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holding claimant waived right to counsel after the ALJ granted a two-month adjournment and claimant failed to obtain representation
Summary of this case from Marino v. Comm'r of Soc. Sec.Opinion
02 Civ. 5813 (HB)
October 15, 2003
OPINION ORDER
Plaintiff Angel Gonzalez (hereinafter "plaintiff' or "Gonzalez") moves under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, remanding the case to the Commissioner of Social Security for further proceedings. Defendant Jo Anne Barnhart, Commissioner of Social Security (hereinafter "defendant" or "Commissioner") cross-moves for judgment on the pleadings, affirming the Commissioner's denial of plaintiffs applications for Social Security Disability benefits (hereinafter "SSD") and Supplemental Security Income (hereinafter "SSI"). For the foregoing reasons, defendant's cross-motion for judgment on the pleadings, affirming the Commissioner's decision, is granted and plaintiffs motion to remand for further proceedings is consequently denied.
I.BACKGROUND
A. Factual Background and Medical Evidence/Testimony
1. Plaintiffs Background
Gonzalez, a native of Puerto Rico, filed his application for SSD and SSI on November 4, 1999 (Memorandum of Law In Support of Plaintiff s Motion For Judgment on the Pleadings (hereinafter " PL Mem.") at 1), when he was forty-two years of age (Defendant's Memorandum of Law in Opposition to Plaintiffs Motion for a Remand and in Support of Defendant's Cross-Motion for Judgment on the Pleadings (hereinafter "Def. Mem.") at 2). Gonzalez attendee school in the United States through the eighth or ninth grade, and is able to read and write English. Administrative Law Hearing Transcript, January 30, 2001 (hereinafter "1/30/01 Tr.") 8-9. Gonzalez resides in the Bronx in a fourth floor walk-up with his wife, two children, and four grandchildren. 1/30/01 Tr. 276-77.
Gonzalez's prior work history, relevant to his application and his request for remand, includes (1) working at a law firm as a file clerk from 1980 through 1986 (a standing job) (PL Mem. at 2) and (2) working as a cashier at a car wash from 1986 through 1999 (a seated role but "you can sit down and stand up") (1/30/01 Tr. 278-79). Gonzalez did not leave either job because of a physical or mental inability to perform the necessary tasks. 1/30/01 Tr. 279. On his application for benefits, Gonzalez reported that he had been unable to work since March 1, 1991, after injuring his back while moving furniture. Def. Mem. at 3. In addition to problems associated with his back injury, Gonzalez complained of an ulcer, high cholesterol, and hepatitis. Id. Testimony from Gonzalez's January 30, 2001 Administrative Law hearing before Administrative Law Judge Robin J. Arzt (hereinafter "ALJ") makes clear that Gonzalez's back injury is the main cause for his alleged inability to perform as he did previously.
Past relevant work is defined as work that "was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity." 20 C.F.R. § 404.1565(a).
The ALJ classified Gonzalez's position as a file clerk as too far in the past to be considered as past relevant work; therefore, she only considered his job as a car wash cashier. Dec. 19, 2001 ALJ Dec. 2. Technically, because Gonzalez held the file clerk position within the past fifteen years, it should qualify as past relevant work. However, because the clerk position was more physically taxing, requiring Gonzalez to stand for most of the day and to pull files, it may be assumed for purposes of this motion, that the ALJ would have decided that Gonzalez could not fulfill the clerk role due to his severe back impairment. If she had concluded that the position qualified as past relevant work and had further held that Gonzalez was now capable of performing the tasks necessary to fulfill the role, my analysis may have been different.
2. Subjective Evidence From Plaintiffs Testimony
At his Administrative Law Hearing, Gonzalez testified regarding the degree and frequency of his back pain, the treatment he sought and received, and the results of such treatment. Gonzalez's other conditions seem to cause minor additional discomfort and complicate effective treatment of his back pain, but were not themselves severe impairments. December 19, 2001 Administrative Law Judge Decision (hereinafter "12/19/01 ALJ Dec.") 7.
After injuring his back moving furniture on March 1, 1991, Gonzalez testified that "the pain is [sometimes] so horrible, so I could not stretch my leg." 1/30/01 Tr. 282. Gonzalez also testified that his feet sometimes "locks up" when a vein "pops out" (1/30/01 Tr. 282) and he occasionally has pain and numbness that radiates up his body. 1/30/01 Tr. 282. Gonzalez also explained that "if I would sit for long periods of time or lie down for a little bit . . . my back starts hurting here." 1/30/01 Tr. 282. Gonzalez estimated that he could walk for approximately two blocks before resting, stand for about a half an hour, and sit for twenty-five or thirty minutes before needing to rise. 1/30/01 Tr. 285-86.
Despite episodes of back pain two or three times each week, Gonzalez is able to utilize public transportation and to walk to necessary appointments. 1/30/01 Tr. 277. When questioned by the ALJ about his difficulties getting to appointments, Gonzalez spoke only of his trouble remembering appointments, not of his trouble ambulating. 1/30/01 Tr. 277. Gonzalez reported on a written form that the periodic back pain normally lasts for about an hour, and after taking proper medication, does not recur for approximately five hours. Tr. 56. Although Tylenol helps to relieve Gonzalez's back pain, Gonzalez testified that he only takes Tylenol at night because it causes drowsiness. 1/30/01 Tr. 284-85.
Gonzalez testified that he takes a muscle relaxer with Tylenol, rather than a stronger drug, "because I can't take no other medication because of my stomach [ulcer]." 1/30/01 Tr. 284.
3. Objective Evidence From Medical Reports
Gonzalez received most of his medical care at Martin Luther King, Jr. Health Center (hereinafter "MLK"), where he was under the care of treating physicians, Dr. Smarth and Dr. Aggarwal (PI. Mem. at 2) and had a Government-referred consultation post filing for benefits with Dr. Graham (id. at 8). Dr. Smarth saw Gonzalez intermittently during the period 1993 through 1995, during which time Gonzalez reported having back pain. Defendant's Reply Memorandum In Further Support of Cross-Motion For Judgment on the Pleadings (hereinafter "Def. R. Mem.") at 3-4. Gonzalez first sought treatment for his back pain on October 27, 1993 and continued to report having back pain at his appointments throughout the remainder of 1993 and into 1994. Gonzalez's back pain was documented at many of his visits. Id. at 2-3. In October 1994, Gonzalez had an MRI. The MRI revealed a disc herniation at L5-S1 and a disc bulge at L4-L5 that was likely touching the descending nerve roots and the thecal sac. Def. Mem. at 6. Physicians continued to proscribe Tylenol for Gonzalez's back pain. Id. Gonzalez had a second MRI on January 30, 1997, after complaining of increasing pain radiating down his leg. This MRI, though showing no change in the disc, evidenced a worsening of the disc bulge at L4-L5. PL Mem. at 6. Subsequently, Gonzalez enrolled in physical therapy, which seemed to improve his condition. Upon completion of therapy, Gonzalez continued to be seen for intermittent back pain, which was often relieved by medication. Def. Mem. at 7.,
The medical reports contained in the record — all of which were before the ALJ — are extensive. During the hearing, the ALJ made several attempts to ensure that she was aware of all potential medical reports, in order to fully develop the record. On one occasion, she asked Gonzalez: "now from Martin Luther King, if we get their clinical records we'll have everything?" — Gonzalez responded, "Everything." 1/30/01 Tr. 275. Though the reports are too numerous to recount, the information contained within them is largely repetitive and can be summarized quite accurately as "mild lower back disorder that had occasional flare-ups over the years." 12/19/01 Dec. 13. The reports evidenced diminished pain at times, increased pain at others, and very minor treatment throughout. The medical reports over the years, though documenting consistent back discomfort and diagnosing Gonzalez's condition through MRIs, did not detail the resulting limitations on Gonzalez's capabilities.
Dr. Aggarwal, Gonzalez's treating physician, who had first examined Gonzalez on April 3, 1996, and had seen him approximately every six to eight weeks thereafter, evaluated Gonzalez's capacity for work in a mandated response to a Social Security request. In this evaluation, dated September 27, 2000, Dr. Aggarwal reported that Gonzalez had chronic backache/herniated disk, peptic ulcer disease/gastroesophageal reflux disease, and high cholesterol. Dr. Aggarwal concluded that despite these conditions, Gonzalez could lift or carry four to five pounds, could stand or walk for two hours per day, and could sit indefinitely. Dr. Aggarwal also reported that due to his herniated disc, Gonzalez could not climb, balance, stoop, crouch, kneel, or crawl, and was limited in his ability to reach, bend, push, and pull. Dr. Aggarwal added that in lieu of the herniated disc, Gonzalez could not work near machinery, heights, or vibration. Tr. 177-79. On February 15, 2000, the Government referred Gonzalez to consulting physician Dr. Graham, who after listening to Gonzalez's reports of a nine year history of intermittent back pain, brought on by prolonged sitting or standing, concluded that Gonzalez "could sit, stand, [and] walk" but could not lift or carry. Tr. 193-95 (emphasis added). Therefore, while the two physicians whom evaluated Gonzalez's capacity for work had slightly different conclusions, both agreed that Gonzalez's conditions did not prevent him from sitting without limit.
B. Procedural Posture
Gonzalez applied for SSD and SSI on November 4, 1999. On March 15, 2000, his applications were denied. Gonzalez's request for reconsideration, made on March 31, 2000, was also denied. Gonzalez then requested a hearing on May 9, 2000. His first hearing, scheduled for November 30, 2000 before the ALJ, was adjourned so Gonzalez could retain counsel. On the adjourned date, January 30, 2001, Gonzalez appeared pro se before the same ALJ. The ALJ issued an opinion on December 19, 2001, finding that Gonzalez was not disabled within the meaning of the Social Security and Supplemental Security Income Acts (hereinafter "the Acts"), and therefore denied both of his applications. The Appeals Council declined Gonzalez's request for review. Gonzalez now requests that this Court remand the case back to the Commissioner for further proceedings and the Commissioner cross-moves for this Court to affirm the ALJ's decision.
II. DISCUSSION
A. Standard of Review
A district court may reverse the Commissioner's denial of benefits only if the denial "is based upon legal error or is not supported by substantial evidence." Luna v. Apfel, 99 Civ. 4149, 2000 WL 964937, at *3 (S.D.N.Y. July 12, 2000) quoting Rosa v. Callahan, 68 F.3d 72,77 (2d Cir. 1999). "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). See also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir. 1983). A fact is supported by substantial evidence when the supporting evidence is such that "a reasonable mind might accept [it] as adequate to support a conclusion." Quinones v. Chafer, 117 F.3d 29, 33 (2d Cir. 1997). Inferences and conclusions made by the ALR are afforded similar weight when supported by substantial evidence. See Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977). Therefore, this Court's role is solely to determine whether the ALR's decision is supported by substantial evidence and decided based on correct legal standards — not to determine whether it would have reached a different result if reviewing the case de novo. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
B. Heightened Burden With Pro Se Applicant Met
1. Notice of Right to Counsel
In actions such as the present one, the Commissioner is required to provide claimants with written notice of their right to retain counsel. More specifically, the Commissioner must:
notify each claimant in writing, together with the notice to such claimant of an adverse determination, of the options for obtaining attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying, claimants of legal service organizations which provide legal services free of charge.42 U.S.C. § 406(c), 1383(d)(2)(b); see also 20 C.F.R. § 404.1706, 416.1506 (requiring the dissemination of information explaining the existence of free legal services). In the instant case, the Commissioner complied with the above provisions by sending Gonzalez literature concerning his right to counsel, the existence of legal service organizations, and a summary of the upcoming proceedings. Def. Mem. at 21-22. Further, when Gonzalez appeared unrepresented at his initial November 30, 2000 hearing, the ALJ reminded him of his right to counsel and of the existence of free legal service organizations. 1/31/01 Tr. 263. Not only did the ALJ inform Gonzalez of his right, but she advised him to "contact them right away, okay, so keep trying." 1/31/01 Tr. 265. On the advice of the ALJ, Gonzalez decided to adjourn in an effort to retain the assistance of an attorney. 1/31/01 Tr. 265. Though Gonzalez failed to retain counsel in the two-month period before his rescheduled hearing, this Court finds that his waiver was knowing and voluntary and was not the fault of any deficiency on the part of the ALJ. Plaintiff testified that at the initial hearing (that was adjourned so that Gonzalez could retain counsel), he attempted to contact some organization, but had forgotten to reschedule. 1/31/01 Tr. 263. Such an admission further negates the possibility that Gonzalez's failure to retain counsel was due to a deficiency of notice or an ignorance as to the availability of such services. Rather, because the ALJ fully satisfied her burden under the Acts, Gonzalez knew about his options and was therefore responsible for not securing counsel.
Plaintiff asserts that the Second Circuit has adopted heightened requirements, articulated in Frank v. Chafer, 924 F. Supp. 416, 426 (E.D.N.Y. 1996), that require notification advise claimants of (1) the benefits of counsel and (2) the possibility of free legal services or a contingency arrangement. PL Mem. at 13. While the Eastern District in Frank adopted specific requirements beyond those imposed by the Acts, the Southern District has not followed course. See Infante v. Apfel, No. 97 Civ. 7689, 2001 WL 536930, at *10 (S.D.N.Y. May 21, 2001) ("the Court is aware of only one other case in the Eastern District of New York that adopted Frank., and no similar decision in the Southern District of New York, not to mention the Court of Appeals for the Second Circuit."). This Court was unable to locate any Southern District or Second Circuit precedent suggesting that Frank has become the law of this Circuit. Therefore, the Commissioner and the ALR are only bound to follow the notice requirements set out in the Acts, which they most certainly did.
Further, notwithstanding the fact that Frank does not represent the law of the Second Circuit, the information mailed to Gonzalez by the Commissioner, when his application for benefits was denied, contained the following information: "There are groups that can help you find a lawyer or give you free legal service if you qualify. There are also lawyers who do not charge unless you win your appeal." Tr. 39. Therefore, while it is unnecessary to determine whether this notification would suffice under Frank, my guess is that it would.
2. Fully Developed Record
Because benefit proceedings are non-adversarial in nature, the ALJ must affirmatively develop the record. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). Plaintiff rightly asserts that the ALJ has an even greater responsibility to develop the record when claimants proceed pro se. See e.g. Lopez v. Secretary of Dept. of Health and Human Services, 728 F.2d 148, 149 (2d Cir. 1984). The ALJ must attempt "to fill any clear gaps in the administrative record." Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (internal citations omitted). If the clinical records are "inadequate," the ALJ has a duty to seek additional information. Id'
While this Court acknowledges that the ALJ must supplement the record through her own initiatives when the record is incomplete or inadequate, this burden does not attach when the record is sufficient. In this case, the record was replete with medical reports, test results, and physician's opinions. Though some of the handwritten physician notes may have been difficult to read, the plethora of material discussed by both plaintiff and defendant in their respective memoranda leads this Court to conclude that the majority of information presented to the ALJ was decipherable. At the least, there was sufficient evidence on which to make a sustainable determination. Further, and most importantly, even if particular aspects of individual reports may have been difficult to read, the most important evidence, the treating physician's opinion report, was both fully decipherable and wholly consistent with the consulting physician's opinion, the years of medical forms, and the ALJ's ultimate finding at phase four. One must assume that the physician who treated Gonzalez throughout the course of his impairment, was able to decipher his own writing or the writing of his associates, in making his final determination. Therefore, because the medical record was complete and adequate, this Court concludes that the ALJ was not required to seek additional information outside of that which was presented.
This Court finds that even if the record was incomplete as to the time period when Gonzalez was in the care of Dr. Smarth (1993-1995), this information was not relevant to a determination of Gonzalez's capacity in November 1999, when he was in the care of Dr. Aggarwal. Disability benefits are only payable retroactively for one year prior to the date of application ( 42 U.S.C. § 402(j)(1)(A); 20 C.F.R. § 404.621 (a)); therefore, additional information was not necessary once the ALJ concluded that Gonzalez was not disabled at the time of application or in November 1998.
C. ALR's Decision Was Supported By Substantial Evidence
A plaintiff seeking benefits must prove that he suffers from a disability by showing that "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) (emphasis added). This inability to employ gainful activity, not just the debilitating medical condition, must continue for a period of at least twelve months. See Barnhart v. Walton, 122 S.Ct. 1265, 1268 (2002). The Second Circuit has adopted a five-step process for assessing claims of disability:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.Berry, 675 F.2d 464 at 467. The claimant has the burden of proof as to the first four steps, and assuming success, the burden shifts to the Secretary at step five. See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), quoting Perez v. Chafer, 11 F.3d 41, 46 (2d Cir. 1996).
In the instant case, the ALJ denied Gonzalez's claim at step four, finding that his back impairment did not render him unable to perform his prior work as a car wash cashier (Def. Mem. at 15). Though the ALJ made an alternative finding at step five, that Gonzalez could perform a range of additional light work requiring substantially more lifting than the physicians' recommended (id at 19), this Court finds it unnecessary to review the validity of the step five determination. Because the ALJ's step four determination was supported by substantial evidence, drawn from medical facts and clinical findings, diagnoses and medical opinions of treating physicians, Gonzalez's own subjective testimony of his daily activities, and Gonzalez's education and work history, the burden never shifted to the Commissioner to make a step five determination. Therefore, it is of no relevance whether the ALJ's step five determination is supportable.
Although this Court, as does plaintiff, finds the ALJ's step five determination to be troubling, given its inconsistency with the physicians' opinions, the ALJ's phase five determination is not relevant to the present case. Once the ALJ determined that Gonzalez could perform prior relevant work, it was unnecessary for the her to reach phase five, and therefore was unnecessary for the her to determine what sort of work Gonzalez could perform if he was not able to perform his prior relevant work. Although this Court finds it suspect that the ALJ in one breath credited the physicians' opinions that Gonzalez could sit for long periods of time, and therefore could fulfill his prior role as a cashier, yet in the next breath, discredited the same reports, in order to find him more capable than the reports sustained (noting that "to the extent that [the reports] do not permit light work, they are given little weight, since they are not supported by the record" (12/19/01 Dec. 14)) — it is not the role of the district court to rule on the credibility of the ALJ. Rather, the district court's only role is to determine whether the ALJ's decision was based on substantial evidence and was not contrary to law — and the ALJ's phase four decision passes muster.
The fact that Gonzalez has suffered from years of back pain caused by a herniated disc is undisputed. The ALJ heard and read substantial evidence of Gonzalez's back impairment — so substantial that she credited him with having a "severe impairment." However, based on the record, the ALJ found that despite Gonzalez's back impairment, he could still perform the tasks necessary to fulfill his prior non-strenuous role as a cashier — namely, sitting for long periods of time (PL Mem. at 2). While working as a cashier, Gonzalez was able to sit or stand and did not have to perform any lifting. Therefore, the core issue in this case is whether there was substantial evidence to support a finding that Gonzalez, despite his severe impairment, could perform a job that required any combination of sitting and standing for approximately eight hour shifts. This Court finds that the evidence supporting the ALJ's judgment was sufficient.
Of course, a job as a cashier requires many mental skills, in addition to the physical ability to remain seated, but as Gonzalez did not assert any difficulty on this score (Def. Mem. at 3), the physical demands of the job are the only aspects in question.
As both Dr. Aggarwal and Dr. Graham were of the opinion that Gonzalez could sit for indefinite periods, and the medical reports from Gonzalez's long treatment history did not contradict this conclusion, the ALJ had substantial evidence upon which to base her decision. PL Mem. at 7 (Dr. Aggarwal "indicated there was no problem with the Plaintiffs sitting, but standing and walking were affected in that he could only stand and walk for a total of two hours in an eight-hour workday"); id. at 9 (Dr. Graham reported that Gonzalez could "sit, stand, walk" but could not lift or carry). While Dr. Graham was only a consulting physician, Dr. Aggarwal was a treating physician and had been seeing Gonzalez since 1996, approximately every six to eight weeks, and had authored many of the medical reports accompanying the record. Id. at 6. According to the widely accepted treating physician's rule, a treating physician's report or opinion "will be controlling if it is `well-supported by medically acceptable [evidence] and is not inconsistent with the other substantial evidence in [the] record.'" Kamerling v. Massanari, 295 F.3d 206, 209 (2002) (citing 20 C.F.R. § 404.1527(d)(2)). In this case, as conceded by plaintiff (PL Mem. at 18), Dr. Aggarwal's opinion was well-supported by the medical record.
Though Gonzalez's own opinion of his ability to remain in a seated position without pain (id at 10) is contrary to that of his physicians, Gonzalez's testimony, as it is both subjective and self-serving, does not negate the fact that the ALJ's finding was based on substantial evidence. Therefore, the ALJ had to reconcile or at least assign varying weight to Gonzalez's opinion and the conflicting opinions of Gonzalez's treating and consulting physicians. The Commissioner's Regulations, as plaintiff himself underscores (Pl. Mem. at 18), informs courts to assign great strength to treating physicians' opinions, noting in particular that:
Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.20 C.F.R. § 416.927(d)(2); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). Further, it is well-established that "disability requires more than the inability to work without pain, and instead requires that pain be "so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment" (Molina v. Apfel, 43 F. Supp.2d 192, 203 (D. Ct. 1999). Assuming Gonzalez intended to make such an argument, he did not even come close to fulfilling his burden of proof.
III. CONCLUSION
For the foregoing reasons, plaintiffs motion for judgment on the pleadings, to remand the case to the Commissioner for further proceedings is denied, and defendant's cross-motion for judgment on the pleadings, to affirm the Commissioner's denial of benefits, is hereby granted. The Clerk of the Court is instructed to close this and any other open motions and remove this case from my docket.