MANSFIELD, Circuit Judge:
Bonita Donato (Donato) appeals from a judgment of the Eastern District of New York, entered sua sponte by Judge Mark A. Costantino on December 22, 1982, affirming a decision of the Secretary of Health and Human Services (HHS), dated April 14, 1982, denying her application for supplemental security income disability benefits under the Social Security Act and dismissing her complaint filed pursuant to 42 U.S.C. § 405(g). The Secretary denied benefits on the ground that Mrs. Donato was not disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(A).
On October 29, 1980, shortly before Mrs. Donato filed her application, Dr. Herbert Wiener, Mrs. Donato's treating physician, signed a Disability Certificate confirming her basic medical disability as represented by her and certifying that she was "totally incapacitated." In December 1980, physicians at the New York Diagnostic Center conducted a comprehensive examination of Mrs. Donato that included a physical examination, X-rays of chest, spine and hands, electrocardiogram and treadmill tests, and laboratory work. Appellant's EKG and treadmill tests were diagnosed as being within normal limits. Her heart sounded normal. X-rays indicated an osteoarthritis degenerative disease in the lumbar area of her spine, an elongation and uncoiling of the thoracic aorta, and conditions in the lungs (calcification, blunting, nodule) involving loss of lung volume that was "probably secondary to old healed tuberculosis." The Center's impressions were "Hypertension, poorly controlled," "Chest pains, of uncertain etiology" and "Degenerative joint disease, mild." It reported her able to sit for 8 hours per day, stand 2 to 4 hours per day, walk one to two hours per day, and occasionally lift or carry up to 20 pounds. On the basis of this report HHS determined on December 30, 1980 that Mrs. Donato was not eligible for the requested supplemental security income payments and so advised her by letter dated March 2, 1981.
Mrs. Donato requested reconsideration and a hearing. On June 10, 1981, physicians at Broadway Park Medical conducted a further medical examination of her and concluded that she had "Hypertensive cardiovascular disease, with questionable history of myocardial infarction" and "Osteoarthritis lumbosacral spine, probable minimal osteoarthritis of the knees and ankles." She was found to have "extensive pleural calcification" in the right lung with scarring and volume loss consistent with old, healed tuberculosis. Although she appeared
On November 18, 1981, a short hearing was held by Administrative Law Judge James Manos of the Office of Hearings and Appeals, Social Security Administration, HHS. Mrs. Donato, who was unrepresented, testified through an interpreter that in August 1980 she had left her factory job making artificial flowers because of back pain, chest pain and shortness of breath, which made it impossible for her to remain standing or sitting for more than 20 minutes at a time or to walk for more than 2-3 blocks and then very slowly. If she stood longer than 15-20 minutes her legs would start hurting. She suffered cramps when she stood up or lay in bed for any substantial length of time. She could occasionally lift up to 10 pounds but could cook or take a bath only with great difficulty, requiring help from others. Her son-in-law (Jesus Soriano) corroborated her testimony, stating:
No other oral testimony was taken. Medical records of Dr. Wiener, Mrs. Donato's treating physician, were later obtained by subpoena. They consisted mainly of his notations of findings and prescriptions in the course of bimonthly examinations of Mrs. Donato during the period from August 11, 1980 to November 20, 1981, which revealed that he had found her to be suffering from angina pectoris, hypertension, vertigo, high blood pressure, insomnia, elbow pain, knee pain, precordial pain and degenerative osteoarthritis. Dr. Wiener prescribed various drugs to treat these disabilities, including Hygroton for blood pressure, K-lyte # 30, Motrin, nitroglycerine under the tongue for chest pain, Corgard and Tifenet for headaches, Valium, E Mycin and Inderal. In a general medical report to the New York State Department of Social Services dated May 6, 1981, Dr. Wiener had advised that an electrocardiogram of Mrs. Donato done on March 25, 1981, revealed a "flattened T wave in lead VI" and her chest X-ray showed a "tortuous aorta."
On April 4, 1982, ALJ Manos filed his decision concluding that Mrs. Donato was not eligible for supplemental security income under 42 U.S.C. § 1382c(a)(3)(A) because she was "not under a `disability,' as defined in the Social Security Act." After reviewing the oral testimony and medical findings the ALJ stated:
However, the ALJ found that her disability did not prevent her "from engaging in light work" because, according to some medical evidence, she retained the ability to sit for
On August 13, 1982 Mrs. Donato filed her pro se complaint in the district court pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review and reversal of the Secretary's decision. On December 16, 1982, the Secretary filed her answer and on December 20, 1982, Judge Costantino ruled sua sponte at a conference with "Counsel on both sides present"
A claimant seeking SSI disability payments under Title XVI of the Social Security Act bears the burden of proving disability, Decker v. Harris, 647 F.2d 291, 293 (2d Cir.1981), and must furnish such medical and other evidence as the Secretary may reasonably require to establish that disability. 42 U.S.C. § 423(d)(5). This burden is initially met "by making a prima facie showing of physical impairment sufficiently severe to preclude [the claimant's] return to his prior employment," Decker v. Harris, supra, 647 F.2d at 293-94; Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). A finding by the Secretary that a claimant has not shown disability is conclusive if supported by substantial evidence, 42 U.S.C. §§ 405(g), 1383(c)(3); i.e., by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
As we recently noted in Schauer v. Schweiker, 675 F.2d 55 (2d Cir.1982), the concept of burden of proof is "particularly elusive in cases involving social security benefits," in part because the proceedings "are not designed to be adversarial" and certainly are not likely to be such when the claimant, as here, is unrepresented. Id. at 57. In making his inquiry, the ALJ must make credibility findings when there is conflicting evidence with respect to a material issue such as pain or other disability. If the claimant is found credible, his/her subjective
In sum, in a case like this the ALJ must not only develop the proof but carefully weigh it. In the present case the record indicates that he did not fully observe these principles in some material respects. In the first place he failed to make any credibility findings with respect to the written statements and oral testimony of Mrs. Donato, given under penalty of perjury if false and corroborated by the testimony of her son-in-law, that she could not continue working at her factory job or stand, sit, or walk for any substantial periods of time because of back pain, chest pain, shortness of breath, and dizziness. Moreover, this testimony was supported by the medical records of her primary physician, Dr. Wiener, who noted these disabilities during her bimonthly office visits and treated them over a period of at least 15 months.
In our view it was error for the ALJ to disregard Dr. Wiener's diagnosis that she was completely incapacitated merely because he failed to include copies of his EKG studies or X-ray reports in response to the ALJ's post-hearing subpoena. Under the circumstances the ALJ owed a duty to make further efforts to obtain these records and elicit the oral testimony of Dr. Wiener, whose diagnosis would ordinarily be entitled to considerable weight. Aubeuf v. Schweiker, supra, 649 F.2d at 112. Indeed, we have regarded a treating physician's diagnosis, to the extent that it is uncontradicted, as binding. Singletary v. Secretary of HEW, 623 F.2d 217, 219 (2d Cir.1980); Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978) ("[t]he expert opinions of a treating physician ... are binding on the factfinder unless contradicted by substantial evidence to the contrary.").
Moreover, before deciding whether Mrs. Donato was physically capable of resuming her factory work, the ALJ, in fulfillment of his "heightened duty" to explore for all relevant facts, Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir.1982), should have inquired further into the nature and extent of the physical exertion required of her by her former job, the number of hours she worked each day, the length of time she stood for any one period, the distance she would be required to walk in commuting to work, and the like. The present record shows only that her job required her to do more standing than sitting. Even if one accepted the residual capacity evaluation of the New York Diagnostic Center and Broadway Park Medical to the effect that she could stand up to 2-4 hours per day rather than her testimony that she could stand only 20 minutes before having to sit or lie down, she might still be unable to satisfy the job's standing requirement for an 8-hour day.
Finally, the findings of the non-treating physicians who examined Mrs. Donato, although inconsistent in some respects with those of Dr. Wiener, are not so completely at odds with his diagnoses and her subjective complaints as to present a clearcut case relieving the ALJ of the necessity of determining her credibility and that of her son-in-law or of making further inquiry in an effort to resolve the differences. All parties, including the ALJ, found that she suffered from serious impairments (hypertension, osteoarthritis, back pain). Although angina was rejected by doctors at Broadway Park Medical and the New York Diagnostic Center after stress tests, one doctor (Fox) stated that it was difficult to obtain an accurate cardiac history from
In view of the ALJ's failure in this close case to make credibility findings and to inquire further into relevant facts we cannot conclude that his findings are supported by substantial evidence. Accordingly, we reverse the judgment of the district court and remand the case to the Secretary for further proceedings consistent with this opinion. Since it has now been three years since Mrs. Donato applied for supplemental disability benefits we urge the Secretary to proceed promptly upon remand so that any possible injustice to her may be minimized.
Reversed and remanded.