MATSUMOTO, District Judge:
Pursuant to 42 U.S.C. section 405(g), plaintiff Shawna Hernandez ("plaintiff") appeals the final decision of defendant Commissioner of Social Security Michael Astrue ("defendant" or the "Commissioner"), who denied plaintiff's application for Supplemental Security Income ("SSI") and Social Security Disability ("SSD") under Title XVI of the Social Security Act (the "Act").
Plaintiff was born on August 2, 1974 in New York City. (Tr. 21, 75, 93.)
Plaintiff moved to California in August 2002. (Id. at 186.) While living in California, plaintiff heavily abused alcohol and reported drinking two forty ounce beers during the day and one to two pints of vodka at night. (Id. at 27, 167.) Also while in California, plaintiff's two older children were taken from her by court order.
From March to December 2006, plaintiff was self-employed as a manicurist, hair stylist, and babysitter. (Id. at 96, 98.) As a manicurist, plaintiff "did manicures, . . . applied nail tips, and polished nails." (Id. at 98.) As a babysitter, plaintiff fed, played with, and read to children. (Id.) In 2006, plaintiff reported that she stopped working after becoming abusive to one of her clients. (Id. at 26.) Plaintiff further reported that at the time she stopped working, she would "just get physical" if she had to interact with people. (Id.) According to plaintiff, she stopping working because "her symptoms got too bad, she was in an abusive relationship and her husband" abandoned her in California. (Id. at 105.)
Plaintiff moved back to Staten Island, New York from California around December 2006. (Id. at 96, 156.) Plaintiff stopped drinking between February 2007 and March 13, 2007. (Id. at 28, 29, 129, 167, 179, 186.) At the time she filed for disability benefits on June 7, 2007, plaintiff was seven months pregnant and living with her sister, cousin, nephews, and eight-year-old daughter in Staten Island, New York. (Id. at 119.) Plaintiff gave birth to her fourth child in or around September 2007. (Id. at 129.)
On January 12, 2009, plaintiff testified before the ALJ that, at that time, she was living in her sister's home with two of her children, ages one and ten. (Id. at 21.) Plaintiff further reported that her sister would help feed, bathe, and clothe plaintiff's one-year-old child. (Id. at 22.) Plaintiff also reported spending most days in bed unless she needed to go to a doctor's appointment. (Id. at 22, 28.) Plaintiff testified that she did not think she could perform simple repetitive work at that time. (Id. at 28.)
On March 1, 2007, plaintiff was admitted to the Behavior Health Service Division at Richmond University Hospital, Staten Island, New York. (Id. at 155.) From there, plaintiff was referred to the St. George
According to a March 6, 2007 assessment
Using the DSM-IV multiaxial scale,
Plaintiff next received treatment at Lenox Hill Hospital ("Lenox Hill") in New York, New York between April 30 and May 7, 2007. (Id. 140-46.) Plaintiff was four to six months pregnant at the time. (Id. at 143.) Upon taking a Patient Health Questionnaire-9 self-assessment test
On June 14, 2007, plaintiff was re-admitted to St. George. (Id. at 166.) Upon readmission, plaintiff reported that her failure to return for treatment in March 2007 had been due to her lack of proper insurance coverage, which she had since obtained. (Id.) Plaintiff was seven months pregnant at this time. (Id.) On June 14, 2007, licensed social worker Wendy Wullbrandt ("Ms. Wullbrandt") assessed plaintiff's chief medical complaints, history of present illness, alcohol abuse history, past treatment, medical history, mental status, and psychosocial status.
On June 28, 2007, Ms. Fratto and Dr. Naeem Akhtar ("Dr. Akhtar") again assessed plaintiff. (Id. at 176-82.) The June 28, 2007 assessment was prepared with input from Dr. Idowu, the outpatient director, and again reviewed by Dr. Izrayelit. (Id. at 176, 178.) In plaintiff's June 28, 2007 St. George medical report, Ms. Fratto and Dr. Akhtar noted that "the patient ha[d] many traits of borderline and antisocial personality disorder and was present[ing] with different psychological
Following plaintiff's June 2007 application for disability benefits, on July 3, 2007 Dr. Jung Lee Hahn ("Dr. Hahn") conducted a consultative examination of plaintiff for the New York State Department of Temporary and Disability Assistance Division of Disability Determinations. (Id. at 184.) Dr. Hahn noted plaintiff's ongoing participation in the St. George program and weekly outpatient therapy sessions since March 2007, but noted that plaintiff was not seeing a psychiatrist or taking any psychotropic medications. (Id. at 185.) Dr. Hahn noted that plaintiff was taking twenty milligrams of Inderol twice a day for migraine headaches and intended to see a psychiatrist on July 11, 2007. (Id.)
In a functional description and assessment based upon an interview of plaintiff and plaintiff's existing medical records, Dr. Hahn noted that plaintiff was "capable [of caring] for her daily activities, personal needs, perform[ing] household chores, and shopping." (Id. at 188.) Dr. Hahn described plaintiff's daily activities to include caring for her daughter. (Id. at 186.) In addition, Dr. Hahn reported that plaintiff had a "limited" "ability to pursue socialization and interests." (Id. at 188.) Plaintiff reported to Dr. Hahn that, at the time, she was not socializing and plaintiff denied any hobbies, interests, or social activities. (Id. at 186.) Dr. Hahn opined that plaintiff was able to manage her funds and relate well to work-oriented activities as long as her psychiatric condition was "under control." (Id. at 188.) Dr. Hahn noted that plaintiff reported having abstained from alcohol consumption since March 2007. (Id. at 185-86.)
Using the DSM-IV multiaxial scale, Dr. Hahn diagnosed plaintiff with adjustment disorder with mixed anxiety and depressed mood as well as alcohol abuse on Axis I; deferred diagnosis on Axis II; and migraine headaches, anemia, and dyslipidemia on Axis III.
On October 30, 2007, New York State Disability Analyst G. Grabow ("Mr. Grabow") filed a Report of Contact ("Contact Report") summarizing contact with an individual identified as plaintiff's "therapist," who appears to be plaintiff's primary therapist from St. George, Ms. Fratto.
In the Contact Report, Mr. Grabow noted that plaintiff's current symptoms included episodes of rage that were being alleviated with full medication compliance, and that plaintiff exhibited no other psychotic symptoms at that time. (Id. at 129.) Mr. Grabow also reported that, according to Ms. Fratto, plaintiff had gained impulse control and wanted to concentrate on raising her children. (Id. at 129.)
On November 1, 2007, agency psychiatrist Dr. J. Kessel ("Dr. Kessel") completed a "Psychiatric Review Technique" worksheet ("PRT Worksheet") after reviewing plaintiff's medical records.
The SSA received an undated letter from Ms. Fratto apparently on December 11, 2007, based on the facsimile date stamp on the top of the letter. (Id. at 207.) In the letter, Ms. Fratto confirmed plaintiff's enrollment in the St. George program since June 28, 2007 for treatment of bipolar disorder and alcohol abuse. (Id.) In the letter, Ms. Fratto also reported that, apparently as of December 11, 2007, "despite issues with attendance, plaintiff continue[d] to remain engaged in outpatient services, keep[] all appointments with psychiatric staff for medication management[,] and to remain compliant with prescribed medications," including daily self-administered Invega for psychiatric symptoms. (Id.)
Plaintiff applied for SSI and SSD benefits on June 7, 2007, alleging disability since December 8, 2006. (Tr. 75, 78.) The Commissioner denied plaintiff's claim on November 2, 2007. (Id. at 33.) Plaintiff then requested and obtained a hearing before Administrative Law Judge Robert C. Dorf ("the ALJ"). (Id. at 18-30.) The ALJ hearing took place on January 12, 2009, at which time plaintiff testified and was represented by counsel. (Id.)
On February 23, 2009, the ALJ issued a decision denying plaintiff's claims after de novo review pursuant to the five-step sequential evaluation process for determining whether an individual is disabled under the Act. (Id. at 8-14.)
According to the ALJ, under step one, plaintiff had not engaged in substantial gainful activity since December 8, 2006.
On November 9, 2009, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (Id. at 1-3.) Proceeding pro se, plaintiff filed this complaint on January 8, 2010, alleging that she is entitled to receive SSI and SSD benefits due to severe medically determinable impairments, including "bipolar disease, severe depression, panic and anxiety attacks," which plaintiff alleges rendered her disabled and have prevented her from performing any work. (See Compl. at 1.) In her complaint, plaintiff alleged that the ALJ's decision "was erroneous, not supported by substantial evidence on the record and/or [was] contrary to the law." (Id. at 2.)
On July 21, 2010, defendant served plaintiff with a copy of its motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (See Def. Mot.; see also ECF No. 14, Letter dated 7/21/2010 regarding service of defendant's motion.) Despite being served with a copy of defendant's motion, plaintiff failed to respond as required by August 23, 2010, and further failed to respond to this court's order dated September 21, 2010, informing plaintiff that failure to serve an opposition by October 22, 2010 would prompt the court to consider the motion unopposed. (See Order dated 9/21/2010; see also ECF No. 16, Letter to plaintiff dated 9/21/2010 enclosing 9/21/2010 Order.) Absent any response from plaintiff, defendant submitted the instant motion unopposed on October 27, 2010. (See ECF No. 21, Letter dated 10/27/2010 enclosing unopposed motion.) Approximately five months later, in March 2011, counsel appeared on behalf of plaintiff and requested, on consent of defendant, an extension of time within which to file a response to defendant's pending motion. (See Pl. March 2011 Ltrs.) Because the court had previously granted plaintiff a generous two-month extension of time, and because the matter was already under the court's consideration, the court denied plaintiff's belated request for an extension of time to file her opposition and proceeded to consider the defendant's motion unopposed. (See 4/1/2011 Order.)
A claimant is disabled under the Social Security Act when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve
To determine if a claimant is disabled under the Act, the SSA requires that the ALJ conduct a five-step sequential analysis finding each of the following: "(1). . . the claimant is not working, (2) that [she] has a severe impairment, (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability . . . (4) that the claimant is not capable of continuing in [her] prior type of work . . . [and] (5) there is [no other] type of work [that] the claimant can do." Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir.2008) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003)) (internal citations omitted, first alteration in original); see also 20 C.F.R. § 404.1520a.
During this five step process, the Commissioner must "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity to establish eligibility for Social Security benefits." Burgin v. Astrue, 348 Fed.Appx. 646, 647 (2d Cir.2009) (citing 20 C.F.R. § 404.1523) (internal citations omitted). In cases where "the disability claim is premised upon one or more listed impairments . . . the [Commissioner] should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment." See Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.1982). Further, if the Commissioner "do[es] find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process." See Burgin, 348 Fed.Appx. at 647 (citing 20 C.F.R. § 416.945(a)(2)).
In steps one through four "of the sequential five-step framework," the claimant bears the "general burden of proving. . . disability." Burgess, 537 F.3d at 128 (quoting Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004)). In step five, the burden shifts from the claimant to the Commissioner, requiring the Commissioner to show that in light of the claimant's RCF, age, education, and work experience, the claimant is "able to engage in gainful employment within the national economy." Sobolewski v. Apfel, 985 F.Supp. 300, 310 (E.D.N.Y.1997).
Further, "ALJs, unlike judges, have a duty to affirmatively develop the record in light of the essentially non-adversarial nature of the benefits proceedings." Anderson v. Astrue, No. 07-CV-4969, 2009 WL 2824584, at *7 (E.D.N.Y. Aug. 28, 2009) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999)); see also 20 C.F.R. § 702.338.
In addition to the five-step process outlined in 20 C.F.R. § 404.1520a, the SSA "has promulgated additional regulations governing the evaluation . . . of the severity of mental impairments," that should be applied "at the second and third steps of the five-step framework, and at each level of administrative review." Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir.2008) (citation omitted). This "special technique" requires "the reviewing authority to determine first whether the claimant has a medically determinable mental impairment, [and if] there is such impairment, the reviewing authority must rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph C of the regulations, which specifies four broad functional areas:
Under the regulations, "if the degree of limitation in each of the first three areas is rated mild' or better, and no episodes of decompensation are identified ... the reviewing authority ... will conclude that the claimant's mental impairment is not severe' and will deny benefits." Kohler, 546 F.3d at 266 (citing 20 C.F.R. § 404.1520a(d)(1)). However, if claimant's mental impairment or combination of impairments is severe, "in order to determine whether the impairment meets or is equivalent in severity to any listed mental disorder," the reviewing authority must "first compare the relevant medical findings [along with] the functional limitation rating to the criteria of listed mental disorders." Id. (citing § 404.1520a(d)(2)). If the mental impairment is equally severe to a listed mental disorder, the "claimant will be found to be disabled." Id. "If not, the reviewing authority [must then] assess" plaintiff's RFC. Id. (citing 20 C.F.R. § 404.1520a(d)(3)).
Pursuant to the ALJ's duty to develop the record, the application of this process must be documented at the "initial and reconsideration levels of administrative review," where "a medical or psychological consultant ... will complete a" PRT Worksheet. Id. (citing § 404.1520a(e)(1)).
The 1996 Amendments to the Social Security Act state that "an individual shall not be considered to be disabled ... if alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's determination that the individual [was] disabled." Mims v. Apfel, No. 98-6252, 1999 WL 376840, at *1 (2d Cir. June 2, 1999); see also 42 U.S.C. § 1382c(a)(3)(J) (Supp. II 1996). In determining whether alcohol or substance abuse is material to the determination of disability, the key factor is whether the Commissioner would still find the claimant disabled if she stopped using the alcohol or substance. 20 C.F.R. §§ 404.1535(b)(1); 416.935(b)(1).
Under the regulations, where there is evidence of alcoholism or drug use, the Commissioner must determine which physical and mental limitations would remain in the absence of substance abuse and whether these limitations would be disabling on their own. 20 C.F.R. §§ 404.1535(b)(2); 416.935(b)(2). If the remaining limitations would still be disabling to the claimant on their own, then the claimant is entitled to SSI and SSD benefits. 20 C.F.R. §§ 404.1535(b)(2)(ii); 416.935(b)(2)(ii). If the remaining limitations would not be disabling on their own, then the alcohol or substance abuse is considered material; and the claimant would not be eligible for benefits. 20 C.F.R. §§ 404.1535(b)(2)(i); 416.935(b)(2)(i).
"Regardless of its source," the regulations require that "every medical opinion"
Under the regulations, the medical opinion of a treating physician or psychiatrist will be given "controlling" weight if that opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Burgess, 537 F.3d at 128 (citing Green-Younger, 335 F.3d at 106). Medically acceptable clinical and laboratory diagnostic techniques include consideration of a "patient's report of complaints, or history, [a]s an essential diagnostic tool." Green-Younger, 335 F.3d at 107.
In addition, opinions from "other sources," which are not considered "acceptable medical sources" under the regulations, are "important and should be evaluated on key issues such as impairment severity and functional effects." Anderson, 2009 WL 2824584 at *9 (citing SSR 06-03p, Titles II and XVI; Considering Opinions and Other Evidence From Sources Who are Not "Acceptable Medical Sources" in Disability Claims, 2006 WL 2329939, at *3 (Aug. 9, 2006)). Particularly, reports from social workers who treated a plaintiff are particularly important, and thus may play a "vital role in the determination of the effect of [a plaintiff's] impairment[s]," if the social worker's opinion is the "sole [treating] source that had a regular treatment relationship with the plaintiff." White v. Comm'r of Soc. Sec., 302 F.Supp.2d 170, 176 (W.D.N.Y.2004) (citing Bergman v. Sullivan, No. CIV-88-513L, 1989 WL 280264, at *1 (W.D.N.Y. Aug. 7, 1989) ("other source" evidence from a medical professional "concerning the nature and degree of plaintiff's impairment is not only helpful, but critically important,... [when she] is the only treating source")).
According to the regulations, where a treating physician's opinion is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it deserves controlling weight because "[such] sources are likely to be [from] the medical professionals most able to provide a detailed [and] longitudinal picture of [the plaintiff's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
By the same logic, the opinion of a consultative physician, "who only examined a plaintiff once, should not be accorded the same weight as the opinion of [a] plaintiff's treating psychotherapist." Anderson, 2009 WL 2824584 at *9 (citing Spielberg v. Barnhart, 367 F.Supp.2d 276, 282-83 (E.D.N.Y.2005)). This is because "consultative exams are often brief, are generally performed without the benefit or review of
Pursuant to the ALJ's duty to develop the administrative record, an ALJ "cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.")). Further, even when a treating physician's opinion is not afforded controlling weight, the ALJ must "comprehensively set forth [his or her] reasons for the weight assigned to a treating physician's opinion." Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.2004); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999); 20 C.F.R. § 404.1527(d)(2) (stating that the SSA "will always give good reasons in [its] notice of determination or decision for the weight [given to a] treating source's opinion") (emphasis added). "The failure to provide good reasons' for not crediting a treating source's opinion is ground for remand." See Burgin, 348 Fed.Appx. at 648 (quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.2004) (the Second Circuit "[will] not hesitate to remand when the Commissioner has not provided good reasons' for the weight given to a treating physician's opinion and ... will continue remanding when [the court] encounter[s] opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion." (changes in original omitted))).
While the regulations do not explicitly or exhaustively define what constitutes a "good reason" for the weight given to a treating physician's opinion, the following factors enumerated in the regulations may guide an ALJ's determination of what weight to give a treating source opinion: "(1) the length, frequency, nature, and extent of the treating relationship, (2) the supportability of the treating source opinion, (3) the consistency of the opinion with the rest of the record, (4) the specialization of the treating physician, and (5) any other relevant factors." Scott v. Astrue, No. 09-CV-3999, 2010 WL 2736879, at *9 (E.D.N.Y. July 9, 2010); see also 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6). These same factors may guide an evaluation of the opinions of "other sources," such as licensed social workers. Canales v. Comm'r of Soc. Sec., 698 F.Supp.2d 335, 344 (E.D.N.Y.2010) (citing SSR 06-03p, 2006 WL 2329939, at *2-3 (Aug. 9, 2006)).
Notably, under this rubric it is possible for the opinion of a non-acceptable medical source with a particularly lengthy treating relationship with the claimant to be entitled to greater weight than an "acceptable medical source" such as a treating physician who has rarely had contact with the claimant. See Saxon v. Astrue, 781 F.Supp.2d 92, 103-04 (N.D.N.Y.2011) (citing Anderson, 2009 WL 2824584 at *9). Accordingly, even if an ALJ is "free to conclude that the opinion of `non acceptable source,'" such as a "licensed social worker [is] not entitled to any weight, the ALJ ... [must] explain that decision." Canales, 698 F.Supp.2d at 344 (remand appropriate where ALJ disregarded social worker's opinion "simply because it was the opinion of a social worker, not on account of its content or whether it conformed with the other evidence in the record").
The district court is empowered to enter, upon the pleadings and transcript
Accordingly, the reviewing court "may not substitute its own judgment with that of the [ALJ], even if it might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991) (quoting Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). Yet absent substantial evidence, or where the reviewing court is "unable to fathom the ALJ's rationale in relation to the evidence in the record without further findings or clearer explanation for the decision," remand is appropriate. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996) (quoting Berry, 675 F.2d at 469 (internal citations omitted)).
Indeed, in light of the ALJ's duty to develop the record, a court should "not hesitate to remand the case for further findings or a clearer explanation for the decision." Berry, 675 F.2d at 469. In addition, where an ALJ fails to explain and "give good reasons for failing to give good weight" to a treating physician's opinion, this court can give instructions to "expressly consider [claimant's] combined impairments,... and [to] provide good reasons for giving that opinion more or less weight than the other medical evidence." Burgin, 348 Fed.Appx. at 649; see also Halloran, 362 F.3d at 33 (a court should "not hesitate to remand where the Commission has not provided good reasons' for the weight given to a treating physician[']s opinion and ... will continue remanding when [the court] encounter[s] opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion." (changes in original omitted)).
The ALJ's failure to consider the combined effect of plaintiff's separate impairments requires remand.
The Commissioner must consider "the combined effect of all of the [plaintiff's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity" to establish plaintiff's eligibility for SSI or SSD benefits. Burgin, 348 Fed.Appx. at 647. Further, if the Commissioner "do[es] find a medically severe combination of impairments, the combined impact of [those] impairments [should] be considered
Ample evidence in the administrative record here demonstrated that plaintiff had received multiple separate medical diagnoses. Thus, in addition to diagnoses of depression and alcohol abuse, on multiple occasions plaintiff also received separate diagnoses of bipolar disorder and anxiety from a variety of treating and non-treating sources including both physicians and social workers. (Tr. at 129, 155-56, 170, 177-78, 181, 188, 192, 207.) Specifically, evidence of plaintiff's anxiety diagnosis includes Ms. Fratto's initial referral of plaintiff to St. George for further treatment of anxiety, alcohol use, and depression on March 1, 2007. (Id. at 155-56.) In addition, on July 3, 2007, Dr. Hahn diagnosed plaintiff with "adjustment disorder with mixed anxiety and depressed mood" in addition to alcohol abuse. (Id. at 188.) Similarly, with respect to plaintiff's bipolar disorder diagnosis, Ms. Fratto and Dr. Akhtar, as reviewed by Dr. Izrayelit, as well as Ms. Wullbrandt diagnosed plaintiff with bipolar disorder on June 14 and 28, 2007, respectively. (Id. at 170, 181.) Additionally, Mr. Grabow's Contact Report dated October 30, 2007 described plaintiff's "treatment timeline for bipolar disorder and alcohol dependence between March 1 through 28, 2007." (Id. at 129.) Further evidence of plaintiff's bipolar disorder diagnosis includes Dr. Hahn's report from July 3, 2007, acknowledging plaintiff's "bipolar [disorder] and clinical depression," (id. at 187), and Dr. Kessel's assessment of plaintiff for "bipolar syndrome," on the PRT Worksheet. (Id. at 192.)
Yet in considering this evidence and determining that plaintiff is not disabled under the Act, the ALJ failed to meaningfully consider the combination of plaintiff's separate diagnoses of depression, bipolar disorder, anxiety, and alcohol abuse. Thus, when determining whether plaintiff has a "severe impairment" under step two of the regulations, the ALJ found that plaintiff's severe impairments included only "depression and substance abuse disorder." (Id. at 12.) Further, notwithstanding the ALJ's bare acknowledgment of plaintiff's bipolar disorder and anxiety diagnoses during step three of the analysis (see id. at 11), there is no indication that the ALJ accounted for or meaningfully considered plaintiff's separate additional diagnoses of anxiety or bipolar disorder during the entirety of the five-step sequential analysis as required by the regulations.
The ALJ's failure to consider the effects of plaintiff's combined impairments in every step of the five-step sequential process thus requires remand. See Burgin, 348 Fed.Appx. at 648-49 (remand is appropriate where the ALJ failed to consider plaintiff's combined impairments, including separate diagnoses of bipolar disorder and depression, throughout the entire disability determination process).
The ALJ found that because "[plaintiff's] substance use disorder [was] a contributing factor material to the determination of disability," plaintiff was not disabled within the meaning of the Act during the period following plaintiff's alleged disability onset date of December 8, 2006. (Tr. at 14.) Because it is not apparent whether substantial evidence in the record as a whole supports a finding that plaintiff's substance abuse was a material contributing factor to her disability, remand is required.
As a whole, the administrative record appears to indicate that plaintiff's multiple diagnoses of severe mental impairments occurred during a period of ongoing sobriety. Thus, plaintiff's medical reports and testimony from the administrative hearing indicate that plaintiff stopped drinking at some point between February 2007 and March 13, 2007. (Id. at 28, 29, 129, 167, 179.) Yet after plaintiff's cessation of alcohol abuse, plaintiff's treating sources repeatedly diagnosed her with various mental impairments, including depression, anxiety, bipolar disorder, and adjustment disorder. (Id. at 143-44, 160, 170, 181.) In the context of this evidence, to support the conclusion that plaintiff's substance abuse was material to her disability, the ALJ gave weight to the "opinion of ... consultative examining physician [Dr. Hahn] and the reports from the [St. George] program." (Id. at 13.) Neither source appears to support the ALJ's finding with substantial evidence.
First, Dr. Hahn diagnosed plaintiff with adjustment disorder with mixed anxiety and depressed mood as well as alcohol abuse. (Id. at 188.) Yet, the ALJ failed to give good reasons for giving that opinion such weight above the opinions of the plaintiff's other mental health providers in determining that plaintiff's alcohol abuse was a material contributing factor to her disability. See Halloran, 362 F.3d at 31 (the Commissioner is required to provide "good reasons" for the weight she gives to the treating source's opinion); see also Snell, 177 F.3d at 133; 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (stating that the SSA "will always give good reasons in [its] notice of determination or decision for the weight [given to a] treating source's opinion") (emphasis added).
Second, with regard to the St. George records, the ALJ cited only a single page (the "cited page") of the St. George records to support his conclusion that plaintiff's substance abuse was material. (Tr. 13, 177.) Yet that cited page merely summarizes plaintiff's "history of present illness" by describing plaintiff's past history of alcohol and substance abuse as recounted by Ms. Fratto in the medical report from plaintiff's June 28, 2007 visit to St. George. (Id.) Notably, the cited page does not reference actual medical findings from the June 28, 2007 medical report, even though that visit is within the period for which plaintiff claims disability. (Id.) Moreover, plaintiff's then-existing diagnoses of anxiety, bipolar disorder, and depression post-date plaintiff's substance abuse problems as reported in the "history of present illness" section of the St. George record. Therefore, the portions of the record identified by the ALJ fail to support the ALJ's finding that plaintiff's substance abuse was a material contributing factor in plaintiff's disability.
It is therefore unclear how the ALJ concluded that plaintiff's alcohol abuse was a material contributing factor to plaintiff's mental impairments during a period of sobriety. See Mitchell v. Astrue, No. 07 Civ. 0285, 2009 WL 3096717, at *21 (S.D.N.Y. Sept. 28, 2009) (when a claimant's treating physicians reported separate diagnoses of bipolar disorder and other psychiatric conditions along with substance abuse disorder, a diagnosis of claimant's substance induced mood disorder found in the administrative record did not support the ALJ's conclusion that claimant's bipolar condition would not be disabling in the absence of substance abuse). Without further findings or a clearer explanation by the ALJ,
Remand is also required because the ALJ failed to give good reasons for the weight accorded to the medical evidence in the record including the opinions of plaintiff's treating physicians and other mental health professionals, and failed to adequately develop the record.
Pursuant to the ALJ's duty to develop the record, "the ALJ must always give good reasons ... for the weight accorded to a treating source's medical opinion." Anderson, 2009 WL 2824584 at *9; see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Further, although an ALJ is free to conclude that the opinion of a "non acceptable source," such as a licensed social worker, is not entitled to any weight, the ALJ must explain that decision. See Canales, 698 F.Supp.2d at 344. Indeed, "other source evidence," including reports from social workers, may play a "vital role in the determination of the effect of [plaintiff's] impairment," especially where a social worker was the "sole [treating] source that had a regular treatment relationship with the plaintiff." White v. Comm'r of Soc. Sec., 302 F.Supp.2d 170, 176 (W.D.N.Y.2004) (citations omitted).
As discussed above, the ALJ appeared to rely almost exclusively on the opinions of the consultative physician Dr. Hahn and a single evaluation from St. George in March 2007 when determining that plaintiff is not disabled under the Act. (Tr. 11-12.) Yet the ALJ failed to provide
First, with respect to treating physicians, the ALJ failed to give good reasons for not giving weight to the opinions of Dr. Akhtar and Dr. Idowu, following plaintiff's June 28, 2007 visit to St. George, when Drs. Akhtar and Idowu, with Ms. Fratto, diagnosed plaintiff with bipolar disorder. (Tr. 176-82.) Further, the ALJ failed to give good reasons for not giving weight to plaintiff's treating physician's opinion following her visit to Lenox Hill Hospital on May 7, 2007, where Dr. Weissbart separately diagnosed plaintiff with severe depression. (Id. at 145.)
Second, the ALJ's decision lacks any discussion of which factors, if any, the ALJ considered when deciding to afford more weight to the March 6, 2007 St. George record and the consultative physician report from Dr. Hahn as opposed to opinions from plaintiff's other mental health providers, including social workers. See Canales, 698 F.Supp.2d at 344 (citing SSR 06-03p, 2006 WL 2329939, at *2-3) (same factors should be used to evaluate weight for opinions of "acceptable medical sources" as well as opinions of "other sources," such as licensed social workers). The lack of "good reasons" for failing to consider plaintiff's "other source" evidence is particularly critical in this case, considering that despite being a non-acceptable medial source, plaintiff's primary therapist and social worker, Ms. Fratto, appears in the record as the sole treating source who engaged in a regular treating relationship with plaintiff. See Bergman, 1989 WL 280264, at *1 (noting that "other source" evidence from a medical professional "concerning the nature and degree of plaintiff's impairment is not only helpful, but critically important, ... [when she] is the only treating source").
Third and finally, the ALJ failed in other respects to develop the record, including by failing to identify and request records from psychiatrists who may have treated plaintiff. Thus, for example, although Mr. Grabow and Dr. Hahn both referred in their reports to plaintiff's receipt or intended receipt of psychiatric treatment (see Tr. 129, 185), the record is devoid of records, or efforts to locate records from any treating psychiatrists.
Because the ALJ failed to give any reasons for affording more weight to some of plaintiff's treating sources above plaintiff's other treating sources, or to show any effort to fill gaps in the administrative record where such effort may have been necessary, remand is appropriate. See Schaal, 134 F.3d at 505 ("[E]ven if the clinical findings [are] inadequate, it [is] the ALJ's duty to seek additional information from [the treating physician] sua sponte.").
For the foregoing reasons, the court denies defendant's motion for judgment on the pleadings and remands this case for further proceedings consistent with this opinion. Upon remand, the ALJ should:
(1) Expressly consider claimant's combined impairments, including anxiety, bipolar disorder, and major depression in every step of the five-step determination process, as required by 20 C.F.R. §§ 404.1523, 416.923.
(2) Weigh plaintiff's abstinence in considering plaintiff's combination of impairments that were diagnosed while plaintiff was abstinent from alcohol use; and
(3) Consider the opinions of all treating physicians and mental health providers and explain the weight afforded to opinions from plaintiff's mental healthcare providers, and affirmatively develop the record
The Clerk of the Court is respectfully requested to close the case.
