.
In this case, the ALJ relied almost exclusively on the opinion of Dr. Sharma in rendering his decision. Dr. Sharma performed his examination of the plaintiff at the Commissioner's request and concluded that Mr. Roda suffered from apparently intermittent dystonic symptoms. (Tr. 155). Dr. Sharma determined that the plaintiff could not work in stressful environments, such as a classroom. (Tr. 155). However, he also indicated that Mr. Roda could work in circumstances where he would be allowed to stop work periodically. (Tr. 155). In accordance with Dr. Sharma's opinion, the ALJ found that Mr. Roda retained a residual functional capacity to do heavy to very heavy work despite his medically determinable impairment. (Tr. 22-23).
However, the ALJ did not take into account the opinion of Dr. Rosenberg, a state agency medical consultant. Under 20 C.F.R. § 404.1527(d)(6) 416.927(d)(6), the ALJ is required to give weight to "any factors [the claimant] or others bring to [his or her] attention, or of which [the ALJ is] aware, which tend to support or contradict the opinion." Here, The Commissioner maintains that after reviewing Mr. Roda's medical records, Dr. Rosenberg concluded that the claimant retained only a residual functional capacity to do light work. (Def. Memo. at 6; Tr. 99). Therefore, the ALJ was under an obligation to explain what weight he was giving to each medical opinion before rendering his decision. 20 C.F.R. § 404.1567(b) 416.927(b).
It is not clear from the record that Dr. Rosenberg's conclusions entirely support this view. Nevertheless, the ALJ should have accorded Dr. Rosenberg's opinion some weight.
Moreover, the ALJ failed in his duty to adequately develop the record. The non-adversarial nature of a disability benefits hearing requires the ALJ to affirmatively assist in developing the medical record before rendering a final decision. See Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); Jones v. Apfel, 66 F. Supp.2d 518, 523 (S.D.N.Y. 1999). In cases involving a pro se claimant, the ALJ is under a heightened duty "to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citation omitted); see also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980); Jasmin v. Callahan 97 Civ. 2429, 1998 WL 74290, at *3 (S.D.N.Y. 1998).
In this case, there was some evidence that the ALJ had difficulty in procuring full medical records from Mr. Roda's treating physicians. (Tr. 165). In this situation, the ALJ had a duty to inform the claimant and advise him to attempt to get an affidavit or some other detailed statement of his treating physician's opinion. See Hankerson, 636 F.2d at 895-96. Instead, the ALJ declined to accord significant weight to any of the medical records from Mr. Roda's treating physicians he received because they contain no evidence of positive findings associated with dystonia. (Tr. 20). However, the Second Circuit has held that "basic principles of fairness require that [the ALJ] inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement" before rejecting an unsubstantiated opinion of the claimant's treating physician. Id. at 896 (citation omitted).
Conclusion
For the reasons set forth above, the Commissioner's motion is granted and the case is remanded to the Social Security Administration for further proceedings consistent with this decision. The Clerk of Court shall enter judgment closing the case.
SO ORDERED,