This аppeal presents a persistent problem that arises in disability cases. It is the repeated failure of Administrative Law Judges (ALJs) to make specific findings as to (1) the weight they have given to the reports or letters of the applicant’s physician; and (2) the credibility of the applicant’s testimony, particularly claims of disabling pain. Reviewing courts should not have to guess about such fundamental matters. Nor should they have to infer the ALJ’s determinations from suggestive or ambiguous comments, or to imply them from conclusions that permit more than one finding. Telling someone that he or she is unconvincing is far from pleasant work, but it is the essence of a judge’s burden. The failure of ALJs to make such findings in disability cases is among the principal causes of the delay and uncertainty that plague applicants, attorneys, government and courts in this area of the law. It can and must be remedied.
This is not to say that every witness must be found truthful or a liar. The ALJ, like any finder of fact, may accept or reject all the tеstimony of a witness, or any part of that testimony. Indeed, the ALJ must be free to admit that he or she cannot determine the truth on a given point, and then decide the issue according to the burden of proof. But ALJs must let the parties and the reviewing courts know, in some intelligible fashion, where they stand on the pivotal issues of fact posed by thе applications they adjudicate.
The plaintiff in this action seeks judicial review of the final decision of the Secretary of Health, Education, and Welfare (the “Secretary”), which upheld the decision of the ALJ terminating plaintiff’s disability benefits insurance as of November 30, 1976. 42 U.S.C. § 405(g). Richard Chiappa is a thirty-four year old man who workеd as a New York City police officer until he was shot in the left arm on June 7, 1973. The shot resulted in a compound fracture of that arm. In December 1973, due to instability of his left arm, plaintiff fell and fractured his right elbow. In July 1974, he underwent an operation for his left arm in which a bone graft was performed and a metal plate inserted. He sustained another, mild fracture of the left arm in February 1978. The metal plate was removed from his left arm on April 11, 1979, after which he resumed employment. (Exh. A)
Chiappa applied for disability insurance benefits on October 2, 1973 based upon the severity of the injury to his left arm. He eventually was awarded disability insurance for a period beginning June 17, 1973. (R. 57) In November 1976, hоwever, after reviewing plaintiff’s record, the Social Security Administration, Bureau of Disability, determined that his disability had ceased as of
Plaintiff seeks disability benefits from November 30, 1976, when his disability insurance benefits were terminated, through June 15, 1979, when he resumed work. Plaintiff moves for reversal or remand to the Secretary, claiming that the ALJ applied the wrong legal standard in evaluating both the medical reports from his physician, and his complaints of pain; that the ALJ conducted the hearing improperly and thus based his decision on insufficient facts; and that letters from his attending physician submitted for the first time to this Cоurt constitute “good cause” to remand as authorized by 42 U.S.C. § 405(g). Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
If the Secretary has applied the proper legal principles, judicial review is of course limited to an assessment of whether the findings of fact are supported by substantial evidence.
Parker v. Harris,
The Second Circuit has repeatedly emphasized that special weight must be given to medical reports submitted by an applicant’s attending physician. Here, Chiappa’s doctor, Irving Mauer, concluded, among other things, that plaintiff was disabled.
1
E. g., Rivera v. Harris,
The ALJ in this case also failed to evaluate plaintiff’s claims of pain. We know that subjective claims of pain alone can establish disability.
Marcus v. Califano, supra,
The failure to evaluate plaintiff’s claims of pain is particularly troublesome where, as here, the claimant established he was unable to return to his former occupation, and the burden of proof had thus shifted to the agency to demonstrate that he could engage in substantial gainful activity. In this case, Chiappa claimed he suffered disabling pain, sometimes at frequent intervals, and felt that his anticipated poor work attendance would prevent him from holding a job. (R. 37) The extent to which a disability may prevent regular work attendance is a relevant factor in determining whether a claimant is able to engage in substantial gainful activity:
“Ability to work only a few hours a day or to work on an intermittent basis is not ability to engage in a ‘substantial gainful activity’ . . . .” This is not to say that the Board must demonstrate that a claimant is capable of working an eight hour day for under certain circumstances part time employment may constitute substantial gainful activity. [Citation omitted.] But the Board must demonstrate that a claimant can engage in “substantial services with reasonable regularity in some competitive employment .. . . ”
Goodson v. Railroad Retirement Board,
Yet, the ALJ conducted the hearing as though work attendance was irrelevant. He specifically refused to allow plaintiff to аsk the vocational expert at the hearing whether absenteeism would affect employability, stating that “obviously” the expert witness could not answer that question. But it is far from obvious why the expert could not answer.
See Yawitz v. Weinberger,
ADM. LAW JUDGE:-do you have any questions you’d like to ask the doctor?
CLAIMANT: You know, there’s no doubt, sir, on those days where I haven’t any pain, that I could do probably those jobs and many others. But, it’s not the question that I’m posing. The question that I’m posing is of all these jobs that are available to me, how long are they going to employ me if I take 2 days off a week, or one day off a week, or if, you know, I’m only going to work 3 days a week, it depends on which day, you know. This isn’t-
ADM. LAW JUDGE: Well, that he can’t answer, obviously.
CLAIMANT: Well, that’s my problem. That’s my problem, you know. The fact that I, that I’m intelligent enough, and that’s all the schooling is going to determine, whether I’m intelligent enough to do those jobs, and I could have told them that before.
If the ALJ disbelieved Chiappa’s testimony about pain, he should simply have said so, although plaintiff should still have been allowed to obtain the expert’s opinion. But since the ALJ failed to make any finding on the issue, the expert’s answer was pertinent and a claimant, like Chiappa, acting
pro se,
should be assisted by the ALJ who must “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts surrounding the alleged right or privilege.”
Gold v. Secretary of Health, Education and Welfare,
The Government contends that the ALJ’s comments and the evidence clearly show that Chiappa’s claim of disabling pain must have been rejected. But they do not. The ALJ made much, for example, of the fact that Chiappa attended college during the period. (Tr. 47) Yet Chiappa properly tried to point out, over the ALJ’s interruptions, that going to college four hours a week, for three eight-week semesters a yeаr is far different from engaging in regular work, full-time or part-time.
See, e. g., Ressegiue v. Secretary of Health, Education, and Welfare,
If speculation were the proper game on review, one could as easily turn to evidence and statements that undermine rather than support the ALJ’s conclusions. Chiappa was very seriously injured when he was shot, and an X-ray showed that many shell
[T]his is the primary purpose of findings of fact and conclusions of law. It makes yоu analyze the evidence; it makes you put down your findings, and when you get to this analysis, and when you get to writing out your findings, you may come to different conclusions on certain facts than the impression that you first entertained when you heard the evidence. . . .
Wright, The Nonjury Trial-Findings of Fact, Conclusions of Law and Opinions, in Proceedings of the Seminars for Newly Appointed District Judges (1963). See Frank, Courts on Trial 183 (1963); Frank, Say It With Music, 61 Harv.L.Rev. 921 (1948); Note, 61 Harv.L.Rev. 1434, 1437-38 (1948).
The case is remanded for a new hearing, at which plaintiff should be permitted to add to the record the letters he has submitted to the Court in the present proceeding. 4 See 42 U.S.C. § 405(g). In the meantime, the case is placed on this Court’s suspense calendar.
SO ORDERED.
Notes
. Dr. Irving Mauer, an orthopedic surgeon, submitted evidence dating from December 23, 1973, that plaintiff had sustained a radial head fracture of the right elbow. (R. 124) Although a follow-up visit revealed improvement of both the right elbow and the injury to the left arm which resulted from the shooting, Dr. Mauer noted that plaintiff “remains disabled.” He continued to follow both of plaintiffs arm injuries during 1974. Despite initiаl improvement, on March 7, 1974 it was determined that the left arm had not healed properly and that Chiappa “remains disabled.” (R. 123) He also noted on April 11, 1974 that plaintiff had pain at his fracture site. In July 1975, due to the malunion of the left humerus, plaintiff underwent an operation in which a bone graft was performed and a metal plate inserted into his left arm. In November 1975, x-rays revealed that there were many metallic bodies in plaintiffs left arm. There was a 35% loss of use of his upper left extremity and limitation of motion of his left elbow and shoulder. (R. 121) On September 14, 1976, in his last report of record, Dr. Mauer stated that plaintiffs condition was essentially unchanged and that plaintiff was tо continue in observation. (R. 122)
. On September 16, 1976, Dr. Gordon reported that plaintiff appeared to have recovered well from his surgery for an “unusually severe left humerus injury.” (R. 127) Physical examination revealed that the left shoulder had an 80% normal range of motion, extension and flexion of the elbow lacked 5 degrees respeсtively, and rotation of the elbow was normal. Dr. Gordon found plaintiff’s grip to be normal in power, and no circulatory or nerve problem was present. X-ray examination of the humerus showed that the bone had healed in proper anatomical alignment. (R. 125, 127) Multiple
. In his last report of record, September 14, 1976, Dr. Mauer only mentioned that the claimant continued to have essentially the same symрtoms as he had shown previously. This description is vague; there is no indication which of the symptoms that Dr. Mauer catalogued over a two year period continued to affect plaintiff. Nevertheless, it is a fair reading to assume Dr. Mauer continued to regard plaintiff as disabled since he never noted improvement of any of plaintiff’s symptoms or a decrease in pain. Because the ALJ made no ascertainable effort to interpret these reports, it is impossible to guess his evaluation of them.
. Plaintiff has submitted two letters, dated November 8 and December 13, 1979, in which his attending physician, Dr. Mauer, states that plaintiff was in “pain up until the time of removal оf the hardware from his arm. For this reason I do not feel that it would have been possible for him at that time to have held down a full time job.” He also noted that plaintiff had “pain on change of weather.” While these letters, not produced at the hearing, may not be considered in determining whether the record is supported by substantiаl evidence, they may be considered in determining whether to remand for “good cause” as authorized by 42 U.S.C. § 405.
See Carnevale v. Gardner,