Opinion
00 CIV. 8957 (AJP)
August 16, 2001
OPINION AND ORDER
Plaintiff Felix Jimenez brings this action, pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny him disability and Supplemental Security Income ("SSI") benefits. The Commissioner and Jimenez, represented by counsel, have cross-moved for judgment on the pleadings pursuant to Fed R. Civ. P. 12(c). (Dkt. Nos. 9-11 14; Dkt. Nos. 12-13.) The parties consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 8.)
For the reasons set forth below, the Commissioner's motion is denied and Jimenez's cross-motion is granted only to the extent of remanding to the Commissioner.
PROCEDURAL BACKGROUND
On April 21, 1998, plaintiff Felix Jimenez applied for Social Security SSI and disability benefits, alleging an inability to work since September 11, 1997. (Dkt. No. 9: Administrative Record filed by the Commissioner ("R.") at 65-67, 75-82, 341-43.) Jimenez Jimenez's applications were denied initially (R. 42-44) and on reconsideration (R. 47-50). At Jimenez's request (R. 51), a hearing was held before an Administrative Law Judge ("ALJ") on December 14, 1998 (R. 28-39). On April 27, 1999, the ALJ issued his decision finding that Jimenez was not disabled. (R. 10-21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Jimenez's request for review on September 8, 2000. (R. 4-6.) This action followed.
The issue before the Court is whether the Commissioner's decision that Jimenez was not disabled was properly determined without counsel and without further inquiry to his medical records.
FACTS The Hearing Before the ALJ
On December 14, 1998, a hearing was held before ALJ Dennis G. Katz. (R. 28.) Jimenez testified through a Spanish language interpreter. (R. 30.) Before taking testimony, the ALJ discussed the procedure for the hearing with Jimenez. (R. 30-31.) The ALJ commented that Jimenez had a Notice of Hearing in front of him, and that this Notice of Hearing informed Jimenez of his rights:
ALJ: . . . Now, in the Notice of Hearing you received, I see you have your copy in front of you, you were advised that you had the right to bring an attorney with you today if you wanted. Now, since you're here by yourself does that mean you want to proceed by yourself without a representative or an attorney?
[JIMENEZ]: Yes.
ALJ: Okay, good. We also put together this file with your medical information and I'm going to use that as an exhibit in this case. Is that all right with you?
[JIMENEZ]: Yes.
ALJ: Are there any other additional medical information you want me to put in this file that's not in here now?
[JIMENEZ]: Like what?
ALJ: Well, I wanted to make sure that the evidence was complete. That I have all your, your medical evidence.
[JIMENEZ]: I have the medication here. All the medication that I use daily.
ALJ: Okay. I, I see you wrote me a list over here which I have in the file.
[JIMENEZ]: Okay, yes.
(R. 30-31.) Jimenez also confirmed to the ALJ that all of his medical records were in the St. Barnabas Hospital records and that "all the records are there," i.e., in the medical records exhibit before the ALJ. (R. 34.)
Jimenez, who was born in 1946 (e.g., R. 65), was fifty-two years old at the time of the hearing. He was born in the Dominican Republic (R. 13, 35), and arrived in the United States in 1980 (R. 35). Jimenez was educated through the eighth grade and able to read and write in Spanish and understand and speak minimal English. (R. 35-36.) He worked through the beginning of 1996 as a floor cleaner in a factory. (R. 32-33, 81.) Jimenez testified that he had to stop working due to a bleeding ulcer and because of his diabetes, which made him "very dizzy." (R. 33.)
Jimenez testified that his diabetes causes pain in his legs and that he has to monitor his blood. (R. 31-32, 36-37.) He explained that he takes Naprosyn for the leg pain caused by the diabetes, and that he just started taking the Naprosyn in 1998. (R. 31.) Jimenez claimed that the Naprosyn "helps [him] a little," but that the pain "always" returns "in both legs." (R. 31-32.) Jimenez testified that he "ha[d] a lot of pain when I walk and sometimes like I feel that I'm going to fall. Yes a lot of pain in my legs. And a lot, I become very tired." (R. 37.) He is able, however, to walk several blocks from his home to St. Barnabas. (R. 37.)
Naprosyn is a "member of the arylacetic acid group of non-steroidal anti-inflammatory drugs" used for rheumatoidal arthritis. Physicians' Desk Reference 2744 (55th ed. 2001). Jimenez's filings disclosed that he takes Naprosyn for his leg pain since September 11, 1998, as well as Prilosec for his stomach since November 7, 1998, Glyburide for his diabetes since November 28, 1998 and Livostin for his eyes since September 25, 1998. (R. 94.)
Jimenez testified that he also takes medication for his diabetes, and that he checks his own blood sugar levels in order to properly medicate. (R. 36-37.)
Jimenez cited his bleeding ulcer (as well as his diabetes) as the reason he stopped working. (R. 33.) The treatment for Jimenez's bleeding ulcer began in 1997 at "Junio" (R. 34) — apparently a reference to Union Hospital (R. 145). Jimenez was sent by "Junio" to St. Barnabas that same day, and Jimenez still receives treatment at St. Barnabas for his stomach in the form of daily medication. (R. 34, 37.) When asked if the medication helps his stomach, Jimenez explained that the medication "alleviates it, but then I still continue having a lot of pain in my stomach." (R. 37.)
When the ALJ asked Jimenez if there was anything else about his medical condition that the ALJ should know, Jimenez testified that he has "problems with [his] eyesight," was unable to read or write anything without his glasses, and wears glasses all the time. (R. 38.)
The ALJ closed the brief hearing by informing Jimenez that he would review all the medical evidence and then issue a written opinion. (R. 38.)
The Medical Evidence Before the ALJ Treating Physician Records
The medical evidence in the record includes records from St. Barnabas Hospital covering the period when Jimenez was hospitalized for gastrointestinal bleeding from September 11, 1997 until September 13, 1997 (R. 96-108, 132-76) as well as records of Jimenez's continued care at St. Barnabas (R. 177-340).
On September 11, 1997, Jimenez was admitted to St. Barnabas hospital for upper gastrointestinal bleeding. (R. 101.) He reported an eight-year history of non-insulin dependant diabetes which was treated with Diabeta. (R. 141, 145.) Jimenez had black stools and abdominal pain, as well as non-radiating epigastric pain. (R. 101, 145, 173.) Jimenez reported that the pain began two days before he was admitted to the hospital. (R. 140, 145.) Jimenez was diagnosed as having an ulcer and discharged from St. Barnabas on September 13, 1997 in stable condition. (R. 99, 102-02, 136, 153.) Upon discharge, Jimenez was given specific instructions to control his diet, but his activities were not limited. (R. 108, 136.) The
Diabeta is "an oral blood-glucose-lowering drug of the sulfonyl urea class" used to control diabetes. Physicians' Desk Reference 706.
Jimenez continued to be treated at St. Barnabas through at least December 16, 1998, i.e., through at least the time of his hearing before the ALJ. (R. 260-61.) Jimenez's treatment at St. Barnabas consisted of numerous follow-up visits for his ulcer, Type II diabetes and vision. (R. 178-340.) Jimenez's physicians kept him on medications throughout his treatment, and monitored his conditions. (R. 178-340.)
On September 18, 1997, Jimenez had his first post-hospitalization follow-up visit at St. Barnabas. (R. 225-28.) The doctor reported that Jimenez was in good condition and was taking Diabeta for his diabetes. (R. 225.) At Jimenez's next follow-up visit on October 2, 1997, he was prescribed Pepcid for his ulcer. (R. 223-24.) On November 26, 1997, Jimenez's doctor added Biaxin for his ulcer. (R. 220.) On December 11, 1997, during a follow up appointment at St. Barnabas for his ulcer, Jimenez reported "improvement" once again, stating that he was free from nausea, vomiting and abdominal pain. (R. 217.)
Pepcid is a "histamine H2-receptor antagonist" used to treat ulcers. Physicians' Desk Reference 1988.
Biaxin is a "semi-synthetic macrolide antibiotic" used to treat ulcers. Physicians' Desk Reference 402.
On January 8, 1998, Jimenez visited St. Barnabas for another follow-up appointment. (R. 211-12.) Jimenez complained of mild epigastric discomfort. (R. 211.) On January 22, 1998, Jimenez told St. Barnabas that he felt "very well," with "no complaints." (R. 209.) On February 19, 1998, Jimenez returned to St. Barnabas for a follow up visit, where he complained of "a bitter taste in the mouth, especially during the night." (R. 207.) Jimenez also complained of hoarseness in his voice and a fever. (R207.) The doctor placed Jimenez on Glyburide for his diabetes (207.)
Glyburide is a specific competitive inhibitor of angiotensin 1-converting enzyme (ACE), the enzyme responsible for the conversion of angiotensin I to angiotensin II used to control diabetes. Physicians' Desk Reference 706.
On July 2, 1998, Jimenez returned to St. Barnabas complaining of mild epigastric discomfort. (R. 197.) On July 28, 1998, Jimenez came for prescription refills and had no complaints. (R. 194.) On Jimenez's next follow-up visit on September 11, 1998, the doctor prescribed Naprosyn for Jimenez's joint pain. (R. 190-91.) On October 8, 1998, Jimenez visited a dietician in order to help control his diabetes and ulcer. (R. 186.) The dietician indicated that Jimenez understood the diet recommendation of small and frequent meals. (R. 186.) On October 10, 1998, when Jimenez went to St. Barnabas for follow-up, he remained on Glyburide, Prilosec and Naprosyn and had no complaints except for some "bloating." (R. 182.) The doctor noted that Jimenez's diabetes was under "poor control." (R. 182.)
On October 2, 1998, Jimenez received a colonoscopy so that a biopsy could be performed to check his stomach ulcer. (R. 327-40.) The colonoscopy report indicated "random areas of `scalloping' . . . in ascending colon," and a three to four millimeter polyp. (R. 333.)
On November 13, 1998, the doctor at St. Barnabas found that Jimenez had "unsatisfactory sugar control." (R. 180.) The doctor noted that Jimenez had Type II diabetes and recommended that Jimenez begin to check his blood sugar levels at home. (R. 180.) On November 28, 1998, Jimenez had another follow-up visit at St. Barnabas. (R. 178.) Jimenez's diabetes was not under control, and the doctor told Jimenez to take an additional daily dosage of Glyburide. (R. 178-79.) On December 16, 1998, when Jimenez returned to St. Barnabas once again for blood sugar monitoring, the doctor noted that his diabetes was "still poorly controlled." (R. 187.)
Jimenez also went to optometrists at St. Barnabas for his eyes. (R. 189, 192-93, 196, 202, 204.) Jimenez was given prescription eye drops on at least three occasions. (R. 189, 193, 196.) Jimenez complained that his eyes felt hot, especially when it was hot outside. (R. 189, 196.) Jimenez also complained that his eyes teared and that he could not read without his glasses. (R. 204.) In addition, Jimenez told the optometrist that he had trouble walking because he felt dizzy. (R. 204.)
Consultative Physical Exam
On May 14, 1998, Dr. Wei Kao, an internist from K-M.D. Medical Services, examined Jimenez as a consultative examiner on behalf of the Commissioner. (R. 115-18.) Dr. Kao's report stated that Jimenez requested disability on the basis of diabetes, joint pain, and peptic ulcer. (R. 115.) Dr. Kao took a medical history from Jimenez, who reported diabetes for nine years for which he currently took Glyburide, joint pains for three years for which he took Tylenol, and a peptic ulcer for eight months for which he took Ranitidine and Prilosec. (R. 115.)
Dr. Kao concluded that Jimenez's diabetes was "stable." (R. 118). Regarding Jimenez's joint pain, Dr. Kao found that Jimenez had no difficulty undressing or dressing or getting on or off the examining table, and that Jimenez's joints had a full range of motion with "no swelling, deformity, redness or heat." (R. 116, 117.) Dr. Kao noted that Jimenez's "[m]uscle strength is adequate, symmetrical and commensurate with body build," and that Jimenez could make a fist, squat and stand on his toes normally. (R. 117.) Dr. Kao stated that Jimenez suffered from "mild degenerative joint disease." (R. 118.) Finally, Dr. Kao noted that Jimenez's peptic ulcer disease was "stable." (Id.)
On June 1, 1998, Dr. Marasegan performed a Residual Physical Functional Capacity Assessment on Jimenez and concluded that Jimenez did not have any physical limitations. (R. 123-29.) Dr. Marasegan did not find any exertional (R. 124), postural (R. 125), manipulative (R. 126), visual (R. 126), communicative (R. 127) or environmental limitations (R. 127).
The ALJ's Decision
ALJ Dennis G. Katz denied Jimenez's applications for SSI and disability benefits in a written decision dated April 27, 1999. (R. 10-21.) The ALJ found that Jimenez had not engaged in any substantial gainful activity since September 11, 1997. (R. 14-15, 20.) The ALJ further found that Jimenez had "1) ulcer; 2) minor joint pain; and 3) diabetes mellitus." (R. 15, 20.) The ALJ further found that Jimenez's impairments, either singly or together, did not meet or equal in severity the requirements for benefits. (R. 15, 20.) The ALJ finally determined that Jimenez had a "residual functional capacity . . . for exertionally medium work" and "can perform his past relevant work as a floor cleaner in a factory." (R. 20.)
As to Jimenez's ulcer, the ALJ stated that Jimenez had been diagnosed with a clean gastric ulcer, and that the endoscopy report noted that the risk of rebleed was low. (R.16.) The ALJ found that upon discharge, Jimenez was in stable condition and doing well, and that Jimenez reported improvement after being diagnosed. (R. 16.) The ALJ noted that Jimenez 10 took Ranitidine and Prilosec for his ulcer. (R. 17.) The ALJ noted that Jimenez was in stable condition, and that medical records from December 1997 and January 1998 showed that Jimenez "had no complaints . . . and that he was feeling `very well.'" (R. 16.)
As to Jimenez's joint pain, the ALJ noted that when Jimenez complained of pain in February 1998, he was only advised to take Tylenol. (R. 16.) The ALJ noted that Jimenez "reported a 3 years history of joint pain . . . [and] difficulty in walking and in combing his hair." (R. 17) The ALJ found that in October 1998 Jimenez started taking a non-steroidal anti-inflammatory medication for his joint pain, and that "such medication provides `good relief.'" (R. 16.)
As to Jimenez's diabetes, the ALJ found Jimenez reported "a 9 year history of diabetes for which he takes Glyburide." (R. 17.) The ALJ stated that as of November 1998, Jimenez's "diabetes mellitus had not been satisfactorily controlled" and that Jimenez "said that he feels `ok.'" (R. 18.) As of December 1998, Jimenez's "diabetes was still poorly controlled, but it was determined that [Jimenez] was not compliant with his diabetic medication." (Id.) The ALJ noted that, with respect to Jimenez's diabetes mellitus, "no functional limitations were noted in the clinic record." (Id.)
On November 11, 1998, the record indicates that Jimenez's physician suggested that he increase his Glyburide dose because of "unsatisfactory sugar control." (R. 180.) The record from November 28, 1998 indicates that Jimenez did not increase his dose as suggested. (R. 178.)
The ALJ summarized that "in evaluating the claimant's complaints regarding all symptoms, including but not limited to pain, fatigue, shortness of breath, weakness and/or nervousness, the undersigned has considered the nature, location and intensity of the pain and
The ALJ found, "[b]ased on a longitudinal consideration of the entire record," that Jimenez "has a medical functional capacity for exertionally medium work," and thus can perform his prior work. (R. 19.) The ALJ further concluded that "[e]ven if the claimant was unable to perform his past relevant work, I would still find him capable of doing other work." (R. 19-20.) Accordingly, the ALJ concluded that Jimenez was not disabled.
ANALYSIS I. THE APPLICABLE LAW
A. The Definition of Disability
A person is considered disabled for Social Security benefits purposes when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The combined effect of all impairments must be of such severity that the person
See also, e.g., Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *4 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *6 (S.D.N.Y. Mar. 29, 1999) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 535 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 180 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 422 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Burris v. Chater, 94 Civ. 8049, 1996 WL 148345 at *2 (S.D.N.Y. Apr. 2, 1996); DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at *4 (S.D.N.Y. June 14, 1995) (Peck, M.J.), report rec. adopted, 899 F. Supp. 1171 (S.D.N.Y. 1995); Francese v. Shalala, 897 F. Supp. 766, 769 (S.D.N.Y. 1995) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995).
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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A); see, e.g., Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Duvergel v. Apfel, 2000 WL 328593 at *6; Jones v. Apfel, 66 F. Supp.2d at 535; Craven v. Apfel, 58 F. Supp.2d at 180-81; Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 422-23; Burris v. Chater, 1996 WL 148345 at *2; DeJesus v. Shalala, 1995 WL 812857 at *4; Walzer v. Chater, 1995 WL 791963 at *6.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(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 Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Duvergel v. Apfel, 2000 WL 328593 at *6; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6; DeJesus v. Shalala, 1995 WL 812857 at *4.
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Shaw v. Chater, 211 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Tejada v. Apfel, 167 F.3d at 773; Rosa v. Callahan, 168 F.3d at 77; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d at 1038; Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983). "Thus, the role of the district court is quite limited and WL 148345 at *3.
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Duvergel v. Apfel, 2000 WL 328593 at *7; Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N Y Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted); Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *2; Walzer v. Chater, 1995 WL 791963 at *6; Francese v. Shalala, 897 F. Supp. at 770; Coleman v. Shalala, 895 F. Supp. at 54; 42 U.S.C. § 405(g).
Accord, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Duvergel v. Apfel, 2000 WL 328593 at *7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at *7; Vega v. Commissioner, 1998 WL 255411 at *6; Francese v. Shalala, 897 F. Supp. at 770.
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46.
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Duvergel v. Apfel, 2000 WL 328593 at *7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at *8; Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6.
However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at *8; Vega v. Commissioner, 1998 WL 255411 at *6; Burris v. Chater, 1996 WL 148345 at *3; Francese v. Shalala, 897 F. Supp. at 770.
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Second Circuit has articulated the five steps as follows:
[1] First, the Secretary [now, Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. [2] 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. [3] 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. [4] 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. [5] 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 v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, e.g., Shaw v. Chater, 221 F.3d at 132; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *5; Duvergel v. Apfel, 2000 WL 328593 at *8; Jones v. Apfel, 66 F. Supp.2d at 536-37; Craven v. Apfel, 58 F. Supp.2d at 181-82; Vega v. Commissioner, 1998 WL 255411 at *7; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *2; Walzer v. Chater, 1995 WL 791963 at *6; DeJesus v. Shalala, 1995 WL 812857 at *4; Francese v. Shalala, 897 F. Supp. at 769; Coleman v. Shalala, 895 F. Supp. at 53-54.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467.
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *6; Duvergel v. Apfel, 2000 WL 328593 at *8; Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at *7; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *3; Walzer v. Chater, 1995 WL 791963 at *7; DeJesus v. Shalala, 1995 WL 812857 at *5; Francese v. Shalala, 897 F. Supp. at 770.
Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d at 1031; see, e.g., DeLeon v. Secretary of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984).
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at *8; Miles v. Apfel, 51 F. Supp.2d 266, 269 (E.D.N.Y. 1999); Nivar v. Apfel, 98 Civ. 3930, 1999 WL 163397 at *4-5 n. 8 (S.D.N.Y. Mar. 23, 1999); Vitale v. Apfel, 49 F. Supp.2d 137, 142 (E.D.N Y 1999); Irvin v. Heckler, 592 F. Supp. 531, 540 (S.D.N.Y. 1984).
B. The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(d)(2); see, e.g., Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998). Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503. The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
See also, e.g., Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *6 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *8 (S.D.N.Y. Mar. 29. 1999) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 537 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 182 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at *7-8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Sanchez v. Chater, 964 F. Supp. 133, 138 (S.D.N.Y. 1997); Toro v. Chater, 937 F. Supp. 1083, 1091 (S.D.N Y 1996); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept.26, 1995) (Kaplan, D.J. Peck, M.J.).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *6; Duvergel v. Apfel, 2000 WL 328593 at *8; Jones v. Apfel, 66 F. Supp.2d at 537. Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at *8; Walzer v. Chater, 1995 WL 791963 at *7.
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *6; Duvergel v. Apfel, 2000 WL 328593 at *8; Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 183; Vega v. Commissioner, 1998 WL 255411 at *8; Sanchez v. Chater, 964 F. Supp. at 138; Walzer v. Chater, 1995 WL 791963 at *7.
II. JIMENEZ'S APPLICATION SHOULD BE REMANDED BECAUSE THE ALJ FAILED TO ADEQUATELY DEVELOP THE RECORD
Jimenez's counsel asserts that the ALJ "did not obtain the necessary intelligent, knowing and voluntary waiver of [Jimenez's] right to counsel." (Dkt. No. 13: Jimenez Br. at 5-8.) Jimenez's counsel also asserts that the ALJ "failed in his duty to assist" Jimenez, failed to request medical opinions from named treating physicians, and "did not provide a substantial foundation for his findings regarding residual functional [capacity] and credibility." (Jimenez Br. at 8-12.)A. Background Legal Principles
A court reviewing an SSI denial "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 Act.'" Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health, Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972)); see, e.g., Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980).
See also, e.g., Jones v. Apfel, 66 F. Supp.2d 518, 537-38 (S.D.N.Y. July 12, 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 185 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vaughn v. Apfel, 98 Civ. 0025, 1998 WL 856106 at *6 (S.D.N.Y. Dec. 10, 1998), clarified on reconsideration, 1999 WL 314163 (S.D.N Y May 18, 1999); Prentice v. Apfel, 11 F. Supp.2d 420, 425 (S.D.N.Y. 1998); Dawson v. Apfel, 96 Civ. 6023, 1997 WL 716924 at *7 (S.D.N.Y. Nov. 17, 1997); Rodriguez v. Apfel, 96 Civ. 1132, 1997 WL 691428 at *4 (S.D.N.Y. Nov. 4, 1997).
"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, even if the claimant is represented by counsel." Tejada v. Apfel, 167 F.3d 770, 774-75 (2d Cir. 1999) (internal quotations alterations omitted); accord, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Cruz v. Sullivan, 912 F.2d at 12; Echevarria v. Secretary, 685 F.2d at 755.
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 538; Craven v. Apfel, 58 F. Supp.2d at 185; Mejias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *5 (S.D.N.Y. Sept. 23, 1998); Maestre v. Apfel, 96 Civ. 8273, 1998 WL 477950 at *4 (S.D.N.Y. Aug. 13, 1998); Prentice v. Apfel, 11 F. Supp.2d at 425; Dawson v. Apfel, 1997 WL 716924 at *7; Rodriguez v. Apfel, 1997 WL 691428 at *4.
"[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well, as in this case, [the courts] have `a duty to make a "searching investigation" of the record' to make certain that the claimant's rights have been adequately protected." Cruz v. Sullivan, 912 F.2d at 11 (quoting Gold v. Secretary, 463 F.2d at 43); see, e.g., Echevarria v. Secretary, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d at 895.
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 538; Craven v. Apfel, 58 F. Supp.2d at 185; Vaughn v. Apfel, 1998 WL 856106 at *6; Mejias v. Apfel, 1998 WL 651052 at *5; Maestre v. Apfel, 1998 WL 477950 at *4; Prentice v. Apfel, 11 F. Supp.2d at 425; Dawson v. Apfel, 1997 WL 716924 at *7; Rodriguez v. Apfel, 1997 WL 691428 at *4; Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at *3 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.).
The ALJ is thus obligated to explore the facts by obtaining relevant medical records and asking questions of a pro se claimant to assist the claimant in developing his case. See, e.g., Rosa v. Callahan, 168 F.3d at 80 (ALJ required to request additional records from physicians); Perez v. Chater, 77 F.3d at 47 (ALJ required to make "`every reasonable effort to help [the claimant] get medical reports from [his] own medical sources'") (quoting 20 C.F.R. § 404.1512(d)); Cruz v. Sullivan, 912 F.2d at 11 (ALJ required to obtain hospital records and ask plaintiff about his asthma attacks); Echevarria v. Secretary, 685 F.2d at 755-56 (ALJ failed to explore claimant's subjective complaints or obtain necessary medical records).
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 538; Craven v. Apfel, 58 F. Supp.2d at 185 ("ALJ is affirmatively obligated to ask for information from a claimant's treating physician, or at least ask the claimant to get such records"); Mejias v. Apfel, 1998 WL 651052 at *5 (ALJ required to help claimant get medical records); Maestre v. Apfel, 1998 WL 477950 at *4 (ALJ "obligated to explore the facts by asking questions of and obtaining relevant medical records from pro se claimants").
The ALJ's responsibility to assist a claimant in obtaining the claimant's medical records carries particular importance in light of the well-established treating physician rule, which requires an ALJ to grant special deference to the opinions of a claimant's treating physicians. (See pages 16-17 above.) As Judge Glasser explained:
[T]hese two principles — the duty to develop a full record and the treating physician rule — do not operate independently of each other. . . [T]he duty to develop a full record and to assist a pro se plaintiff compels the ALJ . . . to obtain from the treating source expert opinions as to the nature and severity of the claimed disability. . . . Thus, when the claimant appears pro se, the combined force of the treating physician rule and of the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability. . . . Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties to the pro se claimant under the treating physician rule.
Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991). To achieve this goal, the ALJ is authorized to issue subpoenas requiring the production of any evidence relating to a matter under consideration. See, e.g., 42 U.S.C. § 405(d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner."); Treadwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983).
Accord, e.g., Jones v. Apfel, 66 F. Supp.2d at 538-39; Craven v. Apfel, 58 F. Supp.2d at 186; see also, e.g., Mejias v. Apfel, 1998 WL 651052 at *6; Almonte v. Apfel, 96 Civ. 1119, 1998 WL 150996 at *7 (S.D.N.Y. Mar. 31, 1998); Rodriguez v. Apfel, 1997 WL 691428 at *5.
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 539; Craven v. Apfel, 58 F. Supp.2d at 186; Mejias v. Apfel, 1998 WL 651052 at *6; Carroll v. Secretary of Health Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995).
B. Application of Those Principles 1. The ALJ Did Have All of Jimenez's Medical Records
In this case, while the ALJ had all of Jimenez's medical records, that was not enough. The ALJ had Jimenez's medical records from St. Barnabas Hospital. (See R. 30-31, 96-108, 132-340.) When Jimenez began his testimony, the ALJ asked Jimenez if he needed to add any medical records to his file. (R. 31.) Jimenez responded: "Like what?" (Id.) The ALJ explained that he wanted to be sure he had all of Jimenez's medical evidence. (Id.) Jimenez referred to the list of his medications and the ALJ responded that he saw the medication list in the file. (Id.) While this colloquy was somewhat inconclusive, just a few pages later Jimenez acknowledged that all of his medical records were in the St. Barnabas Jones v. Apfel, 66 F. Supp.2d 518, 539 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.) (ALJ failed to obtain medical records from some of claimant's treating sources); Craven v. Apfel, 58 F. Supp.2d 172, 186 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.) (same).Nonetheless, there were serious shortcomings with the ALJ's examination of Jimenez's case. The ALJ should have: (1) questioned Jimenez more thoroughly concerning his testimony, (2) developed Jimenez's functional capacity, and (3) obtained more detailed opinions from Jimenez's treating physicians, or informed Jimenez that his claim was unpersuasive and that Jimenez could obtain more detailed statements and opinions from his treating doctors.
2. The ALJ Should Have Questioned Jimenez More Thoroughly
First, the ALJ should have questioned Jimenez more thoroughly concerning various aspects of his testimony. The entire hearing transcript is only nine pages long. (R. 30-39.) Despite references in the medical record to Jimenez's arthritis (see, e.g., R. 216), the ALJ never directly questioned Jimenez about this condition, despite its relevance to determination of whether Jimenez's joint pain was severe enough to qualify as a listed impairment. When the ALJ did inquire about the pain in Jimenez's legs (R. 31, 37), Jimenez replied that the Naprosyn only helps "a little," and that he always felt pain in his legs, especially while walking and at night. (R. 31.) Jimenez even mentioned that he had been seen by a specialist 23 for his legs. (R. 37.) The ALJ did not ask further questions about Jimenez's complaints of subjective leg pain but rather proceeded to ask Jimenez how far the hospital is from his house. By failing to ask Jimenez more detailed questions about his arthritis and leg pain, the ALJ failed to adequately fulfill his affirmative obligation to assist Jimenez in developing his case by failing to explore the nature and extent of Jimenez's subjective symptoms. See, e.g., Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 755-56 (2d Cir. 1982) ("The ALJ failed adequately to explore the nature and extent of [the claimant]'s subjective symptoms. . . [D]espite numerous references in the medical records and testimony by [the claimant] concerning his subjective symptoms of serious pain, the ALJ did not fully inquire into what specifically caused [the claimant] to leave his job or the full degree of the pain and the extent to which it prevents him from working."); Fernandez v. Schweiker, 650 F.2d 5, 9 (2d Cir. 1981) (case remanded where, inter alia, the "[c]laimant was only perfunctorily questioned by the administrative law judge as to the extent of 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 plaintiff's 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.") (internal quotations alterations omitted); Gonzalez v. Apfel, 113 F. Supp.2d 580, 587 (S.D.N.Y. 2000) ("Rather than abruptly ending his inquiry here, the ALJ . . . should have also posed a thorough set of follow-up questions. . . ."); Lopez v. Apfel, 98 Civ. 9036, 2000 WL 633425 at *10 (S.D.N.Y. May 17, 2000) ("It is worth noting 24 that the transcript of the ALJ hearing is only eleven pages long. . . . `[T]he record is replete with instances where the ALJ should have questioned plaintiff more fully concerning various aspects of his testimony.'. . . In failing to ask more questions at the hearing, both about the extent to which plaintiff's [medical condition] imposed a `marked limitation of function' and about whether plaintiff's [medical condition] was `responding to prescribed treatment,' the ALJ did not adequately develop the record."); Craven v. Apfel, 58 F. Supp.2d 172, 187 (S.D.N Y 1999) (Preska, D.J. Peck, M.J.) ("The ALJ should have questioned [plaintiff] more fully concerning various aspects of her testimony."); Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290 at *4 (S.D.N.Y. Feb. 20, 1998) (Sotomayor, D.J.) ("The record is replete with instances where the ALJ failed to question the plaintiff fully — or at all — concerning critical aspects of his claim."); Rodriguez v. Apfel, 96 Civ. 1132, 1997 WL 691428 at *6-7 (S.D.N.Y. Nov. 4, 1997) (remanding to SSA where "the ALJ failed to probe into the severity of [plaintiff's] inflammation and its impact on his capabilities and functions. . . . [T]he ALJ did not adequately explore [plaintiff's] condition or allow him to explain all of his medical problems."); Mejias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *7 (S.D.N.Y. Sept. 23, 1998) (remanding where "[l]ess than a page of the hearing transcript consists of questions about plaintiff's subjective symptoms, although the Second Circuit has repeatedly emphasized that a claimant's testimony concerning her pain and suffering `is not only probative on the issue of disability, but "may serve as the basis for establishing disability. . ."'"); Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at *6 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.) ("By not questioning plaintiff about her subjective claims of bronchitis, suffering with her legs, arthritis in her knee cap, and other ailments, the ALJ did not satisfy his duty to assist the plaintiff in 25 developing the record so that all of the elements of proving the plaintiff's disability were available to be considered.").
3. The ALJ Failed to Fully Develop the Record of Jimenez's Functional Limitations
Second, the ALJ failed to fully develop the record of Jimenez's functional abilities. The ALJ relied upon the record of the consultative physician to establish functional capacity, even though Dr. Marasegan did not have any of Jimenez's medical records. (R. 123-29.) The ALJ did not have any of Jimenez's treating physician's opinions as to Jimenez's functional capacity. None of Jimenez's treating physicians gave opinions; the ALJ had nothing more than a pile of records. The ALJ has a duty to aid the claimant in obtaining important evidence such as a treating physician's assessment of a claimant's functional capacity. See, e.g., 20 C.F.R. § 404.1512(e) ("When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision."); Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (where "the ALJ was left to base her conclusions on incomplete information that was necessarily `conclusive of very little', . . . the ALJ should have taken steps directing [the claimant] to ask [her treating physician] to supplement his findings with additional information"); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (treating physician needs to be questioned because "he might not have provided [functional capacity findings] in the report because he did not know that the ALJ would consider it critical to the disposition of the case"); Richardson v. Apfel, 44 F. Supp.2d 556, 563 (S.D.N.Y. 1999) (same); Vaughn v. Apfel, 98 Civ. 0025, 1998 WL 856106 at *7 (S.D.N Y Dec. 10, 1998) ("Most importantly, a remand is appropriate since the ALJ did not specifically 26 request [the treating physician's] opinion as to the plaintiff's claimed disabilities."), clarified on reconsideration, 1999 WL 314613 (S.D.N.Y. May 18, 1999); Brown v. Apfel, 991 F. Supp. 166, 171-72 (W.D.N.Y. 1998); Rosa v. Apfel, 97 Civ. 5831, 1998 WL 437172 at *4 (S.D.N Y July 31, 1998) (ALJ should have requested treating physician to assess claimant's medical functional capacity); Rodriguez v. Apfel, 96 Civ. 1132, 1997 WL 691428 at *5 (S.D.N.Y. Nov. 4, 1997) ("[T]he ALJ failed to develop the record regarding [claimant's] functional abilities."); Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991) ("It is the opinion of the treating physician that is to be sought; it is his opinion as to the existence and severity of a disability that is to be given deference. . . . [While the] ALJ obtained voluminous records from these doctors," the ALJ did not obtain their opinions.) (emphasis in original).
4. The ALJ Should Have Called Jimenez's Treating Physicians to Testify or Advised Jimenez to Do So
Third, the ALJ should have called Jimenez's treating doctors to testify or at least instructed Jimenez to obtain more detailed and clearer statements from his treating physicians, especially since the medical reports which appear in the administrative record are often illegible and do not contain any conclusions. See, e.g., Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) ("[T]he medical records that do appear in the record are frequently incomplete or illegible and provide no coherent overview of [plaintiff's] treatment."); Vaughn v. Apfel, 98 Civ. 0025, 1998 WL 856106 at *7 (S.D.N.Y. Dec. 10, 1998) ("The problem here however is that the ALJ did not specifically request the doctor's opinion as to the plaintiff's claimed disabilities, . . . despite the fact that the treating physician's opinion is all but controlling in social security cases. . . . [T]he Court must remand this case in order to obtain oral testimony or a legible (preferably typed) opinion from the treating doctor. Indeed, courts have held that 27 illegibility of important medical records is a factor in warranting a remand for clarification and supplementation."), clarification on reconsideration, 1999 WL 314163 (S.D.N.Y. May 18, 1999); Taveras v. Apfel, 97 Civ. 5369, 1998 WL 557587 at *5 (S.D.N.Y. Sept. 2, 1998) (remand appropriate where, inter alia, records are illegible); Rodriguez v. Apfel, 97 Civ. 1132, 1997 WL 691428 at *5 (S.D.N.Y. Nov. 4, 1997).
For example, while the medical records indicated that Jimenez's diabetes was under "poor control" (e.g., R. 182; see also R. 178-80, 187), the ALJ concluded that the poor control was because Jimenez "was not compliant with his diabetic medication" (id.). The ALJ's conclusion may be supported by the sparse record but it is not the only possible conclusion from the record, and the ALJ would have benefitted by clarifying the situation with Jimenez's treating doctors (or at least advising Jimenez to do so).
The ALJ had a duty to inform Jimenez that he could call, subpoena or request a clearer statement from his treating physicians. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79-80 (2d Cir. 1999); Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990) ("We have repeatedly stated that when the ALJ rejects the findings of a treating physician because they were conclusory or not supported by specific clinical findings, he should direct a pro se claimant to obtain a more detailed statement from the treating physician."); Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 756 (2d Cir. 1982) ("`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'") (quoting Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980) ("The ALJ also erred in failing to advise plaintiff that he should obtain a more detailed statement from his treating physician.")); Jones v. Apfel, 66 F. Supp.2d 518, 540 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.) ( cases cited therein); Mejias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *6 (S.D.N.Y. Sept. 23, 1998) (remand appropriate where ALJ "did not consider exercising his authority to issue subpoenas" in order to produce additional evidence or "inform plaintiff that she should — or even could — produce additional evidence or call her treating physicians as witnesses"); Rosa v. Apfel, 97 Civ. 5831, 1998 WL 437172 at *4 (S.D.N.Y. July 31, 1998) ("At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that he considers the claimant's case unpersuasive and suggest that he produce additional evidence or call his treating physician as a witness."); Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290 at *5 (S.D.N.Y. Feb. 20, 1998) (Sotomayor, D.J.) ("ALJ had a duty to inform [pro se] plaintiff of his ability to call or subpoena [treating physician] as a witness"); Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at * 5 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.) ("[B]efore denying a pro se claimant's application, the ALJ should advise the claimant that he considered his or her case unpersuasive, and suggest that he or she produce additional medical evidence or call his or her treating physician as a witness.") (internal quotations alterations omitted); Rivera v. Chater, 942 F. Supp. 178, 183-84 (S.D.N.Y. 1996) (where medical information supplied by treating physician is insufficient, "the ALJ has a duty to inform a pro se claimant of the inadequacies and the remedial action required"); Carroll v. Secretary of Health Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995); Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1982).
As the Second Circuit stated in Hankerson, "While none of these errors standing alone might be sufficient to set aside the [Commissioner's] determination, their combination persuades us that plaintiff did not have a fair and adequate hearing before the 29 [Commissioner]." Hankerson v. Harris, 636 F.2d at 897; see also, e.g., Echevarria v. Secretary, 685 F.2d at 756 (remand required where "[w]hile none of the errors standing alone is sufficient to upset the Secretary's determination, their total effect deprived [the claimant] of a full consideration of his claim"); Leyva v. Harris, 514 F. Supp. 1313, 1319 (S.D.N.Y. 1981) (Weinfeld, D.J.).
For all of the above reasons, the case is remanded to the Commissioner to further develop the record. As the Second Circuit has explained:
Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the Commissioner for further development of the evidence. . . . This case, in our view, is one in which remand for further development of the evidence is the wiser course. . . . [T]he extent of the [claimant's] injuries was not at all clear, and the ALJ failed to develop the record sufficiently to make any appropriate determination in either direction.
Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (internal quotations alterations omitted); see also, e.g., Hankerson v. Harris, 636 F.2d at 896 (remand "appropriate due to the ALJ's failure to assist this pro se litigant in securing all of the relevant medical testimony.").
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 547; Craven v. Apfel, 58 F. Supp.2d at 187; Vaughn v. Apfel, 1998 WL 651052 at *8.
CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied and Jimenez's motion for judgment on the pleadings is granted to the extent of remanding to the Commissioner for further proceedings consistent with this Opinion.SO ORDERED