U.S. DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKJudge ScheindlinI. INTRODUCTIONPedro Rodriguez brings this action under section 405(g) of Title 42 of the United States Code, challenging the final decision of the Commissioner of Social Security (the “Commissioner”) denying his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The Commissioner now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and Rodriguez cross-moves for reversal of the Commissioner’s decision and remand. For the reasons set forth below, plaintiff’s motion is granted and the case is remanded to the Commissioner for further administrative proceedings consistent with this Opinion.II. BACKGROUNDA. Procedural HistoryRodriguez filed an application with the Social Security Administration (“SSA”) for DIB and SSI on February 1, 2001. In his application, he alleged that he has been disabled since November 1, 2000, due to human immunodeficiency virus (“HIV”) infection. After his application was denied on August 15, 2001, Rodriguez requested a hearing before an administrative law judge (“ALJ”). Rodriguez, represented by a non-lawyer from the Human Resources Administration Disability Appeals Unit, appeared and testified at a hearing on March 20, 2002. On April 16, 2002, the ALJ issued a decision denying Rodriguez’s application for benefits. The ALJ’s decision became the final decision of the Commissioner on January 6, 2005, when the Appeals Council denied Rodriguez’s request for review. Rodriguez filed the instant appeal pro se in February 2005, but he subsequently obtained counsel who filed his cross-motion.B. Plaintiff’s Personal HistoryPlaintiff was born on May 13, 1958, and was forty-three years old at the time of his administrative hearing. He attended school in the Dominican Republic but left after the third grade. Although he cannot read or write English, he can read and write some Spanish. Rodriguez arrived in the United States in 1976 and testified that he worked from 1976 until 2000. Upon his arrival in the United States, Rodriguez initially worked in restaurants. He later found work as an asbestos remover and packer and, for approximately five years prior to his SSI filing, he drove a taxi. Rodriguez stopped working entirely in November 2000 due to his alleged disability.C. Medical Evidence 1. Plaintiff’s SymptomsAt the administrative hearing, Rodriguez testified that he was unable to work because of HIV, fatigue, dizziness, pain, nausea and weakness. He testified that he suffers daily from an adverse reaction to his HIV medications. At other times, he has complained of weight loss, diarrhea, pain in his lower extremities, and red eyes. 2. Physical AssessmentsRodriguez was diagnosed with HIV infection in 2000. In a letter dated November 29, 2000, Dr. Alberto Comas stated that Rodriguez was a “new” HIV patient who had an “insignificant [past medical history] and actually is asymptomatic.” On December 4, 2000, Carol Donahue, a physician’s assistant specializing in HIV medicine, began treating Rodriguez at St. Clare’s Hospital and Medical Center. On May 21, 2001, Donahue reported that Rodriguez was HIV positive with a CD4 count of 420 and a viral load of 655. Although he complained that his eyes were red every day, Donahue noted that his ocular health was unremarkable with only minor surface inflammation. On July 19, 2001, Donahue completed a report detailing her treatment of Rodriguez. She diagnosed Rodriguez with HIV infection and noted that his CD4 count was 249 with a viral load of 74,116. Addressing Rodriguez’s ability to do work-related activities, Donahue opined that there were no physical limitations.On July 23, 2001, an SSA Physical Residual Capacity Assessment was completed by a State agency medical consultant after review of Rodriguez’s medical reports from St. Clare’s Hospital. The assessment stated that Rodriguez could lift up to twenty pounds occasionally or ten pounds frequently, and could sit, stand or walk for about six hours in an eight-hour day. No other limitations were noted. On August 8, 2001, those findings were reviewed by Dr. Theodore Tuller, a State agency physician, who agreed with the assessment’s findings. Dr. Tuller noted that Rodriguez had no evidence of opportunistic infections, no significant weight loss, and was asymptomatic as of November 29, 2000.On October 5, 2001, Donahue completed a second medical report documenting her treatment of Rodriguez. In that report, Donahue first noted that Rodriguez suffered some physical impairments due to his HIV infection. Donahue opined that because of fatigue and weakness, Rodriguez was limited to standing for two hours, walking for one hour, and climbing one flight of stairs in an eight-hour day. Additionally, Rodriguez was limited to lifting ten pounds and carrying five pounds. He had no limitation on sitting, bending, reaching or handling objects.Donahue completed a third report on March 7, 2002. In that report, Donahue stated that she had last seen Rodriguez on February 7, 2002, and noted that as of that time he was taking anti-retroviral medication with “excellent results.” Attached laboratory results indicate that as of January 24, 2002, his CD4 count was 572 with a viral load of 452. 3. Mental AssessmentsRodriguez visited St. Clare’s psychiatric clinic on December 18, 2000. At that visit, Rodriguez complained of depression, sleep disturbance, and feelings of anxiety and hopelessness, but he had no suicidal ideation. He was fully oriented and well-groomed. He was diagnosed with “major depression-mild.” He was prescribed Ambien for his sleep disturbance, but he refused a prescription for an antidepressant.In addition to the summary report from the St. Clare’s psychiatric clinic, Donahue’s reports also assess Rodriguez’s mental condition. Donahue’s July 19, 2001 report noted that Rodriguez’s mental status was good, that he maintained intellectual functions, and that he had no limitation on his ability to function in a work setting. Her October 5, 2001 report noted that Rodriguez had: no difficulties completing tasks due to deficiencies in concentration, persistence, or pace; only mild impairments of daily living and maintaining social functioning; and only mild episodes of decompensation. In her March 7, 2002 report, Donahue did not note any mental disorders or impairments.Despite his earlier refusal of a prescription for an antidepressant, at the time of his ALJ hearing on March 20, 2002, Rodriguez indicated on a self-reported list of prescription medications that he was taking the antidepressant Celexa on a daily basis. There is no indication in the Administrative Record as to which doctor prescribed the medication or when Rodriguez began taking it.D. The ALJ’s DecisionBased on Rodriguez’s testimony at the administrative hearing as well as the medical reports included in Rodriguez’s record, the ALJ completed the proper five-step analysis for SSI and DIB claims. First, the ALJ determined that Rodriguez had not engaged in any substantial gainful activity since the onset of his alleged disability. Second, the ALJ concluded that Rodriguez had HIV, a severe impairment as defined by the regulations. Third, although Rodriguez had HIV, it did not rise to the level of a listed impairment. The ALJ then determined that Rodriguez did not have the residual functional capacity to perform his past work as a packer or taxi driver. Next, the ALJ determined that despite Rodriguez’s inability to return to work as a packer or taxi driver, he had the exertional capacity for sedentary work. Based on the medical-vocational guidelines (the “Grids”), the ALJ concluded that there were positions in the national economy that fit Rodriguez’s qualifications. Accordingly, the ALJ found that Rodriguez was not disabled at any time.III. LEGAL STANDARDSA. Substantial EvidenceIn deciding disability claims, an ALJ must follow a five-step process. First, the ALJ must consider whether the claimant is currently engaged in substantial gainful activity. Second, if he is not so engaged, the ALJ must determine whether the claimant has a “severe” impairment that significantly limits his physical or mental ability to do basic work activities. Third, if the claimant suffers from such a limitation, the ALJ must decide whether, based solely on the medical evidence, that limitation corresponds with one of the conditions listed in Appendix 1 of the regulations. If it does, the ALJ does not inquire into vocational factors such as age, education and work experience because the claimant is presumed to be disabled. Fourth, if the claimant does not have a listed impairment, the ALJ must determine whether the claimant has the residual capacity to perform his past relevant work despite his severe impairment. Fifth, if the claimant satisfies the burden of showing that he has a severe impairment that prevents him from performing his past work, the burden then shifts to the Commissioner to prove that the claimant retains the residual functional capacity to perform alternative work which exists in the national economy.In reviewing a denial of disability benefits, the Social Security Act provides that the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence in this context is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” A court may “‘only set aside a [Commissioner's] determination which is based upon legal error or not supported by substantial evidence.’” As such, this Court’s task is limited to determining whether the ALJ’s decision is based upon substantial evidence in the record and the correct application of governing legal principles.B. Duty to Develop the RecordGiven the non-adversarial nature of Social Security proceedings, the ALJ is under a duty to affirmatively develop the record regarding possibly disabling impairments. Thus, “[i]n considering whether the decision of the SSA was supported by substantial evidence, the reviewing court looks to whether the ALJ complied with his affirmative duty to fully develop the record.” If the ALJ fails to fulfill this duty, the district court should reverse the Commissioner’s decision and remand the case for further development of the record. The ALJ’s responsibility to fully develop the record, present even when a claimant is represented by counsel, is heightened when a claimant is proceeding pro se. The ALJ is thus obligated to explore the facts by obtaining relevant medical records and asking questions at the hearing to assist the claimant in developing his or her case. As the SSA’s regulations state, “[b]efore we make a determination that you are not disabled, we will develop your complete medical history . . . . We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.” The regulations also state that, “[w]hen the evidence we receive from your treating physician . . . or other medical source is inadequate for us to determine whether you are disabled . . . [w]e will first recontact your treating physician . . . or other medical source to determine whether the additional information we need is readily available.” The ALJ’s duty to develop the record is not limited to those impairments listed by the claimant. For example, in Prentice v. Apfel, the ALJ summarily dismissed the possibility of mental impairment because the claimant did not allege such impairment in her benefits application or at her hearing. In finding that the ALJ did not satisfy his duty to develop the record with regard to claimant’s potential mental disability, the court stated:That plaintiff did not specifically allege psychopathology in her initial benefits applications is not dispositive. The relevant regulation mandates that the Administration will “consider only impairment(s) which you say you have or about which we have evidence.” 20 C.F.R. §404.1512(a) (emphasis supplied). The disjunctive phrasing of this rule requires an ALJ to investigate the disabling effects of an impairment if the record contains evidence indicating that such an impairment might exist. This obligation is triggered without regard to whether the claimant has alleged that particular impairment as a basis for disability. Accordingly, the fact that plaintiff did not cite depression as a basis for disability is not dispositive of the issue of whether [the ALJ] had a duty to investigate the possibility that plaintiff was disabled by a mental impairment.Furthermore, “[w]here there are gaps in the administrative record, remand to the Commissioner for further development of the evidence is appropriate.”C. Use of the Medical Vocational GuidelinesOrdinarily, the Commissioner satisfies her burden at the fifth step by resorting to the Grids. Taking into account the claimant’s residual functional capacity, age, education and work experience, the Grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy. Exclusive reliance on the Grids, however, is inappropriate “‘where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform.’” A nonexertional impairment is significant where there is “additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant’s possible range of work as to deprive him of a meaningful employment opportunity.” “In these circumstances, the Commissioner must ‘introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.’”D. Subjective ComplaintsThe Second Circuit has held that throughout the five-step process, “‘the subjective element of [the claimant's] pain is an important factor to be considered in determining disability.’” But, the “Second Circuit has also held that ‘[t]he ALJ has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.’” If substantial evidence supports the Commissioner’s findings, “‘the court must uphold the ALJ’s decision to discount the claimant’s subjective complaints of pain.’”IV. DISCUSSIONA. The ALJ Failed to Fully Develop the RecordRodriguez claims that the ALJ committed legal error by failing to fully develop the record by neglecting to “seek out additional information about Mr. Rodriguez’[s] mental condition.” Specifically, Rodriguez alleges that the appearance of the antidepressant Celexa on a list of medications he submitted on March 20, 2002, in combination with his testimony that his primary activity is sitting in a chair and sleeping, demonstrates that his mental condition had deteriorated by the time of the ALJ hearing and warranted further development of the record. Rodriguez asserts that under such conditions the “ALJ should have contacted the doctor who prescribes . . . the Celexa and Ambien, and asked if Mr. Rodriguez’s condition had changed since Carol Donahue’s report of October 5, 2001.”In addition to the fact that Rodriguez was taking Celexa, the Progress Record from his initial evaluation at St. Clare’s psychiatric clinic indicates that Rodriguez was depressed, tearful, worried, and that he suffered from a sleep disturbance. Although the ALJ noted this in his Decision, he did not even know who prescribed the Celexa and under what circumstances. The medication list, the Progress Record, and Rodriguez’s testimony of excessive sleeping, in combination, suggest the presence of a psychological impairment. The ALJ’s duty to investigate was thereby triggered, as was his obligation to assist Rodriguez in developing his case. “[The] failure to inquire into the issue of whether plaintiff suffers from a disabling mental impairment is inconsistent with an ALJ’s responsibility to ‘protect the rights of [the] pro se litigant by ensuring that all of the relevant facts are sufficiently developed and considered.’” On remand, the ALJ is directed to further develop the record with respect to Rodriguez’s mental condition and to determine whether, and to what extent, such condition affects his ability to perform work-related activities. B. The ALJ’s Reliance on the GridsRodriguez also claims that the ALJ committed legal error in relying exclusively on the Grids in determining that he is not disabled. Rodriguez claims that such reliance was in error because the ALJ “made no findings regarding Mr. Rodriguez’s non-exertional impairments.” As stated earlier, if a claimant has significant nonexertional impairments, reliance on the Grids is inappropriate.There is some evidence that Rodriguez suffers from nonexertional limitations. For example, in her October 5, 2001 Report, Donohue notes that Rodriguez is limited with respect to standing, walking, and climbing because of fatigue and weakness. There is also evidence that Rodriguez suffers from depression and anxiety. Finally, at the hearing, Rodriguez testified that he gets tired, dizzy and nauseous from his HIV medications. In light of this evidence, the ALJ is directed to consider how these nonexertional limitations affect Rodriguez’s capacity to perform the full range of sedentary work. The ALJ is further directed to consider employing the services of a vocational expert to determine whether Rodriguez’s nonexertional limitations pose a significant restriction on the range of work he is able to perform.C. The ALJ’s Decision to Discount Rodriguez’s Subjective Complaints Did Not Constitute Legal ErrorFinally, Rodriguez claims that the ALJ committed legal error by discounting Rodriguez’s subjective complaints about the debilitating side-effects of his HIV medications. The record reveals, however, that the ALJ properly considered Rodriguez’s subjective complaints but declined to give them much weight because they were not fully supported by objective medical evidence. In his benefits application and at the ALJ hearing, Rodriguez alleged that he suffered from fatigue and severe pain all over his body. But in his decision, the ALJ noted that Rodriguez traveled to the Dominican Republic two months prior to the hearing and, over the past five years, had traveled to the Dominican Republic three or four times. More importantly, the ALJ found that Rodriguez’s claims were “not fully supported by the objective medical evidence.” In his review of this evidence , the ALJ noted that Donahue’s third report stated that Rodriguez was on anti-retroviral medication, with excellent results, and “at last count, the claimant had a CD 4 count of 572 and viral load of 452.” The ALJ also noted that Donahue’s second report indicated that Rodriguez’s daily living and social activities were only “mildly restricted.” Thus, the ALJ’s decision to discount Rodriguez’s subjective complaints is supported by substantial evidence and cannot be disturbed.V. CONCLUSIONFor th e foregoing reasons, the Commissioner’s motion for judgment on the pleadings is denied and Rodriguez’s cross-motion is granted. Because the Commissioner is directed to reconsider plaintiff’s case in light of existing evidence, the remand is a “sentence four” remand rather than a “sentence six’ remand. The decision of the Commissioner denying Rodriguez benefits is therefore reversed and the matter is remanded for further administrative proceedings consistent with this Opinion. The Clerk of the Court is directed to close these motions [Documents # 7 and 14] and this case. SO ORDERED
