Opinion
98 Civ. 9042 (HB)
April 25, 2000.
OPINION ORDER
Plaintiff, Sonia Santiago, moves for judgement on the pleadings and/or summary judgement pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff challenges the final decision of the Commissioner of Social Security ("Commissioner") to deny her disability benefits, alleging (1) that she did not knowingly waive her right to counsel, (2) that the ALJ failed to adequately develop the record, and (3) that the finding that the plaintiff is not disabled is not supported by the evidence. Defendant moves for judgement on the pleadings affirming the Commissioner's decision. Although plaintiff may not have knowingly waived her right to counsel, the ALJ adequately developed the record and the finding that the plaintiff is not disabled is supported by substantial evidence. Accordingly, defendant's motion for an order pursuant to Rule 12(c) affirming the decision of the Commissioner and dismissing the plaintiffs complaint must be GRANTED.
I. PRIOR PROCEEDINGS
On September 16, 1996, Sonia Santiago filed an application for Supplemental Security Income ("SSI"). (Tr. 79-81). After her application was denied both initially and again on reconsideration (Tr. 57-60, 63-66), plaintiff requested a hearing to review her application for SSI. (Tr. 67-68). A hearing before an Administrative Law Judge ("ALJ") was held on November 7, 1997 at which the plaintiff appeared pro se. (Tr. 25). The ALJ found that the plaintiff was not under a disability. (Tr. 11-19). The Appeals Council denied the plaintiffs request for review (Tr. 6-8), and plaintiff filed this complaint to seek review of the ALJ's determination.
References to "Tr." refer to pages in the transcript of the administrative record.
II. STATEMENT OF FACTS
A. Non-Medical Evidence
Plaintiff is a fifty-nine year old female, born on June 16, 1940, who can read and write in Spanish but who speaks only limited English. (Tr. 31). She alleged disability due to osteoporosis, ulcers, swelling of the feet, and asthma. (Tr. 90, 99). Plaintiff last held employment as a packager in a factory. (Tr. 32-36). She had previously worked at a factory where she operated a sealing machine by pressing two buttons. Id. Her recent packaging work involved sitting and packing for eight hours a day, with minimal walking and lifting, and occasional bending and stooping. Id. Plaintiffs button-pushing work involved sitting, no walking or lifting, and occasional bending and stooping. Id.
At the hearing, plaintiff indicated that she had pain in her hips and lower back (Tr. 38, 41) and that she used a cane to walk when walking alone. (Tr. 41). She also testified that she suffered from asthma and that she had been to the hospital many times because of her asthma. (Tr. 41).
B. Medical Evidence
Plaintiff went to Mt. Sinai Hospital for outpatient treatment from July 1996 to October 1996, where she was treated for symptoms of osteoporosis, asthma, epigastric pain, and menopausal complaints. (Tr. 111-24). Ultrasound examinations of the abdomen and the left breast revealed no evidence of gallstones, a slightly heterogeneous liver, and a hypoechoic legion near the pectoralis muscle of the left breast. (Tr. 112-13). An examination of the left tibia, fibula, ankle, and foot revealed general osteopenia and a healing fracture in the fifth metatarsal. (Tr. 121). No mention was made of the plaintiffs asthma.
On October 17, 1996, Dr. Yoo, a treating physician at Mt. Sinai Hospital filed a medical report diagnosing the plaintiff with asthma, osteoporosis and a nontraumatic fracture of the left foot. (Tr. 125). Dr. Yoo noted limitations on her ability to stand and walk, but noted no other limitations. The form which Dr. Yoo completed asked specifically whether the individual faced environmental limitations, but Dr. Yoo indicated that the plaintiff did not have any such limitations. (Tr. 129).
On October 21, 1996, plaintiff was seen by Dr. Grossman, who examined her for asthma, chest pain, joint pain, peptic ulcer, and osteoporosis. (Tr. 130). He found that she had "[n]o impairment for bending, stooping, crouching, standing, sitting, climbing, walking, lifting, carrying, hand and foot controls, pushing, pulling, vision, hearing, speech and travel." (Tr. 133). However, he did find that plaintiff was "impaired for exposure to noxious inhalants." Id.
On October 25, 1996 plaintiff was examined by Dr. Mancheno, whom she told that she could not work because of pain in her left foot. (Tr. 140). After finding that plaintiff had full range of motion in both her upper and lower extremities, he went on to diagnose pain consonant with an injury to the foot, and that she had mild impairment for lifting and carrying, for standing and walking, and for pushing and pulling. (Tr. 141-42). He diagnosed no limitations for sitting. Id.
On November 15, 1996 plaintiff was seen by Dr. Kao, who conducted a treadmill examination that monitored the cardiac function of the plaintiff. (Tr. 148). Although the examination was "curtailed because of severe shortness of breath due to asthma," Dr. Kao found that the "[t]readmill examination was negative." Id.
On November 28, 1996, a state agency medical consultant, Dr. Marasigan, reviewed plaintiffs records. (Tr. 82-89). By checking certain boxes on the assessment form, the doctor indicated that the plaintiff should "avoid all exposure" to extreme cold; extreme heat; wetness; humidity; and fumes, odors, dusts, gases, poor ventilation, etc. (Tr. 86). However on the following page the doctor wrote that the "[p]hysical examination failed to show evidence of a severe condition" and that although she had a history of asthma "there is no severe restrictions [sic] in breathing capacity." (Tr. 87).
Plaintiff was seen by her treating physician, Dr. Reichert, from March 1997 to November 1997. (Tr. 172-74). As "the provider of medical care for Mrs. Santiago," Dr. Reichert found that plaintiff suffered "from asthma, osteoporosis, arthritis, and trochanteric bursitis." (Tr. 172). On November 11, 1997 he completed a form which was designed to detail "how the individual's physical capabilities are affected by the impairment(s)." (Tr. 173). Though he responded that lifting/carrying, standing/walking, sitting, and similar postural and physical activities were affected by her impairment, he specifically responded "no" to the following "environmental restrictions": temperature extremes, chemicals, dust, noise, fumes, humidity, and vibration. (Tr. 174).
III. DISCUSSION
A. Applicable Law and Standard of Review
For purposes of the Act, a person is classified as disabled when he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.., which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A). Moreover, "[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ..." 42 U.S.C. § 423 (d)(2)(A), 1382c(a)(3)(B).
The Commissioner uses a five-step procedure to determine whether a claimant is under a disability. 20 C.F.R. § 404.1520, 416.920. First, the Commissioner must determine whether the claimant is engaged in substantial gainful activity. Second, the Commissioner must determine whether the claimant suffers from a severe impairment or combination of impairments that significantly limits the claimant's physical or mental ability to perform basic work activities. If the claimant is not engaged in substantial gainful activity and suffers from an impairment that prevents employment, the Commissioner's analysis continues to step three. The third step requires the Commissioner to determine whether the claimant's impairment meets or equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. If the claimant suffers from a listed impairment, the Commissioner presumes gainful activity cannot be performed and the plaintiff is considered disabled. However, if no such impairment exists, the fourth step requires a determination of whether the claimant has the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform past work, the fifth step requires a determination of whether there is other work within the local or national economy which the claimant could perform. The Commissioner bears the burden of demonstrating that other work is possible.
Plaintiff bears the burden of proof for steps one through four. The burden of proof shifts to the Commissioner for the fifth step. See DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)).
After a decision has been rendered, the Secretary's findings must be upheld if they are supported by substantial evidence. 42 U.S.C. § 405(g), § 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971), see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). Substantial evidence is defined by the Supreme Court as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Moreover, once the Court finds that there is substantial evidence supporting the Commissioner's decision, that decision must be upheld even if there is also substantial evidence supporting the plaintiffs position. See DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d. Cir. 1998); see also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990).
B. The Administrative Law Judge's Decision
Following the five step analysis above, the ALJ first determined that the plaintiff was not engaged in any substantial gainful activity after having filed her application for SSI. (Tr. 15). Second, the ALJ determined that the plaintiff had medical problems that resulted in severe impairments. (Id.) Third, the ALJ assessed whether the plaintiffs impairments met the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1, and determined that her impairments did meet or equal those criteria. (Id.) However, pursuant to the fourth step of the analysis, the ALJ found that the impairments of the plaintiff did not prevent her from performing her past work because it involved sedentary work activity. (Tr. 18). Having concluded that she could perform her past relevant work, the ALJ did not reach the fifth step: whether there was other work within the local or national economy which she could perform.
The ALJ found that the plaintiffs activities were "consistent with the ability to engage in sedentary work activity." (Tr. 18). The rationale for the finding was based on the conclusions of consultive examiners that the plaintiff "did not have more than a mild impairment as to lifting/carrying, pushing/puling, standing/walking, or sitting." (Tr. 15). The ALJ also made his decision on the fact that examinations of the plaintiff revealed that she could perform a full squat and had no difficulty getting up from a chair, getting up from the examining table, or dressing and undressing. (Tr. 16). Regarding the plaintiffs asthma, the ALJ also found that there was "no documentation in the record which would preclude the claimant from engaging in sedentary work activity." (Id.) Having concluded that her past relevant work was sedentary, and that her impairments did not prevent her from performing such work, the ALJ denied the plaintiffs application for SSI.
Plaintiff challenges the determination of the ALJ, alleging that she did not knowingly waive her right to counsel, that the ALJ failed to adequately develop the record, and that the finding of the ALJ was not based on substantial evidence.
C. The Plaintiff Did Not Knowingly Waive Her Right to Counsel
Plaintiff received through the mail notice of her right to have an attorney present at her hearing in English and Spanish. (Tr. 69-70, 71-78). When she appeared at the hearing pro se, she was again advised by the ALJ of her right to have an attorney present:
ALJ: Now I see you are not represented by an attorney or a representative.Claimant: No.
ALJ: When we sent you the notice of hearing we also sent a list of lawyers who will take the case for free.
Claimant: Yes, but I spoke with my social worker and she had explained to me that when I received the hearing note to look for lawyer to go to their locations, but I call them and they told me that it was too late to take the case.ALJ: Let me tell you—
Claimant: Because I was supposed to got to them ever since I appealed the beginning.
ALJ: Now let me tell you what a lawyer can do. A lawyer can make arguments in your favor and a lawyer can also obtain medical records. My office can also obtain medical records. It is not necessary that you have a lawyer to have the, the hearing today. Tell me what it is that you wish to do? Do you wish to go ahead with the hearing today?Claimant: I don't know.
ALJ: Well, the options you have is leaving here today and finding and [sic] lawyer and we will adjourn the case for three months, or we can have the hearing today and if you are not satisfied with the decision that I render, you can then appeal to the Appeals Council of Social Security and thereafter to the Federal Court and you can obtain a lawyer for either of those contingencies.Claimant: Okay.
ALJ: So what is that you wish to do today?
Claimant: For the hearing—
ALJ: Do you wish to proceed with the hearing today?
Claimant: Yes.
(Tr. 24-25)
The ALJ has the duty to ensure that the plaintiff is aware of her right to counsel. See Robinson v. Secretary of Health and Human Services, 733 F.2d 255, 258 (2d Cir. 1984); Alvarez v. Brown, 704 F. Supp. 49, 52 (S.D.N.Y. 1989) ("The [Commissioner] is not obligated to furnish a claimant with an attorney, but the ALJ must ensure that the claimant is aware of his right to counsel."). After being informed of the right to counsel, a waiver of counsel must be made knowingly and voluntarily to be valid. See Tavares v. Apfel, 1998 WL 557587, at *3 (S.D.N.Y. Sept 2, 1998) (citing Alvarez v. Brown, 704 F. Supp. 49, 52 (S.D.N Y 1989)). Plaintiff was properly notified of her right to counsel, both in English and Spanish before the hearing. (Tr. 69-70, 71-78). This case differs from Alvarez because the ALJ enquired further as to whether the plaintiff still desired counsel and informed her that the hearing could be delayed until counsel could be had. However, in this case the ALJ's later statements downplaying the benefits of counsel at the hearing prevented plaintiff from knowingly waiving her right to counsel. When the ALJ explained to the plaintiff her right to counsel, he interfered with her ability to knowingly waive counsel in two ways.
First, he minimized the apparent need for counsel by first telling plaintiff that counsel could make arguments in her favor and also obtain medical records — and then immediately stating that his office could also obtain medical records. (Tr. 25). The result of his assertion that his office could also obtain medical records, coming immediately on the heels of a discussion of the benefits of a lawyer, served to minimize the apparent value of having a lawyer. It also served to draw attention away from the benefit of counsel that the ALJ mentioned at the outset — the ability of a lawyer to make arguments in her favor. See Tavares, 1998 WL 557587, at *3
Second, the ALJ again minimized the benefits of a lawyer by suggesting that counsel could be obtained on appeal. (Tr. 25). In explaining to the plaintiff her option to either proceed that day or to delay the hearing — and thus her benefits — for another three months, the ALJ suggested that the plaintiff could obtain counsel for an appeal, if any. Id. Moreover, as plaintiff has noted, this suggestion was misleading as to the standard of review on appeal. Counsel on appeal may not be an effective substitute for counsel at the fact finding stage, because the findings of the Secretary must be upheld on appeal if they are supported by substantial evidence. See Richardson, 402 U.S. at 401. Based on the preceding factors, I find that the plaintiff may not have knowingly waived her right to counsel. However, the case does not require remand because the ALJ adequately developed the record and based his findings on substantial evidence.
D. The ALJ Adequately Developed the Record
In this case, the ALJ fulfilled his duty and scrupulously and conscientiously probed into, inquired of, and explored all the relevant facts. DeChirico v. Callahan, 134 F.3d 1177, 1183 (2nd Cir. 1998). Plaintiff attempts to show that the ALJ failed to adequately develop the record by contending that the ALJ failed to elicit information regarding dust, fumes, and other such environmental conditions at her previous places of employment that might have an effect on plaintiffs asthma. Plaintiff contends that information about the environmental conditions at her previous jobs might have influenced the ALJ's decision as to whether plaintiff was able to perform her past relevant work. Had there been environmental conditions that exacerbated her asthma at her past relevant work places, the plaintiff argues, she would not be able to return to her past relevant work in the future. However, the opinion of the plaintiffs treating physician, as well as of several other physicians, is that the plaintiff does not have environmental limitations related to her asthma. (Tr. 174). Therefore, the ALJ was not required to consider the environmental conditions at her previous places of employment.
In addition, the record shows, and the plaintiff does not contest, that the ALJ obtained all the relevant medical and treatment records from the plaintiffs physicians. The transcript of the hearing reveals that the ALJ elicited detailed testimony from both the plaintiff and plaintiffs daughter regarding plaintiffs impairments and also asked the plaintiff numerous questions regarding her symptoms (Tr. 37-38), treatment (Tr. 40 -41), pain (Tr. 43), daily activities (Tr. 48-49), and ability to perform various physical activities (Tr. 51). The ALJ also asked the plaintiffs daughter to obtain from the plaintiffs treating physician a "Medical Assessment of Ability to Do Work Related Activities" form. (Tr. 39).
This form, completed by Dr. Reichert, has provided the plaintiff several other arguments. Plaintiff has argued that "because the space for the name on the statement by Dr. Reichert [Tr. 173] was left blank, it is doubtful whether the statement even refers to the plaintiff." ( See Pl. Mem. at 6). I need not speculate as to the probability of whether Dr. Reichert's statement indeed refers to the plaintiff. It is true that "if an ALJ perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the administrative record accordingly." Hartnett v. Apfel, 21 F. Supp.2d.217, 221 (E.D.N.Y. 1998) (citing Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998). However, in the instant case there is no inconsistency in the treating physician's report — it accurately describes this particular plaintiffs specific impairments. It was taken by the plaintiff to, and completed by, the plaintiffs treating physician. The report was then returned to the ALJ and considered in making his determination in this particular plaintiffs case. Although when dealing with a pro se litigant the ALJ bears a heightened burden to affirmatively develop the record, "the ALJ need not resolve every inconsistency and ambiguity in the record." Bluvband v. Heckler, 730 F.2d 886, 892 (2d Cir. 1984) (internal citations omitted) ( superceded by regulation on other grounds); see also Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (declining to "suggest that every conflict in a record be reconciled by the ALJ or the Secretary").
Plaintiff also argues that the form inquires about only one impairment when "read plainly" because the question is phrased: "Are there ENVIRONMENTAL RESTRICTIONS caused by the impairment?" (Tr. 174) (emphasis added). This argument is untenable. The form specifically asks the doctor to assess "how the individual's physical capabilities are affected by the impairment(s)." (Tr. 173). Also, plaintiff alleged three impairments in addition to asthma — osteoporosis, arthritis, and trochanteric bursitis. The existence of these other impairments tends to rebut the assertion that Dr. Reichert considered only one single impairment. The letters submitted by Dr. Reichert expressly state that he was treating plaintiff for asthma, osteoporosis, arthritis, and trochanteric bursitis (Tr. 171, 172), which illustrates compellingly that the doctor was well aware that plaintiff suffered from more than one impairment. Therefore the argument that Dr. Reichert referred only to environmental limitations caused by the osteoporosis, arthritis, and trochanteric bursitis fails.
The plaintiff also alleges that her lack of counsel contributed to inadequate development of the record. She maintains that counsel would have addressed the issues discussed above, namely the environmental conditions at her past relevant work places and the failure of the treating physician to fill in the appropriate name blank or prescribe environmental limitations related to the plaintiffs asthma. I note that the plaintiff testified at her administrative hearing that she stopped worked at her factory job in the Bronx after 12 years because the factory closed down, (Tr. 35) and stopped working at her last paying job in Queens to take care of her mother. (Tr. 32). In other words, plaintiff did not cease to work because of dust or other environmental concerns at her previous places of employment.
Plaintiff cites the Seventh Circuit case Binion v. Shalala, in which the Seventh Circuit held that "if the ALJ does not obtain a valid waiver, the burden is on the Secretary to show the ALJ adequately developed the record." 13 F.3d 243, 245 (7th Cir. 1994). However, the plaintiff would have this court extend the law of the Seventh Circuit and hold that where the plaintiff has waived counsel because of misleading statements by the ALJ, the burden should be on the Commissioner to prove that the assistance of counsel "could not, under any conceivable circumstance, have altered the outcome." (pl. Br. at 5) However, in this circuit it is clear that the Secretary's findings must be upheld if they are supported by substantial evidence. See Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. Jun 20, 1995). Because I find that the ALJ adequately developed the record, I now address whether the ALJ'S findings are based on substantial evidence and must therefore be upheld.
E. Finding Is Supported by the Evidence
Plaintiff asserts that the finding of the ALJ was not supported by the evidence because the ALJ found that her asthma did not impose any serious environmental limitations. However, this finding is supported not only by many of the doctors who examined the plaintiff, but also by Dr. Reichert, plaintiffs treating physician. More importantly, "the treating physician's determination is generally `entitled to more weight than that of a doctor who has only seen the claimant once....'" Schisler v. Sullivan, 3 F.3d 563, 567 (2d. Cir. 1993), quoting Rosa v. Weinberger, 381 F. Supp. 377, 380 (E.D.N.Y. 1974).
[B]y granting the treating physician's opinion "controlling weight" only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence," the regulations [ 20 C.F.R. § 404.1527 (d)(2), 416.927(d)(2) which supercede the "treating physician rule"] accord less deference to unsupported treating physician's opinions than do our decisions. Schisler, 3 F.3d 563 at 567.
Here, not only Dr. Reichert, but several other doctors declined to recommend any environmental limitations based on her asthma. In fact, of the many doctors who physically examined the plaintiff, only Dr. Grossman prescribed environmental limitations. Dr. Grossman examined the plaintiff on only one occasion, seven months before plaintiff began seeing Dr. Reichert. Dr. Reichert, however, saw the plaintiff as her treating physician for a period of nine months. The only other doctor to prescribe any environmental limitation was Dr. Marisigian, who examined the plaintiffs records, not the patient, seven months before the plaintiff began seeing Dr. Reichert. Furthermore, Dr. Marisigian found that, despite plaintiffs asthma, the plaintiff had "no severe restrictions in breathing capacity." (Tr. 87).
Assuming arguendo that Dr.Grossman's and Dr. Marisigian's reports alone may be considered substantial evidence that the plaintiff required environmental limitations because of her asthma, the finding of the ALJ must still be upheld because it too is supported by substantial evidence. See DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d. Cir. 1998) (if there is substantial evidence of record both for and against the Commissioner's decision, courts must uphold the decision). Dr. Reichert unequivocally stated that the plaintiff required no environmental limitations due to her asthma, an opinion further supported by the findings of several other physicians. Therefore there is substantial evidence from which the ALJ could conclude that, despite her asthma, the plaintiff did not require any environmental limitations. The finding of the ALJ is therefore affirmed.
IV. CONCLUSION
For the reasons stated above, I find that there was substantial evidence to support the ALJ'S determination that the plaintiff was not entitled to SSI benefits. Thus, defendant's motion for an order pursuant to Rule 12(c) affirming the decision of the Commissioner and dismissing the plaintiffs complaint must be GRANTED. The Clerk of the Court is instructed to close this case.
SO ORDERED.