Alvarez v. Bowen, 87 Civ. 80 (WCC).

• Decision Date: 18 January 1989
• Docket Number: No. 87 Civ. 80 (WCC).,87 Civ. 80 (WCC).
• Citation: 704 F. Supp. 49
• Parties: Jose ALVAREZ, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

704 F. Supp. 49

Jose ALVAREZ, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.

No. 87 Civ. 80 (WCC).

United States District Court, S.D. New York.

January 18, 1989.

Peter Margulies, New York Law School Federal Litigation Clinic, Michael L. Perlin, Director, New York City (Karen Gallinari, Harry Zirlin, Law Interns, of counsel), for plaintiff.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Kathleen A. Zebrowski, Sp. Asst. U.S. Atty., of counsel), for defendant.

OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

This is an action brought by plaintiff Jose Alvarez under Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3) (the "Act"), challenging a final determination of the Secretary of Health and Human Services (the "Secretary") denying Mr. Alvarez's application for disability benefits. The case is currently before the Court on the parties' cross-motions for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, the Court orders that the matter be remanded to the Secretary for a new hearing consistent with this opinion.

BACKGROUND

Mr. Alvarez filed an application for disability benefits under Title XVI of the Social Security Act on December 4, 1984. The application was denied initially and upon reconsideration. Mr. Alvarez then requested a hearing to review his claim. On December 11, 1985 a hearing was held before Administrative Law Judge Jeffrey Kohlman (the "ALJ"), who considered the case de novo. The ALJ issued a decision on January 6, 1986 in which he found that Mr. Alvarez was not disabled within the meaning of the Act. After reviewing the ALJ's decision at Mr. Alvarez's request, the Appeals Council remanded the action to the ALJ on May 8, 1986, because the ALJ had failed to include a completed Psychiatric Review Technique Form with his decision.¹ The ALJ issued an amended decision on August 6, 1986, summarizing the previous decision and stating that he had completed the required form contemporaneously with the December hearing. The ALJ appended that form to the previous decision. When, on November 12, 1986, the Appeals Council upheld the August decision by denying Mr. Alvarez's request for review, the August decision became the final determination of the Secretary, exhausting the administrative remedies available to Mr. Alvarez. Mr. Alvarez now appeals to the Court for relief.

In the August decision, the ALJ found that "the claimant has severe back pain, headaches, hearing loss, and personality disorder, 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." Tr. at 13. The ALJ also found, (1) that "the claimant has not engaged in substantial gainful activity since 1979," (2) that "the claimant is unable to perform his past relevant work as a maintenance worker," (3) that "the claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work activities of other work," (4) that "claimant has a limited education," (5) that "claimant is 30 years old, which is defined as a younger person," and (6) that "claimant had the residual functional capacity to perform work-related activities except for work involving strenuous activities or frequent contact with co-workers or work involving complex tasks." Id. Based on all of these factors, the ALJ held that the regulations "would direct a conclusion of `not disabled.'" Id. Finally, the ALJ concluded that "there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: sorter in the jewelry industry; sorter in the button industry; machine operator and packer." Id. The ALJ then held that "the claimant is not eligible for Social Security Income under sections 1602 and 1614(a)(3)(A) of the Social Security Act." Tr. at 14.

DISCUSSION

A. The Legal Framework

To be eligible for disability benefits under the Act, the claimant must have a "medically determinable physical or mental impairment" of such severity that it renders him unable to perform his previous work or "engage in any other kind of substantial work which exists in the national economy." 42 U.S.C. §§ 423(d)(1)(A) & (2)(A) (1976). The claimant bears the initial burden of showing that he has a disability preventing him from returning to his previous type of employment. 42 U.S.C. § 423(d)(5) (1976); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir.1981). Thereafter, the burden shifts to the Secretary, "who must produce evidence to show the existence of alternative substantial work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980), quoted in Dousewicz v. Harris, 646 F.2d at 772.

The Secretary has established a five-step sequential evaluation for adjudication of disability claims, 20 C.F.R. § 416.920, which the Second Circuit has articulated as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. 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 Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.

Berry v. Schweiker, 675 F.2d at 467.

A claimant may obtain review of the Secretary's final decision by a federal district court. However, the review employed by the district court is not de novo. The Secretary's findings must be upheld if they are supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3) (1976); Dousewicz v. Harris, 646 F.2d at 773; Parker v. Harris, 626 F.2d at 231. 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." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). "Where the reviewing court finds that the Secretary's decision is not supported by substantial evidence, § 405(g) authorizes the court to reverse the Secretary's decision `with or without remanding the cause for a rehearing.'" Dousewicz v. Harris, 646 F.2d at 773 (citations omitted).

B. The ALJ's Determination

Plaintiff claims that the ALJ's decision should be either remanded, or overturned and judgment awarded to him, on several grounds. First, plaintiff claims that he did not make a voluntary and intelligent waiver of counsel. Second, plaintiff contends that the ALJ erred by failing to advise him that he could call witnesses on his own behalf, and cross-examine the psychiatrist and vocational expert who testified at the hearing. Third, the plaintiff maintains that the ALJ failed to develop the record scrupulously and zealously by not pursuing answers which indicated that there was more evidence bearing on the case. Finally, plaintiff argues that the ALJ's determination was not supported by substantial evidence, because the testimony of the doctor at the hearing was undermined by inconsistencies, and the testimony of the vocational expert at the hearing was rendered useless by an unduly narrow hypothetical question posed by the ALJ.

A claimant appearing before an ALJ is entitled to be represented by counsel. Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980). The Secretary is not obligated to furnish a claimant with an attorney, but the ALJ must ensure that the claimant is aware of his right to counsel. Robinson v. Secretary of Health and Human Services, 733 F.2d 255, 258 (2d Cir. 1984). It is clear from the record that Mr. Alvarez did not knowingly and voluntarily waive counsel. The record reflects that Mr. Alvarez unsuccessfully attempted to secure counsel from Legal Aid on the day of his hearing, and that when he arrived at the hearing absent counsel, the ALJ misinterpreted Mr. Alvarez's subsequent explanation to mean that he was willing to proceed without counsel. A more thorough inquiry by the ALJ could have revealed Mr. Alvarez's desire to proceed with counsel, and allowed the ALJ to inform Mr. Alvarez of the possibility of adjourning the hearing until he obtained counsel.

Although the ALJ did not make a sufficient effort to ensure that Mr. Alvarez understood his rights, lack of counsel in an administrative proceeding is not, in and of itself, grounds for remand or reversal of an ALJ's decision. Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981). Lack of counsel "would not affect the validity of the hearing unless the claimant demonstrates prejudice or unfairness in the proceeding." Heisner v. Secretary of Health, Education and Welfare, 538 F.2d 1329, 1331 (8th Cir. 1976). Thus, this Court must...