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rejecting plaintiff's argument that ALJ failed to develop the record where plaintiff "[had] not even indicated what relevance she believe[d] the supplemental records would have [had] to the disability determination"
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04 Civ. 9017(DLC).
November 29, 2006
For Plaintiff: Laurence Beck, Brooklyn, NY.
For Defendant: Susan D. Baird, Assistant United States Attorney, Southern District of New York, New York, NY.
OPINION ORDER
Plaintiff Antonio L. Velasquez ("Velasquez") brings this action for review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits. The Commissioner moves for judgment on the pleadings sustaining the denial of benefits. Velasquez cross-moves for judgment on the pleadings awarding benefits, or in the alternative, remand and further development of the record. Because the Commissioner failed to evaluate the claimant's ability to use public transportation to travel to any employment, plaintiff's motion for remand is granted.
Although Velasquez is biologically male, she testified at a hearing before the Commissioner that she "dress[es] like a woman all the time" and sees herself as female. Therefore, feminine pronouns will be used to refer to Velasquez throughout this Opinion.
Background
The following facts are taken from the administrative record and are undisputed. Velasquez is a 32-year old resident of the Bronx, New York. She has an 11th grade education and has not obtained a GED. Velasquez has never held a paying job. She filed a claim for SSI benefits on March 30, 2001, claiming that she was unable to work because of anxiety, panic attacks, hypertension, gender identity disorder, and depression with features of psychosis. After a hearing before an administrative law judge (the "ALJ"), Velasquez's application for benefits was denied. By an order dated September 27, 2002, the Appeals Council of the Social Security Administration (the "Appeals Council") vacated the ALJ's decision and remanded it for further development of the record and additional analysis of Velasquez's subjective complaints and mental impairments.
Although Velasquez worked for various New York City agencies through the Work Experience Program, neither party argues that this work is relevant to Velasquez's eligibility for benefits.
The ALJ held a supplemental hearing on February 20, 2004. Velasquez testified extensively about her depression and anxiety, as well as the ways in which her transsexuality limits her ability to interact with strangers. She noted that she is often harassed and, as a result, feels claustrophobic and "suffocat[ed]" when she is around other people. Therefore, she is unable to use public transportation or perform work that requires extensive interaction with other people, particularly men. Velasquez stated, however, that she thought she could perform solitary work involving simple, repetitive tasks.
The ALJ also received testimony from a vocational expert ("VE") at the hearing regarding the availability of jobs that could be performed by someone with Velasquez's characteristics — i.e., a young person with no previous work experience, who is capable of less than the full range of "light work," involving simple repetitive tasks in a relatively open space, and little or no interaction with supervisors, co-workers, or the public. The ALJ also asked the VE to exclude from consideration jobs in which Velasquez would be likely to have numerous male colleagues. The VE provided a handful of examples of jobs available to someone with Velasquez's skills, education, and environmental limitations.
The ALJ consulted medical records that had been supplied by Urban Health Plan, Inc. ("UHP") — Velasquez's primary treatment facility — dating from February 1992 through July 2001, and reports from consultative examinations performed in 2001 and 2004. Following the hearing, the ALJ also sent subpoenas to UHP and the Fordham Tremont Community Mental Health Center requesting Velasquez's medical records for 2002 through the present. Neither facility responded.
On May 27, 2004, the ALJ issued a ruling in which he found that Velasquez had a gender identity disorder, as well as "an affective disorder with a history of depression and an anxiety disorder with a history of anxiety and panic attacks." He ruled, however, that Velasquez's complaints of hypertension, dizziness, shortness of breath, and weakness were not supported by her medical records. Based on the VE's testimony, the ALJ concluded that sufficient opportunities for employment were available to Velasquez, and that she was therefore not disabled within the meaning of the Social Security Act.
Velasquez filed this action, appealing the Commissioner's decision on November 16, 2004. The parties cross-move for judgment on the pleadings, and Velasquez moves in the alternative for remand. Velasquez contends that the ALJ erred by: (1) failing to take into consideration Velasquez's difficulties using public transportation; (2) making insufficient efforts to obtain supplemental records from UHP and failing to inform plaintiff's then-counsel that UHP did not respond; (3) excluding Velasquez's "borderline functioning" and poor reading, writing, and calculation ability from the list of constraints used by the VE; and (4) determining that the VE's estimate of jobs available to Velasquez constituted a "significant number." Discussion
Velasquez also appealed the ALJ's decision to the Appeals Council on July 23, 2004. The Appeals Council denied her request for review on February 3, 2005, more than two months after she filed this action.
The briefing on these motions was delayed due to numerous extensions of time requested by both parties.
In her initial brief on the instant motions, Velasquez argued that the ALJ also erred in failing to provide her with an opportunity to cross-examine consultative examiners who provided reports after the hearing was held. The Commissioner, however, noted in her reply that Velasquez was given copies of the reports and told that she could submit responses and/or written questions to the authors prior to the issuance of the ALJ's decision. Velasquez abandoned this argument in her reply brief.
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C § 405(g) ("Section 405(g)"). A determination of the ALJ may be set aside only if it is based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (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." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, the findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive, Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995), and thus, the reviewing court does not decide the case de novo. Halloran, 362 F.3d at 31.
The Commissioner will find a claimant disabled under the Act if the claimant demonstrates the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted . . . for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's impairment must be
of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, 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. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers in either the region where such individual lives, or in several regions of the country.Id. at § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 423(d)(3).
The Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520 and 416.920. The Second Circuit has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Shaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Here, the ALJ determined at step one that Velasquez was not engaged in any gainful activity and had no relevant past work experience. He found at steps two and three that, although certain of Velasquez's impairments were "severe," they were not of the type that would automatically entitle her to SSI benefits. At step four, the ALJ determined that Velasquez retained the "capacity to perform light work activity, which consists of simple, repetitive tasks, which do not require constant contact with supervisors and which do not require contact with the public." At step five, the ALJ found that, while Velasquez's environmental limitations meant that she could not engage in the full range of light work, there were a "significant number of jobs in the national economy" that she could still perform. The ALJ cited three examples of such jobs provided by the VE: surveilance system monitor (9,000 jobs nationally); porter (3,000 jobs nationally), and machine tender (15,000 nationally).
The figures were apparently based on the VE's testimony that Velasquez's environmental limitations allowed her to perform approximately half the number of jobs available to someone with a similar educational background and limitations.
I. Public Transportation
Velasquez argues that the ALJ improperly overlooked the fact that she cannot use public transportation in estimating the number of jobs that Velasquez could perform. Although the ALJ asked questions and expressed concern at the hearing about Velasquez's inability to travel, his decision simply does not address the issue in any way. It appears that the ALJ concluded that the regulations did not permit him to weigh a claimant's ability to get to work in making the disability determination.
The ALJ expressed displeasure with this perceived constraint, but he apparently believed his hands were tied:
[ALJ]: [L]et's say you were the only person in this room — or there was [sic] only two people in this room and your job was to go through papers and count pages or something like that. . . . Do you think you could handle that kind of environment?
[Velasquez]: Yeah, I could. But, you know, how [am] I going to get to that place if I can't take trains and buses?
[ALJ]: So that's — see, the crazy thing about this is that the law in its majesty doesn't define being — if you can't take a bus to work, the law does not consider that a factor in work. And I can't tell you why. . . .
There are multiple references within the Act's regulations and the Administrations's manuals to support a conclusion that a claimant's ability to travel on public transportation is relevant to the determination of disability. See, e.g., 20 C.F.R. § 416.913(c)(1) (including "traveling" among the "work-related activities" that the Social Security Administration will evaluate in assessing a claimant's residual functional capacity); 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A, 12(C)(1) ("Activities of daily living include adaptive activities such as . . . taking public transportation. . . ."); Social Security Administration, Program Operations Manual System § DI 25020.010(B)(5) Example 2 (stating that an inability to leave home would preclude a claimant from performing most competitive jobs, since they "require the ability to travel to and from work"), available at https://s044a90.ssa.gov/apps10/poms.nsf/aboutpoms. This is not surprising, as it would be difficult to base a finding that a claimant was "not disabled" on a finding that she could perform jobs that she could not get to. In defending the ALJ's view, the Commissioner has pointed to no legal authority or SSA policy that discourages, let alone precludes, an ALJ from considering transportation when evaluating a claimant's residual functional capacity. Therefore, this case will be remanded for consideration of the impact of Velasquez's claimed inability to use public transportation to travel to the jobs available to her.
II. Development of the Record
Defendant argues that, even if transportation were relevant to this determination, Velasquez would still not be disabled since she "admitted" that she could take taxis. The Commissioner fails to identify any portion of the regulations that suggests that a claimant could be required to incur the expense of private taxis in order to travel to and from work.
Because the matter is remanded on these grounds, it is not necessary to reach Velasquez's argument that the jobs cited by the VE and ALJ do not constitute a "significant number" within the meaning of the Act.
Velasquez argues that the ALJ did not sufficiently develop the record because he did not make follow-up requests to two medical facilities after they failed to respond to his subpoenas. The Act requires the Commissioner to develop a claimant's medical record before making a determination that he or she is not disabled, and to make at least one follow-up request to a medical facility if it does not respond to the first inquiry. 20 C.F.R. § 416.912(d). This requirement only applies, however, to records from "the 12 months preceding the month in which [claimant] file[s]" for benefits. Id. Because it is undisputed that the ALJ was already in possession of the relevant records from that time frame and that the subpoenas pertained only to the period after Velasquez filed her claim, this regulation is inapplicable.
Furthermore, Velasquez has pointed to no "gaps" in the administrative record that would create a free-standing obligation for the ALJ to develop the record. Rosa, 168 F.3d 72, 79 n. 5 (2d Cir. 1998). Indeed, Velasquez has not even indicated what relevance she believes the supplemental records would have to the disability determination. Under these circumstances, the ALJ's efforts to develop the record were sufficient.
III. Velasquez's Additional Limitations
Velasquez argues that the ALJ failed to consider the report of a consultative examiner who found that Velasquez had "borderline" intelligence and was "impaired in reading, writing and arithmetic ability." There is no evidence, however, that this is the case. While the ALJ did not directly refer to the precise portions of the report quoted by Velasquez, he did incorporate much of its contents in his final opinion. Furthermore, when describing Velasquez's residual functional capacity, he stated that Velasquez was limited to jobs involving "simple, repetitive tasks" — presumably because of Velasquez's intellectual limitations. The ALJ's statements do not support Velasquez's contention that he "implicit[ly] reject[ed]" the examiner's opinion.
Velasquez also argues that the VE's testimony cannot be credited because the ALJ failed to mention Velasquez's intellectual limitations to the VE. While the ALJ did not initially tell the VE that Velasquez could only perform simple, repetitive tasks, he added this constraint toward the end of their exchange. There is therefore no reason to believe that any of the jobs described by the VE would be beyond Velasquez's abilities. Conclusion
[ALJ]: . . . [T]hese jobs wouldn't be intense concentration or anything like that, would they?
[VE]: No. These are — they're unskilled jobs.
[ALJ]: Are these simple, repetitive tasks?
[VE]: They are.
[ALJ]: Okay. I should have put that in. Simple, repetitive in my hypothetical.
[VE]: Well, they are.
For the reasons explained above, Velasquez's motion for remand is granted. The parties' cross-motions for judgment on the pleadings are denied. The case is remanded to the Commissioner pursuant to sentence four of Section 405(g) for further administrative proceedings consistent with this Opinion. The Clerk of Court shall enter judgment for the plaintiff and close the case.
Velasquez argues that the Court should impose a limit on the amount of time the Commissioner is given for further administrative proceedings. She points to the Second Circuit's decision in Butts v. Barnhart, 388 F.3d 377 (2d Cir. 2004), in which the Commissioner was instructed to complete further proceedings before an ALJ within 60 days. Butts, 388 F.3d at 387. The decision in Butts was rendered eight years after the claimant initially applied for benefits, and the court noted that "the past delay is of such magnitude-years-that a time limit is imperative." Id. The court also urged district courts to consider imposing time limits "in cases involving an ALJ's failure to call a vocational expert." Id. While a swift resolution of Velasquez's claim is obviously desirable, a time limit is not warranted here, since (1) the case does not involve the failure to call a vocational expert; and (2) Velasquez's claim has not been delayed to the same extent as the claimant's in Butts.
SO ORDERED: