*3 MESKILL, receiving sought ter treatment he to return Before MANSFIELD and PRATT,* Judge. to work a month later but could not Judges, Circuit because Circuit the factory closing. was For some 39 MANSFIELD, Judge: Circuit unemploy- weeks thereafter he received compensation ment while unsuccessfully Domingo appeals Echevarria from a looking for work. judgment of the District United States York, Court for the Eastern District of New application disability Echevarria’s 977, Neaher, F.Supp. Judge, Edward R. initially SSI benefits was denied both affirming a determination of the Secretаry upon reconsideration. A was then (“Secre- of Health and Human Services 13, held before ALJ Forsmith on October tary”) denying application unrepresented 1978. Echevarria was Security Disability Social Insurance and accompanied by counsel but was Eduardo Supplemental (“SSI”) Security Income un- Gonzalez, a social coordinator for services 1382, der 42 seq. et et U.S.C. Community Development Agency, §§ who seq. principal appeal issue on is wheth- hearing only testify attended the on er the judge (“ALJ”) was, administrаtive law Echevarria’s behalf but after a collo- special obligation protect fulfilled his quy pressed into service as * York, heard, appeal Judge sitting by designation. When this was Pratt He was was inducted Judge judge District for the Eastern District of New as a of this Court on June advisor, representative Grupsmith, and Mrs. testify.1 and did not vocational questions Echevarria answered the ALJ’s Plotz, expert. Dr. who had not examined through interpreter, ques- but was not Echevarria, reports reviewed the of the five Gonzalez;
tioned by nor did he call physicians who had treated him at various witnesses. these, only times. Of two on commented Falk, to do work.2 Dr. difficulty Echevarria stated that he had stairs, walking climbing monthly who treated him on a basis from squat bend his knees to and was limited through diag- Fall of 1976 March pounds. 15-20 He stated that the pain nosed prescribed mild rheumatoid from his various ailments “bothers [him] medication, and stated lot” very and often left him tired. He also “may not be able to work until this [arthrit- testified about stomach for which he Bryant, flare is controlled.” Dr. in a ic] being X-rays treated and for which had 2, 1978, August diagnosed letter dated trau- been taken but yet were not available. The gave prognosis matic arthritis and *4 ALJ, however, hearing stated that patient’s will condition worsen in due “[t]he proceed without report the medical time in may disability.” and result his on his stomach pains they represent a examining None of these doctors were new condition not original included in the testify called to or asked to evaluate the application. benefits Although Echevarria Instead, Plotz, reports оf the others. Dr. testified that he he thought a reviewing who was sedentary job, tried,” reports the medical which he “would have and that hearing, within 5-6 months after the first time at the the flare- testified as an up probably performed could have expert his really witness that “there are no job, former pointed he also to the serious support medical conditions which would he suffered from which re- diagnosis disabling of arthritis anything quired strong anti-pain pills, his use of else” and that Echevarria fully capable suggested that at best only he сould work if walking standing normal and of of on his his employer were willing to accommodate feet eight day. ques- hours a Gonzalez problems. his various only briefly, tioned Dr. Plotz and seemed testified, After Echevarria the ALJ called confused about whether Dr. Plotz or the Plotz, the only two Dr. a witnesses: medical ultimately ALJ would decide the issue of portions why colloquy eventually 1. The relevant of the at the It is unclear Gonzalez did not hearing testify. might are as follows: His failure to do so part a mistaken belief on stemmed from “ALJ: You were notified in the notice of acting representative precluded that his as a you you that was sent to that had the testifying. him from right represented by attorney any to be person. you represented today? other Are treating physicians 2. There were three other gentleman CLAIMANT: This came with me. reports part Lip- whose were of the file. Drs. going you represent ALJ: Is he or is he ton and Dinhoffer examined Echevarria on Feb- going testify? 10, 1978, ruary unexplained after an 11-month testify. CLAIMANT: Just Lip- break since Dr. Falk’s last treatment. Dr. depending. MR. GONZALEZ: All ton, surgeon, reported part: in depends. INTERPRETER: It all saying MR. GONZALEZ: I’m it all de- “There is a loss of flexion and extension 50% pends (inaudible) represent if pronated. wishes me to of the ankles. The feet are The her depressed rigid. [sic]. arches are There is asking. your atrophy X-rays ALJ: That’s what I’m Is that moderate of both calves. decision? Neurological were reviewed. examination CLAIMANT: Yes. was normal. “Impression: (1) (2) syndrome, low back bi- fusion, (3) rigid pes planus.” lateral ankle (To Hearing “HA”) right. ALJ: All Assistant reported congenitally you Dr. reрresentation Dinhoffer unstable Do have a statement of right congenital back and a variation of the for the file? Olivera, April No, just on foot. Dr. who saw Echevarria HA: I didn’t know. He said he was 12, 1978, gave going testify, diagnosis put of rheumatoid os- so I didn’t his statement in.” teoarthritis.
755
the claimant
disability.
questioned
The ALJ also
has had “a full hearing
who,
expert,
Grupsmith,
ap-
vocational
Mrs.
the Secretary’s regulations
under
parently
having
without
examined Echevar-
purposes
accordance with the beneficent
of
tests,
presented
HEW,
ria or conducted
Secretary
con-
Act.” Gold v.
of
463
clusory testimony
general
(2d
1972).
based
on her
F.2d
43
Cir.
need for this
Gonzalez,
knowledge
sedentary jobs.
inquiry
essentially
arises from the
non-ad-
questioned
only cursorily,
who
her
focused
proceeding:
versarial nature of a benefits
obtaining
practical
on the
difficulties of
the Secretary
represented,
is not
and the
light
prevailing unemploy-
trial,
work in
judge
unlike a
in a
must himself
rate,
wholly
ment
a factor
irrelevant
affirmatively develop the record. Schauer
Sсhweiker,
issue
disability.
(2d
See
U.S.C. v.
DISCUSSION subjec nature and extent of Echevarria’s An applicant disability pay symptoms. tive testimony claimant’s ments impairment pain must show thаt his is of suffering only proba about “is not such severity that he cannot his disability, ‘may tive on the issue of but previous “engage work or other kind establishing serve as the basis for disability, of substantial gainful work which exists in even when pain unaccompanied by such is economy,” national 42 positive “objec U.S.C. clinical findings or other 1382c(a)(3)(B). However,, deciding Hankerson, tive” § medical evidence....’” whether the Secretary’s supra, conclusions on this 636 (quoting F.2d at 895 Marcus v. evidence, Califano, supported by 23, (2d 1979)). issue are substantial 615 F.2d 27 Cir. review, Acсord, Schweiker, 107, which is the test on 42 U.S.C. Aubeuf v. 649 F.2d 1383(c)(3) (incorporating (2d 1981). Here, 42 despite U.S.C. 113 Cir. numerous § 405(g)), satisfy must first ourselves references in the medical records and testi- § 404.1510, Magistrate question § Caden noted that Echevarria was there was some “closely approaching age” particular experience lining in the advanced cat- whether his work — 404.1503, egory, assembling pocketbooks 20 C.F.R. had “limited edu- § women’s —was cation,” 404.1507, Magistrate id. was unable to commu- § transferable. concluded that English, 404.1506.07, factors, light nicate in id. had no vo- thеse when considered in of the § training, experience pessimistic reports, required cational his work was un- medical a remand work, sedentary skilled and limited to id. for re-evaluation.
756 mony by concerning subjec- Echevarría his This was not done here. the absence “[I]n symptoms evidence, tive pain, contradictory serious of substantial did fully inquire specifically opinion treating into what of the claimant’s physician binding Secretary.” caused Echevarria job to leave his or the on Id. See also HEW, McLaughlin Seсretary v. degree full 612 F.2d and the extent (2d 1980) (contrary Cir. views of prevents working. which it him from addition, weight medical advisor entitled to less un- knowing Gonzalez initial- ly intended less substantial evidence contradicts treat- testify, did not seek conclusion); ing physician’s corroboration from him about Echevarria’s Strickland Harris, subjective (5th 1980) symptoms; 615 F.2d Cir. had Echevarria been represented counsel, (report non-examining physician subject alone this is a “[a]ny lawyer evidence). does not prepared for a . constitute substantial . . Morеover, indicated, already would realize . for reasons required supporting .. most testimony.” Schweiker, requested ALJ should have reports Clark v. medical (5th concerning problems, Echevarria’s stomach Finally, rather they highly than are relevant to Dr. summarily dismissing as irrelevant Falk’s prognosis that to work testimony about his stomach pains, a more turns on the effectiveness of treatment. diligent inquiry would have revealed that these were the adverse inquiry An also should have been con- (Motrin) effects of the drug prescribed for duсted into whether Echevarria’s former directly and thus were related employment possible was made only by spe- to Echevarria’s attempts to control the ar- part cial accommodation on the of his em- initially thritis that forced to leave his ployer that not be by poten- matched employers. tial future The record fails to disclose the reasons for Echevarria’s in- Hankerson, as in proper creasingly frequent work absences course would have been to direct Echevar- hаving given been easier tasks as ail- ria to obtain a more detailed statement Indeed, ments became more serious. treating physicians, Dr. Falk and record does not reveal specific what tasks Dr. Bryant, before rejecting pessimis- their *6 Echevarria perform could and did for his tic prognosis ability about his to work. Of employer, former or what tasks he was the five treating physicians’ reports, only forced to abandon as his arthritis became two commented on the disability: issue of “gap” more severe. This in the record Dr. Falk stated that “may Echevarria be impossible makes it to evaluate the voca- unable to work until this flare is con- expert’s conclusory tional testimony that trolled,” and Dr. Bryant reported that the perform Echevarria is able to sedentary “traumatic arthritis ... will worsen in due jobs. time and may result in his disability.” While findings conclusive, these are not the Mr. represen Gonzalez’ nominal duty protect rights to the pro of se claim- suspend tation of Echevarria did not the ants by developing “all the relevant faсts” special duty pro ALJ’s to se claimants. calls for much more than a reliance on the only Gonzalez intended to testify and not to contrary conclusions of non-treating a medi- representative, act as a supra, see note cal Hankerson, advisor. As we stated in which indicated that if Echevarria had been supra: adequately advised of the advantages of reject
“Before the ALJ can
opinion
having experienced
counsel,
an
Legal
of
as he
Aid
pro se
treating
claimаnt’s
physician be- now
appeal,
has on this
he would have so
cause it is conclusory,
principles
basic
light
chosen.
of the confused
fairness require that he inform
colloquy
the claim-
duty
the ALJ was under a
ant of his proposed
give
action
simply
inquire
to
if Echevarria consented at
an opportunity to obtain a more detailed
that moment
to
representation,
Gonzalez’
statement.”
erson v. F.2d at 897. probing have asked Echevarria more ques- tions and should have directed Echevarria
Therefore, notwithstanding Gonzalez’ to obtain a “more detailed” medical state- representation, nominal the ALJ was under treating ment from physician. I think special duty protect rights every that in almost case we can formulate by ensuring that be “fair and questions that would have liked the ALJ adequate.” While none of the stand- errors to ask or can think of further actions that ing is sufficient upsеt alone the Secre- have might taken. I believe that determination, tary’s their total de- effect many questions majority of the which the prived of a full consideration indeed asked formulates were Hankerson, supra, claim.4 questions and that which were not 987. Accordingly, judgment we vacate the the ALJ’s asked would not affected court with district instructions decision. Secretary remand matter proceedings. further appropriate first that the ALJ majority contends *7 adequately explore Echevarria’s failеd MESKILL, Judge (dissenting): Circuit subjective symptoms, especially his claims Contrary pain. majority’s I of asser- agree majority deciding that in tion, the ALJ asked Echevarria the where Secretary’s sup- whether decision experienced pain severity and the of that ported evidence, substantial “we must pain: satisfy first ourselves that the claimant has
had ‘a full
Secretary’s
Q
you
pain
your joints
under the
do
Do
feel
regulations
pain
and in accordance
the
the
you
with
be-
feel
the muscle?
disposition
Harris,
1980),
to reach
(2d
4. This
obviates the need
erson v.
636 F.2d 893
Cir.
wrongfully
to decide whether Echevarria
Echevarria’s
claim that
do not need
adequate
separate inquir-
right
what should be two
was accorded
notice of his
combined
severity
physical
possibility
impairment,
legal
ies:
the
counsel and the
of free
assist-
ance,
not,
duty
inquiry,
pursue gainful
higher
the
activi-
whether an even
and if
ty,
inquiry.
Berry
thereby
placed upon
a vocational
See
v. Schweik-
be
See
would
ALJ.
er,
1982).
Schweiker,
(2d
(5th
464 at 466
In
675 F.2d
Cir.
Clark
A In the the adverse effects of drug prescribed Maj. op. arthritis.” at Q No in the muscles? 756. Even were support there for this A No. statement, question I how the adverse ef Q pain No traveling? drug, dosage fects of a of which can be A No. altered or a substitute for which can be Q What you? did the doctor tell prescribed, possibly be basis A goI give finding. When the doctor will me disability pills pain. for the The majority next asserts that Q pills? What are the should have directed Echevarria to obtain a treating morе detailed statement from his A Motran [sic] physicians rather rely upon than “the con- Q That’s it? trary conclusions of a non-treating medical Yes, A that’s the pills. advisor.” Maj. op. at 756. Unlike the Q How often you do take it? majority, I do not find Dr. Plotz’s conclu- get When I get the medication or I to be contrary sions to those of Drs. Falk the perscription says I should [sic] Bryant. Neither Bryant Dr. nor Dr. take day maybe three a day one a Falk stated that Echevarria was disabled or as needed. unable to work. Dr. Falk only stated Q Much pain? “may be unable to work until controlled,” this flare is J.App. (em- at 92 A The pain bothers me a lot. added), phasis Bryant and Dr. only noted J.App. at 41-42. I fail to see what further that Echevarria’s condition “will worsen in questions relevant the ALJ should have due may time and result in disability,” Furthermore, asked. I am unable to com (emphasis added). id. at 118 anything, If prehend how a searching inquiry, more in Dr. merely Plotz’s observations would cluding Gonzalez, corroboration from indicated that Echevarria’s “flare” had have affected the ALJ’s determination. In finding been cоntrolled. This is consistent rendering decision, the ALJ concluded with Echevarria’s own testimony that five that because Echevarria portrayed no ob or six months after his sudden attack of signs servable pain, of what he experi arthritis he was well enough and in fact is prevent enced did not him from working.1 enough still well to work at his former was, course, It within the ALJ’s discre 34, Furthermore, J.App. Dr. Plotz’s tion to discount Echevarria’s testimony of observations would indicate that Eche- pain and to rely instead on his own observa varria’s condition Harris, tions. had deteriorated to 122, 124 See Miles v. 645 F.2d (2d Harris, point where he was 1981); Vega Cir. v. disabled or that the 636 F.2d Motrin had (2d 1981); 904 been effective in ano, combating Cir. Marcus Calif (2d F.2d Echevarria’s arthritis. The ALJ Cir. did not inquiry Further reject opinion into subjective treating symptoms physicians would have had little nor were impact findings on a Dr. Plotz’s in- determi nation upon opinions. short, based consistent with those In observa absence Harris, ble pain. addition, manifestations of unlike in Hankerson v. find no record support (2d 1980), for the majority’s rejected where the ALJ contention that “a diligent inquiry opinion plaintiff’s more treating physician, *8 [concerning Echevarria’s pains] stomach I do not believe that the ALJ here was would have revealed that these required were to “inform the claimant of his time, 1. In his signs. decision the ALJ stated: result in observable No such reported manifestations have been which overlooking I am allega- not the claimant’s pain pre- would establish that the claimant’s pain discomfort, tions they may performing gain- vents him from substantial important causing be an fаctor in functional activity. ful However, unresponsive loss. when to J.App. at 12. measures, will, therapeutic it in the course of Q proposed give opportuni- you spend action and him an Did your most of time sit- ty to obtain ting job? a more detailed statement in this his treating physician].” Yes, [from A most of the time. Q your job you now, If were available to The majority opines next do you you think could do it? Your old inquired
should have to whether as Eche- varria’s employment pos- former was made Yes, A I think so. sible only through special аccommodation employer. Q majority also asserts Are there any places other that do the record does not reveal what tasks this kind of work here city in the to Echevarria make perform. Contrary handbags you could to where could do the contentions, these same kind of work? specifically asked Echevarria what performed tasks he Yes, A I imagine so because most all at employment his former and whether purses are done proce- with the same there were other hаndbag factories where dures.
Echevarria perform could the same tasks: J.App. at 37-39. Echevarria’s testimony is
Q you What did have to on your do last clear that he worked with the stapling ma-
job? chine, put linings purses in the and folded folder, purses A Most with a of the time I hand all of which working would be performed could be handbag other stapling machine or facto- putting Further, ries. contrary lining purse. majority’s in the All this was contention, Echevarria indicated that sitting done down.
could provided these tasks that he could do so in а sitting position. See also Q You were in a handbag factory, and it sum, J.App. at 36. In majority, unlike the I was your job put to the linings in the perceive “gap” no in the record that “makes bags, you did say? impossible to evaluate the vocational ex- A Most of the time that my duty pert’s testimony . . . that Echevarria is able because I was the best one—I was the perform sedentary jobs.” Maj. op. at one that did it the best. 756. Q you And stapling used the machine? Finally, majority asserts that Gonza- A Yes. lez testify, intended not to act as Q And what you else did do in the hand- representative. Accordingly, bag factory? majority implies the ALJ should A Folding purses with the hand apprised advantage folder. disagree. of counsel. Although the collo- quy between the Echevarria and Gon- Q you Did use other machinery? confused, zalez was somewhat the fee dis- No, because the you other machines as well as cussion2 closing Gonzalez’s re- had to be standing. indicate to marks me that he all intended record, Maj. its citation to the op. following: at 754 Gonzalez stated the 1, majority n. fоllowing omits the discussion MR. GONZALEZ: I believe that the honest clearly Gonzalez, which I believe indicates that (inaudible) party dealing that we’re with experienced Social Service Coordinator very person. trying help is a honest I’m Community Development Agency, intended along. trying him We’re a month behind beginning repre- to act as (inaudible). get you spoke him into I know sentative: job Manpow- about CETA. I have the in the [Hearing HA Center, guys No. Just one er Assistant]: I was one of the in the CETA thing, requesting more training program he’s myself. put a fee is he? I triеd to you case, ALJ: Are things. trying help is a concurrent in a lot of I have been —this you requesting are bring fee? [a] him out to him to welfare to see if we No, MR. get supplementary GONZALEZ: during this is a offer. free some anything No fee or shape (inaudible) work. time he was in bad and he —volunteer J.App. at 24. help. still needs some kind of *9 representative. Greeting along to act as Echevarria’s Association of Card Publish ers; of American Publish Association majority’s asser contrary to ers; Recording Industry Associa tion, Echevarria of his apprised America, Inc.; tion of United Parcel J.App. at 22-23. right represented. to be America, Inc.; American Service of Also, hearing which Echevar the notice of Association; Newspaper Ad Publishers right ria him of his received informed Services; Adver vertisers Distribution I legal representation. J.App. free at 16. Corp.; Magazine tisers Postal Service required the ALJ was do believe that Association; Pub Publishers Classroom to reiterate competence assess Gonzalez’s or Association; March of Dimes lishеrs right that he had a to free Foundation; Birth Defects National legal representation. Garcia v. Califa See Association; Newspaper Mail As Order (10th America; Shippers Parcel no, sociation of Association; Time, Incorporated; News that Eche- I believe Accordingly, because week, Utility Inc.; of Public Council and fair varria received a full Mailers; Federation; American Retail denying him Secretary’s decision Association, American Bankers Interve disability security income and supplеmental nors. evi- supported by substantial benefits was dence, judgment I would affirm DIRECT MAIL/MARKETING ASSOCIA- Judge Neaher below. TION, INC. and Associated Third Class Users, Plaintiffs-Appellants,
Mail v. SERVICE, UNITED STATES POSTAL Defendant-Appellee. INCORPORATED; Newsweek, TIME, Donnelley Inc.; Corpora- The Reuben H. 893-897, 81-4183, 81-4185, Nos. Dockets Advertising tion; Service Associa- Mail 81-4203, 81-4205 and 81-6216. International; Direct Mail/Market- tion Association, Inc.; ing Mail Order Asso- United States Court of Appeals, America; National Associa- ciation of Second Circuit. Publishers; Greeting Amer- tion of Card Press, Inc.; Associated ican Business Argued April Users; Mаil American Re- Third Class July Decided Federation; of Public Utili- tail Council ty Mailers; Parcel United Service Petitioners, Inc., America, POSTAL
UNITED STATES SERVICE, Respondent, Association, Inc.; Mail/Marketing
Direct Company; The National Dow Jones & consideration, just taking very But this interested in think the man is don’t disability what I’m interest- living now until the future that’s life on the rest of his happen? honestly reso- quite What is the ed in. What can I think he’s whatever. party type go like guy kind of result of like to and fill a lution —what that would right willing position. Unfortunately, wants to but can’t who is I don’t believe training any type job open now find it. there is government J.App. legislators or the at 58. unless the express to do the near future themselves something better.