Opinion
01 Civ. 7374 (SHS)
October 30, 2002
OPINION AND ORDER
Mercedes V. Selmo brings this action pro se pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to challenge a final decision by defendant Jo Anne Barnhart, Commissioner of Social Security, denying her Social Security Disability Insurance ("SSDI") benefits. Defendant has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff has not opposed this motion. For the following reasons, defendant's motion is denied, and this case is remanded for further proceedings.
BACKGROUND
1. Administrative Proceedings
On July 19, 1999, Selmo submitted an application to the Social Security Administration for SSDI benefits. (R. 43-44, 91.) Her application was denied both initially and on reconsideration. (R. 45, 50.) At Selmo's request, administrative law judge Joseph K. Rowe (the "ALJ") held a de novo hearing on September 14, 2000 to determine whether Selmo was entitled to benefits. (R. 22-42.) Selmo appeared and testified at that hearing without the assistance of counsel. (R. 25.) Following the hearing, the ALJ held the record open for ten days in order for Selmo to submit additional medical evidence. (R. 15, 40.) The ALJ's decision became the final decision of the Commissioner on June 7, 2001, when the Appeals Council of the Social Security Administration denied Selmo's request for review. (R. 5-6.)
References to "R.___" are to the relevant pages of the record of proceedings filed by the Commissioner.
2. The Record
a. Plaintiff's Testimony
At the time of the hearing, Selmo was fifty years old, married, and had two children, ages twenty and twenty-nine. (R. 27-28.) She testified that she did not know English very well and was assisted in the administrative hearing by a Spanish interpreter. (R. 24, 29-30.)
Born in the Dominican Republic, Selmo first came to the United States in 1973. (R. 27.) She remained in the continental United States for two years before leaving for Puerto Rico, where she worked as a nurse's aide. (R. 28, 30.) From January to March 1997, Selmo worked as a nurse in a Puerto Rico hospital. (R. 30.) Some time afterwards, she returned to the continental United States after suffering several personal tragedies. Id. As related by Selmo, "I lost my daughter and then we had an accident and my husband had Alzheimer's. . . . I came [to the continental United States] because my husband was receiving treatments for Alzheimer's." Id. From the record, it appears that Selmo has not had employment while living in the continental United States. At the very least, she has not practiced as a nurse, as she lacks "a license to be a nurse here." Id. Selmo resides in a New York City apartment with her ailing husband, one of her children, and two grandchildren. (R. 29.)
Selmo testified that she suffers from asthma, gastrointestinal problems, and carpal tunnel syndrome. (R. 30, 33-34.) With regard to her asthma, Selmo testified that she was treated for the ailment and used prescription medication, as well as a small pump and a machine for more serious attacks. (R. 30.) She noted that upon taking medication prescribed by her doctor, her asthma was successfully controlled. (R. 31.) Selmo further testified that on July 12, 2000, she suffered a serious asthma attack and was put on a breathing machine at a local hospital. (R. 33.)
With regard to her gastrointestinal problems, Selmo testified that she had suffered from rectal bleeding for approximately two years. Id. On re-examination by the ALJ, Selmo stated that in November 1999 she learned that she had hemorrhoids. (R. 39.) Selmo also noted that despite efforts at treatment, she continues to suffer from asthmatic and gastrointenstinal problems. (R. 32.)
Selmo testified that she suffers from carpal tunnel syndrome as well, and that she had corrective surgery on her left hand earlier in the year, after which she underwent occupational therapy for two months. (R. 33-34.) Selmo indicated that her right hand also required an operation. (R. 34.) When asked whether this ailment causes her pain, Selmo stated that her fingers "shrink" and cramp up. Id. When the ALJ asked whether Selmo could move her arms forward, make fists, manipulate her fingers, and lift her arms over her head, she responded, "[y]es, for a while." (R. 35.)
Selmo further testified that she could walk, but that she had cramps in her legs and could neither sit nor stand for more than forty-five minutes at a time. Id. When asked whether she could pick up a piece of paper from the floor, Selmo responded, "[w]ith difficulty, but I can do it." (R. 36.) When the ALJ asked whether she could lift or carry, she responded, "[s]ince I don't do it I don't know." Id. The ALJ also asked Selmo whether she could "push or pull a little shopping cart," to which she responded that she no longer shopped. Id.
Selmo testified that she was not an overnight patient at any hospital during the period between January 14, 2000 and September 14, 2000 (the date of the hearing) although she had an ambulatory operation on her left hand and monthly appointments at a local hospital for her various illnesses. (R. 32.)
b. Testimony of Dr. Charles Plotz
Dr. Charles Plotz is an internist and an arthritis specialist who was invited to the hearing by the ALJ, at the government's expense, to review Selmo's medical records in order to render an expert opinion on Selmo's condition. (R. 26.) Dr. Plotz did not physically examine Selmo. (R. 39.)
Based on his review of her medical records, Dr. Plotz testified that Selmo suffers from a "few relatively minor medical problems." (R. 37.) He indicated that Selmo has a history of rectal bleeding, diverticulosis, and hemorrhoids, for which she was treated with a stool softener and a mild laxative. Id. Dr. Plotz also testified that Selmo has a history of bronchial asthma, but that her "tests are almost entirely normal and attacks are infrequent and well controlled." Id. Dr. Plotz confirmed that Selmo suffers from carpal tunnel syndrome in both hands, that the left hand was operated on, and that the right one was to be operated on in "the next couple of months." Id.
When asked whether any of the impairments suffered by Selmo met or equaled in severity an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the doctor responded that they did not. (R. 38.) When asked whether Selmo's impairments would interfere with her basic work functions, Dr. Plotz responded that she should avoid atmospheres containing pollutants such as dust and fibers, but that this limitation would not interfere with her work as a nurse's aide. (R. 38-39.)
c. The Treatment Record
The earliest record relating to Selmo's various conditions is dated July 21, 1999. (R. 115-16.) On that date, Dr. Flores of the Segundo Ruiz Belvis Neighborhood Family Care Center examined Selmo and noted a history of rectal bleeding, asthma, and gastritis. (R. 115.) Dr. Flores found no active lung pathology and noted that Selmo was not taking any medication. (R. 116, 127.) During a follow-up examination on July 30, Selmo further complained of a "lowered" bladder and constipation, and was referred to a GI specialist. (R. 114.)
Selmo next visited Dr. Flores on September 10, 1999, complaining of a headache and neck pain. (R. 109.) Dr. Flores's examination showed a small umbilical hernia and an elevated cholesterol level of 212. Id. The doctors diagnosis was tension headaches and elevated cholesterol. Id. He prescribed ibuprofen for the headaches and recommended a low-cholesterol diet. Id.
On October 14, 1999, Selmo was again examined by Dr. Flores. (R. 106.) She complained of lower abdominal pain, difficulty walking, problems urinating, and difficulty moving her bowels. Id. A colorectal hemocult test, used to detect various gastrointestinal disorders, was negative.Id. Dr. Flores's diagnosis was, in part, abdominal pain and constipation. He prescribed Colace and Bentyl, an antispasmodic medication. Id. On December 28, a colonoscopy was performed by Dr. Mazumdar of Lincoln Medical and Mental Health Center ("Lincoln"), which showed that Selmo suffered from sigmoid diverticulosis and internal hemorrhoids. (R. 139.) In response, Dr. Mazumdar prescribed Metamucil and recommended a high fiber diet. (R. 137-38.) Upon re-examination four months later, he added the drug Colace and a medical cream to Selmo's regimen. (R. 160.)
On April 17, 2000, Selmo returned to Lincoln, complaining of a lowered bladder, leaking of urine during voiding, and dysuria — painful or difficult urination. (R. 161.) A pelvic examination showed second-degree cystocele and first-degree rectocele. The examining physician prescribed medication and recommended further studies. Id. On August 15, 2000, Selmo was examined at Segundo Ruiz. (R. 222-23.) Although her lungs appeared clear, the examining physician noted Selmo's history of asthma and prescribed a Flovent inhaler. (R. 223.) He also recommended a follow up visit with Dr. Flores. Id. On June 21, 2000, Selmo was given a pelvic exam that showed a grade I rectocele, and a cystrometrogram test that showed a normal urethra and bladder. (R. 155.) She was diagnosed with mild voiding and was provided with medication. Id. On August 31, 2000, Selmo was examined by Dr. Cesar Chan Jr. at Lincoln, who diagnosed her with internal hemorrhoids and sigmoid diverticulosis. (R. 251.) Dr. Chan noted that there was "no need for urgent evaluation" but that she should be examined four weeks hence. Id. On September 11, Selmo received a barium enema test that showed gastrointestinal bleeding, diverticulosis of the entire colon, but no other colonic pathology. (R. 262.)
On February 28, 2000, Selmo visited the hand clinic at Lincoln, complaining of numbness in both hands and trouble gripping small objects. Id. (R. 163.) Upon examination, the doctor concluded that Selmo had carpal tunnel syndrome in both hands. Id. Selmo underwent left carnal tunnel release surgery on April 25, 2000. (R. 167-71.) During a follow up examination, the examining physician concluded that Selmo's fingers had good range of motion and that sensation was intact, but noted Selmo's complaints of pain in her left thumb. (R. 159.) On May 15, 2000, she was scheduled for six weeks of occupational therapy. (R. 158.) The next month, a physician at Lincoln noted that Selmo's left hand release was improving, but that her right hand required a similar operation. (R. 154.)
d. Dr. Flores's Report
On September 7, 2000, Dr. Flores submitted a report discussing Selmo's medical history, diagnoses, and therapy to the Social Security Administration. (R. 149-52.) Dr. Flores reported that Selmo had a history of rectal bleeding, constipation, bronchial asthma, carpal tunnel syndrome, gastritis by history, pain and numbing of both hands, and urinary incontinence. (R. 149.)
Dr. Flores also reported that Selmo visited the emergency room twice in July 2000, once for rectal bleeding, and again after suffering an acute asthmatic attack. Id. With respect to physical findings, Dr. Flores noted expiratory wheezes, as well as the presence of cystocele and rectocele. (R. 150.) Dr. Flores's diagnoses were diverticulosis, internal hemorrhoids, constipation, bronchial asthma, cystocele, rectocele, and carpal tunnel syndrome. (R. 152.) Dr. Flores's treatment consisted of Metamucil for Selmo's constipation and hemorrhoids, and various inhalers to alleviate her asthma. Id.
e. Examination by Consultative Physician
On October 18, 1999, Selmo was examined in connection with her disability claim by Dr. Michael Polak, a consultative physician. (R. 98-100.) Dr. Polak did not have Selmo's medical records. (R. 100.) His report indicates that she claimed disability based on a hiatus hernia and epigastric discomfort associated with nausea and heartburn. (R. 98.) The report also indicates that Selmo denied chest pain, shortness of breath, diaphoresis or palpitations, as well as any residual asthmatic symptoms.Id. With regard to her physical state, the report indicates that Selmo was well developed and had no difficulty walking, rising from her chair, getting on or off the examining table, or opening her gown for physical examination. Id. Dr. Polak's final diagnosis was "GERD/hiatus hernia" by history and asthma in remission by history, the prognosis was "fair," and he recommended a "follow up by the treating source." (R. 99-100.) On the question of Selmo's functional capacity to do work related activities, the doctor noted that Selmo would not have difficulty "doing activities requiring dexterity, carrying/lifting, pushing/pulling, bending, sitting, walking or standing." (R. 100.)
f. Review by State Agency Physicians
Selmo's medical records were reviewed by Dr. Roy Reynolds, a state agency physician. (R. 129-36.) Dr. Reynolds reviewed Selmo's file and concluded that the evidence did not establish any exertional, postural, or manipulative limitations. (R. 130-32.) However, Dr. Reynolds failed to cite specific evidence underlying these conclusions, despite the fact that the Commissioner's form, on which Dr. Reynolds reported his conclusions, lists this as a requirement. (R. 129-33.) Dr. Reynolds did note that Selmo should avoid all exposure to atmospheric pollutants. (R. 133). This report was later reviewed by Dr. Peter Seitzman, another state agency physician, who affirmed Dr. Reynolds's determination. (R. 136.)
g. Medical Records Submitted to the Appeals Council
On October 24, 2000, Selmo received an esophago-gastro-duodenoscopy, which revealed a normal esophagus, normal duodenum, no hiatal hernia, and mild gastritis. (R. 271.) The administering physician noted the presence of irritable bowel syndrome and prescribed Bentyl and other medication.Id. Six days later, Selmo returned to the clinic, complaining of diarrhea and abdominal pain. (R. 272.) Extra medication was prescribed, and she was told to return for a follow-up examination. Id. At the follow-up examination, Selmo complained of frequent diarrhea, nausea, and vomiting. (R. 273.) The examining physician noted that she exhibited mild tenderness in the epigastric region and that H-pyloric testing was positive. Id. He concluded that Selmo's complications were the result of an adverse reaction to her medication. In response, he prescribed Pepto Bismol, Metronidazole, and Tetracycline. (R. 274.)
On November 17, 2000, Selmo received a magnetic resonance imaging test of her lumbosacral spine. (R. 264.) The examining physician noted that she had a small disc bulge at the L4-5 level. Id. Dr. Michael Yin diagnosed her with lower back pain and instructed her to perform range of motion exercises, undergo two weeks of physical therapy, and use heat massage. (R. 265.) On December 12, 2000, Selmo underwent carnal tunnel release surgery on her right hand. (R. 269.)
3. The ALJ's Decision
ALJ Joseph K. Rowe denied Selmo's application for SSDI benefits in a written decision dated October 25, 2000. (R. 15-21.) The ALJ found that Selmo had not engaged in substantial gainful activity since July 2, 1999, the initial date of her alleged disability. (R. 20.) The ALJ further found that Selmo had asthma, a history of rectal bleeding, diverticulosis, hemorrhoids, a history of gastrointestinal problems, and carpal tunnel syndrome — impairments that were severe but did not meet or equal in severity any listed impairment under Appendix 1, Subpart P, Regulation 4. (R. 17-20.) The ALJ also found that Selmo had no exertional limitations, and that her previous work as a nurse's aide did not require activities precluded by her residual functional capacity. (R. 20.) Therefore, the ALJ found that Selmo had the residual functional capacity to return to her past relevant work. Id. Based on these findings, the ALJ found that she "was not under a `disability' as defined in the Social Security Act, at any time through the date of the decision." Id.
DISCUSSION
1. Standard of Review
This Court's review of the denial of SSDI benefits is limited to a determination whether there is "substantial evidence" to support the Commissioner's decision. 42 U.S.C. § 405(g) ("The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive. . . ."); accord Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). Substantial evidence is 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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. 1999) (quoting Burris v. Chater, No. 94 Civ. 8049 (SHS), 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996)). Therefore, this court will not disturb a decision supported by substantial evidence, unless "the decision was the product of legal error." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); accord Jones, 66 F. Supp.2d at 536.
2. The Definition of Disability
An individual is "disabled" for purposes of SSDI claims when 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 12 months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques," 42 U.S.C. § 423(d)(3), and it must be "of such severity that [the claimant] 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." Id. § 423(d)(3); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77.
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520, 416.920. The United States Court of Appeals for the Second Circuit has articulated this sequence as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a "severe impairment, " the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work that the claimant could perform.Shaw, 221 F.3d at 132 (citing DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)). If the claimant carries the burden of proof on the first four steps, the burden shifts to the Commissioner on the fifth step — to show that there is alternative substantial gainful work in the national economy that the claimant can perform. Id. The Commissioner must consider four factors: (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).
3. The ALJ's Duties
In deciding whether the Commissioner's conclusions are supported by substantial evidence, the district "must first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the [Social Security] Act.'"Echevarria v. Sec'y of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of Health, Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972)); accord Jimenez v. Massanari, No. 00 Civ. 8957, 2001 WL 935521, at *8 (S.D.N.Y. Aug. 16, 2001). "Moreover, it is the rule in our circuit that the ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (quotations omitted) (alterations in original); accord Rosa, 168 F.3d at 79.
This is especially true when, as is the case with Selmo, "the claimant appears pro se, suffers ill health and is unable to speak English." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). In such cases, reviewing courts are required to "make a searching investigation of the record to make certain that the claimant's rights have been adequately protected."Id. (quotation omitted); see also Echevarria, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980). Especially when a claimant appears without assistance of counsel, "`a duty devolves on the hearing examiner to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Gold, 463 F.2d at 43 (quotingHennig v. Gardner, 276 F. Supp. 622, 624-625 (N.D. Tex. 1967)).
In a case where the ALJ has not adequately developed the record, it is appropriate for the district court to remand the matter to the Social Security Administration for further development of the evidence. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Indeed, if the reviewing court finds that the claimant has not been given an adequate hearing, "the court should remand even if the original determination is supported by substantial evidence." Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290, at *4. In this case, Selmo's application for SSDI benefits should be remanded because the ALJ failed to develop the record adequately and to make the requisite findings at step four of the five-step analysis.
a. The ALJ Was Obligated to Question Selmo More Thoroughly Regarding Her Pain and Symptoms
First, the ALJ failed to question Selmo adequately regarding her subjective complaints of pain and other symptoms. The law requires the ALJ to "explore the nature and extent of [the claimant's] subjective symptoms." Jimenez, 2001 WL 935521, at * 10 (case remanded where ALJ inquired into plaintiffs ailments and treatments but failed to ask detailed questions about the nature and extent of plaintiffs symptoms);see also Cruz, 912 F.2d at 11-12 (failure to satisfy duty to pro se claimant where ALJ did not probe into the severity of claimant's pain and symptoms); Echevarria, 685 F.2d 751, 755 (2d Cir. 1982) (claimant did not receive fair and adequate hearing where, inter alia, "the ALJ did not fully inquire into . . . the full degree of pain and the extent to which it prevents [plaintiff] from working"); Fernandez v. Schweiker, 650 F.2d 5, 9 (2d Cir. 1981) (ALJ failed to satisfy duty where "[c]laimant was only perfunctorily questioned . . . as to her ailments"); Hankerson v. Harris, 636 F.2d 893, 895-96 (2d Cir. 1980) ("[W]here the medical record before the ALJ contained a number of references to plaintiffs subjective symptoms, it was particularly important that the ALJ explore these symptoms with plaintiff so that the ALJ could effectively exercise his discretion to evaluate the credibility of the claimant in order to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of pain alleged by the claimant.") (quotations and alterations omitted); Lopez v. Apfel, No. 98 Civ. 9036, 2000 WL 633425, at * 10 (S.D.N.Y. May 17, 2000) (case remanded where ALJ failed adequately to develop the record by neglecting to fully question claimant regarding the extent of ailment); cf. Gonzalez v. Apfel, 113 F. Supp.2d 580, 587 (S.D.N.Y. 2000) (questioning insufficient where relevant issue arose during pro se claimant's examination but the ALJ did not pose "a thorough set of follow-up questions"); Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290, at *4 (S.D.N.Y. Feb. 20, 1998) (duty to pro se claimant not satisfied where "[t]he record is replete with instances where the ALJ failed to question plaintiff fully — or at all — concerning critical aspects of his claim").
In Selmo's case, there was virtually no discussion in the ALJ hearing of the nature and extent of her pain and other subjective symptoms. For example, the ALJ never asked Selmo about the severity of her asthma. His inquiry was confined to questions on what treatments she used. (R. 31.) Although the ALJ did ask Selmo whether her asthma was controlled by medication, id. he neglected to question her about the frequency and severity of her attacks, especially since her testimony revealed that she required emergency room treatment earlier in the year after a severe asthma attack. (R. 33.)
In addition, the ALJ failed to inquire into the existence, nature, and severity of any pain or limitations stemming from Selmo's gastrointestinal problems, despite the fact that Selmo testified that she "still continue[s] with the same problem of [her] asthma and [her] intestines." (R. 32.)
With regard to her carpal tunnel syndrome, the ALJ asked whether Selmo had any pain, to which she responded, "Yes. I, my fingers sort of shrink, I have cramps." (R. 34.) But instead of ascertaining the frequency or severity of these cramps or what effect Selmo's ailment had on her ability to use her hands, the ALJ simply instructed her to "say yes or no" with regard to whether she could "put [her] arms forward . . . make fists and manipulate [her] fingers and put [her] arms over [her] head." (R. 35.) To this, Selmo responded, "[y]es, for a while." (R. 35.) But the ALJ did not probe further nor inquire whether such movements were painful or difficult. Moreover, by directing Selmo to answer "yes or no" to this line of questioning, the ALJ did not permit Selmo to elaborate on any pain or limitations caused by the carpal tunnel syndrome.
When Selmo further testified that she could walk, but that she had cramps in her legs, the ALJ engaged in the same level of inquiry, asking how long she could sit, and how long she could stand, without a problem, to which she responded "45 minutes" and "[f]orty to 45 minutes, " respectively. (R. 35.) Instead of asking follow-up questions, the ALJ switched gears and asked Selmo whether she could pick up paper from the floor, to which she responded, "[w]ith difficulty, but I can do it." The ALJ also asked Selmo whether she could push a shopping cart. "Since I don't do it I don't know," Selmo responded. (R. 36.) Once again, the ALJ failed to follow up on Selmo's responses and to develop the record adequately.
b. The ALJ Failed to Develop the Record as to Selmo's Ability to Perform Her Past Work
The ALJ's failure to question Selmo thoroughly about her symptoms is compounded by errors and omissions at step four of the required five-step disability analysis. (R. 19, 20.) "Pursuant to both case law and Social Security Ruling 82-62, in order to determine at step four whether a claimant is able to perform her past work, the ALJ must make a specific and substantial inquiry into the relevant physical and mental demands associated with the claimant's past work, and compare these demands to the claimant's residual capabilities." Kerulo v. Apfel, No. 98 Civ. 7315 (MBM), 1999 WL 813350, at *8 (S.D.N.Y Oct. 7, 1999) (citing Sivilay v. Apfel, 143 F.3d 1298, 1299 (9th Cir. 1998); Henrie v. United States Dep't of Health and Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993); Nimick v. Sec'y of Health and Human Servs., 887 F.2d 864, 866-68 (8th Cir. 1989); Schaal v. Callahan, 993 F. Supp. 85, 94 (D. Conn. 1997); Welch v. Chater, 923 F. Supp. 17, 20-21 (W.D.N.Y. 1996); Lauro v. Shalala, No. 94-2630, 1994 WL 527536, *4 (E.D. Pa. 1994); Social Security Ruling 82-62, 1982 WL 31386, at *3-*4 (S.S.A. 1982)). Social Security Ruling 96-8p clarifies the ALJ's duties under step four. Once the demands of the claimant's past relevant work are ascertained, the ALJ "must . . . identify the [claimant's] ability to perform the specific work-related abilities on a function-by-function basis." Social Security Ruling 96-8p, 1996 WL 374184, at * 1 (S.S.A. 1996). Specifically, "the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record." Id. at *7 Satisfaction of these requirements is imperative, especially in the case of a pro se claimant; the determination at this stage "has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit." Ruling 82-62, 1982 WL 31386, at *3.
Rulings by the Social Security Administration are "binding on all components of the Social Security Administration." 20 C.F.R. § 402.35(b)(1), (2); Heckler v. Edwards, 465 U.S. 870, 873 n. 3 (1984).
The ALJ failed to question Selmo about the physical and mental demands of her past work. The only reference in the record to these demands is made in Selmo's initial Disability Report, in which she indicated that her past work required eight hours of walking, and left all other questions unanswered. (R. 79.) Aside from this, the record is devoid of any discussion or description of the demands of Selmo's past work. In this respect, this case is similar to Donato v. Secretary of Health Human Services, where the Second Circuit determined that the ALJ failed to fulfill his "heightened duty" to a pro se claimant where he did not inquire "into the nature and extent of the physical exertion required of her by her former job, the number of hours she worked each day, the length of time she stood for any one period, the distance she would be required to walk in commuting to work, and the like." 721 F.2d 414, 419 (2d Cir. 1983); see also Echevarria, 685 F.2d 751, 755 (2d Cir. 1982) (ALJ did not satisfy duty to claimant where, inter alia, he "did not fully inquire into what specifically caused [plaintiff] to leave his job or the full degree of the pain and the extent to which it prevents [plaintiff] from working"); Lopez, 2000 WL 633425, at *10 (failure to adequately develop record where ALJ failed to ask "about the extent to which plaintiffs [medical condition] imposed a `marked limitation of function'"); Rodriguez v. Apfel, No. 96 Civ. 1132, 1997 WL 691428, at *6-7 (S.D.N.Y. Nov. 4, 1997) ("[T]he ALJ failed to probe into the severity of [plaintiffs] inflammation and its impact on his capabilities and functions."); Ruling 82-62, 1982 WL 31386, at *3 (assessment of ability to return to past work requires a "careful appraisal" of claimant's "statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements").
As noted in Ruling 82-62, 1982 WL 31386, at *4, the ALJ must make separate findings of fact as to the claimant's functional capacity, the physical and mental demands of her past work, and a specific finding of fact that her functional capacity would permit a return to this work. In making the latter finding, the ALJ should discuss the claimant's ability to meet the specific demands of her work on a function-by-function basis, specifically discussing her "ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis" and "the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record." Ruling 96-8p, 1996 WL 374184, at *7. Although the ALJ did note, in his evaluation of the evidence, Dr. Polak's findings that Selmo should have no difficulty performing tasks involving, inter alia, "carrying/lifting," and the state agency physician's conclusion that Selmo has no exertional limitations, the ALJ's discussion does not specifically address what Selmo's work required of her, on a function-by-function basis, and whether she could meet these demands.
The ALJ's conclusory findings for step four of the disability analysis, although they may be supported by evidence in the record, do not meet the requisite standards for findings of fact at this stage of the disability evaluation.
CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied and this case is remanded to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further development of the record.
SO ORDERED.