J. PAUL OETKEN, District Judge.
Plaintiff Eusebio Gonzalez initiated this action challenging the determination of the defendant, the Commissioner of Social Security (the "Commissioner"), denying his claim for Supplemental Security Income benefits under Title II of the Social Security Act, 42 U.S.C. § 405(g).
Before the Court is the Commissioner's motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The matter was referred to Magistrate Judge Henry Pitman, who issued a Report and Recommendation that the Commissioner's motion be granted and that the Commissioner's decision be affirmed (the "Report").
When reviewing a report and recommendation by a magistrate judge, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "In a case such as this one, where no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Malavolta v. Commissioner of Social Sec., 2009 WL 1468601, *1 (S.D.N.Y. May 22, 2009) (citation omitted).
The Court has reviewed Magistrate Judge Pitman's very thorough and well-reasoned Report and finds no clear error on the face of the record. Magistrate Judge Pitman's finding, that the ALJ's determination was supported by substantial evidence and was not based on any legal errors, is correct.
For the reasons stated, the Court ADOPTS the Report and Recommendation and GRANTS the Commissioner's motion for judgment on the pleadings. The Clerk of the Court is respectfully directed to enter judgment on behalf of Defendant and to close the case.
Plaintiff, Eusebio Gonzalez, brings this action pursuant to section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Act.
The Commissioner has moved for judgment on the pleadings pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure (Docket Item 12). For the reasons set forth below, I respectfully recommend that the Commissioner's motion be granted.
Plaintiff filed an application for disability insurance benefits ("DIB") on May 2, 2005
Plaintiff timely requested (Tr. 37) and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 24, 25-27). ALJ Newton Greenberg conducted a hearing on May 30, 2007 at which plaintiff was represented by Lincoln Saunders, a nonattorney representative
Plaintiff commenced the present action by filing a complaint dated March 3, 2008 (Complaint, dated March 3, 2008 ("Compl."), (Docket Item 2)). In his complaint, plaintiff claims that he suffers from "schizoaffective disorder, depression, heroin dependency maintained on methadone, Hepatitis C and diabetes" (Compl. at ¶ 4). On September 1, 2010, the Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Notice of Motion for Judgment on the Pleadings, dated September 1, 2010, (Docket Item 12)). Because plaintiff had not responded to the motion, I issued an Order dated January 18, 2011 directing plaintiff to submit any argument or other material in support of his complaint or in opposition to the Commissioner's motion by February 28, 2011 and advising that I would consider the motion ripe for decision after that date (Docket item 13). Plaintiff has not submitted any argument or other material, and, thus, the Commissioner's motion remains unopposed.
Plaintiff was born on July 8, 1955 (Tr. 46). At the time of the administrative hearing, he was fifty-two years old (Tr. 143). Plaintiff completed the fourth grade in Puerto Rico (Tr. 63, 144). He speaks Spanish, and only a minimal amount of English (Tr. 56, 144). He is unmarried (Tr. 46). It does not appear from the administrative record that he has any children (
Plaintiff was employed as a farm worker from 1983 through 1992, though only intermittently and for a couple months at a time. During this time period, he also worked as a security officer at a jewelry store for six months. Plaintiff was last employed as a farm worker for four months in 1992 (Tr. 58).
Plaintiff's primary duties as a farm worker consisted of manual labor, such as applying fertilizer to and harvesting crops. He used machines, tools, and equipment that required technical knowledge and skills. He did not do any writing, complete any reports, or perform similar duties. Plaintiff also did not have any supervisory responsibilities (Tr. 58).
Plaintiff spent the majority of his workday kneeling, crouching, reaching, and crawling. Additionally, he spent some time during his workday walking, stooping, reaching, lifting, and carrying. He frequently lifted objects weighing twenty-five pounds, with the maximum weight lifted being one hundred pounds or more (Tr. 58).
Plaintiff reported that he suffered from Hepatitis C, Syphilis, and depression. He stated that he continued to work until September 1, 1992 to "pay for [his] drug/alcohol habits," but that he had to stop working at that time because of constant pain that he was experiencing, especially in his liver (Tr. 57).
Plaintiff also reported taking Zyprexa for his depression (Tr. 62).
At the time of the administrative hearing, plaintiff testified that he had a substance abuse problem with heroin and that he had attended five detoxification programs over the years. He also testified that he was being treated with methadone and attending a drug treatment program daily (Tr. 144-45). Plaintiff's testimony at the administrative hearing was brief; his testimony spans only three pages of the administrative record (
The administrative record includes medical documentation of plaintiff's treatment from February 1999 through May 2007. There are no medical records prior to February 1999.
Plaintiff began receiving treatment from Hunts Point Multi-Service Center, Inc. ("Hunts Point") on February 2, 1999 (Tr. 93, 96). His first physical examination at Hunts Point was "nonremarkable" (Tr. 130). Additionally, plaintiff was "oriented, " his speech was "clear," and his mental state was "alert" (Tr. 130). As of August 22, 2005, plaintiff was attending Hunts Point's outpatient clinic five times per week for medication and counseling (Tr. 93).
Dr. Tak Yeun So, a physician at Hunts Point, completed a report concerning plaintiff's condition on September 13, 2005 (Tr. 96-102). In this report, Dr. So stated that plaintiff's treating diagnosis had been "heroin addiction," his last exam had been on June 7, 2004, and the frequency of his treatment was "daily" (Tr. 96). He further described plaintiff's current symptoms as consisting of "[a] craving for heroin" and "depression with auditory hallucination [s]" (Tr. 96). Dr. So also noted that plaintiff's treatment consisted of a "methadone maintenance program," and further, that he was receiving psychiatric treatment at "New Beginning's psychiatric clinic" (Tr. 97-98). Dr. So also reported that plaintiff had a "[h]istory of positive Hepatitis B and C [,] [though] his liver function test was essentially normal" (Tr. 97). Finally, Dr. So opined that plaintiff was "not ready to go to work at this time" (Tr. 100).
On May 8, 2007, a counselor at Hunts Point filled out a report concerning plaintiff's alcohol and substance abuse (Tr. 139-40). In this report, the counselor stated that plaintiff's substance abuse problem was in remission (Tr. 139). However, in a report dated May 23, 2007, Dr. So reported that while plaintiff's urine report was "essentially negative," it had been positive for "opiate[s]" on December 26, 2006 and April 16, 2007 and positive for "cocaine" on December 12, 2006 and December 18, 2006 (Tr. 131).
Plaintiff began receiving treatment from New Beginnings, Mental Health Center ("New Beginnings") on March 25, 2004 and was first examined by Dr. David Molina on April 7, 2004 (
Dr. Molina then described plaintiff's complaints as primarily including: depression, paranoia, insomnia, decreased concentration, decreased memory, and feelings of worthlessness (Tr. 82, 115). Upon examination, Dr. Molina noted that plaintiff appeared depressed and his affect was "restricted" (Tr. 82, 115). Plaintiff also exhibited signs of decreased concentration and decreased memory, as well as displayed a "low average" intelligence level (Tr. 83, 116). However, plaintiff's speech was "coherent" and "goal directed," and further, his "insight" and "judgement [
In a report dated September 7, 2005, Dr. Molina confirmed that plaintiff was receiving psychotherapy once a week and psychiatric services once a month (Tr. 73, 85). Dr. Molina also stated that plaintiff's treating diagnosis had been mental illness and schizoaffective disorder (Tr. 73, 85). The rest of the report contains substantially the same findings as Dr. Molina's report dated April 7, 2004 (
Dr. Molina submitted two more reports, a mental functional assessment dated January 18, 2006 (
In the May 2007 psychiatric/psychological report, Dr. Molina reported that plaintiff suffered from a "severe and persistent mental illness [with a] marked cognitive impairment" and was no longer capable of managing his benefits (Tr. 133, 135). Specifically, plaintiff experienced "recurrent psychotic, depressive and manic episodes," his speech was "impoverished," his thought process was "circumstantial and sparse," and he had a "low fund of general information" (Tr. 133). Further, Dr. Molina opined that plaintiff was either unable to meet competitive standards or had no useful ability to function in work-related activities (
In plaintiff's disability report dated August 31, 2005, he reported that he had been prescribed Zyprexa to treat his depression (Tr. 62). The administrative record shows that plaintiff was first prescribed Zyprexa in March 2004 (
Like the treatment records, the administrative record includes medical documentation that plaintiff was prescribed certain medications after the Critical Period. Plaintiff was prescribed Ambien to treat his insomnia in March 2004 (
Like the treatment records and medication records, the administrative record includes medical documentation that plaintiff was examined by consultative physicians only after the Critical Period.
Plaintiff was examined by Dr. Peter E. Graham, a consulting internal medicine specialist, on September 21, 2005 (Tr. 103-05). Plaintiff told Dr. Graham that he had a history of heroin abuse, but that he had not used heroin for one year and he was being treated with methadone (Tr. 103). Plaintiff also reported that he had been diagnosed with schizoaffective disorder five years earlier and Hepatitis C two years earlier, though he had never received anti-viral treatment for the hepatitis condition (Tr. 103). Plaintiff further explained that he suffered from depression and experienced auditory hallucinations (Tr. 103).
Upon examination, Dr. Graham opined that plaintiff's prognosis was "stable," and further, that his past medical history and current physical condition were largely unremarkable (
Plaintiff was also examined by Dr. A. Delachapelle, a consulting psychiatry specialist, on September 21, 2005 (Tr. 117-19). Plaintiff told Dr. Delachapelle that he had a history of heroin abuse, but that he had not used heroin since June 2005 and he was being treated with methadone (Tr. 117). Plaintiff also reported that he suffered from depression and experienced auditory hallucinations, as well as that he had been receiving psychiatric outpatient treatment for approximately four to five years (Tr. 117). Plaintiff also stated that he had been diagnosed with Hepatitis C (Tr. 118).
Upon examination, Dr. Delachapelle noted that plaintiff appeared "anxious and depressed" and that his speech was "coherent, somewhat rambling, disorganized and irrelevant" (Tr. 117). He also noted that plaintiff's intellectual functioning was "below average," his insight and judgment were "fair to poor," his memory was "impaired for recent and remote events," and his concentration and attention levels were both "impaired" (Tr. 118). Based on the foregoing, Dr. Delachapelle diagnosed plaintiff as follows: Axis I - psychotic disorder not otherwise specified, heroin and alcohol abuse in remission; Axis II - mild mental retardation; and Axis III - Hepatitis C (Tr. 117). Dr. Delachapelle further opined that plaintiff's prognosis was "guarded," that he appeared unable to manage his funds, and that he "has a decreased ability to understand, carry out, and remember instructions, [as well as] a decreased ability to respond appropriately to supervision, coworkers and work pressures, in a work setting" (Tr. 117-18).
At the administrative hearing before the ALJ on May 30, 2007, plaintiff testified to the following facts with the assistance of a Spanish interpreter (Tr. 141, 143). He stated that he was fifty-two years old and was last employed as a farm worker on Long Island. He also stated that he had been a heroin addict for approximately twenty-five years, but that he was then in a "program" and "asking God to help [him] overcome this problem" (Tr. 144). Plaintiff also noted that he had attended several programs to treat his heroin addiction over the years (Tr. 144).
Plaintiff then testified that he completed the fourth grade in Puerto Rico and that he had "been in special groups, because I've always been behind in, in regards to learning. And however, I do not know how to write or speak English" (Tr. 144). At this point, the ALJ noted for the record that plaintiff was in a "praying position" and inquired as to why (Tr. 144). Plaintiff responded that he felt "nervous," he had not yet taken his medication, and he was anxious to attend his drug treatment program that afternoon (Tr. 144). The ALJ then asked plaintiff whether he attended the drug treatment program and took methadone daily, and plaintiff responded that he did (Tr. 144-45). When asked how long it had been since he had heroin, plaintiff responded "I don't know, I don't know" (Tr. 145). Plaintiff also testified that he suffered from Hepatitis C (Tr. 145).
Finally, plaintiff's non-attorney representative made a brief closing argument to the ALJ. The non-attorney representative stated that based on reports submitted by one of plaintiff's treating physicians,
The ALJ kept the administrative record open after the hearing to give plaintiff's non-attorney representative a full opportunity to submit additional medical evidence of plaintiff's disability prior to his last insured date (
The Court may set aside the final decision of the Commissioner
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.
"The Supreme Court has defined substantial evidence as `more than a mere scintilla' and as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Under Title II of the Social Security Act, 42 U.S.C. §§ 401
"An applicant's `insured status' is generally dependent upon a ratio of accumulated `quarters of coverage' to total quarters."
Specifically, a claimant is insured for disability benefits in a given month if he "accumulate [s] 20 or more calendar 'quarters of coverage' within the 4 0 calendar quarters prior to filing for benefits."
"Despite [a claimant's] failure to satisfy the earnings requirement at the time of his [or her]... application, [such claimant] might nevertheless have been `insured for disability'... at that time if he [or she] qualified for a `period of disability'."
20 C.F.R. § 404.320(a). Thus, "[t]his provision could operate to exclude from the relevant calculation the years in which [the claimant] did not work."
In addition to being "insured" for disability benefits, a claimant is entitled to disability benefits if he or she can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A);
42 U.S.C. §§ 423(d)(2)(A), 1382c(a) (3) (B).
The Commissioner must consider both objective and subjective factors when assessing a disability claim, including: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability to which the claimant and family or others testify; and (4) the claimant's educational background, age and work experience.
"In evaluating disability claims, the [Commissioner] is required to use a five-step sequence, promulgated in 20 C.F.R. §§ 404.1520, 416.920."
Step four requires that the ALJ make a determination as to the claimant's residual functional capacity.
The claimant bears the initial burden of proving disability with respect to the first four steps.
"It is the rule in the [Second] [C]ircuit that `the ALJ, unlike a judge in a trial, must [him]self affirmatively develop the record' in light of `the essentially non-adversarial nature of a benefits proceeding.'"
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." 20 C.F.R. § 404.1512(e);
Where the ALJ has failed to develop the record adequately, remand to the Commissioner for further development is appropriate.
The ALJ first noted that plaintiff's application for disability insurance benefits had been denied because there was "insufficient evidence to establish that a disability existed prior to the last insured date of December 31, 1992" (Tr. 16). The ALJ then explained that the record was kept open after the administrative hearing to give plaintiff's non-attorney representative a full opportunity to submit additional medical documentation of disability prior to plaintiff's last insured date. However, on July 27, 2007, plaintiff's non-attorney representative reported to the ALJ that there was no additional medical evidence beyond that which had already been produced in support of plaintiff's application for disability insurance benefits (Tr. 16).
The ALJ next noted that plaintiff "last met the insured status requirements of the [Act] on December 31, 1992" (Tr. 19). Specifically, he stated:
(Tr. 19). The ALJ then applied the five-step analysis to plaintiff's appeal, relying on the medical evidence and plaintiff's testimony to determine that plaintiff was not disabled from September 1, 1992, his alleged onset date, through December 31, 1992, his last insured date (Tr. 16-21).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged onset date (Tr. 19).
At step two, the ALJ found that the "objective medical evidence fail [ed] to establish the existence of a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms" during the Critical Period (Tr. 19). Specifically, the ALJ stated that the available medical evidence established that plaintiff had normal mental and physical findings in February 1999, with a decline in his condition occurring at some point after 2000. Thus, the medical evidence did not suggest any mental or physical abnormalities prior to 1999, which in turn, did not suggest any abnormalities during the Critical Period (Tr. 19-20). Based on this analysis, the ALJ concluded that he did not need to apply steps three through five to plaintiff's appeal (
Plaintiff does not contest that he last met the earning requirements for insured status under the Act on December 31, 1992. There is also no evidence or argument that plaintiff worked after his last insured date, and "therefore ... [no evidence that he] accumulate [d] additional `quarters of coverage'. . . . ."
Before considering whether the Commissioner's decision is supported by substantial evidence, I first review it for application of the correct legal standards.
The ALJ also satisfied his affirmative obligation to develop the administrative record.
The ALJ found that while the available medical evidence established that plaintiff suffered from "schizoaffective disorder, depression, heroin dependency maintained on methadone, and ... Hepatitis C" since April 2000, it did not demonstrate the existence of a physical or mental impairment that was disabling prior to plaintiff's last insured date — specifically, prior to December 31, 1992 (
In making this determination, the ALJ noted the following about the earliest medical evidence in the administrative record:
(Tr. 19-20). The ALJ then considered the rest of the medical evidence in the administrative record and stated:
(Tr. 20).
Based on the foregoing, the ALJ found that the available medical evidence was consistent with "psychiatric evaluations performed in 2000 and [plaintiff's SSI] disability determination [in April 2000 that he suffered from schizoaffective disorder]." However, the ALJ concluded that:
(Tr. 20).
The ALJ also noted that while "a remote date of onset may be reasonably inferred from the available medical evidence [pursuant to Social Security Ruling 83-20]," such a date cannot be inconsistent with the available medical evidence (Tr. 20). Thus, because "the medical evidence [in plaintiff's case] shows [that plaintiff] had normal mental and physical findings in February 1999 ... it cannot reasonably be inferred that [he] had a disabling impairment six years previous to this evaluation" (Tr. 20). Further, the ALJ noted that "[n]ot even the [plaintiff's] treating psychiatrist [Dr. Molina], who is in the best position to assess the progression of the claimant's mental impairment, is willing to make that leap" (Tr. 20).
The ALJ's determination that plaintiff was not disabled prior to his last insured date is supported by substantial evidence. Although there was no evidence bearing on plaintiff's condition in December 1992, the medical evidence that was available showed that plaintiff was not disabled in 1999 and did not arguably become disabled until September 2005.
The earliest medical evidence is from February 1999, approximately six years after plaintiff's last insured date
The next significant event disclosed by plaintiff's medical records is the commencement of psychiatric treatment from New Beginnings in March 2004 (
With respect to plaintiff's Hepatitis, Dr. So noted in September 2005 that plaintiff's liver function test was "essentially normal" (Tr. 97).
It is only in September 2005 — almost thirteen years after plaintiff's last insured date — that the available medical evidence begins to show a decline in plaintiff's condition.
The medical evidence from 2006 and 2007 — fourteen to fifteen years after plaintiff's last insured date — show the greatest decline in plaintiff's condition. In January 2006, Dr. Molina reported that plaintiff suffered from "marked" limitations in his ability to understand, remember, and carry out instructions, as well as in his ability to respond appropriately in a work setting (Tr. 122-23). In May 2007, Dr. Molina reported that plaintiff suffered from a "severe and persistent mental illness [with a] marked cognitive impairment" (Tr. 133). Further, he opined that plaintiff was either unable to meet competitive standards or had no useful ability to function in work-related activities (Tr. 137-38).
Finally, plaintiff self-reported to Dr. Graham that he had been diagnosed with schizoaffective disorder in approximately 2000, as well as with Hepatitis C in approximately 2003 (
Thus, unless one hypothesizes that plaintiff suffered from a disabling condition in 1992, made a recovery that left him essentially normal as of 1999, and that plaintiff then relapsed in 2005, there is no way that plaintiff was disabled as of his last insured date. Because there is no evidence to support the conclusion that plaintiff suffered from a disabling condition prior to 2005, this hypothesis is not supported by the administrative record.
Although the mere absence of contemporaneous medical evidence of a disabling condition during the relevant time period does not necessarily preclude a finding of disability,
In conclusion, it may be the case that plaintiff suffered from a disabling condition as early as April 2000. However, because the earliest medical evidence in the record — which is approximately six years after both plaintiff's alleged onset date and last insured date — contains express findings that plaintiff's physical and mental examinations were unremarkable in early 1999, and further, a marked decline in plaintiff's condition only began in September 2005, there is substantial evidence to support the ALJ's determination that plaintiff was not disabled prior to his last insured date. Additionally, there is substantial evidence to support the ALJ's determination that inferring such an onset date would have been inconsistent with the available medical evidence.
For all the foregoing reasons, I respectfully recommend that the Commissioner's motion for judgment on the pleadings pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure be granted.
Pursuant to 28 U.S.C. § 636(b)(1)(c)) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections.
