Domingo Echevarria v. Secretary of Health and Human Services

MESKILL, Circuit Judge

(dissenting):

I agree with the majority that in deciding whether the Secretary’s decision is supported by substantial evidence, “we must first satisfy ourselves that the claimant has had ‘a full hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the Act.’ ” Maj. op. at 755. Because I believe that Echevarria received a “full hearing,” I respectfully dissent from the result reached by the majority-

The majority acknowledges that the ALJ asked Echevarria whether any symptoms would prevent him from working, and about his prior work history and his ability to perform basic work functions and to function in daily life. Further, the record indicates that in addition to hearing the testimony of Echevarria, the ALJ requested and heard testimony of Dr. Plotz, who, as the district court found, was an authority on rheumatism and arthritis, and of Eleanor Grupsmith, an experienced vocational expert. The ALJ also reviewed Echevarria’s extensive medical file which contained opinions from five other doctors. Despite this thorough performance by the ALJ, the majority concludes that the ALJ should have asked Echevarria more probing questions and should have directed Echevarria to obtain a “more detailed” medical statement from his treating physician. I think that in almost every case we can formulate questions that we would have liked the ALJ to ask or can think of further actions that the ALJ might have taken. I believe that many of the questions which the majority formulates were indeed asked by the ALJ and that the questions which were not asked would not have affected the ALJ’s decision.

The majority first contends that the ALJ failed adequately to explore Echevarria’s subjective symptoms, especially his claims of pain. Contrary to the majority’s assertion, the ALJ asked Echevarria where he experienced pain and the severity of that pain:

Q Do you feel pain in your joints or do you feel the pain in the muscle?

*758 A In the joints.

Q No pains in the muscles?

A No.

Q No pain traveling?

A No.

Q What did the doctor tell you?

A When I go the doctor will give me pills for the pain.

Q What are the pills?

A Motran [sic] 400.

Q That’s it?

A Yes, that’s the pills.

Q How often do you take it?

A When I get the medication or I get the perscription [sic] it says I should take three a day or maybe one a day as needed.

Q Much pain?

A The pain bothers me a lot.

J.App. at 41-42. I fail to see what further relevant questions the ALJ should have asked. Furthermore, I am unable to comprehend how a more searching inquiry, including corroboration from Gonzalez, would have affected the ALJ’s determination. In rendering his decision, the ALJ concluded that because Echevarria portrayed no observable signs of pain, what pain he experienced did not prevent him from working. 1 It was, of course, within the ALJ’s discretion to discount Echevarria’s testimony of pain and to rely instead on his own observations. See Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); Vega v. Harris, 636 F.2d 900, 904 (2d Cir. 1981); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Further inquiry into Echevarria’s subjective symptoms would have had little impact on a determination based upon the absence of observable manifestations of pain. In addition, I find no record support for the majority’s contention that “a more diligent inquiry [concerning Echevarria’s stomach pains] would have revealed that these pains were the adverse effects of the drug (Motrin) prescribed for the arthritis.” Maj. op. at 756. Even were there support for this statement, I question how the adverse effects of a drug, the dosage of which can be altered or a substitute for which can be prescribed, could possibly be a basis for a disability finding.

The majority next asserts that the ALJ should have directed Echevarria to obtain a more detailed statement from his treating physicians rather than rely upon “the contrary conclusions of a non-treating medical advisor.” Maj. op. at 756. Unlike the majority, I do not find Dr. Plotz’s conclusions to be contrary to those of Drs. Falk and Bryant. Neither Dr. Bryant nor Dr. Falk stated that Echevarria was disabled or unable to work. Dr. Falk stated only that Echevarria “may be unable to work until this flare is controlled,” J.App. at 92 (emphasis added), and Dr. Bryant noted only that Echevarria’s condition “will worsen in due time and may result in his disability,” id. at 118 (emphasis added). If anything, Dr. Plotz’s observations would merely have indicated that Echevarria’s “flare” had been controlled. This finding is consistent with Echevarria’s own testimony that five or six months after his sudden attack of arthritis he was well enough and in fact is still well enough to work at his former job. J.App. at 34, 38. Furthermore, Dr. Plotz’s observations would only indicate that Echevarria’s condition had not deteriorated to the point where he was disabled or that the Motrin had been effective in combating Echevarria’s arthritis. The ALJ did not reject the opinion of Echevarria’s treating physicians nor were Dr. Plotz’s findings inconsistent with those opinions. In short, unlike in Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980), where the ALJ rejected the opinion of plaintiff’s treating physician, I do not believe that the ALJ here was required to “inform the claimant of his *759 proposed action and give him an opportunity to obtain a more detailed statement [from his treating physician].”

The majority next opines that the ALJ should have inquired as to whether Echevarria’s former employment was made possible only through special accommodation by his employer. The majority also asserts that the record does not reveal what tasks Echevarria could perform. Contrary to these contentions, the ALJ specifically asked Echevarria what tasks he performed at his former employment and whether there were other handbag factories where Echevarria could perform the same tasks:

Q What did you have to do on your last job?

A Most of the time I would be working with the stapling machine or putting the lining in the purse. All this was done sitting down.

Q You were in a handbag factory, and it was your job to put the linings in the bags, did you say?

A Most of the time that was my duty because I was the best one — I was the one that did it the best.

Q And you used the stapling machine?

A Yes.

Q And what else did you do in the handbag factory?

A Folding the purses with the hand folder.

Q Did you use other machinery?

A No, because the other machines you had to be standing.

Q Did you spend most of your time sitting in this job?

A Yes, most of the time.

Q If your job were available to you now, do you think you could do it? Your old job.

A Yes, I think so.

Q Are there any other places that do this kind of work here in the city to make handbags where you could do the same kind of work?

A Yes, I imagine so because most all purses are done with the same procedures.

J.App. at 37-39. Echevarria’s testimony is clear that he worked with the stapling machine, put linings in the purses and folded the purses with a hand folder, all of which could be performed at other handbag factories. Further, contrary to the majority’s contention, Echevarria indicated that he could perform these tasks provided that he could do so in a sitting position. See also J.App. at 36. In sum, unlike the majority, I perceive no “gap” in the record that “makes it impossible to evaluate the vocational expert’s . . . testimony that Echevarria is able to perform sedentary jobs.” Maj. op. at 756.

Finally, the majority asserts that Gonzalez intended only to testify, not to act as Echevarria’s representative. Accordingly, the majority implies that the ALJ should have apprised Echevarria of the advantage of counsel. I disagree. Although the colloquy between the ALJ, Echevarria and Gonzalez was somewhat confused, the fee discussion 2 as well as Gonzalez’s closing remarks 3 indicate to me that he intended all *760 along to act as Echevarria’s representative. Moreover, contrary to the majority’s assertion, the ALJ apprised Echevarria of his right to be represented. J.App. at 22-23. Also, the notice of hearing which Echevarria received informed him of his right to free legal representation. J.App. at 16. I do not believe that the ALJ was required to assess Gonzalez’s competence or to reiterate to Echevarria that he had a right to free legal representation. See Garcia v. Califano, 625 F.2d 354, 356 (10th Cir. 1980).

Accordingly, because I believe that Echevarria received a full and fair hearing and that the Secretary’s decision denying him supplemental security income and disability benefits was supported by substantial evidence, I would affirm the judgment of Judge Neaher below.

. In his decision the ALJ stated:

I am not overlooking the claimant’s allegations of pain and discomfort, since they may be an important factor in causing functional loss. However, when pain is unresponsive to therapeutic measures, it will, in the course of time, result in observable signs. No such manifestations have been reported which would establish that the claimant’s pain prevents him from performing substantial gainful activity.

J.App. at 12.

. In its citation to the record, Maj. op. at 754 n. 1, the majority omits the following discussion which I believe clearly indicates that Gonzalez, an experienced Social Service Coordinator for the Community Development Agency, intended from the beginning to act as Echevarria’s representative:

HA [Hearing Assistant]: No. Just one more thing, he’s not requesting a fee is he?

ALJ: Are you — this is a concurrent case, are you requesting [a] fee?

MR. GONZALEZ: No, this is a free offer. No fee or anything — volunteer work.

J.App. at 24.

. Gonzalez stated the following:

MR. GONZALEZ: I believe that the honest and (inaudible) party that we’re dealing with is a very honest person. I’m trying to help him along. We’re a month behind trying to get him into (inaudible). I know you spoke about CETA. I have the job in the Manpower Center, I was one of the guys in the CETA training program myself. I tried to put him in a lot of things. I have been trying to help him out to bring him to welfare to see if we could get some supplementary during the time he was in bad shape (inaudible) and he still needs some kind of help.

*760 I don’t think the man is very interested in living the rest of his life on disability or whatever. I think quite honestly he’s the type of guy that would like to go and fill a position. Unfortunately, I don’t believe right now there is any type of job open or training unless the legislators or the government in the near future express themselves to do something better.

But just taking this in consideration, from now until the future that’s what I’m interested in. What can happen? What is the resolution — what kind of result of a party like this who is willing and wants to but can’t find it.

J.App. at 58.