Opinion
No. 03 Civ. 2072 (MBM).
October 20, 2004
TOBY GOLICK, ESQ., Cardozo Bet Tzedek Legal Services, New York, NY, (Attorney for Plaintiff).
DAVID N. KELLEY, ESQ., United States Attorney for the Southern District of New York, LORRAINE S. NOVINSKI, ESQ., Assistant United States Attorney, New York, NY, (Attorneys for Defendant).
OPINION ORDER
Plaintiff Gladys Miller sues Jo Anne Barnhart, Commissioner of Social Security, alleging that the Social Security Administration (SSA) wrongfully denied her disability benefits and supplemental security income. Plaintiff seeks review of the SSA's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) (2000). Both parties move for judgment on the pleadings under Fed.R.Civ.P. 12(c). For the reasons set forth below, the SSA's decision is vacated and the case is remanded to the SSA for further proceedings consistent with this opinion.
I.
The following facts are relevant to this appeal. Plaintiff Gladys Miller was born on July 16, 1954. (Tr. 64) She has four or more years of college (Tr. 78); as of August, 2002, she was 14 credits away from her bachelor's degree at Lehman College in the Bronx. (Tr. 26) Miller has worked as a telephone operator, a secretary, a computer operator, a security guard, a paralegal, and a machine operator at a post office. (Tr. 26-28, 73, 100) She holds several professional certificates in the fields of computers and medical secretarial work. (Tr. 26)
Citations to "Tr." refer to the certified copy of the administrative hearing transcript and medical records provided by the government pursuant to 42 U.S.C. § 405(g).
Miller filed an application for disability insurance benefits on January 11, 2001 (Tr. 64-66), claiming that under certain conditions, she suffered pain in her right leg which prevented her from concentrating. (Tr. 72) In her application, Miller stated that she first became bothered by the pain in July 1996, and became unable to work as a result of her condition on May 15, 1999. She was also fired on that date. (Id.)
The SSA denied Miller's application in June 2001. (Tr. 38-41) Miller then exercised her right to request a hearing on her claim before an administrative law judge (ALJ). (Tr. 43) Her hearing was held on August 19, 2002, and on September 26, 2002, the ALJ denied her claim. (Tr. 19, 8-10) Plaintiff requested review of the ALJ's decision before the SSA Appeals Council. (Tr. 6) Her appeal was denied on January 30, 2003 (Tr. 4-5), and she filed a complaint in this court on March 25, 2003.
A. Medical History
According to the record, Miller first sought medical treatment for her hip ailment in 1996. Between July and November of that year, she visited New York University's Hospital for Joint Diseases (HJD) five times. In conjunction with those visits, she had two sets of x-rays and one Magnetic Resonance Imaging (MRI) scan. On her visits to various doctors at HJD, plaintiff complained that she had a three-year history of knee and lower back pain, as well as pain in her buttocks and lower back that worsened when she walked. (Tr. 114) She complained of pain in her hips (Tr. 105), and noted that she had walked with a limp for the past three years (Tr. 110). The MRI produced a finding of "mild bilateral osteoarthritis of both hips" (Tr. 120), while x-rays suggested "symmetrical advanced osteoarthritis of both hips with irregular narrowing of the joint space, subchondral sclerosis and osteophyte formation, . . . bilateral protrusio ascetabula . . . [and] subchondral cystic degenerative changes." (Tr. 121) After seeing at least five physicians at HJD that fall, on November 27, 1996, plaintiff was diagnosed with early "OA" (osteoarthritis). On that day, Dr. Brian Golden instructed plaintiff that if her symptoms worsened, she would have to consider bilateral hip replacement. He also instructed her to return in five months. (Tr. 103)
There is no evidence in the record that plaintiff sought medical treatment for her hip between November 27, 1996 and when she filed her disability claim on January 11, 2001. On February 24, 2001, plaintiff was evaluated by Dr. Roger Antoine of Diagnostic Health Services, a consulting physician to SSA. Plaintiff told Dr. Antoine that for five years she had been suffering from "severe low back pain radiating to both lower extremities," and from "right hip pain and stiffness with decreased range of motion." (Tr. 124) Plaintiff had been taking Advil as needed for her pain, and reported that doctors at HJD had previously informed her that she would need bilateral hip and knee replacements. (Id.) Plaintiff told Dr. Antoine that she was able to sit for up to one hour, stand for up to 15 minutes, and walk up to two blocks without stopping. (Id.) After examining plaintiff and noting restricted range of motion of the right hip (Tr. 125), Dr. Antoine's impression was that plaintiff was suffering from probable osteoarthritis of the lumbosacral spine, bilateral lumbar radiculopathy, and probable avascular necrosis of the hips. (Id.) He gave plaintiff a guarded prognosis, and estimated that she would have difficulty performing "daily activities requiring standing for a long period of time, walking long distances, climbing and descending stairs, squatting, and heavy lifting." (Id.) Subsequent x-rays revealed severe degenerative change of the right hip joint. (Tr. 127)
When she filed her disability claim, plaintiff reported having last visited the Hospital for Joint Diseases on November 5, 1997. (Tr. 74) However, there is no record of such a visit in the record.
Based on Dr. Antoine's findings and plaintiff's x-ray reports, the SSA concluded that plaintiff was capable of standing or walking at least two hours in an eight-hour workday, sitting for a total of about six hours in an eight-hour workday, and that she could frequently lift objects weighing ten pounds. (Tr. 129)
Plaintiff next sought medical treatment for her hip when she visited the emergency room at Jacobi Medical Center in the Bronx on August 17, 2001. (Tr. 162) At that visit, plaintiff reported pain in her right hip "on and off" for the past three weeks; she also noted that the pain began bothering her in 1995. Id. Subsequent x-rays revealed that her knees were normal, but that she was suffering from bilateral degenerative joint disease of the hips. (Tr. 185) She was referred to both the orthopedics and medicine clinics at Jacobi before she was released. (Tr. 162)
Plaintiff visited the Jacobi orthopedics clinic on August 29, 2001. There, plaintiff complained of left hip and right shoulder pain, with improvement in the hip pain over the past month. (Tr. 164) Plaintiff was not taking any medication, and was able to walk between two and four blocks. Id. She was directed to visit the rheumatology clinic for further evaluation, and to return to orthopedics in two weeks. (Tr. 165) That day, a physician, presumably at Jacobi, completed a report on plaintiff's condition and ability to do work activities. The signatures on this report and on the orthopedic clinic evaluation are illegible. The report diagnosed plaintiff with severe bilateral hip degenerative joint disease, and the physician noted that "patient at this time needs full disability — total — until receives bilateral total hip replacements." (Tr. 141) The physician also noted that plaintiff's standing and sitting were impaired, and that she could lift "very little" and walk two blocks maximum. (Tr. 142)
Plaintiff stated that she does remember that this doctor worked at Jacobi, but cannot remember his or her name, as she saw several doctors there. (Tr. 23-24).
The record contains documents showing that on Aug. 29, 2001, Dr. Terry Amaral at Jacobi ordered blood tests for plaintiff (Tr. 146), and referred plaintiff from orthopedics to rheumatology (Tr. 146, 166). Amaral may have been responsible for plaintiff's Aug. 29 orthopedic evaluations, but as the signature on the employability report is illegible and there is no signature on the notes of the examination, there is no way to confirm this hypothesis. (Tr. 141-43, 164-65).
Plaintiff returned to Jacobi hospital on September 4, 2001 to visit the medicine clinic. There, she complained of right hip pain on and off since 1995, which had worsened in the past three months. (Tr. 163) She reported that she was taking Vioxx for her pain, and the examining physician found limited range of motion in the right hip, as well as chronic degenerative changes. (Id.) The doctor did not sign his report.
On September 20, 2001, plaintiff visited Dr. Lori Ciuffo at the rheumatology clinic at Jacobi. There, plaintiff claimed of bilateral hip pain, and reported having to "pull herself out of bed." (Tr. 167) Dr. Ciuffo noted that plaintiff was walking with a limp, and that there was decreased range of motion in both hips, with extremely stiff internal and external rotation. (Tr. 167-68). Her diagnosis was severe osteoarthritis, and she suggested bilateral hip replacement, but she ruled out the possibility of rheumatoid arthritis. (Tr. 168) Dr. Ciuffo advised plaintiff to continue taking Vioxx, and to return to the orthopedic clinic. (Tr. 167-68)
Between October, 2001 and March, 2002, plaintiff visited the Jacobi Department of Rehabilitative Medicine at least seven times (Tr. 169, 170, 177, 178, 179-80, 181, 184), and the Jacobi orthopedic clinic twice (Tr. 174, 175-76). She saw different doctors each time except for three visits with a physical therapist, T. Lesesne, (Tr. 169, 179-80, 181). Several doctors or therapists who saw plaintiff can not be identified, because their signatures (and in some cases, their findings) are illegible. (Tr. 176, 178, 184) During the period of these visits, plaintiff's condition appears not to have changed significantly. She continued to report persistent pain, which was aggravated by walking (Tr. 175, 180), and by the transition between sitting and standing (Tr. 179). Plaintiff was repeatedly told that she needed a heel lift (Tr. 183, 184). She expressed desire for a brace (Tr. 183), but refused a cane and surgery (Tr. 176). Plaintiff underwent two physical therapy sessions at Jacobi in early 2002, both of which she tolerated well. (Tr. 169, 181)
Dr. Joseph Taverni at Jacobi completed a physician's employability report for plaintiff. (Tr. 200) The report is undated, and it is unclear whether Dr. Taverni examined plaintiff or simply drew his conclusions from the medical records available to him. His diagnosis was of bilateral hip osteoarthritis. He stated that plaintiff was taking Vioxx for her pain, had completed three sessions of physical therapy, and was attempting six more sessions. (Id.) He noted that plaintiff should not stand at work for more than 10 minutes, and should not walk during work, adding that plaintiff was capable of performing "desk duty" or "telephones." (Id.)
According to the record, plaintiff began physical therapy at Jacobi in January 2002. (Tr. 170) Thus, this report had to have been completed sometime in 2002.
Plaintiff then decided to seek a second opinion on her condition at the Hospital for Special Surgery in New York. The only reference in the record to plaintiff's treatment there is a note from Dr. Arik Zaider dated June 10, 2002, addressed "to whom it may concern," stating that "Gladys Miller is followed by me at the Rheumatology Clinic for severe osteoarthritis of both hips — she needs to continue her care here for Physical Therapy and Orthopedic Care." (Tr. 201)
See infra Part IV for further discussion of plaintiff's medical records from the Hospital for Special Surgery, which were submitted to the court as new evidence on November 2, 2003, and are not included in the hearing transcript.
B. Administrative Hearing
Plaintiff proceeded pro se at her hearing before Administrative Law Judge Kenneth L. Scheer. The ALJ informed her that it was not necessary for her to have a lawyer or representative, but that she had the option of proceeding with one, and a lawyer might help her to argue her case or to obtain medical records. (Tr. 19-20) Plaintiff stated that she had not contacted a lawyer and did not wish to proceed with one. (Tr. 20) The typed transcript of the administrative hearing that followed this exchange spans just 15 pages. (Tr. 21-35)
During the hearing, the ALJ briefly questioned plaintiff about her living circumstances and her educational background. (Tr. 25-26) When the ALJ asked plaintiff about her previous jobs, plaintiff testified that she used public transportation to get to and from work in past years (Tr. 23, 26). The ALJ then listed plaintiff's past positions as a secretary, a guard in a shelter, and a post office machine operator. (Tr. 26-28) The only question he asked her related to her condition and these past occupations was whether, during her work as a shelter security guard, she was sitting down or making rounds. She responded, "Basically I was sitting." (Tr. 27)
When the ALJ asked plaintiff again why she believed she was unable to work, she replied: "Your Honor, I'm undergoing a dilemma at this time. As I mentioned to my doctor, okay, it's okay for me to work. I'm living with my pain." (Tr. 31) Plaintiff also expressed a desire to work despite her condition. She testified:
Nothing made me stop working, Your Honor. You know something, Your Honor? My desire is to work. Okay? I would like to work. My doctor has informed me that because of my severe degenerative hip that rehab would take — it's a long process. . . . In other words I'm thinking if I — you know if I start a job I still have difficulty even though I try to live in denial meaning I try to push myself to — I try to push myself without the cane. And I try to push myself because at this particular time in my life — okay, I have no income.
(Tr. 28-29) Plaintiff noted that despite not having worked for over a year, she was currently updating her resume because she was trying to "push [her]self." (Tr. 33) However, she also admitted, "I know that I'm in denial about my condition, my physical condition." (Id.) Plaintiff testified, "I don't know how much longer I could, you know, I could push myself because as I told the doctors there were many times I felt I had to come in to the emergency." (Tr. 32)
The ALJ also asked plaintiff about her medical condition. Plaintiff noted that she had pain in her lower back and legs, as well as "tingling in the bottom of the feet" and "pains like shooting up and down [her] legs." (Tr. 31) She reported that she did not have pain every day, but that she did "receive it a great deal at a time," and that "sometimes when I try to stand up my body doesn't get up with me." (Id.) Plaintiff told the ALJ that her doctors had recommended that she get a double hip replacement and that she have her leg lengthened, but that Medicaid had informed her that it would not cover the operations, so she was obliged to "endure the pain." (Tr. 32) Plaintiff reported that she had some problems walking and climbing steps. (Tr. 33) When asked if she had problems sitting, she said, "It's the standing up is where the problem comes in. . . . Meaning my hip seems not to stand up when I need to stand up." (Id.)
Much of the rest of the hearing was devoted to sorting out the items in plaintiff's medical file (Tr. 21-22, 24-25, 30, 34). The ALJ noted that the physician's signature on one of plaintiff's medical reports was illegible; plaintiff testified that she remembered the doctor worked at Jacobi Medical Center, but could not remember his or her name, because each time she went to Jacobi she saw a different doctor. (Tr. 23-24) Plaintiff testified that she was then being treated for her condition at HSS (Tr. 22). She told the ALJ that doctors at HSS had prescribed Bextra and an adjustable cane for her and that she had twice visited Dr. Arik Zaider at HSS. (Tr. 24-25) Plaintiff gave the ALJ additional medical records ostensibly related to her treatment at HSS at the hearing (Tr. 21-22), and the ALJ stated that he would "make a brand new decision" after reviewing all of plaintiff's records (Tr. 34).
On September 26, 2002, the ALJ denied plaintiff's claim for disability benefits. (Tr. 11-16) The ALJ noted that he gave consideration to plaintiff's "subjective complaints," but did not find them credible. (Tr. 14) Instead, he gave "controlling weight" to the findings of Dr. Joseph Taverni at Jacobi Medical Center, who completed an undated employability report for plaintiff stating that she would be able to perform "desk duty" and "telephones." (Id.) Because "desk duty" encompassed some of plaintiff's past relevant work as a secretary, and because the capability to perform past relevant work prohibits the award of disability benefits under SSA regulations, the ALJ denied plaintiff's claim. (Id.)
II.
In reviewing a denial of Social Security benefits, a court is permitted to set aside the Commissioner's decision only if it is "based upon legal error or not supported by substantial evidence." Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). 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 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). To determine whether substantial evidence exists, the reviewing court must conduct its own "plenary review of the administrative record," and must be satisfied that the claimant has had a full and fair hearing, consistent with the "beneficent purposes" of the Social Security Act. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal quotation marks omitted). "The Act must be liberally applied, for it is a remedial statute intended to include not exclude." Id.
The Social Security Act provides that a person is disabled if she 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). The Act further states that this impairment 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. . . ." 42 U.S.C. § 423(d)(2)(A). In making this determination, the SSA 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 claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983).
The SSA employs a five-step procedure to evaluate disability claims under SSA. See 20 C.F.R. § 404.1520. This Circuit has described the procedure as follows:
First, the Commissioner determines whether the claimant is currently performing substantial gainful work; if she is, the claim is denied without the need to conduct further inquiry. Second, if the claimant is not performing such work, the Commissioner must make a finding as to whether the claimant suffers from a severe impairment that significantly limits her physical or mental ability to do basic work activities; if no such impairment is found, the claim is denied at that step. Third, if such an impairment is found, it is compared to the impairments listed in the appendix to the regulations; if the claimant's impairment is equivalent to one of the listed impairments, the claimant is considered disabled, and the claim is granted. Fourth, if the impairment is not the equivalent of a listed impairment, the claimant must show that she cannot perform her former relevant work; if she does not make that showing, the claim is denied. Fifth and finally, if the claimant has shown that she cannot perform her former relevant work, the burden then shifts to the Commissioner to show that the claimant `still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy.'Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) (quotingBapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)); see also Berry, 675 F.2d at 467. In this case, the ALJ found that plaintiff was not engaged in substantial gainful activity, and suffered from a severe impairment that was not the equivalent of one of the impairments listed in the SSA regulations' appendix. However, he found that plaintiff had not shown that she lacked the functional capacity to do her past sedentary work as a secretary and telephone operator. (Tr. 15) Therefore he denied plaintiff's benefits at step four.
There is no dispute that the ALJ followed the correct legal procedures in assessing plaintiff's claim. Plaintiff argues that the ALJ committed legal error by failing to develop the record fully at the pro se hearing, and that there was not substantial evidence to support his decision. As explained below, the ALJ did fail to develop the record adequately, primarily because he misapplied the Circuit's firmly established treating physician rule.
III.
An ALJ has an affirmative duty to develop the administrative record at a claimant's hearing whether or not the claimant is represented by counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); see also Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982). When a claimant is proceeding pro se, that duty is heightened, and an ALJ must "`scrupulously and conscientiously . . . probe into, inquire of, and explore for all the relevant facts.'" Cutler v.Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975) (quoting Gold v. Sec'y of Health, Educ., and Welfare, 463 F.2d 38, 43 (2d Cir. 1972)); see also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (noting that the ALJ has a duty to protect the claimant's rights "by ensuring that all of the relevant facts [are] sufficiently developed and considered"). The reviewing court must also exercise the utmost care in examining the record in pro se disability cases. See Hankerson, 636 F.2d at 895 (2d Cir. 1980) (quoting Gold, 463 F.2d at 43) ("In such cases where the claimant was `handicapped by lack of counsel' at the administrative hearing, the reviewing court has `a duty to make a searching investigation of the record' to ensure that the claimant's rights have been adequately protected.").
The Second Circuit's treating physician rule makes the ALJ's duty to develop the record all the more important. "It is well-established in this circuit that `the expert opinions of a treating physician as to the existence of a disability are binding on the fact finder unless contradicted by substantial evidence to the contrary.'" Bluvband v. Heckler, 730 F.2d 886, 892 (2d Cir. 1984) (quoting Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978)). The SSA adopted the treating physician rule in 1991, noting that its judges would give controlling weight to opinions from treating sources not inconsistent with other evidence in the record and supported by "medically acceptable clinical and laboratory diagnostic techniques. . . ." 20 C.F.R. § 404.1527(d)(2). The Circuit held in 1993 that these regulations were binding on the courts.Schisler v. Sullivan, 3 F.3d 563, 568-69 (2d Cir. 1993).
The regulations specify that even when a treating source's opinion is not deemed controlling, several factors will induce the ALJ to give greater weight to a treating source's opinions, including the frequency of examination, the length, nature, and extent of the treating relationship, the supportability of the medical findings, the opinion's consistency with the record, and whether the physician is a specialist in treating the condition in question. 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), d(3)-d(5). The regulations also specify that ALJs will always give "good reasons" for the weight given to a treating source's opinion, 20 C.F.R. § 416.927(d)(2), and our Circuit has held that "failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).
Courts in this Circuit have noted that in light of the controlling weight they are obligated to give the opinions of treating physicians, in pro se hearings, ALJs must "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." Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991); see also Vaughn v.Apfel, No. 98-0025, 1998 U.S. Dist. LEXIS 19156, at *17-*20 (S.D.N.Y. Dec. 10, 1998); Almonte v. Apfel, No. 96-1119, 1998 U.S. Dist. LEXIS 4069, at *20-*21 (S.D.N.Y. March 31, 1998). Even where a claimant has the assistance of counsel, the Circuit has held that an ALJ has an affirmative duty to seek additional information from the treating physician sua sponte, and may not discount that opinion for no reason. Schaal, 134 F.3d at 505;see also Shaw v. Chater, 221 F.3d 126, 134-35 (2d Cir. 2000) (remanding case wherein ALJ improperly rejected treating physician's opinion that plaintiff was disabled).
In this case, plaintiff sought treatment for her hip ailment from more than 20 doctors between 1995 and 2002. Of these doctors, she saw most only once. There were times when plaintiff saw physicians who either did not sign their names to their examination reports or did so illegibly. (Tr. 141-43, 164, 178, 184) However plaintiff did see Dr. Arik Zaider, a rheumatologist at HSS, five times, two of which were before plaintiff's hearing. At the hearing, Plaintiff gave the ALJ a note from Dr. Zaider (Tr. 201), stating that he was currently following plaintiff at HSS for severe osteoarthritis of both hips (Tr. 22), and told the ALJ that she had seen Dr. Zaider twice (Tr. 24-25).
These visits are not included in the certified transcript, but according to the records plaintiff submitted to the court on November 2, 2003, they occurred on June 10, 2002, July 15, 2002, October 13, 2002, February 5, 2003, and August 27, 2003. Seeinfra Part IV.
Despite the existence of a physician who had seen and treated plaintiff more than once for her condition and was treating her at the time of the hearing, the ALJ in this case did not request the opinion of Dr. Zaider on whether plaintiff was disabled. Instead, he gave "controlling weight" (Tr. 14), to the one-page, undated report of Dr. Joseph Taverni at Jacobi Medical Center, which diagnosed plaintiff with bilateral hip osteoarthritis. Dr. Taverni noted that plaintiff should not stand for more than ten minutes, but that she was able to perform "desk duty" and "telephones." (Tr. 200) Dr. Taverni evaluated plaintiff only once, and it is unclear from his report whether Dr. Taverni examined the plaintiff, or whether he diagnosed her by looking at her records and x-rays dated August 29, 2001. The ALJ specified no reasons (let alone the required "good reasons," 20 C.F.R. § 416.927(d)(2)) for choosing to give Dr. Taverni's report controlling weight over the opinions of at least 19 other physicians in the record, one of whom was her current treating physician, Dr. Zaider. Under the law of this Circuit, the failure to specify a reason for the decision not to credit the opinion of a treating physician is grounds for remand. See Snell, 177 F.3d at 133; Schaal, 134 F.3d at 505. The ALJ's failure to solicit specific opinions from plaintiff's treating physician on "the existence, the nature, and the severity of the claimed disability" was further error. Peed, 778 F. Supp. at 1246.
Additionally, the record contained one examination report stating that plaintiff needed full disability until she received bilateral total hip replacements (Tr. 141-43) The signature on this report is illegible, and the ALJ noted this fact at the hearing (Tr. 23). Even though he referred to this doctor in his decision as a "prior treating physician" (Tr. 13), the ALJ made no effort to learn who this physician was, to determine the basis for his or her opinion, or to explain why he completely disregarded that physician's assessment that plaintiff was disabled. At the hearing, the ALJ asked plaintiff if she remembered the doctor's name, and when she did not, there was no further inquiry. (Tr. 23-24) An examination of the record reveals a strong possibility as to who the unidentified treating physician was, see supra note 4, but the ALJ appears to have made no such investigation, and instead simply discredited the physician's opinion. Indeed, "[a] treating physician's statement that the claimant is disabled cannot itself be determinative." Snell, 177 F.3d at 133. But failure to develop conflicting medical evidence from a treating physician is legal error requiring remand. See Shaw, 221 F.3d at 134 ("For the ALJ to conclude that plaintiff presented no evidence of disability at the relevant time period, yet to simultaneously discount the medical opinion of his treating physician, violates his duty to develop the factual record, regardless of whether the claimant is represented by legal counsel."); Almonte v.Califano, 490 F. Supp. 127, 130 (S.D.N.Y. 1980) ("[W]here there is conflicting medical evidence it is incumbent upon the Administrative Law Judge, as well as a reviewing court, to test the quality of the medical evidence submitted in an effort to determine an individual's true medical condition.").
The court is aware that the ALJ is not required to "explicitly reconcile every conflicting shred of medical evidence," Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), but the evidence disregarded in this case was substantial, and there was no indication as to why Dr. Taverni's findings should have trumped those of the many other doctors who examined plaintiff.
Finally, the ALJ also should have instructed plaintiff to obtain "more detailed and clearer statements from [her] treating physicians, especially since the medical reports which appear in the administrative record are often illegible. . . ."Jimenez v. Massanari, No. 00-8957, 2001 U.S. Dist. LEXIS 11952 (S.D.N.Y. Aug. 17, 2001); see also Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (holding that the illegibility of much of the record made it inadequate to support a denial of benefits); Cutler, 516 F.2d at 1285 ("Many of the medical records included in this case are illegible, either because of the poor quality of the reproduction, the handwriting of the physician, or both. Under the circumstances the court has no way to determine whether the Secretary fully understood some of the medical reports before him."); Vaughn, 1998 U.S. Dist. LEXIS 19156 at *19 ("[C]ourts have held that illegibility of important medical records is a factor in warranting a remand for clarification and supplementation."). Several of the medical reports in this case are partly or totally illegible (Tr. 162, 163, 164, 177, 178, 184). There is no way for this court to determine whether the illegible information in these reports might have provided further support for plaintiff's claim. However, the ALJ apparently did not solicit clarification of these records from either the plaintiff or her physicians, which is further proof of his failure to develop the record.
Plaintiff's claim therefore must be remanded to the Commissioner for reconsideration due to the ALJ's failure to develop the administrative record, as described above.
IV.
Finally, the case must be remanded to the Commissioner for reconsideration also because there is new and material evidence that the ALJ did not consider in making his determination. Plaintiff visited the Hospital for Special Surgery (HSS) in May, 2002 to seek a second opinion about her hip condition. Over the course of a year and a half, plaintiff saw at least four different physicians at HSS during nine visits. Three of those visits occurred before plaintiff's August 19, 2002 hearing in this case. Plaintiff's medical records from HSS are not included in the administrative record, but plaintiff submitted them to the court on November 2, 2003. Plaintiff claims these records were omitted from the initial transcript due to a "judicial mistake." (Pl. letter to court, Nov. 2, 2003) The Commissioner asserts that plaintiff simply failed to introduce these records at her hearing. (Def. Reply Mem. at 13) There is some evidence that plaintiff may have given the ALJ medical records pertaining to her treatment at HSS at the hearing, because immediately after plaintiff handed him new medical records, the ALJ noted that plaintiff had started treatment at HSS. (Tr. 21-22) The ALJ also twice stated that he would put the new records he had received that day into evidence. (Tr. 34, 35) But the only HSS records that ended up in the transcript were Dr. Zaider's note stating that he was following plaintiff for severe osteoarthritis (Tr. 201), and a receipt for an adjustable cane (Tr. 202-03).This court has the power to review only the pleadings and transcript of the record; it may not consider additional evidence, but may remand the case to the SSA if there is any new, material evidence that might have affected the ALJ's decision, and if there is good cause for failure to have previously presented this evidence. 42 U.S.C. § 405(g); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). This is known as a "sentence-six remand," because it is based on sentence six of 42 U.S.C. § 405(g). See Shalala v. Schaefer, 509 U.S. 292, 296-97 (1993).
I have reviewed the new evidence in detail and it appears that the reports completed by Dr. Zaider on June 10, 2002 and July 15, 2002 and by Dr. M. Hansen on May 29, 2002, are new and material, because they contain the detailed medical findings of plaintiff's treating physicians at the time of the hearing. The findings of treating physicians always have potential to be material because they are to be given controlling weight if they do not contradict other evidence in the record. 20 C.F.R. § 404.1527(d)(2). Additionally, plaintiff reported a serious new symptom to Dr. Zaider — paresthesias in her arms and toes. Dr. Hansen's report should also be considered by the SSA, because it is the most detailed clinical evaluation of plaintiff's condition in the entire record, and because it makes a potentially important reference to plaintiff's "psychiatric condition," which made communication with her difficult due to "somewhat disorganized speech."
To grant a sentence-six remand, the court must also find that there is good cause for the failure to present the new evidence at the hearing. As stated, it is unclear why these records were not included in the initial transcript. However, in a pro se case, the possibility that error may have been committed by the ALJ by failing to put plaintiff's HSS records into evidence is sufficient to constitute good cause for remand under § 405(g). See De Medina v. Apfel, No. 99-4149, 2000 U.S. Dist. LEXIS 9611 at *21 (S.D.N.Y. July 12, 2000). Additionally, an ALJ's misapplication of the treating physician rule has been held to constitute sufficient good cause for a sentence-six remand. Feranandez v. Sullivan, 809 F. Supp. 226, 228 (S.D.N.Y. 1992); cf. Cannon v. Harris, 651 F.2d 513, 519 (7th Cir. 1981) (failure to develop full and fair record "has been consistently held to constitute good cause to remand"). Because there may have been administrative error, and because the treating physician rule was violated at the hearing, there is good cause for a sentence-six remand for consideration of the new and material evidence in this case. The evidence of plaintiff's visits to HSS on May 27, June 10, and July 15, 2002 should be considered when the SSA reconsiders her claim.
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For the above reasons, the case is remanded to the Commissioner for further proceedings consistent with this opinion.SO ORDERED.