Opinion
05 Civ. 8421 (DLC).
December 5, 2006
Attorney For Plaintiff, Granville C. Mason, Jr., New York, NY.
Attorney For Defendant, Michael J. Garcia, Leslie A. Ramirez-Fischer, United States Department of Justice, Southern District of New York, New York, NY.
OPINION AND ORDER
On September 30, 2005, plaintiff Granville C. Mason, Jr. ("Mason") filed a pro se action pursuant to the Social Security Act ("Act") seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") benefits. The Commissioner moves under the fourth sentence of 42 U.S.C. § 405(g) ("Section 405(g)) for a remand of the decision for further development of the record regarding Mason's complaints of pain and to include a report from plaintiff's treating physician. Mason opposes the Commissioner's motion. For the reasons set forth below, the Commissioner's motion for remand is granted.
Although Mason has not cross-moved for relief, he does request an award of benefits.
BACKGROUND
The following facts are taken from the administrative record and are undisputed. Mason is a 45-year old resident of New York. He has a twelfth grade education and speaks English. Mason has arthritis in both knees and uses a cane to walk. He has not worked in the relevant past.
Mason received SSI benefits prior to his incarceration at Cayuga Correctional Facility in 2000. Mason was released on May 19, 2003, and applied for SSI benefits on June 2, 2003, claiming that he was disabled since 1976 due to a slipped epiphysis capital femoral, high blood pressure, and arthritis. His claim was denied on initial review on August 12, 2003. Mason then requested a hearing before an Administrative Law Judge ("ALJ"). The hearing, at which Mason represented himself, was held on November 17, 2004.
The defendant's memorandum represents that the plaintiff was incarcerated in 1999 and again in May 2000.
At the hearing, Mason testified before the ALJ that he could not hold down a job because the arthritis in his legs prevented him from moving or sitting for a long period of time. He stated that in 1976 or 1977, he had a problem with his hips, and that in 1980 or 1981 he fractured his left femur as a result of a car accident. Mason explained that while incarcerated in Cayuga Correctional Facility, he had surgery on his knee and developed high blood pressure, diabetes and arthritis. He also testified that in prison he did not work and was often exempt from duties and vocational training due to his medical conditions. Mason stated that he could not do sedentary work because when he sits for a long period of time his legs "lock up," but that he is able to travel by bus. He described his daily activities as sitting around the house and "on the stoop" of the home where he lives with his mother. Mason stated that he was denied welfare benefits after his release from prison because he had been receiving SSI benefits prior to his incarceration.
On November 22, 2004, the ALJ issued a decision denying Mason's claim. He found that Mason's impairments "prevent him from performing prolonged standing and walking," and therefore rendered him "unable to perform light work." The ALJ nevertheless found that Mason had "no limitation of the ability to sit and is able to perform minimal standing and walking and can lift or carry up to 10 pounds as required for sedentary work." As a result, the ALJ concluded that Mason was not disabled within the meaning of the Act.
Mason requested review by the Appeals Council of the Social Security Administration ("SSA"), which affirmed the ALJ's decision on February 1, 2005. Mason then filed this action for review of the Commissioner's denial of benefits on September 30, 2005.
The Commissioner now moves for reversal and remand on two grounds: (1) the report of Mason's treating physician, Dr. Jean Marie Claude, upon which the ALJ relied, was not included in the administrative record filed with the Court as required under Section 405(g), and (2) the ALJ did not correctly evaluate plaintiff's subjective complaints of pain under 20 C.F.R. § 416.929. Finding that the ALJ's denial of Mason's claim for benefits should be remanded on the second ground, it is unnecessary to reach the first issue.
Mason claims that even if Dr. Claude's report was not included in the transcript of the administrative record, it is available for review by this Court because he submitted it with his opposition to defendant's motion for a remand. Plaintiff, however, did not submit Dr. Claude's report with his opposition.
DISCUSSION
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). This Court may set aside a determination of the ALJ 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) (citation omitted). 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 (citation omitted).
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. § 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. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his 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 which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Rosa, 168 F.3d at 77 (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. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Here the ALJ found at step one that Mason had not engaged in substantial gainful activity since June 2, 2003, the date of his SSI application. In steps two and three, the ALJ concluded that the medical evidence established that Mason has a severe impairment, but not an impairment or combination of impairments that would automatically entitle him to SSI benefits. Before moving to step four, the ALJ determined that Mason retains the residual functional capacity to perform the physical exertion requirements of sedentary work. In step four, the ALJ found that Mason had no past relevant work to consider. Finally, in step five, the ALJ concluded that in light of Mason's age, high school education, and residual functional capacity for sedentary work, the relevant regulations indicated that Mason was not disabled as defined in the Act.
At issue in this case are the ALJ's conclusions in step three and five that Mason has the residual functional capacity to perform sedentary work and is not disabled. During the hearing before the ALJ, Mason testified that he could not sit for long periods of time because when he does so, his "legs lock up." The ALJ determined that Mason's subjective complaints of pain were "not entirely credible," and as a result, concluded that Mason "has no limitation of the ability to sit" and "has the residual functional capacity to perform the minimal exertion required for sedentary work activity." The Commissioner argues that the ALJ failed to set out with sufficient specificity the crucial factors in his determination that Mason's subjective complaints of pain "were not entirely credible," and that as a result, this Court cannot decide whether substantial evidence supports the ALJ's decision. Mason claims that the administrative record is sufficient to permit the Court to make a determination that his subjective complaints of pain are credible and that the plaintiff is disabled under the Act.
Social Security regulations require an adjudicator to determine the extent to which a claimant's symptoms affect the claimant's functional capacity. 20 C.F.R. § 416.929(c)(3); see also Evaluations of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, Social Security Ruling 96-7p, 61 Fed. Reg. 34,483, 34,484 (July 2, 1996) ("SSR 96-7p") ("[T]he intensity, persistence, and functionally limiting effects of the symptoms must be evaluated to determine the extent to which the symptoms affect the individual's ability to do basic work activities."). An ALJ must "carefully consider the individual's statements about symptoms" along with all of the other evidence in the case record, and must make findings about the credibility of the claimant's statements. SSR 96-7p, 61 Fed. Reg. at 34,484. "An individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence." Id. An ALJ will consider the following factors when evaluating a claimant's symptoms: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has received for relief of his pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; (6) any measures the claimant uses or has used to relieve his pain or other symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 416.929(c)(3). Conclusory findings of a lack of credibility will not suffice; rather, an ALJ's decision "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 61 Fed. Reg. at 34,484.
See also 20 C.F.R. § 416.929(c)(4) ("Your symptoms, including pain, will be determined to diminish your capacity for basic work activities . . . to the extent that your alleged functional limitations and restrictions due to symptoms, such as pain, can reasonably be accepted as consistent with the objective medical evidence and other evidence.") (emphasis supplied).
A finding of credibility made by an ALJ is entitled to deference by a reviewing court. As with any finding of fact, "[i]f the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints." Aponte v. Sec'y Dep't of Health Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citation omitted). Thus, a determination of credibility will only be set aside if it is not set forth "with sufficient specificity to enable [a reviewing court] to decide whether [it] is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
The ALJ's determination that Mason's subjective complaints were "not entirely credible" was not set forth with sufficient specificity to enable the Court to determine that it was supported by substantial evidence. In drawing this conclusion, the ALJ highlighted that Mason's "testimony that he is unable to sit is not consistent with the medical evidence." The ALJ pointed to the three sources of medical evidence for support. First, he noted that the reviewing physician, Dr. Sury Putcha, concluded that Mason was "able to sit for 6 hours and stand or walk for 2 hours during an 8 hour day and lift or carry 10-20 pounds, which is consistent with a residual functional capacity for sedentary work." Second, he considered that Dr. Mohammed Khattak, the consulting physician who examined Mason on July 8, 2003, found that Mason had "not [sic] limitation the ability to sit." Third, the ALJ noted that Dr. Jean Marie Claude, Mason's treating physician, did not report that Mason has any difficulty sitting and did not find that the claimant was disabled.
The regulations do not permit a finding that a claimant's subjective complaints lacked credibility solely because they are not substantiated by objective medical evidence. The ALJ did not consider Mason's subjective complaints in relation to information in the record outside of objective medical evidence, information that he was required to consider under 20 C.F.R. § 416.929(c)(3). In addition, while the ALJ claimed that his credibility determination involved a consideration of the claimant's "demeanor," he did not specify what it was about Mason's comportment at the hearing that led him to find Mason lacking in credibility. The ALJ's failure to consider evidence in the record other than medical evidence and to set forth with sufficient specificity aspects of Mason's demeanor which undermined his credibility requires remand for further factual findings.
Mason claims in his papers submitted in opposition to this motion that the record is sufficient for this Court to determine that he is disabled. A court may order payment of benefits only in those rare instances where the record contains "persuasive proof of disability" and remand for further evidentiary proceedings would serve no further purpose. Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991) (citation omitted). Mason has not shown either persuasive proof of disability or that a remand would be futile.
Conclusion
The defendant's motion for remand is granted. This 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 plaintiff and close the case.
SO ORDERED: