Opinion
Case No. 04-CV-577 (FB).
February 1, 2005
DOUGLAS C.J. BRIGANDI, Bayside, NY, Attorney for the Plaintiff.
ROSYLN R. MAUSKOPF, United States Attorney, Eastern District of New York, LESLIE A. RAMIREZ-FISHER, Special Assistant U.S. Attorney, Brooklyn, NY, Attorney for the Defendant.
MEMORANDUM AND ORDER
Plaintiff, Diane Jordan ("Jordan"), seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits. The parties agree that the administrative law judge applied an improper legal standard in concluding that she is not disabled. They disagree, however, as to whether the Court should remand, as the Commissioner urges, to permit further development of the record, or rather, as Jordan urges, solely for the purpose of calculating benefits.
I.
In October 1997, Jordan injured her back at work. On March 5, 1998, she applied for benefits. The Commissioner denied her application as an initial matter and on reconsideration. Jordan requested a hearing before an administrative law judge ("ALJ"), which was held on February 2, 1999. In a March 24, 1999 decision, the ALJ concluded that she was not disabled. On March 30, 1999, she requested review. On January 15, 2002, the Appeals Council granted her request, vacated the ALJ's decision, and remanded the matter for a new hearing and decision.A hearing was held on April 17, 2002, before a second ALJ ("ALJ No. 2"). In a September 15, 2002 decision, ALJ No. 2 concluded that although Jordan could no longer perform her prior work as a health aide, she retained the residual functional capacity for sedentary work. In reaching this conclusion, ALJ No. 2 relied principally upon the opinion of a State agency medical consultant, Dr. Charles Lipton, who after examining Jordan, reported that she was able to sit three hours provided she could shift positions, stand up to three hours and lift up to fifteen pounds with either hand. On October 10, 2002, she requested review; the Appeals Council denied her request on December 9, 2003.
II.
"Sentence four of Section 405(g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner `with or without remanding the cause for a rehearing.'" Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405(g)). Remand for further development of the record is appropriate "where the administrative record contains gaps," id., or where "the ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quotation omitted). By contrast, where the Court has "no apparent basis to conclude that a more complete record might support the Commissioner's decision," it is appropriate "simply to remand for a calculation of benefits." Id. at 83.
As noted, in concluding that Jordan could perform sedentary work, ALJ No. 2 relied on Dr. Lipton's statement that she could sit for three hours. Dr. Lipton did not, however, clarify whether he believed that Jordan could sit for three hours at a time or for three hours total per day. Without such clarification, it is unclear whether Dr. Lipton's statement supports ALJ No. 2's conclusion that Jordan could meet the demands of sedentary work, which would require that she be able to sit for up to six hours per day. See Determining Capability To Do Other Work — Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work, 61 Fed.Reg. 34478, 34480 (Social Security Admin. July 2, 1996) (explaining that "a sedentary job is defined as one that involves sitting," and that "[s]itting would generally total about 6 hours of an 8-hour workday."). Thus, ALJ No. 2 misapplied the law by relying on this aspect of Dr. Lipton's opinion to support the conclusion that Jordan had the residual functional capacity for sedentary work.
Nonetheless, Jordan contends that remand is inappropriate because the record contains persuasive evidence that she is disabled. To the contrary, the evidence regarding Jordan's residual functional capacity is conflicting. While some treating and examining sources support the conclusion that Jordan is unable to perform sedentary work, others do not. In addition, a non-examining State agency review physician, Dr. A. Buonocore, opined that Jordan could meet the demands of sedentary work. Moreover, a report provided to the Appeals Council by an examining physician, Dr. William Schlesinger, states that when he saw Jordan in October 2002, she brought records from other examining sources who opined that she was capable of returning to her previous work as a health aide.
"It is for the [Social Security Administration], and not this court, to weigh the conflicting evidence in the record." See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). Thus, under the circumstances, remand for the purpose of awarding benefits is premature. The appropriate course is for an ALJ to clarify the basis of Dr. Lipton's opinion, further develop the record with respect to Dr. Schlesinger's report and the other reports referenced therein, and determine Jordan's entitlement to benefits in accordance with the law.
III.
In ordering a remand, the Court is mindful of the significant amount of time that it has taken this case to make its way through the administrative process. Notably, it took the Appeals Council nearly 34 months to rule on Jordan's request for review of the first ALJ's decision, and 14 months to rule on her request for review of ALJ No. 2's decision. In total, it took more than five and a half years for the Commissioner to reach a final decision on Jordan's application for benefits. The Second Circuit recently expressed its displeasure with the "often painfully slow process by which disability determinations are made," Butts, 388 F.3d at 387, and recognized that, in cases where the delay is particularly egregious, "a time limit is imperative," id. In accordance with that command, and to insure that remand does not result in additional undue delay, the Court directs that
further proceedings before an ALJ be completed within 60 days of the issuance of [this] order and, if that decision is a denial of benefits, a final decision of the Commissioner be rendered within 60 days of [Jordan's] appeal from the ALJ's decision. . . . [I]f these deadlines are not observed, a calculation of benefits owed [Jordan] must be made immediately.Id.
CONCLUSION
The decision denying benefits is reversed and the matter is remanded for further proceedings in accordance with this Memorandum and Order.
SO ORDERED.