Opinion
98 Civ. 9036 (RPP)
May 17, 2000
Counsel for Plaintiff, Lansner Kubitschek By: Carolyn A. Kubitschek, New York, N.Y. 10007.
Counsel for the Government; Mary Jo White, United States Attorney Southern District of New York, By: Lorraine S. Novinski, A.U.S.A. New York, N.Y. 10007.
OPINION AND ORDER
Now pending before the Court are the motion for judgment on the pleadings of plaintiff Ismael Lopez ("Lopez") pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and the cross-motion of defendant Kenneth S. Apfel, Commissioner of Social Security. For the reasons that follow, this matter is remanded to the Social Security Administration for a new administrative hearing.
Background
Plaintiff was born in San Juan, Puerto Rico on November 6, 1949. (R. 35.) He worked in Puerto Rico as a supervisor at a bank from 1973 to 1986 and as a maintenance supervisor at the University of Puerto Rico from 1992 to 1993. (R. 36.) He has not worked since 1993. (R. 37.) He came to the mainland United States in January 1994. (R. 35.)
"R." refers to the administrative record attached to defendant's answer to the complaint.
I. Initial Application for Disability Benefits
On February 8, 1995, plaintiff applied concurrently for Supplemental Security Income and Social Security Disability Insurance Benefits. (R. 46.) Plaintiff submitted a Disability Report in connection with his application, in which he stated, "I have psoriasis all over my body." (R. 109.) He explained that his condition keeps him from working because: "I have to have UVB phototherapy 3X week. Sometimes I have to stop treatment because there's the danger that it could cause cancer — then I itch all over. I have cataracts in both eyes." (R. 109.) Plaintiff also stated in the report that "[a] doctor told me not to lift anything heavy many years ago because I'd injure my back." (R. 112.) In describing his basic duties as a supervisor in a bank, plaintiff explained, "I supervised tellers. I prepared the payroll. I supervised 6 people." (R. 113.) He asserted that, in his job as a bank supervisor, he spent three hours a day walking, four hours a day standing, one hour a day sitting, and that he was bending and reaching constantly. (R. 114.) He also stated that the job required him to lift and carry boxes of coins that weighed up to 40 pounds. (R. 114.)
Psoriasis is "a chronic skin disease characterized by circumscribed red patches covered with white scales." Webster's Third New International Dictionary (Unabridged) (hereinafter "Webster's Dictionary") 1832 (1986).
The record supplementing plaintiff's application consisted of his medical records from Metropolitan Hospital Center ("MHC") from December 1994 to March 1995, (R. 126-44), and a Residual Functional Capacity Assessment filled out by Dr. Hughes on April 5, 1995. (R. 51-58.) The MHC records included records of cataract tests and a spleen and renal sonogram, none of which showed extraordinary results. In one record, it is noted that plaintiff has "severe psoriasis." (R. 129.) Dr. Hughes' primary diagnosis of plaintiff in the Residual Functional Capacity Assessment was "psoriasis of entire body." (R. 51.) Dr. Hughes did not find that plaintiff had any exertional, postural, manipulative, visual, communicative, or environmental limitations as a result of his psoriasis. (R. 52-55.)
The Residual Functional Capacity Assessment is a Social Security Administration form used by doctors appointed by the Social Security Administration to evaluate claimants' disabilities.
Plaintiff's initial application was denied on April 17, 1995. (R. 59.) The denial stated: "You said you were disabled because of a skin condition. The medical evidence shows that you have had a skin condition. Since you were treated, your condition has stabilized. Based on your description of your job as a supervisor, your condition does not prevent you from performing this work." (R. 62.)
II. Reaqest for Reconsideration
Plaintiff requested reconsideration of the denial on July 12, 1995, explaining, "I [am] still disabled within the meaning of the law. I'll submit my medical records from my dermatologist in [Puerto Rico]." (R. 63.) In fact, the only additional medical evidence in support of plaintiff's request for reconsideration was a report of Howard Finger, M.D., ("Dr. Finger") who examined plaintiff on January 3, 1996. (R. 218-25.)
Dr. Finger stated that plaintiff has had psoriasis since 1978 and that his psoriasis "now involves most of his body surface." (R. 218.) Dr. Finger described plaintiff's treatment for his psoriasis and the effects of the treatment: "In the past he was treated with PUVA at MHC and apparently was also on methotrexate. He describes intense pruritis related to this and sensitivity to chemicals and detergents and temperature extremes, with diffuse pain and stiffness in the joints of the upper and lower extremities." Dr. Finger also noted that plaintiff "states he has been depressed in recent years as the psoriasis has become worse. He saw a psychiatrist in the past but cannot afford this at present." (R. 218.) In describing plaintiff's skin, Dr. Finger stated, "he has severe psoriasis involving most of the body surfaces including the scalp and face areas. He has scratch marks on his extremities." (R. 219.) He observed that plaintiffs "[g]ait was slow, stiff but otherwise normal," that plaintiff "could get on and off the examination table without assistance but did so slowly," that he had "[t]enderness to palpation at knees," and that "[t]here was mild crepitus present [in plaintiff's knees] without gross swelling." (R. 219.) Dr. Finger concluded:
"PUVA" is the ultra-violet light therapy plaintiff receives for his psoriasis.
Methotrexate is "used as neoplastic suppressant," i.e. it is used to control growth of skin tissue. Dorland's Illustrated Medical Dictionary 919 (24th Ed. 1965).
Pruritus is "localized or generalized itching due to irritation of sensory nerve endings from organic or psychogenic causes." Webster's Dictionary 1829.
Crepitus is "a crackling noise." Webster's Dictionary 534.
1. History of psoriasis with diffuse involvement as described.
2. Arthralgias of knees and ankles. Possible psoriatic arthritis is considered.
3. Depression. He was referred to the psychiatrist for further evaluation.
Arthralgia is "pain in a joint." Dorland's Illustrated Medical Dictionary 145 (24th Ed. 1965).
Overall prognosis is guarded.
In regard to work-related activities, no gross difficulties noted in terms of sitting. He may be mildly limited in the duration of time he can stand, in the distance which he can ambulate and mildly to moderately limited in the ability to lift or carry as a result of these factors. Due to his psoriasis, he should avoid temperature extremes, chemicals, detergents, excessive moisture and other environmental factors which might aggravate this condition.
(R. 220.)
Plaintiff had a personal interview with the Social Security Administration on September 19, 1995, in connection with which he filled out a Reconsideration Disability Report. (R. 118-23.) In the report, he stated: "My condition is worse, very much worse [than in February 1995, when the initial application was made]. Now the itching and the pain are much worse. I'm under 3 day-a-week treatment under a PUVA machine." (R. 118.) He asserted that he was limited in that "I can't walk too much; I can't go every place I want to; my skin is in a very bad shape." (R. 118.) He also noted that "the doctor has advised me to stay away from the sun right after I'm under the PUVA machine." (R. 118.) Plaintiffs interviewer observed that plaintiff had difficulty using his hands and noted that "claimant's hands are filled with sores, very red sores, he says they itch a lot." (R. 122.) In describing plaintiffs general appearance, the interviewer stated, "claimant is red all over; terrible skin color, sores, face red all over; all! his stomach is filled with red skin, and sores." (R. 122.)
On January 23, 1996, plaintiff's request for reconsideration was denied. (R. 89.) The decision stated: "You said you were disabled because of an impairment. The medical evidence shows that you have had pain and stiffness with some restriction of your activities. Based on your description of your job as SUPERVISOR, your condition does not prevent you from performing this work." (R. 92.)
III. The Administrative Law Judge Hearing and Decision
Plaintiff then requested a hearing by an Administrative Law Judge ("ALJ") on February 22, 1996. (R. 102.)
ALJ Mary E. Cerbone presided over the hearing, which was held on October 15, 1996. (R. 32.) Plaintiff was represented by Pamela Levine, an attorney from the office of Binder Binder. At the hearing, plaintiff testified that "[t]he reason why I don't look for work, when they found out I have to take treatment three times a week, they don't want to give me work." (R. 38.) He explained that his treatments were on Mondays, Thursdays, and Fridays and that he spent from about 9:00 a.m. to 12:00 p.m. or 1:00 p.m. in the doctor's office on those days. (R. 38.)
When asked by the ALJ how his psoriasis restricted him, plaintiff said, "[m]y joints, when I walk it bothers me. Also my knuckles and my fingernails . . . I lose fingernails at times . . . I get an itchy sensation." (R. 40.) Plaintiff testified that he could walk three blocks before stopping, he could stand for two hours, he could sit for 20 to 30 minutes before having to get up and walk around, and he could not bend or kneel at all. (R. 41.) He testified that he could lift 20 to 30 pounds. (R. 41.) He testified that he gets "attacks" two times a week, at which time his joints bother him, and that the attacks last for 15 to 30 minutes. (R. 43.) He testified that he experiences "itching" for approximately four hours when he gets out of the PUVA machine. (R. 43-44.) He takes medication for the itching, which "calms it." (R. 44.)
In response to questioning by his attorney, plaintiff testified that he also had some back limitations resulting from an accident when he was 21 years old. (R. 44.) He testified that he had worked with that back condition in the past and that he was not, at the time of the hearing, getting treatment for his back. (R. 44.) At the hearing, plaintiff submitted several exhibits, including the evidence submitted in conjunction with his earlier applications, a report from Richard King, M.D. ("Dr. King"). a psychiatrist at New York Diagnostic Centers, Inc., a letter from Jorge Hernandez, M.D. ("Dr. Hernandez"), plaintiff's treating physician in Puerto Rico, and a letter from Eve Lupenko, M.D. ("Dr. Lupenko"), at MHC.
Dr. King examined plaintiff on January 5, 1996. In his report, Dr. King observed that plaintiff "states he feels depressed because his father dies 2 weeks ago, his son was put in jail 2 months ago, he separated from his wife 2 years ago, he lost his job in 1993, and he has been suffering from psoriasis for many years." (R. 226.) Dr. King stated that his opinion was that "patient has a satisfactory ability to understand, remember and carry out instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (R. 227.) His diagnosis was "[a]djustment disorder of adult life, anxious and depressed, mild degree." (R. 227.) He concluded: "Patient may benefit from psychiatric treatment. Prognosis is fair. Patient can manage his own funds." (R. 227.)
Dr. Hernandez's letter, dated July 20, 1995, states:
Mr. Lopez suffers from severe widespread supoid psoriasis [and has] been under treatment at our center since 3/1985.
During the course of years he had use[d] different courses of PUVA, Goeckerman and methotrexate. He was lost to our office in 5/1990 and reappear[ed] last week with extensive plaque type psoriasis involving the scalp, back, trunk, abdomen and all extremities with over 80% skin surface involvement.
"Goeckerman therapy consists of the application of ultraviolet light after using a preparation to make the skin sensitive to light." (Def.'s Mem. in Opp. to Pl.'s Mot. at 4 n. 3 (citing J.E. Schmidt,Attorneys' Dictionary of Medicine G-108 (1999)).)
. . .
At this point in time the only suggested treatment would be topical steroids and Goeckerman therapy.
(R. 148.) Dr. Lupenko wrote a letter dated May 17, 1996 stating: "This letter is to inform you that Ismael Lopez has a chronic condition, psoriasis, for which he will indefinitely need phototherapy (currently 3 times per week) and follow-up office visits and prescription renewals." (R. 228.)
The ALJ issued a decision denying plaintiffs disability benefits on November 1, 1996. (R. 22-25.) The ALJ held that "the claimant has not lost the residual functional capacity to do his past relevant work as a supervisor in a bank for any continuous 12-month period," and she referred to the reports of Dr. Finger and Dr. King in her decision. (R. 22-23.)
The ALJ's findings included:
3. The medical evidence establishes that the claimant has severe psoriasis, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P. Regulations No. 4.
4. The claimant's testimony does not establish that he would be unable to sustain work at the light exertional level.
5. The claimant's impairment does not prevent him from doing his past relevant work as head teller in a bank.
(R. 24.)
IV. Review of the ALJ's Decision
By letter of his attorney Charles E. Binder, plaintiff requested review of the ALJ's decision on November 6, 1996. (R. 16-18.) Plaintiff's attorney submitted a letter to the Appeals Council in support of this application on December 30, 1996, arguing that the Appeals Council should consider "[n]ew and material evidence pertaining to the claimant's condition." (R. 231-32.) He cited a medical report from Philip C. Don, M.D. ("Dr. Don"), dated September 20, 1996, and a progress note dated July 20, 1995.
Dr. Don's medical report of September 20, 1996 stated:
Patient first seen on 12/12/94 at Metropolitan Hospital with a history of 24 years of psoriasis. At that time he had a lot of scaling and erythema. The patient has elevated liver enzymes which preclude his being treated with oral medications. He is being treated with topical medications as listed. He began treatment 3 times per week with ultraviolet light B for his psoriasis from 1/9/95-3/31/95 and because of flaring of his disease restarted on 9/22/95-9/30/95 and again on 4/23/[96] till the present. It is apparent that stopping his ultraviolet light treatment causes his psoriasis to flare and become generalized.
Erythema is "abnormal redness of the skin due to capillary congestion." Webster's Dictionary 773.
In the report, Dr. Don wrote that the final date on which plaintiff restarted the treatments was 4/23/95, but that is clearly a typographical error.
(R. 246.) Dr. Don's physical findings were: "The patient has a number of scaling and plaques scattered on his trunk and arms and buttocks as well as legs a few centimeters in size. With the present treatment regimen Mr. Lopez's psoriasis appears to be stable." (R. 247.) His diagnosis was that plaintiff has "psoriasis of the body, scalp, nails." (R. 249.) He explained that plaintiff's treatment for his psoriasis was "Dovonex, Lidex, P + S Solution, Ultraviolet B light 3 times a week," and that plaintiff had a "good response to above regimen, his psoriasis is stabilized." (R. 249.)
"Donovex is a derivative of vitamin D for topical use that is "indicated for the treatment of plaque psoriasis."' (Pl.'s Mem. in Supp. of Mot. at 3 n. 3 (quoting Physicians' Desk Reference 2792-93 (51st Ed. 1997)).)
"Lidex is a topical steroid "indicated for the relief of the inflammatory and pruritic manifestations of corticosteroid-responsive dermatoses."' (Pl.'s Mem. in Supp. of Mot. at 3 n. 4 (quoting Physicians' Desk Reference 2299 (51st Ed. 1997)).)
P + S Solution "was prescribed for nightly use to control scalp psoriasis." (Pl.'s Mem. in Supp. of Mot. at 3 n. 5.)
On January 19, 1998, having received no response from the Social Security Administration to his request for review of the ALJ's decision, plaintiff submitted the office notes of Farooq Lateef, M.D. ("Dr. Lateef") of MHC, from October 30, 1996 through October 23, 1997, as additional medical evidence in support of plaintiffs request for review of the ALJ's decision. (R. 15.) In a letter, Dr. Lateef stated: "Mr. Lopez has psoriasis, a chronic condition, for which he is being treated with ultraviolet light therapy in our clinic, 3 times a week. He will need this therapy for an indefinite period of time." (R. 233.)
On June 17, 1998, the Social Security Administration Appeals Council sent a letter to plaintiff's attorney stating that "[t]he Appeals Council will defer action on the case for a period of 45 days awaiting the receipt of any additional evidence or arguments you may wish to submit. The Appeals Council will consider any additional evidence that is both new and material to the issues considered in the hearing decision dated November 1, 1996." (R. 13.)
On August 3, 1998, plaintiff's attorney introduced to the Appeals Council three pieces of additional medical evidence: 1) a letter of confirmation from Dr. Don dated June 25, 1998 (R. 253); 2) a Patient Discharge Information Record from MHC dated June 30, 1998 (R. 252); and 3) a letter from Kurt Altman, M.D. ("Dr. Altman"), of MHC, dated July 14, 1998 (R. 251). (R. 12.)
Dr. Don's letter stated: "This is to confirm that Mr. Lopez has been treated in our dermatology clinic for a number of years because of widespread psoriasis lesions. He is treated with topical medications and ultraviolet treatment in a special ultraviolet box, 2-3 times a week. Psoriasis is a chronic problem that needs continuous treatment." (R. 253.) The letter from Dr. Altman stated: "This is to certify that Mr. Lopez, Ismael is being followed in rheumatology clinic for treatment of gouty arthritis. This may be related to his skin condition (psoriasis)." (R. 251.)
On August 14, 1998, the Appeals Council denied plaintiff's request for review and stated that "the Administrative Law Judge's decision stands as the final decision of the Commissioner of Social Security in your case." (R. 8.) The Appeals Council made three pieces of additional evidence part of the record: 1) the letter of plaintiff's attorney, dated December 30, 1996 (R. 231-32); 2) medical records, treatment notes, and statements from Dr. Lateef from September 1996 through October 1997 (R. 233-49); and 3) a letter of plaintiff's attorney, dated July 29, 1998 (R. 250). (R. 11.) The Appeals Council asserted that it had "considered the contentions raised in your representative's letter dated December 30, 1996, as well as the additional evidence also identified on the attached Order of the Appeals Council, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." (R. 8.)
On January 26, 1999, the Appeals Council vacated its decision of August 14, 1998 to consider the additional evidence submitted by plaintiffs attorney on August 3, 1998: 1) the letter from Dr. Altman dated July 14, 1998 (R. 251); 2) the Patient Discharge Information Record from MHC dated June 30, 1998 (R. 252); and 3) the letter from Dr. Don dated June 25, 1998 (R. 253). (R. 7.) After consideration of this evidence, the Appeals Council once again denied plaintiff's request for review. (R. 4.)
Though plaintiff's attorney submitted this evidence before the decision of August 14, 1998, it appears that it was not considered by the Appeals Council before that decision was issued.
Plaintiff filed this complaint pro se on October 8, 1998, appealing the final administrative decision issued by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405 (g) and 1383 (c). On January 10, 2000, plaintiffs new attorney filed a motion for judgment on the pleadings. The defendant cross-moved on February 22, 2000.
Discussion
I. Standard for Review of Agency Decisions
In reviewing a denial of disability benefits, the Court must determine "whether the Commissioner applied the correct legal standard [and whether] the Commissioner's conclusions are supported by substantial evidence." Telada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In assessing whether the Commissioner's finding was supported by substantial evidence, the Court must look at whether the administrative record has been fully developed. In Perez v. Chater, the Second Circuit explained that, "[b]ecause a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record . . . even when the claimant is represented by counsel." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (internal citations omitted). To affirm a denial of disability benefits, the Court "must be satisfied that the claimant has had "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act."' Donato v. Sec of Health, 721 F.2d 414, 418 (2d Cir. 1983) (quoting Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972)). In a case where the ALJ has not adequately developed the record, it is appropriate for the Court to remand the matter to the Social Security Administration "for further development of the evidence."Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) ("When there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the Secretary [of Health, Education and Welfare] for further development of the evidence.").
II. Application of Standard to This Case
A. Analysis to Evaluate a Disability
The Social Security Act defines "disability" in relevant part as the "inability 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). To determine if someone is disabled within the meaning of the definition, the Social Security Administration engages in a five-step analysis described in 20 C.F.R. § 404.1520:
[1.] If you are working. If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience.
[2.] You must have a severe impairment. . . .
[3.] When your impairment(s) meets or equals a listed impairment in Appendix 1.
If you have an impairment(s) which meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.
[4.] Your impairment(s) must prevent you from doing past relevant work. . . .
[5.] Your impairment(s) must prevent you from doing any other work. . . .20 C.F.R. § 404.1520 (b)-(f).
B. The ALJ's Analysis
Plaintiff meets the first criterion of 20 C.F.R. § 404.1520 in that he has not been employed since 1993. The ALJ characterized plaintiffs psoriasis as "severe," satisfying step two in the analysis. Regarding the third step, the ALJ stated in her findings that "[t]he medical evidence establishes that the claimant has severe psoriasis, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." (R. 24.) Finally, the ALJ found that plaintiff's psoriasis "does not prevent him from doing his past relevant work as head teller in a bank." (R. 24.) Having determined that plaintiffs psoriasis does not meet the requirements of either step 3 or step 4 of the analysis, the ALJ held that "[t]he claimant has not been under a "disability' as defined in the Social Security Act, at any time through the date of the decision." (R. 24.)
B. Psoriasis as a Listed Impairment
Plaintiff argues that his psoriasis meets the listing for psoriasis in Appendix 1. thereby satisfying step three in the analysis. (Pl.'s Mem. in Supp. of Mot. for J. on Pleadings at 7-8.) The listing in Appendix 1 for psoriasis states: "Psoriasis, atopic dermatitis, dyshidrosis. With extensive lesions, including involvement of the hands or feet which impose a marked limitation of function and which are not responding to prescribed treatment." 20 C.F.R. § 404, Subpart P, Appendix 1 § 805. For plaintiff to meet the listing in § 805 of Appendix 1, it must be established 1) that his psoriasis is characterized by "extensive lesions, including involvement of the hands or feet," 2) that the lesions "impose a marked limitation of function," and 3) that the lesions are "not responding to prescribed treatment." 20 C.F.R. § 404, Subpart P, Appendix 1 § 805.
Atopic dermatitis is "allergic eczema." Dorland' s Illustrated Medical Dictionary 401 (24th Ed. 1965).
Dyshidrosis is "[a]ny disorder of the perspiratory apparatus."Dorland's illustrated Medical Dictionary 456 (24th Ed. 1965).
1. "Extensive Lesions, Including Involvement of the Hands or Feet"
There is substantial evidence that plaintiffs psoriasis involves "extensive lesions, including involvement of the hands or feet," and there is no substantial evidence contradicting such a finding. Dr. Hughes diagnosed plaintiff as having "psoriasis of entire body." (R. 51.) Dr. Finger stated in his report that plaintiffs psoriasis "involves most of his body surface," and that "he has severe psoriasis involving most of the body surfaces including the scalp and face areas." (R. 218-19.) The Social Security Administration interviewer described plaintiff as "red all over; terrible skin color, sores, face red all over; all! his stomach is filled with red skin, and sores," and observed that "claimant's hands are filled with sores, very red sores." (R. 122.) At his hearing before the ALJ, plaintiff testified that his knuckles and fingernails are affected by the psoriasis and that he sometimes loses fingernails due to the psoriasis. (R. 40.) Dr. Hernandez stated that, in July 1995, plaintiff had "extensive plaque type psoriasis involving the scalp, back, trunk, abdomen and all extremities with over 80% skin surface involvement." (R. 148.) Dr. Don diagnosed plaintiff as having "psoriasis of the body, scalp, nails." (R. 249.)
Based on this evidence, it is clear that plaintiffs psoriasis includes extensive lesions. In addition, the report by the Social Security Administration interviewer, plaintiffs testimony before the ALJ, and Dr. Don's diagnosis of plaintiff constitute substantial evidence that plaintiffs psoriasis involves his hands. There is no evidence in the record contradicting the evidence about the severity of plaintiffs psoriasis.
2. "Marked Limitation of Function"
There is evidence that plaintiff experiences some "limitation of function" because of his psoriasis. Dr Finger stated in his report that plaintiff described intense itching, sensitivity to chemicals, detergents and temperature extremes, and pain and stiffness in his joints. (R. 218.) Dr. Finger observed that plaintiffs knees were tender and that there was slight crackling in plaintiff's knees and concluded that plaintiff had "[a]rthralgias of knees and ankles," possibly related to his psoriasis. (R. 219-20.) Dr. Altman wrote a letter stating that plaintiff had "gouty arthritis" that was possibly related to his psoriasis. (R. 251.) Plaintiff stated in his Reconsideration Disability Report that his ability to walk was limited by his psoriasis, (R. 118), and plaintiff's Social Security Administration interviewer noted that plaintiff stated that the sores on his hands "itch a lot." (R. 122.) At the ALJ hearing, plaintiff complained of a host of problems associated with his psoriasis: his joints bothered him when he walked, he occasionally lost fingernails, and he experienced itching for approximately four hours after every PUVA treatment. (R. 40, 43-44.)
The record also contains some evidence that plaintiff's limitation of function may not be marked. In his April 5, 1995 Residual Functional Capacity Assessment of plaintiff, Dr. Hughes checked the boxes stating that plaintiff had no exertional, postural, manipulative, visual, communicative, or environmental limitations. (R. 52-55.) Dr. Finger observed on January 3, 1996 that plaintiff was stiff when walking, that his knees were tender and cracking slightly, and that plaintiff should avoid environmental factors which would aggravate his psoriasis, but asserted in general terms that plaintiff was not limited in his ability to sit, and was only mildly limited with respect to standing, walking, lifting, and carrying. (R. 219-20.)
At the hearing on October 15, 1996, the ALJ did not satisfy her obligation to fully develop the record regarding whether plaintiffs psoriasis imposed a marked limitation of function. Psoriasis is a chronic recurrent skin disorder, and there is evidence that plaintiffs condition is progressive. Psoriasis does not directly impose limitations on bodily functions, but those functions could be limited indirectly by a severe skin disorder, particularly if it affects the extremities, hands, and feet. There is evidence in the record that plaintiff was limited by his severe psoriasis, and the ALJ did not adequately inquire into the specifics of his limitations. The Social Security Administration interviewer noted that plaintiff had red sores all over his hands and plaintiff testified at the ALJ hearing that he sometimes loses his fingernails due to his psoriasis, but the ALJ did not ask plaintiff to elaborate on how the conditions of his hands would affect his ability to perform tasks associated with his job as a head bank teller. In addition, the record was not fully developed regarding the arthritic effects of plaintiff's psoriasis and the extent to which that condition limits his ability to walk or to write. Finally, the statements by Dr. Hughes and Dr. Finger are too general and conclusory to constitute substantial evidence that plaintiffs psoriasis does not impose a marked limitation of function.
3. Response of Plaintiff's Psoriasis to Prescribed Treatment
The final step in analyzing whether plaintiffs psoriasis meets the listing in Appendix 1 is whether his psoriasis is "responding to prescribed treatment."
To treat his psoriasis, plaintiff undergoes PUVA therapy three times a week at MHC. Plaintiff testified at the hearing that his treatments lasted from approximately 9:00 a.m. to 12:00 p.m. or 1:00 p.m. on Mondays, Thursdays. and Fridays. (R. 38.) In a disability report, plaintiff stated, "[s]ometimes I have to stop [the PUVA] treatment because there's the danger that it could cause cancer — then I itch all over." (R. 109.) Dr. Finger noted in his report that plaintiff described "intense pruritis related to [the treatment] and sensitivity to chemicals and detergents and temperature extremes, with diffuse pain and stiffness in the joints of the upper and lower extremities." (R. 219.) Plaintiff testified at the hearing that he experiences itching for approximately four hours after each treatment, for which he takes medication which "calms" the itching. (R. 43-44.)
Dr. Don, the Chief of Dermatology at MHC, submitted a declaration to this Court stated that the hours during which patients can receive PUVA treatments are Mondays, 1:00 p.m. to 3:30 or 4:00 p.m., Tuesdays, 8:30 a.m. to 1:00 p.m. and 1:30 p.m. to 4:00 p.m., Thursdays, 8:30 a.m. to 1:00 p.m., and Fridays, 1:00 p.m. to 3:30 or 4:00 p.m. (Don Decl. of Feb. 28, 2000, ¶ 3.) In the declaration, Dr. Don also stated:
We do not schedule appointments for these treatments. Patients are taken on a first-come, first-served basis. The length of time a patient may wait for treatment varies depending on the number of patients who arrived previously, the number of residents available to see the patients, the duration of the treatments each individual requires, and other factors.
(Don Decl. of Feb. 28, 2000, ¶ 4.)
The letters submitted by Dr. Lateef and Dr. Don after the ALJ hearing stated that plaintiffs psoriasis required continuous PUVA treatments. (R. 233, 253.) Dr. Don noted that "[i]t is apparent that stopping [plaintiffs] ultraviolet light treatment causes his psoriasis to flare and become generalized." (R. 246.) Dr. Don also observed that, "[w]ith the present treatment regimen Mr. Lopez's psoriasis appears to be stable," and that plaintiff had a "good response to the above regimen [of UVB treatment three times a week and use of Dovonex, Lidex, and P + S Solution], his psoriasis is stabilized." (R. 246.)
Again the ALJ did not fully develop the record regarding whether plaintiffs psoriasis was "responding to prescribed treatment." There was no evidence before the ALJ about the effectiveness of the PUVA treatments on plaintiffs psoriasis. In fact, the only evidence before the ALJ about the treatments consisted of plaintiff s observations about the discomfort caused by the treatments and plaintiffs testimony about the length of each treatment. (R. 38.) The ALJ did not inquire as to the extent to which the treatments control plaintiffs psoriasis. She did not ask for more information about the negative aftereffects of the treatment or about the protective steps necessary to obviate the danger that plaintiff will get cancer from continuous PUVA treatments. She did not ask whether and to what extent plaintiffs psoriasis flares up when he stops the treatments as a protective measure. She also did not ask about the flexibility of scheduling treatments, whether he can make appointments in advance, or why he is required to be at the doctor's office for three or four hours for each treatment even though the PUVA treatment itself takes only 40 minutes. (R. 38.) She did not ask for clear testimony regarding how plaintiffs psoriasis limits him with and without the treatments.
The Appeals Council was presented with slightly more evidence about the effectiveness of plaintiffs treatments, but that evidence was also not sufficient to determine whether plaintiff's psoriasis is "responding to prescribed treatment." 20 C.F.R. § 404, Subpart P, Appendix 1, § 805. There was no clarification as to what Dr. Don meant when he stated that plaintiffs "psoriasis appears to be stable," (R. 247), nor was it clear from the record presented to the Appeals Council whether and to what extent plaintiffs limitations due to psoriasis persisted even with the thrice-weekly PUVA treatments.
It is worth noting that the transcript of the ALJ hearing is only eleven pages long. The Second Circuit observed in Cruz v. Sullivan that "[t]he scant record herein, which consists of a thirteen-page transcript, reveals a host of lost opportunities to explore the facts." 912 F.2d 8, 11 (2d . 1990). In addition, in Hankerson v. Harris, the court stated that "[t]he hearing was quite brief; the transcript consumes only 16 pages," and asserted that "[t]he record is replete with instances where the ALJ should have questioned plaintiff more fully concerning various aspects of his testimony." 636 F.2d 893, 894-95 (2d Cir. 1980). The same criticisms could be made of plaintiffs ALJ hearing, the transcript of which was shorter than those in Cruz and Hankerson.
Conclusion
In failing to ask more questions at the hearing, both about the extent to which plaintiffs psoriasis imposed a "marked limitation of function" and about whether plaintiffs psoriasis was "responding to prescribed treatment," the ALJ did not adequately develop the record. Therefore, the matter is remanded to the Social Security Administration to develop the evidence and determine whether plaintiff meets the listing for psoriasis in Appendix 1, § 805 and whether, even if he does not meet the listing, he should be granted disability benefits at step four or step five of the analysis in 20 C.F.R. § 404.1520.
IT IS SO ORDERED.