JUDITH C. McCARTHY, Magistrate Judge.
To the Honorable Cathy Seibel, United States District Judge:
Plaintiff Maria Velez ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) and/or 42 U.S.C. § 1383(c)(3), challenging the decision of the Commissioner of Social Security ("the Commissioner"), which denied Plaintiff's applications for Supplemental Security Income ("SSI") benefits, finding her not disabled. Presently before this Court is the Commissioner's Motion for Judgment on the Pleadings ("Motion") pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos. 13, 14). The Commissioner's Motion was filed on December 15, 2016, and Plaintiff's response was due by January 17, 2017. (Docket Nos. 10, 13, 14). However, Plaintiff did not timely respond. By Order dated February 3, 2017, the Court extended Plaintiff's time to respond or otherwise notify the Court as to her status until March 3, 2017. (Docket No. 15). Plaintiff did not respond, and the Court deemed this matter fully submitted. For the reasons that follow, I respectfully recommend that the Commissioner's Motion for Judgment on the Pleadings should be denied, and the Commissioner's decision be vacated and the case be remanded for further proceedings consistent with this Report and Recommendation.
Plaintiff was born on November 20, 1972 in Puerto Rico. (R.
The Social Security Administration ("SSA") denied her application on April 22, 2009. (R. 39-42). Plaintiff disagreed with the decision and requested a hearing before an Administrative Law Judge ("ALJ"), (R. 43); the hearing was held on May 14, 2010, (R. 20-33). On July 21, 2010, the ALJ found that Plaintiff was not disabled under the Social Security Act ("Act"). (R. 7-16). Plaintiff appealed the ALJ's decision to the Appeals Council, which denied her request for review on February 7, 2012. (R. 1-3). Thereafter, Plaintiff commenced a civil action in this District on April 10, 2012. (R. 334-36; see also Velez v. Comm'r of Soc. Sec., No. 12-CV-2824 (S.D.N.Y.), Docket No. 2). By stipulation of the parties, that action was remanded to the Commissioner for further administrative proceedings on September 12, 2012. (R. 342-43; see also R. 344-47; Velez, No. 12-CV-2824, Docket Nos. 15, 16).
On June 7, 2013, Plaintiff appeared for another hearing before a second ALJ, ALJ Sheena Barr.
The record reflects treatment Plaintiff has received for her mental health and for opiate dependence. (E.g., R. 138).
Plaintiff presented at Bronx-Lebanon Hospital Center ("Bronx-Lebanon") on September 18, 2008, where she participated in the Inpatient Substance Abuse Service to detox from heroin. (R. 160-62, 183-84). Plaintiff reported that she had used cocaine as recently as one month earlier, that she had started using cocaine at age twenty-five, and that she used on average "three bags" per month. (R. 161). She further reported that she used heroin for the first time at age thirty-five, that she used on average "two bags" per day, and that she had last used that day. (R. 161). Plaintiff was evaluated by Caleen Warren, a nurse practitioner, who noted that Plaintiff was nervous, suffered from major depression, and had a history of insomnia and auditory hallucinations. (R. 183-84).
From March 1 through March 4, 2011, Plaintiff was hospitalized at Bronx-Lebanon for an overdose and attempted suicide. (R. 508-36). She stated that she "overdosed with the pills," and described taking four 2mg Xanax pills, combined with alcohol and cocaine. (R. 508, 511, 516). Plaintiff further described an argument with her daughter that had led her to want to "hurt herself," and to attempt suicide. (R. 508, 516, 522). Plaintiff's husband had called 911 because Plaintiff was sedated and difficult to wake up; emergency medical services brought her to the emergency room. (R. 516, 520, 527). Upon psychiatric evaluation, Dr. Ricardo Alvarez noted that Plaintiff was regularly treated by Dr. Francis Hayden. (R. 527). He found that she was alert and oriented "x3," that her affect was full and stable, that she was coherent, and that her mood was "okay," but that she was "concerned over confusion last night." (R. 528). After several days of treatment and observation, Plaintiff was discharged on March 4, 2011. (R. 526). Dr. Rubio Valerio noted that her mental status was "returned to baseline." (R. 526).
Plaintiff was treated at the Dr. Martin Luther King, Jr. Health Center ("MLK Health Center") from July 2008 through May 2013. (R. 137-52, 154-58, 163-82, 185-202, 209-10, 454-507). For her mental health, it appears that Plaintiff was treated primarily by Francis Hayden, M.D., whom she saw for psychotherapy and medication management; Marina Cozort, M.D., with whom Plaintiff had additional psychotherapy; Christopher Leggett, Ph.D; and Orlando Bosch, L.C.S.W. (E.g., R. 150, 168, 177, 453, 493). Plaintiff also had frequent appointments with Joseph Tiburcio, M.D., and Maged Barakat, M.D., for primary care and medication management. (E.g., R. 168, 170, 479).
During the eight-month period from July 2008 through March 2009, Plaintiff was seen frequently by Drs. Tiburcio and Hayden: she had at least eleven appointments with Dr. Hayden, (R. 138, 139, 144, 147, 149, 151-52, 154, 156-57, 167-68), and at least six appointments with Dr. Tiburcio, (R. 143, 155, 163, 165, 169, 170). Plaintiff's first appointment with Dr. Tiburcio was on July 2, 2008. (R. 170). From her first visit with Dr. Tiburcio through March 30, 2009, Plaintiff consistently answered "yes" to the following questions: (i) whether she had often been bothered by feeling down, depressed or hopeless over the past month; and (ii) whether she had often been bothered by having little interest or pleasure in doing things over the past month. (E.g., R. 139, 170). After her second appointment with Dr. Tiburcio, on July 15, 2008, he prescribed Plaintiff Seroquel and Trazodone for her mood disorder. (R. 169). He also referred her to Dr. Hayden, whom she first saw on July 29, 2008 for anxiety and depression. (R. 168). At her first appointment with Dr. Hayden, Plaintiff reported having anxiety attacks accompanied by sobbing, palpitations, trembling and sweats over the previous two months. (R. 168). She was also fearful, and suffered from insomnia and anhedonia. (R. 168). When she went outside, she felt that everyone was looking at her. (R. 168). Plaintiff described auditory hallucinations, explaining that she would hear her mother's or husband's voice calling for her and would believe it was real, but that her mother and husband denied calling for her, which made her cry. (R. 168). She described losing her two-year-old daughter in a house fire in Georgia fourteen years earlier, and complained of stress associated with the birth of her grandson to her fourteen-year-old daughter. (R. 168). Upon mental status examination, Dr. Hayden found that Plaintiff spoke rapidly, shifting between English and Spanish, exhibited panic symptoms, had strained impulse control and decreased concentration. (R. 177). He evaluated her Global Assessment of Functioning ("GAF") as forty-five, and opined that her highest GAF over the past year was likely fifty-five. (R. 175). However, he found that her insight was fair to good and that her judgment appeared to be good. (R. 177). He concluded that Plaintiff was suffering primarily from anxiety, which seemed to have graded to depression. (R. 177). Plaintiff felt that the medication prescribed by Dr. Tiburcio was not helping; Dr. Hayden increased her dosage of Seroquel and Trazodone and recommended psychotherapy. (R. 168, 177).
Plaintiff's response to medication varied over the following weeks. For example, on August 5, 2008, Plaintiff reported to Dr. Hayden that she was much better, despite continued signs of depression and difficulty falling asleep, and that she wanted to remain on her current medication. (R. 167). However, on August 19, 2008, she told Dr. Tiburcio that she wanted her medication adjusted because she was still "feeling sad and depressed all the time" and had difficulty sleeping. (R. 165). At her next appointment with Dr. Tiburcio on September 15, 2008, Plaintiff reported feeling much better but that she had started using heroin. (R. 163). By the time of her next appointment with Dr. Hayden on September 22, 2008, Plaintiff had been in and out of the heroin detox program at Bronx-Lebanon. (R. 156-57, 186). Plaintiff presented as very apologetic, ashamed and disappointed by her three-week heroin use, and Dr. Hayden noted that she "swears she'll never do it again." (R. 156-57, 186). Dr. Hayden observed that Plaintiff "will smile a little" but that she was "downcast today," and assessed her as suffering from "severe anxiety" and a history of depression. (R. 186). Plaintiff was taking Suboxone to assist with her opiate withdrawal. (R. 156). On October 6, 2008, Dr. Hayden noted that Plaintiff was increasingly anxious and depressed. (R. 154).
Plaintiff also saw Dr. Cozort on October 6, 2008. (172-73). Dr. Cozort noted that Plaintiff's symptoms had worsened over the previous few months, and that she had feelings of hopelessness and suffered from insomnia and anhedonia. (R. 172). Upon mental status examination, Dr. Cozort found that Plaintiff had poor eye contact, depressed mood and labile affect. (R. 173). However, she found that her insight and judgment were intact and that Plaintiff was cooperative. (R. 173). Dr. Cozort recommended psychotherapy, continuing with Seroquel and Trazodone, and adding Celexa to Plaintiff's medications. (R. 173). At an appointment with Dr. Hayden on November 3, 2008, he indicated that Plaintiff would attend weekly appointments with Dr. Cozort for psychotherapy. (R. 190). Dr. Hayden also indicated that he would have biweekly sessions with Plaintiff for medication management. (R. 190). However, the record only contains two subsequent treatment notes from Dr. Cozort. (R. 148, 150).
Plaintiff's mental health continued to fluctuate. On October 14, 2008, Dr. Hayden noted that she was "a little calmer" and "less depressed," and that she was having a "good response" to the medications, including Celexa and Suboxone. (R. 152). Approximately one month later, at an appointment on November 17, 2008, Dr. Hayden described Plaintiff as "very angry." (R. 149). Upon mental status examination, he noted that Plaintiff had lost thirty-seven pounds and described her as "anxious, fearful when talking, worried about what others think of her, ashamed [and] tormented." (R. 192).
Dr. Hayden saw Plaintiff on January 25, 2009, and noted that she had been "avoiding coming into the clinic," because she had resumed using heroin, approximately one bag per day intranasally, and felt "ashamed."
By February 6, 2009, Plaintiff's medication regimen included: (i) Celexa, 40 mg per day; (ii) Seroquel XR, 400 mg per day; (iii) Trazodone, 100 mg at bedtime; and (iv) Suboxone, 8mg twice daily. (R. 210). She continued to have stress at home related to her teenage daughter and her young grandson, and Dr. Hayden noted that she was "stabilizing her mental and substance abuse conditions at the same time that her daughter appears to be decompensating." (R. 210). Dr. Hayden performed a mental status examination, and found that Plaintiff's insight, judgment and impulse control were fair, and that her mood and affect were anxious. (R. 210). Plaintiff continued to see Drs. Hayden and Tiburcio through March 2009. (R. 139, 143, 144).
After March 30, 2009, the record contains a six-month gap in treatment notes, which do not resume until September 22, 2009. There are two treatment notes from Dr. Hayden in the fall of 2009, which seem to reflect that Plaintiff's mental health was improving. (R. 454-56). On September 22, 2009, Dr. Hayden reported that Plaintiff was seen briefly on September 16, 2009 for medication renewals, and that at that time she reported that Xanax XR 1mg was "working too slowly," so her medication had been increased.
The record contains a second, significantly longer gap in treatment notes after October 16, 2009. The next treatment notes are from April 29, 2011, approximately eighteen months later.
Finally, there is a third gap in the record of approximately ten months, from July 2011 to May 2012. When the treatment notes resume in May 2012, it appears that Plaintiff had switched from Drs. Hayden and Tiburcio to Drs. Leggett and Barakat. From May 2012 through May 2013, Plaintiff saw Dr. Leggett at least three times, (R. 471, 481-82, 498), and Dr. Barakat at least five times, (R. 474-80, 483-62, 494-97, 504-07). She also had at least two appointments with Mr. Bosch. (R. 472-73, 492-93).
It appears that Plaintiff's first appointment with Dr. Leggett was on May 19, 2012, during which he managed her medications. (R. 471). He noted that she had been followed by "Dr. Hayden et al," that her last psychiatric appointment had been in February 2012, that she had intermittently been prescribed Xanax, and that she agreed to discontinue Xanax and switch to Perphenazine 4mg, as-needed for "breakthrough anxiety." (R. 471). Plaintiff was taking the following medications at that time: (i) Nicotine; (ii) Suboxone; (iii) Trazodone; (iv) Celexa; (v) Seroquel XR; and (vi) Mirtazapine. (R. 471). She was instructed to return in three months. (R. 471). At an appointment with her social worker, Mr. Bosch, three days later, Plaintiff described her depression and had a "sense of hopelessness when discussing her daughter." (R. 472). She appeared alert and oriented "x3" and had fair insight, judgment and impulse control, as well as good eye contact. (R. 472). However, she suffered from poor sleep as well as lapses in concentration and memory. (R. 472). She denied visual and auditory hallucinations. (R. 472). She saw Dr. Leggett again on December 18, 2012. (R. 481-82). Plaintiff had been out of medication for one month but had remained stable. (R. 481). She saw Mr. Bosch again on January 31, 2013. (R. 492-93). He observed that she was poorly dressed and groomed, had poor eye contract, that her speech was slow and deliberate, and that she suffered from poor concentration and increased trouble sleeping, which she would discuss with Dr. Leggett. (R. 492-93). She stated that she disliked being "around people," and Mr. Bosch observed that she had "very little insight into her problems." (R. 492). Finally, Plaintiff had another appointment with Dr. Leggett on April 9, 2013. (R. 498). He noted that she had remained stable and was managing adequately. (R. 498). He found her alert and oriented "x3," calm, cooperative and conversational, and found her mood neutral and her affect congruent. (R. 498). He instructed Plaintiff to continue taking Seroquel XR, Celexa, Remeron and Trazodone; Plaintiff was also still taking Suboxone. (R. 498).
Plaintiff saw Dr. Barakat for Suboxone maintenance treatment on August 27, 2012. (R. 477-80). She answered "no" when asked whether she had "often been bothered by feeling down, depressed or hopeless" over the past month, but "yes" when asked whether she had "often been bothered by having little interest or pleasure in doing things" over the past month. (R. 477). Dr. Barakat refilled her Suboxone prescription and provided a follow-up psychiatry referral, and also advised Plaintiff to continue outpatient counseling and relapse precautions. (R. 479). On January 28, 2013, Plaintiff saw Dr. Barakat again for Suboxone maintenance treatment. (R. 487-90). She replied "no" when asked whether she had "often been bothered by having little interest or pleasure in doing things" over the past month, but "yes" when asked whether she had "often been bothered by feeling down, depressed or hopeless" over the past month. (R. 487). Plaintiff continued to see Dr. Barakat for Suboxone maintenance treatment on March 28, 2013, (R. 494-97), and May 10, 2013, (R. 504-07). In March, she replied "yes" to both questions regarding symptoms of depression over the past month, (R. 494), and in May, she answered "no" to both questions, (R. 504). At both appointments, Dr. Barakat indicated that she should follow up with psychiatry as well as continue outpatient counseling and relapse precautions. (R. 496, 506).
There is opinion evidence from Drs. Hayden and Leggett. Dr. Hayden provided five separate opinions. The first is undated. (R. 205-06). Dr. Hayden completed a Treating Physician's Wellness Plan Report for the New York City Department of Social Service's public assistance program. (R. 205-06). He diagnosed Plaintiff with major depressive disorder, anxiety and panic attacks. (R. 205). Under the section for relevant clinical findings, he identified severe anxiety and panic, as well as depression with fearfulness and fatigue. (R. 205). He noted that Seroquel had been "partially helpful" to Plaintiff and that she had a "good response" to Celexa, which had been increased that day. (R. 205). He checked boxes to indicate that Plaintiff's condition had not resolved or stabilized and that she was temporarily unemployable, and opined that she needed at least three months until she would stabilize. (R. 206). Dr. Hayden filled out a second Treating Physician's Wellness Plan Report on February 23, 2009. (R. 207-08). In addition to depression, anxiety and panic attacks, he diagnosed Plaintiff with paranoia, opioid dependence and mood disorder not otherwise specified. (R. 207). Regarding relevant clinical findings, Dr. Hayden again noted that she had severe anxiety, and identified family issues. (R. 207). He further noted that Suboxone and Trazodone had been added to her medication, and that she was referred to "social services in wellness (Mr. Bosch)." (R. 207). He again checked a box to indicate that her condition had not resolved or stabilized, and this time estimated that she needed six to twelve months to stabilize. (R. 208). He also checked a box to indicate that she was unable to work for at least twelve months. (R. 208). On May 4, 2009, Dr. Hayden sent a letter to "Social Security/Disability Representative" to request assistance in appealing Plaintiff's request for SSI. (R. 243). He identified himself as Plaintiff's treating psychiatrist, and noted that he had followed her for the past nine months. (R. 243). He wrote that, in his opinion, "her psychiatric conditions, including Major Depressive Disorder, Posttraumatic Stress Disorder, and Panic Disorder with Agoraphobia, are so severe and treatment resistant that she is unable to be gainfully employed." (R. 243).
Next, on August 2, 2010, Dr. Hayden wrote a letter to the Appeals Council in response to the first ALJ's denial of Plaintiff's claim. (R. 286). The first ALJ had requested information from Dr. Hayden, (R. 56), but the ALJ's decision noted that "Dr. Hayden failed to provide specific functional limitations," that his "reports have been inconsistent and have contradicted each other," and that "he did not respond" to the ALJ's request, (R. 15). In response, Dr. Hayden noted that he continued to treat Plaintiff. (R. 286). He first addressed the inconsistency between his Treating Physician's Wellness Plan Reports regarding the time he estimated it would take for Plaintiff to stabilize. (R.286). In the first, which he "inadvertently failed to date," he explained that it was an "early report," and that he completed it "before [he] had a deeper knowledge of [Plaintiff's] problems." (R. 286). He explained that the "inconsistency is attributable to increase[d] knowledge of the [Plaintiff] leading to a different estimate of the time needed for recovery." (R. 286). He next addressed the lack of documentation regarding Plaintiff's functional impairments, and wrote that the focus of his treatment was on symptom reduction. (R. 286). He concluded by observing that Plaintiff never travelled to the clinic alone, and that she was "deathly afraid of having a panic attack in public." (R. 286). In his opinion, taking into consideration Plaintiff's "severe anxiety impairment," he believed she suffered from a "chronic mental condition that causes marked impairment in social functioning." (R. 286).
Finally, on January 14, 2011, Dr. Hayden completed a third Treating Physician's Wellness Plan Report. (R. 280-81). He diagnosed her with panic attacks and depression. (R. 280). In the section for relevant clinical findings, Dr. Hayden noted, inter alia, that she had PTSD, recurrent major depression, anxiety and agoraphobia with panic disorder, that she felt nervous, and that she had been "crying on and off" for four months. (R. 280). He checked boxes to indicate that she was compliant in attending scheduled appointments and taking prescription medication. (R. 280). He listed the following medications that Plaintiff was prescribed: (i) Celexa; (ii) Mirtazapine; (iii) Seroquel; (iv) Trazodone; (v) Alprazolam; and (vi) Suboxone. (R. 280). He also checked boxes to indicate that Plaintiff had not stabilized from her condition and that she was unable to work for at least twelve months. (R. 281). He noted that she continued to complain of feeling depressed and suffered from panic attacks and nervousness. (R. 281).
Dr. Leggett completed a Medical Source Statement of Ability To Do Work-Related Activities (Mental) on April 9, 2013. (R. 451-53). In terms of Plaintiff's ability to understand, remember and carry out short, simple instructions, Dr. Leggett checked boxes indicating that Plaintiff was moderately impaired. (R. 451). He further indicated that she was: (i) markedly impaired in her ability to make judgments on simple work-related decisions; (ii) markedly to extremely impaired in her ability to understand and remember detailed instructions; and (iii) extremely impaired in her ability to make judgments on simple work-related decisions. (R. 451). In making the above assessments, he noted her history of learning disabilities and special education. (R. 451). Regarding Plaintiff's ability to respond appropriately to supervision, co-workers and work pressures in a work setting, Dr. Leggett indicated that Plaintiff was moderately impaired in her abilities to interact appropriately with the public and with co-workers, and markedly impaired in her abilities to: (i) interact appropriately with supervisors; (ii) respond appropriately to work pressures in a usual work setting; and (iii) respond appropriately to changes in a routine work setting. (R. 452). He again noted her history of learning disabilities, and concluded that she could not "hold a job." (R. 452).
There are two evaluations in the record from Federation Employment and Guidance Services ("FEGS"). (R. 112-36, 245-79). Plaintiff's first FEGS evaluation spanned from August to September 2008. (R. 112-36). Plaintiff complained of depression and panic attacks, and reported taking Seroquel and Trazadone. (R. 112-13, 129). Upon medical examination, FEGS Dr. Cindy Grubin noted that Plaintiff's neurological/psychiatric state was dysthymic. (R. 115). Plaintiff was referred by Dr. Grubin to FEGS Dr. Jorge Kirschtein for a mental status examination. (R. 116-23). Dr. Kirschtein found that her appearance was neat, her manner was cooperative, her thought processes were normal and logical, and that she spoke with a normal cadence. (R. 118). He also found that she was restless and that her mood was depressed. (R. 118). In terms of functional impairments, Dr. Kirschtein found that Plaintiff was moderately impaired in her abilities to: (i) follow work rules; (ii) accept supervision; (iii) deal with the public; (iv) maintain attention; (v) relate to co-workers; and (vi) adapt to change. (R. 119). He found that she was severely impaired in her ability to adapt to stressful situations. (R. 119). Dr. Kirschtein diagnosed Plaintiff with cyclothymia, panic disorder without agoraphobia, PTSD and attention-deficit/hyperactivity disorder, and noted a possible learning disorder with severe vocational impairments. (R. 120-21). He recommended weekly psychotherapy, monthly medication management, and adding a mood stabilizer or selective serotonin reuptake inhibitor. (R. 121-22).
As part of the first evaluation, Plaintiff was also seen by social worker Netanya Bell, who completed a biopsychosocial summary. (R. 124-136). Based on a questionnaire, Plaintiff reported to Ms. Bell that, at the time of the evaluation, for several days during the preceding two weeks she: (i) felt down, depressed or hopeless; (ii) felt bad about herself or that she was a failure or had let herself or her family down; and (iii) had trouble concentrating. (R. 129). She denied other symptoms. (R. 129). Plaintiff told Ms. Bell that she could travel independently by bus or train, had walked to the appointment by herself, and did not have travel limitations or special transportation needs, although noted that she suffered from panic attacks. (R. 130). Regarding her activities of daily living, Plaintiff claimed she was able to do the following: (i) wash dishes; (ii) wash clothes; (iii) sweep or mop the floor; (iv) vacuum; (v) watch television; (vi) make beds; (vii) shop for groceries; (viii) cook meals; (ix) read; (x) socialize; (xi) get dressed; (xii) bathe; (xiii) use the toilet; and (xiv) groom herself. (R. 130). She reported that she had no hobbies, and no contact with friends and family. (R. 130-31). The conclusion of the exam was that Plaintiff's mental health temporarily prohibited employment. (R. 136).
Plaintiff's second FEGS evaluation was in November 2010. (R. 245-79). On November 16, 2010, she underwent a physical examination by FEGS Dr. Padmavathi Jagarlamundi, who referred her to Dr. Eliseo Go for a psychiatric evaluation. (R. 267-79; see also R. 245). Dr. Jagarlamundi noted that Plaintiff complained of feeling depressed, passive suicide ideations, auditory hallucinations, and insomnia and memory problems. (R. 269-71). Dr. Go completed a psychiatric evaluation on November 24, 2010. (R. 245-51). Dr. Go checked boxes corresponding to the following mental symptoms and complaints that Plaintiff claimed to have had over the preceding month: panic, anxiety/fearfulness, depressed mood, loss of appetite, poor concentration, fear of going outside, insomnia and loss of interest in sex. (R. 245-46). Upon mental status examination, Dr. Go found that Plaintiff appeared well-groomed, her manner was cooperative, she spoke with a normal cadence, her activity was calm, her affects were within a normal range, her form of thought was logical and she had no suicidal or homicidal thoughts. (R. 246-47). However, her mood was depressed and she had psychosomatic preoccupations/fears. (R. 247). In terms of functional impairments, Dr. Go found that Plaintiff was not impaired in her abilities to: (i) follow work rules; (ii) relate to co-workers; (iii) accept supervision; and (iv) deal with the public. (R. 247-48). The doctor found she was mildly impaired in her abilities to maintain attention and adapt to change, and moderately impaired in her ability to adapt to stressful situations. (R. 248). He commented that she was "still not stabilized" and "ha[d] [an] ongoing substance abuse problem," and concluded that she was temporarily disabled from work, for a likely period of three months. (R. 249).
She was also seen by FEGS social worker Bessie Woodward-Slater, who completed a biopsychosocial summary on November 16, 2010. (R. 252-65). Plaintiff walked to the appointment and explained that, because of panic attacks, she was unable to use public transportation or travel alone, and needed an escort to her appointments. (R. 263). Ms. Woodward-Slater suggested that Plaintiff may benefit from a paratransit service. (R. 263). In terms of employability, Plaintiff reported that she was unable to work because of her mental health problems, and that although she had recently worked as a babysitter, she had lost that job when the parents of the children "saw all the pills she was taking." (R. 259, 264). Ms. Woodward-Slater found that Plaintiff was not interested in working. (R. 259).
Regarding her mental health, Plaintiff indicated that she had received treatment for over twenty-four months for panic attacks and depression, and reported monthly treatment with her psychiatrist, Dr. Hayden. (R. 261-62). She described to Ms. Woodward-Slater a history of punching herself when she felt angry, in attempt to release pressure, and reported that the behavior left red marks. (R. 262). Plaintiff said that the behavior had started two months earlier, and that she had not spoken with her psychiatrist about it. (R. 262). She said that the last incident of punching herself had been one month prior, but that she "felt like punching herself [two] days ago when she was angry after cutting herself cooking." (R. 262). She also reported daily auditory hallucinations, which she described as hearing her voice called when no one was there, and noted that it happened as recently as that morning. (R. 262-63).
Turning to symptoms that Plaintiff had experienced over the preceding two weeks, she reported that the following occurred nearly every day: (i) feeling down, depressed or hopeless; (ii) trouble falling or staying asleep, or sleeping too much; and (iii) feeling tired or having little energy. (R. 262). On more than half of the days over the prior two weeks, Plaintiff had little interest or pleasure in doing things and poor appetite or overeating. (R. 262). She reported that on several days, she: (i) felt bad about herself, or that she was a failure or had let herself or her family down; (ii) had trouble concentrating on things; and (iii) thought that she would be better off dead or hurting herself in some way. (R. 262). Plaintiff indicated that the above symptoms had made it somewhat difficult for her to take care of things at home or get along with other people. (R. 262). In terms of her daily life, Plaintiff stated that she spent her day looking after her grandson and children, cooking, cleaning, doing laundry and watching television. (R. 263). Ms. Woodward-Slater noted that she did all daily living activities except for socialize.
Plaintiff completed an adult function report on March 27, 2009. (R. 94-102). In it, she indicated that her daily activities included watching television, walking around the house, cooking, cleaning and taking care of her children and grandson, and that she could also do laundry. (R. 94-95, 97-98). She reported that her children and her mother sometimes helped her with these tasks. (R. 95, 97). Regarding her children and grandson, she noted that she bathed, fed and played with her grandson, and that she talked to her children. (R. 95, 99). She also spoke to her sister and brother on the phone. (R. 99).
In terms of how her activities had changed since the alleged onset date, she wrote that she could no longer "keep still," explaining that "now I can't because I move all over the place and sometimes I think to[o] much." (R. 95). She described the effects and symptoms of her alleged impairment as follows: (i) she could not hear too much noise; (ii) sometimes she did not "feel like taking [her] bath;" (iii) sometimes she did not "feel like combing [her] hair;" and (iv) that although she fed herself and prepared meals daily, spending forty-five minutes to one hour cooking hamburgers or hot dogs, "sometimes" she did not "feel hungry." (R. 95-96). Plaintiff noted that her children and mother reminded her to take her medication, and that sometimes her mother or daughter helped prepare meals. (R. 96). She also observed that since her alleged onset date, her cooking habits had become "much faster." (R. 96). She claimed to go outside every five to ten days, and explained that she did not go outside more often either because she did not "feel like it" or was too scared, and that she did not go outside alone because she felt that everybody looked at her. (R. 97). That said, physically, Plaintiff indicated that she could "walk a lot" before she had to stop and rest, and that she did not require much rest before she could continue walking. (R. 100). Plaintiff reported shopping for food or clothes every fifteen days, and that she could pay bills, count change, handle a savings account and use a checkbook. (R. 98). Plaintiff further noted that she sometimes had problems paying attention because she "had other things on [her] mind," and that she had trouble remembering things. (R. 100-01). However, she stated that she could finish what she started, could follow spoken and written instructions, and had no problems getting along with bosses or other people. (R. 100-01).
The administrative record contains evaluations by two psychiatric consulting physicians.
Dr. Meadow completed a psychiatric evaluation of Plaintiff on April 9, 2009.
Regarding symptoms, Plaintiff told Dr. Meadow that she had difficulty falling asleep, that her appetite was poor and her weight fluctuated, and that she experienced crying spells, irritability, low energy, diminished self-esteem and difficulty concentrating. (R. 216). Dr. Meadow characterized these as symptoms of depression and dysphoric moods. (R. 216). Plaintiff described her panic attacks as occurring with varied frequency, as manifesting as "trembling with palpitations," and as being triggered by loud noises, crowds and feeling frightened. (R. 216). She denied agoraphobia, suicidal thoughts, manic symptoms, thought disorder and cognitive deficits. (R. 216). Turning to her mode of living, Plaintiff reported socializing primarily with her immediate family. (R. 218). She was able to take care of her personal hygiene and complete all household chores, and spent her days watching television, reading and listening to music. (R. 218).
Upon examination, Dr. Meadow observed that Plaintiff's demeanor was cooperative, her manner of relating was adequate, and she was well groomed and dressed appropriately. (R. 217). While her gait and posture were normal and her eye contact was appropriate, she was restless, had trouble sitting still, and had a gross tremor of both hands. (R. 217). He found that her thought processes were coherent and goal-directed, her attention and concentration as well as her recent and remote memory skills were intact, her cognitive functioning was average, and her insight and judgment were fair. (R. 217-18). Dr. Meadow further found that Plaintiff's affect was appropriate in speech and thought content, but her mood was depressed. (R. 217). He concluded that although the results of the examination appeared consistent with psychiatric problems, her problems did not interfere with Plaintiff's ability to function on a daily basis, and that, in his opinion, Plaintiff would be able to perform all tasks necessary for vocational functioning. (R. 218). Finally, Dr. Meadow diagnosed Plaintiff with depressive disorder, generalized anxiety disorder, panic disorder without agoraphobia and heroin abuse/dependence, in partial remission. (R. 218). He found her prognosis was fair and recommended that she continue with psychiatric treatment. (R. 218).
Approximately four years after Dr. Meadow's evaluation, on January 17, 2013, Dr. Broska completed a psychiatric evaluation of Plaintiff. (R. 442). Dr. Broska noted that Plaintiff walked to the appointment by herself. (R. 442). She indicated that Plaintiff was not employed, and that she had last worked three years prior, as a babysitter for two weeks. (R. 442). Plaintiff claimed she was unable to work because her "medication made her too drowsy." (R. 442). Regarding Plaintiff's psychiatric history, Dr. Broska reported that Plaintiff had been treated at Bronx-Lebanon in 2011 or 2012 for an attempted overdose. (R. 422). At the time of the evaluation, Plaintiff was seen by Dr. Leggett every two to three months. (R. 442). She also reported seeing Mr. Bosch every one to two weeks. (R. 442). Dr. Broska noted that Plaintiff had been in psychiatric treatment for approximately three years. (R. 442). She also reviewed Plaintiff's medical history; Plaintiff did not report any medical hospitalizations or conditions. (R. 442). She listed her medication as Mirtazapine, Trazodone, Seroquel, Celexa, calcium/vitamin D and a multivitamin. (R. 442).
Dr. Broska reviewed Plaintiff's symptoms. (R. 442-43). Plaintiff reported that her medication helped her to sleep, and that her appetite varied. (R. 442). In the course of a typical week, she stated that her mood was "in the middle" for at least three days; other days, Plaintiff felt "either up or down." (R. 442). She described "down days" as sleeping a lot, feeling like she did not want to do anything, or being irritable. (R. 442). At times, she felt severely depressed and would not want to get dressed, shower or comb her hair. (R. 442). She described her "up days" as more frequent than her "down days," and described being talkative, having a lot of energy, being easily distracted, having a racing mind, being forgetful, and "speed[ing]." (R. 443). At times, she got very angry and would express her anger by, for example, hitting the dresser. (R. 443). Plaintiff described getting anxious, particularly on public transportation or when she felt "closed in," and expressed a desire to "run[] away" when that happened. (R. 443). Plaintiff reported one suicide attempt in 2011 or 2012, but denied any suicidal or homicidal ideation, intent or plans at the time of the evaluation. (R. 442-43). Dr. Broska reviewed Plaintiff's mode of living, indicating that Plaintiff was able to bathe, dress and groom herself daily. (R. 444). Plaintiff reported cooking, cleaning and doing laundry once a week, but noted that she did not shop often. (R. 444). She spent time watching television and listening to the radio. (R. 444).
Upon examination, Dr. Broska found that Plaintiff's demeanor and responsiveness to questions were cooperative, and that her manner of relating, social skills and overall presentation were adequate. (R. 443). She observed that her grooming was fair, her posture and motor behavior were normal, and her eye contact was appropriate. (R. 443). She described Plaintiff's mood as neutral and her thought processes as coherent and goal-directed, but noted that her affect was anxious. (R. 443). While her attention and concentration were intact and her insight and judgment were fair, Dr. Broska indicated that Plaintiff's recent and remote memory skills were mildly impaired, and her intellectual functioning was below average. (R. 444). Dr. Broska concluded that, vocationally, it appeared Plaintiff could perform the following tasks: (i) follow and understand simple directions and instructions; (ii) perform simple tasks independently; (iii) maintain attention and concentration; (iv) perform complex tasks independently; and (v) make some appropriate decisions. (R. 444). She opined that "there may be times [Plaintiff] has difficulty relating adequately with others and appropriately dealing with stress." (R. 444). Dr. Broska noted that although the results of the examination appeared consistent with psychiatric problems, the problems were not significant enough to interfere with Plaintiff's ability to function on a daily basis. (R. 444). Finally, she diagnosed Plaintiff with bipolar disorder and anxiety disorder and recommended that she continue with mental health treatment. (R. 445). Her prognosis was fair. (R. 445).
Dr. Broska also completed a Medical Source Statement of Ability To Do Work-Related Activities (Mental) dated January 30, 2013. (R. 446-48). Dr. Broska indicated that Plaintiff's ability to understand, remember and carry out instructions, as well as her ability to interact appropriately with supervisors, co-workers and the public, and her ability to respond to changes in the routine work setting, were affected by her impairment. (R. 446-47). She checked boxes to specify that Plaintiff was mildly impaired in her abilities to: (i) understand and remember simple instructions; (ii) carry out simple instructions; and (iii) make judgments on simple work-related decisions. (R. 446). She also found that Plaintiff was moderately impaired in her abilities to: (i) understand and remember complex instructions; (ii) carry out complex instructions; (ii) make judgments on complex work-related decisions; (iv) interact appropriately with the public; (v) interact appropriately with supervisor(s); (vi) interact appropriately with co-workers; and (vii) respond appropriately to usual work situations and to changes in a routine work setting. (R. 446-47). Dr. Broska concluded that "mood and anxiety symptoms may impact [Plaintiff's] interpersonal interactions in a vocational setting." (R. 447).
The state agency consultant, E. Kamin, Ph.D., completed a mental residual functional capacity ("RFC") assessment on April 16, 2009, by checking boxes on a form. (R. 234-36). Dr. Kamin found that Plaintiff was not significantly limited in her abilities related to understanding and memory. (R. 234). She was moderately limited in the following abilities related to sustained concentration and persistence: (i) her ability to work in coordination with or proximity to others without being distracted by them; (ii) her ability to make simple work-related decisions; and (iii) her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (R. 234-35). In terms of social interaction, Dr. Kamin indicated that Plaintiff was moderately limited in her abilities to interact appropriately with the general public and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (R. 235). Finally, regarding Plaintiff's capacity for adaptation, Dr. Kamin concluded that she was moderately limited in her ability to travel in unfamiliar places or use public transportation, and in her ability to set realistic goals or make plans independently of others. (R. 235). In all other abilities listed on the form, Dr. Kamin noted that Plaintiff was not significantly limited. (R. 234-35).
Plaintiff testified by video teleconference at the June 7, 2013 hearing before ALJ Barr and was represented by an attorney. (R. 294, 306-23, 361). Upon questioning by her attorney,
Regarding her mental impairment, Plaintiff testified that she believed she was unable to work because of panic attacks, which occurred "almost every day." (R. 311). She said that she suffered from panic attacks both when she was on and off of medication — specifically, Seroquel and Trazodone — and that the panic attacks occurred "basically anywhere."
A vocational expert, Joe Pearson, testified by phone. (R. 317-22). ALJ Barr asked him to consider the following hypothetical: an individual of the same age, education and work experience as Plaintiff, who did not have any exertional limitations, but was limited to simple, unskilled work, and would need a low-stress position, which she defined as only occasional changes in the work setting, occasional decision-making, and no assembly-line work. (R. 319). She further clarified that the hypothetical individual would be limited to a low-contact position, which she defined as only occasional interaction with coworkers, supervisors or the general public. (R. 319). The vocational expert concluded that the following three positions would be appropriate for such an individual, and existed in the regional and national economies: (i) mail clerk, DOT 209.687-026; (ii) photocopy machine operator, DOT 207.685-014; and (iii) housekeeping cleaner, DOT 323.687-014. (R. 319-20). Upon further questioning by the ALJ, Mr. Pearson opined that: (i) the three positions he provided did not require direct contact with the public; (ii) that if the hypothetical individual could not have any interaction with coworkers, the position of mail clerk would not be appropriate, and the availability of jobs as a photocopy machine operator or housekeeping attendant would decrease by 50%; (iii) that if the hypothetical individual needed to be off task for at least 5% of the workday, the three positions would still be appropriate; (iv) that if the time the hypothetical individual needed to be off task per day increased to 10%, there would be an estimated 50% reduction of the number of jobs available for each position, noting that at a 15% reduction, all jobs would likely be eliminated; and (v) that if the hypothetical individual suffered from daily panic attacks and was unable to leave the home, that individual would not be able to find work in the national economy. (R. 320-22).
ALJ Barr heard Plaintiff's case on remand from the Appeals Council. (R. 294). As will be discussed in more detail infra Section II(F), the Appeals Council generally directed ALJ Barr to: (i) evaluate Plaintiff's mental impairments in accordance with the special technique described in 20 C.F.R. § 416.920a; (ii) give further consideration to Plaintiff's mental RFC; and (iii) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base, pursuant to Social Security Ruling 83-14. (R. 346-47; see also R. 294).
ALJ Barr applied the five-step approach in her November 14, 2013 decision. (R. 294-301). At the first step, she found that Plaintiff had not engaged in "substantial gainful activity since October 24, 2008, the application date." (R. 296). At the second step, the ALJ determined that Plaintiff had the following severe impairments: depression disorder and anxiety disorder. (R. 296). At the third step, ALJ Barr held that Plaintiff did not have a medically determinable impairment or a combination of impairments that were listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 296). The ALJ considered Listings 12.04 and 12.06 for mental disorders and noted her consideration of the "paragraph B" criteria, finding that Plaintiff had mild restriction in activities of daily living, moderate difficulties in social functioning, moderate difficulties with regard to concentration, persistence or pace and no episodes of decompensation of extended duration.
The ALJ then determined that Plaintiff had the RFC to perform a full range of work at all exertional levels, subject to the following non-exertional limitations: (i) simple and unskilled tasks, involving only occasional interaction with co-workers and no interaction with the general public; and (ii) at low stress, defined as involving only occasional decision-making and occasional changes in the work setting, and no assembly line work. (R. 298). In determining Plaintiff's RFC, the ALJ specifically noted her consideration of "all symptoms and the extent to which [the] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," as well as her consideration of opinion evidence. (R. 298).
Regarding non-medical evidence, the ALJ held that Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were not entirely credible. (R. 298). The ALJ discussed Plaintiff's hearing testimony, noting that she testified that she had panic attacks on a regular basis, was consistently nervous, and mostly stayed at home because she felt uncomfortable around strangers, and that, despite medication, her condition limited her activities. (R. 298). The ALJ also reviewed Plaintiff's activities of daily living, as reported by Plaintiff on her adult function report, and found Plaintiff to be partially credible. (R. 299). She noted that Plaintiff was able to do chores around the home, such as cooking, cleaning and shopping. (R. 299). ALJ Barr further observed that although Plaintiff alleged that she was unable to concentrate, she indicated on the function report that she was able to perform household chores, interact with her family, shop, watch television and follow both written and spoken instructions, which required her to maintain concentration and attention. (R. 299).
ALJ Barr next reviewed the medical evidence in the record and discussed what weight she gave to the opinion evidence. (R. 298-300). She first reviewed reports from the two consultative examiners, Drs. Broska and Meadow, which contained similar findings. (R. 298-99). ALJ Barr gave significant weight to Dr. Broska's opinion because she examined Plaintiff in person. (R. 299). The ALJ noted that Dr. Broska found that Plaintiff could follow and understand simple directions, perform simple tasks independently, maintain attention and concentration, perform complex tasks independently and make appropriate decisions. (R. 299). She further noted Dr. Broska's finding that, at times, Plaintiff may have difficulty relating adequately with others and dealing appropriately with stress. (R. 299). Finally, she noted Dr. Broska's conclusion that Plaintiff's psychiatric problems were not sufficiently significant to interfere with her ability to function on a daily basis. (R. 299).
ALJ Barr gave Dr. Meadow's 2009 opinion some weight, because he examined Plaintiff in person, and because his evaluation was consistent with the record and the evaluation by Dr. Broska. (R. 299). However, because Dr. Meadow's opinion was not as recent as Dr. Broska's, the ALJ gave it less weight. (R. 299). She noted Dr. Meadow's opinion that Plaintiff was able to perform all tasks for vocational functioning, and that her psychiatric problems were not significant enough to interfere with her ability to function on a daily basis. (R. 299). The ALJ also gave some weight to the state agency mental health consultant, Dr. Kamin. (R. 299). She found that, although Dr. Kamin's analysis was also from 2009, the opinion was formed "with the benefit of having reviewed the evidence in [Plaintiff's] file." (R. 299). She noted Dr. Kamin's finding that Plaintiff had only mild or moderate limitations in her activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. (R. 299).
Plaintiff's treating physicians' opinions were reviewed next. (R. 299-300). ALJ Barr gave some weight to the opinion of Dr. Leggett. (R. 299). She explained that, although he was Plaintiff's treating physician, his opinion was "inconsistent with the medical evidence as a whole and not supported by the record." (R. 299). As an example, she noted that while Dr. Leggett opined that Plaintiff had a marked restriction for interacting appropriately with supervisors, Plaintiff indicated that she had "no problems getting along with bosses, police, or other people in authority." (R. 299). The ALJ gave little weight to Dr. Hayden's opinion, acknowledging that he was Plaintiff's treating physician, but finding that his report "fail[ed] to offer any specificity" as to how Plaintiff's ability to perform work-related activities was restricted. (R. 299-300). She also found that Dr. Hayden's opinion was inconsistent with records submitted by Dr. Leggett, as well as the reports of the consultative examiners. (R. 300). Further, she viewed Dr. Hayden's opinion that Plaintiff was unable to work as "overbroad," and stated that it "fail[ed] to offer strong evidence" of Plaintiff's disability claim. (R. 300). Finally, she noted that a determination regarding whether an individual is disabled or unable to work under the Act is reserved to the Commissioner. (R. 300).
At the fourth step, the ALJ determined that Plaintiff had no past relevant work. (R. 300). She noted that Plaintiff was a younger individual on the date the application was filed and that she was able to communicate in English, but that she had a limited education. (R. 300). At the fifth step, ALJ Barr considered Plaintiff's age, education, work experience and RFC, and found that jobs exist in significant numbers in the national economy that Plaintiff could perform. (R. 300). In reaching this conclusion, the ALJ consulted a vocational expert. (R. 300-01). The vocational expert testified that an individual with Plaintiff's age, education, work experience and RFC would be able to perform the following representative jobs: (i) mail clerk; (ii) photo copying machine operator; and (iii) housekeeper/cleaner.
The Commissioner argues that the ALJ's decision was supported by substantial evidence. (Docket No. 14). Although the Commissioner's Motion is unopposed, the Court must nevertheless review the record to determine whether there are sufficient grounds to grant the Motion. Ortiz v. Commissioner of Social Security, No. 15-CV-7602 (SN), 2017 WL 519260, at *5 (S.D.N.Y. Feb. 8, 2017) (citations omitted).
A claimant is disabled and entitled to disability benefits if he or 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 12 months.'" Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)).
The claimant has the general burden of proving that he or she is statutorily disabled "`and bears the burden of proving his or her case at steps one through four.'" Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts "to the Commissioner to show there is other work that [the claimant] can perform." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012) (citation omitted).
When reviewing an appeal from a denial of Social Security benefits, the Court's review is "limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (citations and quotation marks omitted); see also 42 U.S.C. § 405(g). The Court does not substitute its judgment for the agency's, "or determine de novo whether [the claimant] is disabled." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (citations and quotation marks omitted). If the findings of the Commissioner are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence standard "is still a very deferential standard of review — even more so than the `clearly erroneous' standard. The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (emphasis in the original) (quotation marks and citations omitted). "If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld." McIntyre, 758 F.3d at 149 (citation omitted). Even if there is evidence on the other side, the Court defers "to the Commissioner's resolution of conflicting evidence." Cage, 692 F.3d at 122 (citation omitted).
However, where the proper legal standards have not been applied and "might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (citation and quotation marks omitted).
The ALJ has an affirmative obligation to develop the record due to the non-adversarial nature of the administrative proceeding. Burgess, 537 F.3d at 128 (citations omitted). "The SSA is required to make `every reasonable effort' to obtain a claimant's treating physician's medical reports. . . . This means that the ALJ should make an initial request from the claimant's treating physician for records, plus one follow-up request." Oliveras ex rel. Gonzalez v. Astrue, No. 07 Civ. 2841 (RMB) (JCF), 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008), report and recommendation adopted, 2008 WL 2540816 (S.D.N.Y. June 25, 2008) (citations omitted); see also 20 C.F.R. §§ 404.1512(b)(1), 416.912(b)(1)). Thereafter, "if the documents received lack any necessary information, the ALJ should recontact the treating physician." Oliveras, 2008 WL 2262618, at *6 (citations omitted). The ALJ must therefore seek additional evidence or clarification where the documentation "from a claimant's treating physician, psychologist, or other medical source is `inadequate . . . to determine whether [the claimant] is disabled.'" Antoniou v. Astrue, No. 10-CV-1234 (KAM), 2011 WL 4529657, at *13 (E.D.N.Y. Sept. 27, 2011) (alterations in original) (citations omitted). The "duty to develop the record is particularly important where an applicant alleges he is suffering from a mental illnesses, due to the difficulty in determining whether these individuals will be able to adapt to the demands or `stress' of the workplace." Hidalgo v. Colvin, No. 12-CV-9009 (LTS) (SN), 2014 WL 2884018, at *4 (S.D.N.Y. June 25, 2014) (citations and quotation marks omitted).
It is clear from a review of the record that there are gaps regarding Plaintiff's mental health treatment, which the ALJ had a duty to develop further. Specifically, there are three gaps in the treatment notes from MLK Health Center.
Moreover, the record suggests that Plaintiff was likely medicated continuously from 2008 through the date of her hearing in 2013. For example, at her hearing, Plaintiff's attorney provided as evidence that she had been disabled since 2008 the longevity of her treatment and the medication she was prescribed. (R. 315-16). Additionally, at various points throughout the approximately five years in question, Plaintiff returned to MLK Health Center when she ran out of medication. (E.g., R. 464, R. 481). This is not surprising, given the "rather complex psychiatric medication regimen" Plaintiff was prescribed. (R. 456). Finally, Dr. Hayden indicated in his Treating Physician Wellness Plan Report dated January 14, 2011, that Plaintiff was still taking her prescribed medications. (R. 280). This evidence suggests that Plaintiff was medicated from the alleged onset date in 2008 through the date of her hearing in 2013, which further implies that she received continual treatment at MLK Health Center, and that there are likely treatment notes missing from the record, which ALJ Barr failed to obtain.
The Court also notes that, without these records, it would be difficult if not impossible for ALJ Barr to properly analyze the criteria of Listings 12.04 and 12.06 for mental impairments under the SSA's own regulations. For example, the "paragraph B" criteria required the ALJ to look for "[r]epeated episodes of decompensation, each of extended duration," which "means three episodes within [one] year, or an average of once every [four] months, each lasting for at least [two] weeks." (R. 297). The "paragraph C" criteria under listing 12.04 included "repeated episodes of decompensation." (R. 297). Given the significant gaps in the record, ALJ Barr was not fully equipped to determine whether Plaintiff had repeated episodes of decompensation.
For the foregoing reasons, ALJ Barr did not fully develop the record, and the case should be remanded. On remand, this Court recommends that the ALJ should also seek the following: (i) a Medical Source Statement of Ability to Do Work-Related Activities (Mental) from Dr. Hayden; it appears that the first ALJ made one request for Dr. Hayden to complete such a form, but there is no indication that any follow-up requests were made, (R. 15, R. 56); (ii) the missing page of Dr. Hayden's treatment notes dated January 25, 2009, (R. 138), see Truesdale v. Barnhart, No. 03-CV-0063 (SAS), 2004 WL 235260, at *7 (S.D.N.Y. Feb. 6, 2004) (requiring ALJ to obtain missing page from consulting physician's report on remand); and (iii) opinions from Dr. Cozort,
In determining an applicant's RFC, the ALJ must apply the treating physician rule, which requires the ALJ to afford controlling weight to the applicant's treating physician's opinion when the 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(c)(2), 416.927(c)(2). Thus, "`[a] treating physician's statement that the claimant is disabled cannot itself be determinative.'" Petrie v. Astrue, 412 F. App'x 401, 405 (2d Cir. 2011) (quoting Green—Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)). Moreover, if there is substantial evidence in the record that contradicts or questions the credibility of a treating physician's assessment, the ALJ may give that treating physician's opinion less deference. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (refusing to give controlling weight to treating physicians' opinions, as they were not supported by substantial evidence in the record); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (same); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993) (same).
To discount the opinion of a treating physician, the ALJ must consider various factors and provide a "good reason." 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). These factors include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion; (4) the consistency with the record as a whole; (5) the specialization of the treating physician; and (6) other factors that are brought to the attention of the Court. See Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
The Second Circuit has made clear that the ALJ need not "slavish[ly] recit[e] . . . each and every factor where the ALJ's reasoning and adherence to the regulation are clear." Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013); see also Molina v. Colvin, No. 13 Civ. 4701(GBD)(GWG), 2014 WL 2573638, at *11 (S.D.N.Y. May 14, 2014) (collecting cases). What is required, however, is that the ALJ provide "good reasons" when not affording controlling weight to a treating physician's opinion. Selian, 708 F.3d at 419 (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); 20 C.F.R. § 404.1527(c)(2)); see also Petrie, 412 F. App'x at 407 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)) ("[W]here `the evidence of record permits [the Court] to glean the rationale of an ALJ's decision, [the Court] do[es] not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'").
ALJ Barr gave "little weight" to Plaintiff's treating physician Dr. Hayden, and "some weight" to her treating physician Dr. Leggett. (R. 299). She justified this by finding that Dr. Leggett's opinion was "inconsistent with the medical evidence as a whole and not supported by the record," and that Dr. Hayden's opinion was, inter alia, "inconsistent with records submitted by Dr. Leggett[,] as well as the reports of the consultative examiners." (R. 299-300). Instead, she gave "significant weight" to consultative examiner Dr. Broska. (R. 299). She also gave "some weight" to consultative examiner Dr. Meadow and state agency mental health consultant Dr. Kamin. (R. 299).
First, in light of Dr. Meadow's criminal record, this Court recommends that his opinion should not be credited. See Burgess v. Colvin, No. 15-CV-9585 (RLE), 2016 WL 7339925, at *14 (S.D.N.Y. Dec. 19, 2016) (remanding where ALJ assigned Dr. Meadow's opinion significant weight, finding that because Dr. Meadow had "since pleaded guilty to healthcare fraud . . . the risk of legal error is too high and the case should be remanded."); cf. Ortiz, 2017 WL 519260, at *9 (granting Commissioner's motion for judgment on the pleadings despite opinion evidence from Dr. Meadow where the ALJ gave Dr. Meadow's opinion "less than controlling, if any, weight[.]"). Next, the opinions of Dr. Broska and Dr. Kamin do not constitute substantial evidence such that Plaintiff's treating physicians' opinions should have been discounted under the treating physician rule. Although a consultative examiner's opinion may constitute substantial evidence, see Mongeur v. Heckler, 722 F.2d 1033 (2d. Cir 1983), in light of the ALJ's failure to develop the record, discussed supra Section II(C), that proposition does not apply to the instant case.
Indeed, "the `treating physician rule' is inextricably linked to the duty to develop the record." Lacava v. Astrue, No. 11-CV-7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012); see also Oliveras, 2008 WL 2262618, at *6 (noting that the duty to develop the record "dovetails with the treating physician rule."). Therefore, until an ALJ satisfies the "`threshold requirement'" under the duty to develop the record, "`the ALJ cannot even begin to discharge his duties . . . under the treating physician rule.'" Oliveras, 2008 WL 2262618, at *6 (alteration in original) (quoting Pabon v. Barnhart, 273 F.Supp.2d 506, 514 (S.D.N.Y. 2003)).
For the foregoing reasons, the ALJ failed to properly apply the treating physician rule, which is further grounds on which the case should be remanded.
The Commissioner contends that the ALJ's decision was supported by substantial evidence. (Docket No. 14). However, "[w]here the ALJ has failed to develop the record, a reviewing court `need not — indeed, cannot — reach the question of whether the Commissioner's denial of benefits was based on substantial evidence.'" Oliveras, 2008 WL 2262618, at *8 (quoting Jones v. Apfel, 66 F.Supp.2d 518, 542 (S.D.N.Y. 1999)); see also Truesdale, 2004 WL 235260, at *7 ("[B]ecause the Commissioner failed to fully develop the record . . . [the court] cannot conclude that the Commissioner's finding of no disability is supported by substantial evidence.'"). Therefore, "any review of whether the decision was based on substantial evidence must be deferred until the record is complete." Oliveras, 2008 WL 2262618, at *8.
The Appeals Council specifically directed ALJ Barr to: (i) evaluate Plaintiff's mental impairments in accordance with the special technique described in 20 C.F.R. § 416.920a, and document her application of the technique by providing specific findings and appropriate rationale for each of the functional areas described in 20 C.F.R. § 416.920a(c); (ii) give further consideration to Plaintiff's mental RFC, including whether she could understand, carry out and remember instructions, and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations; and (iii) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base, pursuant to Social Security Ruling 83-14. (R. 346-47; see also R. 294).
While ALJ Barr complied with the Appeals Council's first and third instructions to this Court's satisfaction, she did not fully comply with the second. First, ALJ Barr did comply with the Appeals Council's instruction to apply the special technique described in 20 C.F.R. § 416.920a.
ALJ Barr's failure to fully comply with the Appeals Council's second instruction provides further reason why the case should be remanded.
For the foregoing reasons, I conclude and respectfully recommend that the Commissioner's Motion for Judgment on the Pleadings should be denied, and the Commissioner's decision be vacated and the case be remanded for further proceedings consistent with this Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed. R. Civ. P. 6(a) and (d) (rules for computing time). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Cathy Seibel at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Cathy Seibel and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
Fortunado Ortiz, Bronx, NY, pro se.
Susan Colleen Branagan, John E. Gura, Jr., U.S. Attorney Office SDNY, New York, NY, for Defendant.
SARAH NETBURN, United States Magistrate Judge
*
The Administrative Law Judge's ("ALJ") decision was based on substantial evidence and free of legal error. Accordingly, the Court GRANTS the Commissioner's motion for judgment on the pleadings, and the case is dismissed with prejudice.
On December 20, 2011, Ortiz filed for SSI, alleging disability beginning on March 22, 2011, as a result of high blood pressure, high cholesterol, hepatitis C, and depression. The Social Security Administration denied his initial application, and Ortiz requested a hearing before an ALJ.
On September 23, 2013, Ortiz testified before ALJ Moises Penalver with his attorney present. Ortiz was 56 years old and lived with his sister and nephew. He completed ninth grade and obtained a GED. Ortiz testified at the hearing that he had not worked on or off the books for the past fifteen years, though his SSI application indicated he had not worked since December 20, 2010.
Ortiz was able to travel by himself to attend group therapy meetings and to visit his doctor. He could travel by public transportation, though he usually walked to his appointments and meetings. When he would go out for a walk, however, he would be forced to stop and rest every few blocks. Ortiz could not do household chores because he would be out of breath if he did them. Ortiz testified he was unable to stand for over an hour or to sweep a floor. He also noted that his shortness of breath was likely because of his high blood pressure, for which he took medication.
Ortiz underwent treatment for hepatitis C beginning in December 2011 for about six or seven months. As a result of taking the medication for treating hepatitis C, Ortiz lost weight and did not want to be around people. He never resumed treatment after stopping treatment in June 2012.
Ortiz additionally reported feeling depressed three to four days per week. He visited a psychiatrist once a month, attended group therapy for his depression about every two weeks for one hour, and took two kinds of antidepressants, noting that the medication kept him "a little relaxed." Administrative Record ("AR") 37 (ECF No. 19).
Ortiz visited Physician Assistant ("PA") Samuel Shahidi at Lincoln Medical Center from April 2011 to August 2013, after receiving a referral from his primary care physician for monitoring kidney stones. PA Shahidi's examination results were consistently normal. As of February 21, 2012, Ortiz reported feeling well and had no complaints of pain in his flank or abdomen.
*
Test results from Ortiz's appointments with Dr. Skelley in February and March 2012 showed that the hepatitis C virus was "not detectable." AR 360, 396. During an April 26, 2012 appointment, Dr. Skelley reported that Ortiz's hepatitis C viral load was once again undetectable, but that he had developed severe anemia. Dr. Skelley proscribed Procrit to treat his anemia. Ortiz's May 2012 blood tests showed abnormal results, but he denied fever or any discomfort, and reported no symptoms.
Test results for a June 11, 2012 appointment showed that the hepatitis C virus was once again undetectable. By that date, Ortiz had completed Interferon
The last documented visit with Dr. Skelley was in December 2012. Ortiz's examination results were normal. His hepatitis C, after completing a 6-month treatment, was undetectable. According to Dr. Skelley, Ortiz was "clinically cured," and [n]o further treatment or evaluation is needed." AR 382.
Ortiz underwent a physical and psychiatric evaluation by the Federation Employment and Guidance Service ("FEGS"), a nonprofit human service provider based in New York, on April 20-24, 2012. Ortiz informed Karen Perez, the evaluating social worker, that he had a history of depression and anxiety, but was not in psychiatric treatment at that time. His PHQ-9 score
*
Ortiz visited Lincoln Medical Center on July 10, 2013 for evaluation of a hernia. Dr. Saul Friedman's notes for that appointment showed Ortiz had been clinically cured of hepatitis C. Ortiz was described as "generally healthy," and his examination results were normal. AR 377.
Dr. Michael Adams, a psychiatrist at Lincoln Medical Center, performed a Psychiatric Assessment of Ortiz's mental state in March 2013. Ortiz presented with intermittent feelings of sadness, decreased energy, and passive suicidal thoughts but no suicidal intent or plan. In a Medical Assessment of Ability to Do Work-Related Activities form, Dr. Adams noted that Ortiz rated "Poor/ None" in the following areas: (1) following work rules; (2) relating to co-workers; (3) dealing with the public; (4) interacting with supervisors; (5) dealing with work stresses; (6) understanding, remembering and carrying out complex job instructions, as well as detailed (but not complex) job instructions. AR 306-07. Dr. Adams further opined that Ortiz's poor attention and concentration skills would make it difficult for him to perform complex tasks. But Ortiz was rated as "Fair" in using judgment, maintaining attention and concentration, and carrying out simple job instructions, as well as "Good" in functioning independently.
In an undated Treating Physician's Wellness Plan Report, Dr. Adams opined that Ortiz would not be able to work for at least 12 months because of intermittent depressive symptoms, passive suicidal ideation, and difficulty focusing and concentrating. His symptoms improved, however, while taking Paxil and attending group therapy.
Examination notes from Dr. Adams in May 2013 indicated that Ortiz denied feelings of hopelessness or suicide, but reported intermittent feelings of depression "typically in the context of family conflict." AR 321. According to Dr. Adams, Ortiz's depression was in partial remission and he was at his psychiatric baseline. Ortiz did not want to change medications at that time. Dr. Adams did not assess any "gross deficits" in Ortiz's attention and calculation, recall, language, insight and judgment. AR 320-21. Dr. Adam's May 2013 Treating Physician's Wellness Plan Report stated that Ortiz's depressive symptoms began on March 16, 2012. Those symptoms included feelings of depression, insomnia, decreased interest, and decreased energy. Dr. Adams concluded that Ortiz was temporarily unemployable as a result of depression in partial remission.
On January 25, 2012, Dr. Herb Meadow
*
Dr. L. Meade, a State agency psychological consultant, performed a mental examination of Ortiz on February 10, 2012. She concluded that Ortiz's mental impairments were not severe. A review of Dr. Meade's Psychiatric Review Technique form (which is mostly empty) suggests that Dr. Meade performed only an examination and not a review of the records.
On April 17, 2012, Ortiz was referred to Dr. Niyati Bhagwati at Lincoln Medical Center for a consultation for pancytopenia (a reduction in red and white blood cells, and platelets). Ortiz complained of dizziness and fatigue. Except for conjunctival pallor (paleness of skin), all other examination results were normal. Dr. Bhagwati diagnosed Ortiz with pancytopenia from treatment of hepatitis C. Ortiz declined Dr. Bhagwati's recommendation to undergo a blood transfusion for anemia.
At the September 23, 2013 administrative hearing, the ALJ presented vocational expert Melissa Fass Karlin with a hypothetical claimant with the following characteristics: an individual of Ortiz's age, education, and work experience who had to avoid exposure to noxious fumes and dust; who was limited to simple, routine tasks; who was limited to working in a low-stress job defined as requiring only occasional decision making and limited exercise of judgment; and who could tolerate only occasional, brief, and superficial contact with the public, and occasional interaction with coworkers. Ms. Karlin responded that, at the medium skill level, the claimant could work as a hand packager, and, at the light skill level, as a routing clerk, a marker or as a mail clerk.
The ALJ then presented another hypothetical to Ms. Karlin, in which the claimant possessed the same characteristics as in the situation above, except that he could tolerate no interaction with the public and only occasional supervision. Ms. Karlin presented the same jobs as above, and stated that, regarding unskilled work, an employee would be allowed a maximum of one day off per month.
Ms. Karlin clarified, upon inquiry from Ortiz's attorney, that an inability to deal with supervisors would affect a claimant's employability.
The ALJ found that Ortiz suffered from medical impairments including major depressive disorder, antisocial personality disorder, opiate dependence on agonist therapy, a history of substance abuse, and a history of asthma, but not hepatitis C and the resulting anemia. Based on his review of the record, the ALJ determined that Ortiz had the residual functional capacity ("RFC") to perform medium exertional work, as defined in 20 C.F.R. 416.967(c), subject to the following limitations: (1) avoiding noxious fumes and dust, and (2) performing "simple, routine tasks, in a low stress job" with "only occasional, brief and superficial contact with the public" and "only occasional interaction with co-workers." AR 19. The ALJ concluded that Ortiz was "not disabled" within the meaning of the Social Security Act, based on his residual functional capacity, age, education, and work experience. AR 22. Accordingly, he denied Ortiz's application for SSI, finding him not disabled from December 20, 2011 (the date the application was filed) through the date of the decision. The Appeals Council denied his request for a review, and the ALJ's decision became the final decision of the Commissioner.
*
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that "the moving party is entitled to judgment as a matter of law."
Thus, "in order to accommodate `limited and meaningful' review by a district court, the ALJ must clearly state the legal rules he applies and the weight he accords the evidence considered."
When, as here, the Court is presented with an unopposed motion, it may not find for the moving party without first reviewing the record and determining whether there is a sufficient basis for granting the motion.
*
The Social Security Act defines disability as "the inability 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 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A determinable physical or mental impairment is defined as one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(2)(D). A claimant will be determined to be disabled only if the impairments are "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 1382c(a)(2) (B).
The Social Security Administration has established a five-step sequential evaluation process for making disability determinations.
Under the applicable regulations, an "impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 416.921(a). Additionally, to qualify as an impairment, the plaintiff's symptoms must have lasted or be expected to last for a period of at least 12 months.
*
Because there is no evidence that Ortiz's hepatitis C, anemia, and high blood pressure interfere with his ability to do basic work activities, there is substantial evidence to support the ALJ's finding that his severe impairments are limited to depression, a history of substance abuse, and a history of asthma.
At step three, the ALJ determined that none of Ortiz's severe impairments, taken individually or in combination with each other, meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. To satisfy the requirements for the listed impairment of asthma, a plaintiff must show he suffers from chronic asthmatic bronchitis or attacks occurring at least once every two months or six times a year. Ortiz has denied any visits or hospitalizations due to symptoms of asthma. In addition, there is no evidence in the record indicating that Ortiz's mental impairments fulfill any of the listed criteria for a finding of per se disability. Ortiz reported being able to take care of his personal hygiene, go outside six days a week, shop in stores, and manage money. He consistently used public transportation on his own to go to examinations, appointments, and meetings. In terms of social functioning, he reported not having any problems getting along with family or friends. Ortiz, moreover, participated in biweekly group therapy sessions where he was able to relate appropriately to other members and even shared his own advice with the rest of the group on how to manage one's moods. Dr. Hirsch, who presided over the therapy sessions, indicated that Ortiz was responding to the group therapy process and a "stable mood at baseline." AR 419. Ortiz also displayed intact attention, concentration, and memory skills during his mental status examinations.
Accordingly, there is substantial evidence to support the ALJ's finding that Ortiz does not have an impairment or combination of impairments that meets or medically equals any Listing disability.
Before proceeding to step four, the ALJ determined that Ortiz had the RFC to perform simple routine tasks in a low stress job, with occasional interaction with coworkers, brief and superficial contact with the public, and limited exposure to noxious fumes and dust to prevent aggravating his asthma. The ALJ noted that, aside from a history of asthma, Ortiz did not have any ongoing severe physical conditions. The ALJ also incorporated nonexertional mental limitations, accounting for Ortiz's depression and antisocial personality traits, into the RFC.
In determining the weight to be given medical source opinions, including treating source opinions that are not afforded controlling weight, the ALJ should consider the length and nature of the treatment relationship, clinical and laboratory findings, the opinion's consistency with the record as a whole, the source's specialization, and any other relevant factors. 20 C.F.R. § 404.1527(d). The ALJ, however, "does not have to explicitly walk through these factors," as long as the court can conclude that the ALJ applied the substance of the treating physician rule and provided "good reasons" for the weight given to the treating source's opinion.
*
Substantial evidence supports the ALJ's conclusion that Dr. Adams's opinion of disability and of severe limitations was not controlling. The opinions of treating sources are entitled to controlling weight if they are well supported and not contradicted. 20 C.F.R. §§ 404.1527, 416.927. But the ALJ is not required to give controlling weight to treating physicians' opinions as to whether the claimant is disabled or unable to work. 20 C.F.R. §§ 404.1527(d)(1) ("A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled.");
The results of Ortiz's examinations, including ones conducted by Dr. Adams, indicate that he retained the capacity to perform simple, routine tasks in a low stress job, with occasional interaction with his coworkers and brief interaction with the public. As of May 1, 2013, Dr. Adams opined that Ortiz's depression was in partial remission, with intermittent feelings of depression and denial of feelings of hopelessness or suicidal ideation. Dr. Adams found Ortiz's thought processes to be coherent, goal directed and logical. He reported "no gross deficits" in Ortiz's attention and calculation, recall, language, insight, and judgment. AR 320-21. Dr. Adams assessed Ortiz to be "fair" in carrying out simple job instructions and maintaining concentration, and "good" at functioning independently. AR 306-07. Although Ortiz's mood was sometimes noted as depressed, he denied active suicidal ideation or feelings of hopelessness. Dr. Adams also noted that Ortiz's symptoms of depressed mood and decreased energy appeared to improve while taking medication. Ortiz was able to attend biweekly, hour-long group therapy sessions, in which he reported he was doing well and even shared advice with the other members of the group. Moreover, the ALJ adequately explained the reasoning behind his decision to assign some but not controlling weight to Dr. Adams's opinion. Although the ALJ did not refer explicitly to the factors in 20 C.F.R. § 404.1527(c)(2), this omission does not require remand because the ALJ "applied the substance of the treating physician rule."
In addition, the ALJ gave "great weight" to Dr. Mescon's opinion, which indicated that Ortiz had "no limitations in his ability to sit, stand, climb, push, pull, or carry heavy objects as long as he did not develop adverse reactions to the medication he was taking for hepatitis C," because it was consistent with the medical evidence. AR 20.
*
The ALJ cited Dr. Meadow's consultative opinion that Ortiz would be able to "perform complex tasks independently, learn new tasks, maintain a regular schedule, maintain attention and concentration, make appropriate decisions, relate adequately with others, and deal with stress" in his decision, but did not indicate expressly what weight he would give to the opinion. AR 20-21. The Court reads the ALJ decision to give less than controlling, if any, weight to Dr. Meadow's finding of almost no limitations, given that the ALJ gave "some" weight to Dr. Adam's finding of some mental limitations and that the RFC conclusion incorporated those limitations. Under the Social Security Act's regulations, an ALJ may (but is not required to) rely on preexisting medical evidence from a consultative source, even when the consultants have subsequently had their licenses suspended or revoked, or had been barred from federal programs.
The ALJ additionally found Ortiz's subjective allegations to be not fully credible, because (1) his treatment records indicated that his hepatitis C had not been an issue since he finished treatment in June 2012; (2) Ortiz's psychiatric records showed consistently normal mental status examinations; and (3) Ortiz could perform many activities of daily living and social functioning without issues. At the hearing, Ortiz testified that after finishing treatment in 2012, he was able to gain back some of the weight and energy he had lost as a result of his hepatitis C virus. In addition, although Ortiz asserted he did not like being around people, he was able to attend a methadone program five days a week, attend group therapy every two weeks, use public transportation, go out by himself without any problem, and did not have any problems getting along with his family or friends. Ortiz's treating doctor found that he had no problems paying attention, and was able to follow simple instructions. Furthermore, at his hearing, Ortiz mentioned feeling anxious, to the point of becoming physically ill, and shortness of breath, which forced him to slow down and stop every two to three blocks when he was walking. He testified, however, that his current medication allowed him to feel relaxed. Accordingly, the ALJ's findings rest on substantial evidence and are affirmed.
At step five, the ALJ determined that based on Ortiz's age, education, previous work, and residual functional capacity, "there are jobs that exist in significant numbers in the national economy that the claimant can perform." AR 22. "In the ordinary case, the Commissioner meets his burden at the fifth step by resorting to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2."
*
Slip Copy, 2017 WL 519260
JAMES C. FRANCIS IV, United States Magistrate Judge.
*
Lillian Oliveras, on behalf of Zanais Gonzalez, commenced this action pursuant to 42 U.S.C. § 405(g) to review a final determination of the Commissioner of Social Security ("the Commissioner") finding Zanais not disabled and denying her application for children's Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the Commissioner's decision be vacated and the case remanded for further administrative proceedings consistent with this report.
On March 28, 2005, Ms. Oliveras filed an application for SSI on behalf of her daughter, Zanais Gonzalez who has diabetes. (R. at 36).
Ms. Oliveras requested review of the SSA's initial eligibility determination by an administrative law judge ("ALJ") (R. at 41), and she and Zanais appeared pro se at a hearing held on October 16, 2006. (R. at 197-212). In an opinion dated October 27, 2006, the ALJ denied Zanais' claim. (R. at 9-20). When Ms. Oliveras' subsequent request for review by the Appeals Council of the SSA was denied (R. at 3-6), the ALJ's ruling became the Commissioner's final decision. Ms. Oliveras filed the instant action on March 13, 2007.
Zanais Gonzalez was born on June 11, 1998. (R. at 36). She was six years old when her mother first filed for SSI benefits on her behalf. In the application, Ms. Oliveras reported that Zanais suffers from type 1 diabetes, which make her irritable and confused when her blood sugar gets low and aggressive when her blood sugar is high. (R. at 50, 55, 74). Ms. Oliveras also noted that Zanais' condition sometimes affects her concentration and vision and that when her blood sugar gets out of control, her legs get heavy and wobbly, making it hard for her to walk. (R. at 47, 75, 209). Ms. Oliveras testified at the hearing that she walks her daughter to school every morning. (R. at 206). Zanais was first diagnosed with Type 1 (insulin-dependent, juvenile) diabetes mellitus when she was taken to Jacobi Medical Center for severe diabetic ketoacidosis
Zanais' only other hospitalization occurred nearly two years later, on February 16, 2006. A school nurse sent Zanais to the emergency room after an elevated glucose reading of 497 mg/dL. (R. at 148, 192, 210). On arrival at the hospital, Zanais' glucose level measured 30 mg/dL. (R. at 192, 210). The emergency room doctor diagnosed her as hyperglycemic and recommended that the school nurse not read her blood sugar so soon after snack time. (R. at 151, 192-93). Zanais was discharged later that same day. (R. at 151).
*
In an SSA Function Report completed by Ms. Oliveras on April 25, 2005, she reported that Zanais did not enjoy "being with other children [the same] age." (R. at 51). She explained that her daughter seemed afraid and ashamed of her diabetes and just wanted to be "normal" like the others. (R. at 53, 210-11). At the hearing, Ms. Oliveras informed the ALJ that she was trying to place Zanais in therapy and in a diabetes camp to help her accept her illness. (R. at 210-11).
At the time of the hearing, Zanais was in the second grade. (R. at 201). She testified that she liked her teacher, Kara Monica. (R. at 201). Zanais also testified that she liked to read, write, play video games, and watch television. (R. at 201-03). At the ALJ's request, Zanais was able to name three friends she had at school. (R. at 202). Ms. Oliveras confirmed that Zanais was doing much better in school than the previous year and had a teacher who knew how to work around Zanais' condition. (R. at 206).
Dr. Miriam Silfen,
On the second page of the report, Dr. Silfen was asked to indicate if the child's function/behavior is age appropriate. If no, then please note at which age level the child functions and describe the basis for your observations."
*
Other medical information in the file includes records from Hunts Point Multi-Service Center dated May 10, 2002 through June 7, 2005 (R. at 86-120) and records from Jacobi Medical Center dated July 8, 2004 through October 12, 2006. (R. at 121-31, 145-91). Many of the treatment notes are for conditions such as a fever and sore throat (R. at 87) or scalp infection (R. at 84, 89). On June 29, 2006, Zanais was treated for a yeast infection related to her diabetes. (R. at 187, 208).
Zanais' condition is treated with insulin and by closely monitoring her diet. (R. at 69, 133, 180). She testified that she knows how to take her own blood sugar readings and give herself her own shots when necessary. (R. at 203).
To qualify for disability benefits, a child under the age of eighteen must have "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). The ALJ engages in a multi-step analysis to decide whether a child is disabled under this standard.
First, the ALJ determines if the child is engaged in "substantial gainful activity," which precludes a finding of disability. 42 U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(a). If the child is not involved in such activity, the ALJ next evaluates whether she has a medically determinable impairment or combination of impairments that is considered "severe." 20 C.F.R. § 416.924(a). If the impairment is not "medically determinable" or amounts only to "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child will be found not to be disabled. 20 C.F.R. § 416.924(c). Next, if the child has a severe impairment, but that impairment does not "meet, medically equal, or functionally equal" one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the child will be deemed not to be disabled. 20 C.F.R. § 416.924(d); see also 20 C.F.R. § 416.925(a); 20 C.F.R. § 416.926(a). If the child meets the three criteria outlined above, she is eligible for SSI benefits.
To "meet" a listed impairment as described above, the child must both be diagnosed with the impairment and "satisf[y] all of the criteria of the listing." 20 C.F.R. § 416.925(d). To "medically equal" a listed impairment, the claimed impairment must be "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 416.926(a), (b). In making this determination, the ALJ must "consider all evidence in [a claimant's] case record about [the claimed] impairment(s) and its effects on [the claimant] that is relevant." 20 C.F.R. § 416.926(c).
*
Applying the multi-step analysis described above, the ALJ found that Zanais was not engaged in substantial gainful activity and that she had a severe impairment, but one which did not meet or medically equal one of the impairments listed in Appendix 1.
The scope of review of a social security disability determination involves two levels of inquiry. First, the court must determine whether the Commissioner evaluated the claim based on the correct legal standard. Pollard v. Halter, 377 F.3d 183, 188-89 (2d Cir.2004) ("Failure to apply the correct standards is grounds for reversal." (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984)). "[W]here there is a reasonable basis for doubt whether the ALJ applied correct legal principles," the ALJ cannot proceed with the review because it "creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to correct legal principles." Rosado v. Barnhart, 290 F.Supp.2d 431, 436 (S.D.N.Y.2003) (quoting Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987)). An administrative decision cannot be upheld solely on the basis that the records contains a plausible foundation for it. Thomas v. Barnhart, No. 01 Civ. 518, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002).
*
A district court may elect to affirm, reverse, or modify the Commissioner's final decision. 42 U.S.C. § 405(g); Butts, 388 F.3d at 385. Remand is warranted where the ALJ has based a final determination on an improper legal standard or if further development of the record is necessary to fill in evidentiary gaps. Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980). Remand is also appropriate if the ALJ's rationale could be rendered more intelligible through further findings or a more complete explanation. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996). In conducting this review, a court must keep in mind that "[t]he Act must be liberally applied, for it is a remedial statute intended to include not exclude." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990).
In each case, the ALJ has an affirmative duty to develop a "complete and comprehensive medical record". Rosado, 290 F.Supp.2d at 438, 441. While the burden of establishing her disability ultimately lies with the claimant, the Commissioner is obligated to help the claimant develop her case by obtaining relevant records and through questioning to explore the facts. See 42 U.S.C. § 423(d)(5)(B) (setting forth duty to obtain medical history and records); 20 C.F.R. § 404.1512(d)-(f) (describing affirmative obligation of ALJ to obtain records from claimant's medical sources and, if necessary, request a consultative examination); Dimitriadis v. Barnhart, No. 02 Civ. 9203, 2004 WL 540493, at *9 (S.D.N.Y. March 17, 2004); Jones v. Apfel, 66 F.Supp.2d 518, 538 (S.D.N.Y.1999). This obligation arises from the non-adversarial nature of the proceedings. Butts, 388 F.3d at 386. The ALJ's duty is heightened where, as here, the claimant is not represented by counsel. See Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir.1982) (describing ALJ's duty to pro se claimant "to scrupulously and conscientiously probe into, inquire of, and explore [] all the relevant facts" (quoting Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980)); Valoy v. Barnhart, No. 02 Civ. 8955, 2004 WL 439424, at *7 (S.D.N.Y. March 9, 2004); Jones, 66 F.Supp.2d at 538.
*
Dimitriadis, 2004 WL 540493, at *9 (internal citations omitted); see also Jiminez v. Massanari, No. 00 Civ. 8957, 2001 WL 935521, at *11 (S.D.N.Y. Aug.16, 2001) (remanding for failure to develop the record when none of the treating physicians gave opinions as to claimant's functional limitations). Indeed, a "consultative physician['s] deductions may not replace the true opinions of the treating physicians." Valoy, 2004 WL 439424, at *7.
The SSA is required to make "every reasonable effort" to obtain a claimant's treating physician's medical reports. 20 C.F.R. §§ 404.1512(d), 416.912(d); accord Jones, 66 F.Supp.2d at 539. This means that the ALJ should make an initial request from the claimant's treating physician for records, plus one follow-up request, 20 C.F.R. §§ 1512(d) (1), 416.912(d)(1), and if the documents received lack any necessary information, the ALJ should recontact the treating physician. 20 C.F.R. §§ 404.1512(e), 416.912(e); Jiminez, 2001 WL 935521, at *11; Jones, 66 F.Supp.2d at 540-41. The ALJ also has authority to subpoena medical evidence on behalf of the claimant. 42 U.S.C. § 405(d).
At times it may be most reasonable for the ALJ to explain to the claimant that she should obtain a more detailed statement from the treating physician. Hankerson, 636 F.2d at 896. It might also be reasonable for the ALJ to reveal that he or she plans to rule against the claimant unless more evidence is presented. Jones, 66 F.Supp.2d at 539 (remanding case where "the ALJ did not explain why the records were necessary or that he was planning to rule against [the claimant] and that she needed to produce evidence from her treating physicians to convince him otherwise.").
*
The opinion of a consulting doctor who simply reviewed the medical data is not an adequate substitute for the opinion of a physician who has been able to observe the claimant over a period of time. There are a number of steps that the ALJ should have taken to attempt to secure an opinion from one of Zanais' treating physicians.
First, the ALJ might have followed up with Dr. Silfen to solicit her opinion. As discussed above, Dr. Silfen initially declined to provide an opinion, stating, "N/A. (I am a pediatric endocrinologist)." (R. at 133) Dr. Silfen's response suggests that she believed herself unqualified to assess Zanais' functional capacity because of her narrow field of expertise. Nevertheless, the ALJ could have attempted to confirm that this was the case. The ALJ might also have explained to Ms. Oliveras that he was going to rule against her and that she should try to get a medical opinion from Dr. Silfen to change that outcome.
Next, the ALJ might have sent an assessment form to Zanais' regular pediatrician, Dr. Janet Hobson, whose name appeared multiple times in the record. (R. at 84-85, 191). Indeed, when asked about her daughter's treatment at the hearing before the ALJ, Ms. Oliveras noted that Zanais, "sees her pediatric endocrinologist about . . . every six to eight weeks. And she also has her regular pediatrician, which is Janet Hobson." (R. at 208). Dr. Hobson might have been better situated than a specialist like Dr. Silfen to compare Zanais' functional capacity and behavior to those of other children. However, while clearly aware that he might have obtained a treating source opinion from her, the ALJ never requested an opinion from Dr. Hobson, nor did he direct Ms. Oliveras to request any further information.
It may well be that a treating physician would opine that the functional domains for which the ALJ found there to be little or no limitation are not likely to be affected by the type of diabetes that Zanais has. However, there is currently no medical opinion on the record that states this, and it is not for an ALJ or this Court to render one. Remand is appropriate here, even if there is no guarantee that the outcome will change, so that the ALJ can make all reasonable efforts to obtain a treating physician's opinion on Zanais' behavior and functional capacity.
*
In this case, the sole sentence addressing credibility in a ten-page opinion is buried in the ALJ's recitation of the pertinent law. The ALJ failed to present any reasoning to justify his disbelief, nor did he identify any discrepancy between the statements and record before him. Furthermore, the ALJ states that the claims are "not entirely" credible, leaving the reader to speculate as to which statements the ALJ accepted and which he rejected. On remand, the ALJ should set forth with greater specificity which aspects of Ms. Oliveras and Zanais' testimony he found not credible and the reasons underlying that finding.
As discussed above, the ALJ failed to adequately develop the record regarding Zanais' functional capacity. Where the ALJ has failed to develop the record, a reviewing court "need not-indeed, cannot-reach the question of whether the Commissioner's denial of benefits was based on substantial evidence." Jones, 66 F.Supp.2d at 542; see Valoy, 2004 WL 439424, at *9. Thus, any review of whether the decision was based on substantial evidence must be deferred until the record is complete.
For the reasons set forth above, I recommend that the Commissioner's decision denying Ms. Oliveras' application on behalf of her daughter for SSI benefits be vacated and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard M. Berman, U.S.D.J., Room 650, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Not Reported in F.Supp.2d, 2008 WL 2262618, 131 Soc.Sec.Rep.Serv. 361
RICHARD M. BERMAN, District Judge.
*
On or about February 13, 2008, the Commissioner of Social Security ("Commissioner" or "Defendant") moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ.P.") 12(c), requesting that the Court affirm the ALJ's decision because "the Commissioner's decision that Plaintiff was not disabled is supported by substantial evidence." (See Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, dated February 13, 2008, at 7.) In response, Oliveras submitted a letter arguing that the ALJ assigned too much weight to Plaintiff's "happy" and "verbal" disposition on the day of the hearing and was mistaken in regards to Plaintiff's "physical . . . well being," which includes "diabetes," "neuropathy," and "fatigue." (See Plaintiff's Response to the Commissioner's Motion for Judgment, dated March 2, 2008, at 2.)
On or about May 30, 2008, Magistrate Judge James C. Francis IV, to whom the matter had been referred, issued a thorough Report and Recommendation ("Report") recommending that the Commissioner's decision be vacated and the case remanded for further administrative proceedings. (Report at 1.) Judge Francis concluded, among other things, that (1) the ALJ failed to help Plaintiff "develop a complete and comprehensive medical report"; and (2) the ALJ made "[un]substantiate[d]" conclusions that Plaintiff's testimony was "not entirely credible." (Id. at 13, 20.)
The Report stated that "[p]ursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this [R]eport and [R]ecommendation." (Id. at 21.) To date, neither party has submitted objections. However, in a letter to this Court, dated June 12, 2008, Oliveras requested "that [Plaintiff] be temporarily granted Interim Benefits" but also indicated "that I may be denied these benefits." (See Letter to Honorable Richard M. Berman, dated June 12, 2008 ("Oliveras Letter").)
*
The Court may adopt those sections of a magistrate judge's report to which no objections have been made and which are not clearly erroneous or contrary to law. See Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989); Santana v. United States, 476 F.Supp.2d 300, 302 (S.D.N.Y.2007). Where, as here, the plaintiff is proceeding pro se, "leniency is generally accorded." Bey v. Human Resources Admin, No. 97 Civ. 6616, 1999 WL 31122, at *2 (E.D.N.Y. Jan 12, 1999).
The Court has conducted a review of the Report and applicable legal authorities and finds that Judge Francis' determinations and recommendations are neither clearly erroneous nor contrary to law and, in fact, are supported by the law in all respects. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991).
Judge Francis properly determined that the ALJ failed to make "all reasonable efforts to obtain a treating physician's opinion on [Plaintiff's] behavior and functional capacity." (Report at 19.) Because Petitioner is proceeding pro se, the ALJ has a "heightened duty" to "explore for all the relevant facts" and develop a "complete and comprehensive medical record." See Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.1982); see also Rosado v. Barnhart, 290 F.Supp.2d 431, 441 (S.D.N.Y.2003); (Report at 13, 14, 21.)
Judge Francis also properly determined that "remand is warranted so that the ALJ can substantiate his conclusion" that Plaintiff's testimony was "not entirely credible." (Report at 20.) An ALJ's "finding that [a] witness is not credible" must be "set forth with sufficient specificity to permit intelligible plenary review of the record." See Williams ex rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir.1988); see also Snyder v. Barnhart, 323 F.Supp.2d 542, 546 (S.D.N.Y.2004). Judge Francis correctly determined that the ALJ "failed to present any reasoning to justify his disbelief, nor did he identify any discrepancy between the statements and record before him." (Report at 20.)
For the reasons set forth herein and therein, the Report is adopted in its entirety. The case is remanded to the Commissioner for reconsideration pursuant to the fourth sentence of 42 U.S.C. § 405(g).
The Clerk of the Court is respectfully requested to close this case.
Not Reported in F.Supp.2d, 2008 WL 2540816
Herbert S. Forsmith, Office of Herbert S. Forsmith, New York, NY, for Plaintiff.
Arthur Swerdloff, United States Attorney-EDNY, Brooklyn, NY, for Defendant.
MATSUMOTO, District Judge.
*
Plaintiff was born on April 12, 1946 in the Republic of Cyprus and moved to the United States on December 6, 1975. (Administrative Transcript ("Tr.") at 26.) Plaintiff obtained his high school education in Cyprus, where he also received vocational training in air conditioning and heating work. (Id. at 26-27.) Plaintiff reported that he ran his own air conditioning and heating system repair business in the United States for 25 years. (Id. at 27.) His job often involved climbing through "moving ladders," working on roofs, and lifting heavy objects. (Id. at 27-28, 36.) Plaintiff testified that he regularly lifted 40 to 50 pounds in this capacity and that, depending on the job, "[he] need[ed] a lot of help" to lift some of the objects, which were "really heavy." (Id. at 27-28, 36.)
On or about August 16, 2006, plaintiff stopped working in air conditioning and heating repair after reportedly experiencing several instances of choking feelings, disorientation, and fear while working on rooftops. (See id. at 27-28, 39.) Plaintiff testified that from the time he stopped working until he turned 62 and began to collect retirement benefits, he lived off his savings. (Id. at 39.) When his savings ran out, he terminated his insurance plan and, as a result, could not afford to obtain treatment for any of his medical conditions. (Id. at 30, 39.)
In 2007, at his therapist's suggestion, plaintiff traveled to Cyprus, where he believed the cost of living would be cheaper and he could receive free medical treatment. (Id. at 33, 39-40.) In Cyprus, plaintiff lived with his mother. (Id. at 40.) On a typical day, his brother drove him to the beach, where plaintiff would swim and relax. (Id.) Plaintiff testified that he lived in Cyprus for a year and a half, but traveled back and forth between the United States and Cyprus during that time. (Id. at 39-40.) Plaintiff married his second wife in Cyprus in 2007, but the couple divorced in 2009.
*
In 2005, plaintiff was referred to the New York Hospital Medical Center of Queens ("Medical Center") by his primary care physician, Dr. Daniel Byrns, after experiencing acute dyspnea while swimming. (Id. at 232.) On January 31, 2005, plaintiff underwent a dual-isotope exercise myocardial perfusion imaging study and a cardiac stress test at the Medical Center. (Id. at 230-32.) Dr. David Schechter, plaintiff's treating cardiologist at the Medical Center, noted that plaintiff had a history of hypertension, remote small CVA with chronic neck discomfort, and rare ventricular couplets during stress. (Id. at 232.) The test results showed that plaintiff had a normal exercise capacity, but also revealed myocardial ischemia. (Id. at 230, 232.) A coronary angiogram and catheterization, also performed on January 31, 2005, confirmed that plaintiff suffered from triple vessel coronary heart disease. (Id. at 42, 58, 239-40.)
At Dr. Schechter's recommendation, on January 31, 2005, plaintiff underwent a procedure to place three stents in his heart. (Id. at 240-41.) On May 6, 2005, two more stents were inserted. (Id. at 243.) Dr. Schechter's final diagnosis on May 6, 2005 was two-vessel coronary artery disease, with intervention attempted in two lesions present in both vessels, and both lesions dilated. (Id. at 244.) Plaintiff was to undergo a follow-up catheterization in three months. (Id.)
On August 1, 2005, a cardiac catheterization revealed that plaintiff had non-significant coronary artery disease ("CAD") and patent stent sites. (Id. at 172.) Continuing medical therapy was recommended. (Id.) On a post-stent placement follow-up appointment on September 29, 2005, Dr. Schechter reported that plaintiff presented with diagnoses of arteriosclerotic heart disease, lipidemia, hypertension, and impotence. (Id. at 277.) Plaintiff's medications included Viagra, Ecotrin, Plavix, Zocor, and Niaspan. (Id.) Plaintiff informed Dr. Schechter that he was asymptomatic and had good functional capacity. (Id.) Dr. Schechter also noted that plaintiff was comfortable and in good spirits and his heart sounds were normal. (Id.) In addition, an examination of plaintiff's extremities revealed no edema. (Id.) Dr. Schechter opined that there was no evidence of recurrent angina or congestive heart failure. (Id.) Dr. Schechter cleared plaintiff for airplane travel and told him to return for a follow-up appointment in three months. (Id.)
*
In a letter addressed to Dr. Byrns dated July 18, 2006, Dr. Schechter noted that although plaintiff's blood pressure was borderline elevated, plaintiff had normal heart sounds, patent vessels with no significant obstructive disease, an absence of edema, and that plaintiff was "feeling well and living an active life without symptomatology." (Id. at 278.) In addition, Dr. Schechter wrote that he advised plaintiff to lose weight in order to lower his blood pressure prior to starting an anti-hypertensive medication. (Id.) Dr. Schechter noted that a catheterization was planned for early August to reassess whether there was any in-stent stenosis. (Id.)
On August 11, 2006, a follow-up left heart catheterization, left ventriculography, aortogram, and coronary angiography were performed at the Medical Center. (Id. at 167-68.) These tests showed non-significant vessel disease with previous PCI and patent stent RCA, CFX and LAD and normal left ventricular function. (Id.) Continued medical therapy and secondary prevention measures were recommended. (Id.)
On March 21, 2006, plaintiff saw Dr. Byrns, his internist, with complaints of dizziness and weakness. (Id. at 290.) He stated that he was not taking his Plavix due to gastrointestinal side effects, but that he was taking aspirin at a dose of 325 mg. (Id.) Plaintiff was also taking Zocor, Viagra, Cozaar, and Protonix. (Id.) Dr. Byrns suspected that plaintiff's symptoms might be due to low blood pressure. (Id.) Dr. Byrns instructed plaintiff to discontinue Cozaar for two weeks, at which time he would be re-evaluated. (Id.)
In a follow-up visit on April 18, 2006, plaintiff complained of episodes of right upper quadrant pain radiating to his back. (Id.) Dr. Byrns noted minimal tenderness in the right quadrant, (id.), but an abdominal ultrasound performed on April 26, 2006 revealed unremarkable results, (id. at 284).
*
On March 2, 2007, plaintiff saw Dr. Byrns on an emergency basis, reporting that he was not feeling well and experiencing problems with forgetfulness. (Id.) Plaintiff stated that he had "for the most part retired from his job because of his feelings." (Id.) A mini-mental state evaluation ("MMSE") and clock-face drawing test, however, revealed normal cognitive functioning. (Id.) Dr. Byrns attributed any dysfunction to depression, noting that plaintiff was "making some difficult decisions in his life at this point." (Id.) Dr. Byrns prescribed plaintiff Lexapro and stated that he would reevaluate plaintiff when he returned from Cyprus in two months.
Two weeks later, on March 20, 2007, plaintiff again saw Dr. Byrns on an emergency basis for an upper respiratory tract infection. (Id. at 292.) During that visit, there was no follow-up regarding depression or mention of it. (Id.)
On February 15, 2007, plaintiff saw Dr. Mark Mabida, a physical therapist, complaining of intermittent dull aching pain on his cervical spine radiating down his left shoulder and arm, numbness in his left hand, and decreased functional mobility and strength. (Id. at 286-88.) Dr. Mabida treated plaintiff with moist heat, electrical stimulation, trigger point and myofacial stretching, therapeutic massage, therapeutic exercise, and neuromuscular reeducation. (Id.) Dr. Mabida observed that plaintiff experienced pain with AROM testing and noted that plaintiff's cervical spine exhibited a limited active range of motion as follows: flexion to 15 degrees, extension to 20 degrees, lateral flexion to 15 degrees, and rotation to 30 degrees. (Id.) Dr. Mabida further noted that plaintiff's neurological status was intact throughout. (Id.) Dr. Mabida identified the following problems that required skilled therapy services: pain that limits function, decreased range of motion, decreased strength, decreased independence with ADLs, and a lack of a home exercise program. (Id. at 287.)
On September 25, 2007, plaintiff was referred by the Division of Disability Determination in the New York State Office of Temporary and Disability Assistance ("Division of Disability Determination") to Dr. David Guttman for a consultative internal medicine examination. (See id. at 191-220.) Dr. Guttman noted that plaintiff's chief complaint was hypertension since 1998 and that he also complained of cardiac disease. (Id. at 191.) In addition, plaintiff complained of pressure in his abdomen and chest and neck pain. (Id.) Plaintiff's medications were Plavix, Cozaar, Niaspan, Protonix, Zocor, aspirin, and Lexapro. (Id.) As an initial matter, Dr. Guttman observed that plaintiff appeared to be in no acute distress, had a normal gait and stance, could squat and "walk on [his] heels and toes without difficulty," needed no help changing for the exam or getting on and off the exam table, used no assistive devices, and was able to rise from his chair without difficulty. (Id. at 192.) Dr. Guttman assessed plaintiff's health as "fair" with hypertension, atherosclerotic heart disease post stent replacement, and a history of transient ischemic attack. (Id. at 193.)
*
In addition, Dr. Guttman found that plaintiff's cervical spine and lumbar spine showed full flexion, extension, and full rotary movement bilaterally. (Id. at 193.) Dr. Guttman further found that plaintiff did not have scoliosis, kyphosis, or abnormalities in his thoracic spine. (Id.) Additionally, Dr. Guttman recorded that plaintiff had full range of motion of his shoulders, elbows, forearms, wrists, hips, knees, and ankles bilaterally. (Id.) Dr. Guttman also noted that plaintiff had "[s]trength 5/5 in upper and lower extremities, joints [that were] stable and non-tender . . . [and] no redness, heat, swelling, or effusion." (Id.)
Dr. P. Seitzman, a medical consultant with the Division of Disability Determinations, reviewed the medical record on October 16, 2007. (Id. at 221.) Dr. Seitzman opined that plaintiff could perform medium work, lift 50 pounds occasionally and 25 pounds frequently, and sit, stand, and/ or walk for six to eight hours per day. (Id.) Dr. Seitzman noted that a treadmill exercise test revealed no ischemic changes and that plaintiff reached his target heart rate. (Id.) Dr. Seitzman also noted that plaintiff's most recent catheterization showed no obstructions. (Id.)
Plaintiff met with Dr. Byrns on March 17, 2009 to renew his medications, which included Plavix, Micardis, Zocor, Lisinopril, and Ecotrin. (Id. at 292.) Dr. Byrns noted that plaintiff was no longer taking Niaspan and instructed plaintiff to discontinue using Lisinopril, which had been prescribed by a doctor in Cyprus while plaintiff was living there between 2007 and 2009. (Id.) Dr. Byrns further noted that plaintiff was going through a divorce, was running out of medications, and had lost his insurance. (Id.) Although plaintiff had gained ten pounds since his last visit in March 2007, he had no complaints of chest pain or shortness of breath and his heart sounds were regular with a 2/6 systolic ejection murmur. (Id.) Plaintiff saw Dr. Byrns again on May 18, 2009 with complaints of pain in his neck, jaw, and back. (Id. at 307; see also ECF No. 11, Memorandum of Law In Support Of the Defendant's Motion for Judgment on the Pleadings, dated 9/15/2010 ("Def.Mem.") at 9.) Plaintiff asked Dr. Byrns to fill out "disability papers." (Tr. at 307.) In his progress notes, Dr. Byrns diagnosed plaintiff with a history of coronary artery disease, hypertension, hyperlipidemia, erectile dysfunction, and depression. (Id.) Dr. Byrns prescribed plaintiff aspirin, Plavix, Mycardis, and Lisinopril. (Id.) Although Dr. Byrns noted that plaintiff did not present with suicidal ideations, he called plaintiff's daughter and advised her that plaintiff should be evaluated for depression. (Id.)
*
On May 23, 2009, plaintiff met with Dr. Dinshaw Bamji, a psychiatrist, for a psychological evaluation after being referred by Dr. Byrns. (See id. at 308-11.) Plaintiff reported feeling depressed, "like a boat in the middle of the ocean — buffeted by waves in all directions," and reported a two and a half year history of panic attacks, agoraphobia, claustrophobia, and fear of having a heart attack. (Id. at 308-09.) Plaintiff also told the doctor that he was having financial problems due to his first wife's medical expenses and that he was in the process of divorcing his second wife, with whom he had had "two years of misery." (Id. at 308.) Dr. Bamji noted that plaintiff had no formal thought or language disorders, delusions, suicidal ideas, or homicidal ideas and found plaintiff's global assessment of functioning (GAF) to be 50, which the doctor noted was "fair."
On May 17, 2007, plaintiff applied for SSD benefits under the Act alleging disability beginning August 16, 2006 due to a heart condition and neck and back problems. (Id. at 108-11, 127.) The Commissioner denied plaintiff's claim on October 18, 2007. (Id. at 62, 66-69.) Plaintiff then requested and obtained a hearing before ALJ Jeffrey M. Jordan ("ALJ"). (See id. at 20, 70-71.) The ALJ hearing took place in Jamaica, New York on June 4, 2009, at which time plaintiff testified and was represented by counsel. (See id. at 20.)
*
Dr. Gerald Galst, a cardiologist, also testified at the June 4, 2009 hearing as a medical expert after reviewing plaintiff's medical records. (See id. at 42-45.) Dr. Galst concluded that the evidence showed that plaintiff's cardiac vessels were "patent without any significant obstructive disease." (Id. at 42-43.) In addition, Dr. Galst observed that plaintiff's electrocardiograms and stress tests revealed consistently normal results, and that plaintiff's cardiac function was also normal. (Id. at 43.) Regarding plaintiff's allegations of spinal problems, Dr. Galst stated that although there were "some notes from a physical therapist," there were no x-rays, no detailed findings, and no notations from Dr. Byrns suggesting that plaintiff had any orthopedic and/or musculoskeletal complaints. (Id. at 43-44.) Dr. Galst concluded that plaintiff's cardiac and orthopedic conditions did not meet or equal any of the Listings in the regulations. (Id. at 45.) He opined that the only functional limitations plaintiff might have, based on plaintiff's testimony at the hearing, would be psychological. (Id.)
Donald Silve, a vocational expert, also testified at the June 4, 2009 hearing. (See id. at 47-52.) Mr. Silve stated that plaintiff's past work as a heating and air conditioner installer-servicer is exertionally medium work. (Id. at 47.) See U.S. Dep't of Labor, Dictionary of Occupational Titles ("DOT") No. 637.261-014, available at http://www.oalj.dol.gov/public/dot/references/dot06c.htm (last visited Sept. 27, 2011). Mr. Silve also testified that plaintiff's prior work experience equipped plaintiff with transferable skills, such as the ability to compare and compile information regarding the function, structure, composites, and amounts of material needed for a job. (Tr. at 48-49.) The ALJ asked Mr. Silve to consider a hypothetical individual of plaintiff's age, educational background, and past work experience who could lift/ carry 50 pounds occasionally and 25 pounds frequently, and who could sit/stand and walk about for six hours out of an eight hour workday. (Id. at 48.) The ALJ also stated that this hypothetical individual would need to avoid climbing ropes and performing other postural movements frequently, but that he had no fine or gross manipulation limitations. (Id.) Mr. Silve opined that without the limitations with respect to climbing, the individual would be able to plaintiff's prior work. (Id.)
*
At the conclusion of the aforementioned testimony, the ALJ stated that he believed that "the records have not been fully developed" with respect to plaintiff's complaints of neck and back pain and his psychological impairments. (Id. at 54.) The ALJ concluded that he did not have "sufficient evidence to form an opinion" and stated that he planned to refer plaintiff for two consultative examinations by doctors to determine the extent of his musculoskeletal and psychological impairments. (Id. at 53-54.) The ALJ informed plaintiff that if he could not attend the examinations, plaintiff should notify "the people . . . who send [the examination] information to [him] to explain the reason why [he] can't attend." (Id. at 54.)
On June 13, 2009, the Social Security Administration ("SSA") sent plaintiff appointment letters informing him that consultative examinations had been scheduled for June 18 and June 20, 2009. (See id. at 328-29.) On June 18, 2009, plaintiff's counsel called the SSA requesting to reschedule the examinations because plaintiff was in Cyprus. (Id. at 163.) The SSA cancelled the scheduled examinations and instructed plaintiff's counsel to inform the Bronx Office of Disability Adjudication and Review ("ODAR") when plaintiff became available. (Id.) On October 6, 2009, an SSA employee called the office of plaintiff's counsel and told them to inform plaintiff that he was required to return by November 2009 and that the "[ODAR] is inquiring." (Id. at 164.) On October 16, 2009, plaintiff's attorney wrote to the SSA requesting a further postponement of the examinations. (Id. at 165.) The letter requested that the ALJ wait to make a decision in the case, explaining that plaintiff was still in Cyprus attending to "private matters" but that he would return "soon." (Id.) Nothing in the record indicates whether the ALJ or the SSA responded to the October 16, 2009 letter.
On October 23, 2009, the ALJ issued a decision denying plaintiff's claims after de novo review pursuant to the five-step sequential analysis for determining whether an individual is disabled under the Act. (Id. at 8.) In his decision, the ALJ noted that although "every reasonable effort was made to develop the medical history of this claimant," the ALJ was "unable to obtain" additional evidence from consultative examinations because "the claimant returned to Cyprus after the hearing and did not come back to the United States in September 2009 to attend the examinations as promised." (Id.)
*
Under step three, the ALJ found that plaintiff's impairments or combination of impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 11.) The ALJ then found under step four that plaintiff had the residual functional capacity ("RFC") to perform his past relevant work as a heating and air conditioning installer-servicer and the full range of medium work as defined in 20 C.F.R. § 404.1567(c). (Id. at 12, 17-18.)
In particular, the ALJ noted that he placed significant weight on Dr. Galst's opinion that the only functional limitations that plaintiff might have, based on plaintiff's testimony and a review of plaintiff's medical records, would be psychological. (Id. at 17, 45.) In addition, the ALJ considered but assigned little weight to plaintiff's subjective testimony regarding his pain and functional limitations and to Dr. Byrns's Medical Source Statement. (Id. at 16-17.) The ALJ also stated that Dr. Seitzman's opinion "did not form the basis of this decision" even though he determined that Dr. Seitzman's opinion was supported by the medical evidence and consistent with the claimant's residual functional capacity. (Id. at 17.) In light of the record evidence, the ALJ concluded that plaintiff "can sit for six hours, stand/walk for six hours, lift/carry and push/pull fifty pounds occasionally and twenty-five pounds frequently, and has no restrictions in climbing ropes, ladders, and scaffolding or using his hands for fine and gross dexterous activities." (Id.)
*
On February 26, 2010, 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 with new counsel, plaintiff filed the instant action on March 17, 2010, alleging that he is entitled to receive SSD benefits due to "a combination of medical, orthopedic, and psychiatric impairments." (Compl. ¶ 5.) In his Complaint, plaintiff alleged that the ALJ's decision was "erroneous" and "contrary to law." (Id. ¶¶ 10-11.)
On September 15, 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 ECF No. 8, Letter to Plaintiff's Counsel, dated 9/15/2010; see also ECF No. 10, Notice of Motion for Judgment on the Pleadings, dated 9/15/2010; ECF No. 11, Def. Mem.) On October 15, 2010, plaintiff served defendant with a cross-motion for judgment on the pleadings. (See ECF No. 12, Notice of Cross-Motion for Judgment on the Pleadings; ECF No. 13, Memorandum of Law In Opposition To Defendant's Motion for Judgment on the Pleadings, and In Support of Plaintiff's Cross-Motion for Judgment on the Pleadings, dated 10/15/2010 ("Pl.Mem.").) Defendant opposed plaintiff's motion on October 29, 2010. (See ECF No. 14, Memorandum of Law In Further Support Of Defendant's Motion for Judgment on the Pleadings and In Opposition To Plaintiff's Cross-Motion for Judgment on the Pleadings dated 10/29/2010 ("Def.Reply").) The fully-briefed motions were filed with this court on November 30, 2010. (See ECF No. 16, Letter to the Honorable Kiyo A. Matsumoto, dated 11/30/2010.)
Plaintiff presently alleges that the ALJ erred by (1) failing to re-contact plaintiff's treating and consulting physicians where the ALJ admitted that the record was inadequate with regard to plaintiff's psychological and orthopedic impairments; (2) failing to afford plaintiff an opportunity to reschedule or provide good cause for canceling his consultative examinations; (3) failing to give sufficient weight to the medical opinion of plaintiff's treating physician; (4) failing adequately to assess plaintiff's credibility; (5) failing to set forth an adequate function-by-function analysis of plaintiff's residual functional capacity; and (6) improperly relying on a non-treating medical expert's assessment of plaintiff's residual functional capacity. (See generally ECF No. 13, Pl. Mem.)
*
In evaluating whether a claimant is disabled, the SSA requires the ALJ to conduct a five-step sequential analysis finding each of the following: (1) that the claimant is not working; (2) that the claimant has a medically determinable impairment or a combination of impairments that is "severe;" (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 his 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); see 20 C.F.R. § 404.1520(a)(4). An impairment or combination of impairments is "severe" if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. § 404.1520(c).
During this five-step analysis, 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 F. App'x 646, 647 (2d Cir.2009) (quoting 20 C.F.R. § 404.1523). 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." Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.1982).
In steps one through four of the five-step evaluation process, the claimant bears the general burden of proving disability. Burgess, 537 F.3d at 128. In step five, the burden shifts from the claimant to the Commissioner, requiring the Commissioner to show that in light of plaintiff's residual functional capacity, age, education, and work experience, plaintiff is "able to engage in gainful employment within the national economy." Sobolewski v. Apfel, 985 F.Supp. 300, 310 (E.D.N.Y.1997).
A district court reviews the Commissioner's decision to "determine whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004) (citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002)). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).
*
Plaintiff argues that the ALJ erred by (1) failing to re-contact plaintiff's treating physician and other medical sources to obtain additional information concerning plaintiff's orthopedic and psychological impairments, (ECF No. 13, Pl. Mem. at 12-13); (2) failing to re-contact plaintiff's treating physician to determine the diagnostic basis for his Medical Source Statement, (id. at 10-11, 13); and (3) failing to inquire whether plaintiff had good cause for not attending his scheduled consultative examinations, (id. at 7-9). The court agrees and remands accordingly.
At the conclusion of the June 4, 2009 hearing, the ALJ acknowledged that the record was incomplete and required further development. Specifically, the ALJ stated:
(Tr. at 52-53.) Despite this statement, without gathering additional information from any sources, on October 23, 2009 the ALJ issued a decision finding that plaintiff was not disabled. In particular, the ALJ concluded, "[a]lthough the record contains some indication that the claimant has spinal disorder, pleural plaque thickening, diverticulosis, depression and anxiety, the undersigned finds that these impairments do not significantly limit the claimant's ability to perform basic work activities." (Id. at 10.) With respect to plaintiff's alleged orthopedic impairments, the ALJ stated that although Dr. Byrns referred plaintiff to a physical therapist, Dr. Byrns's "scant records" do not mention any spinal condition. (Id.) In addition, the ALJ noted that "the only record in evidence" regarding plaintiff's spinal impairment was the single report from Dr. Mabida, which contains "no diagnostic imaging demonstrating specific pathology." (Id. at 10, 14.) With respect to plaintiff's alleged psychological impairment, the decision stated, "there is next to no medical evidence with reference to the claimant's depression and anxiety." (Id. at 10.) The ALJ acknowledged that Dr. Byrns noted plaintiff's memory problems, prescribed him Lexapro, and later referred plaintiff to a psychiatrist, Dr. Bamji, but concluded that such "scant evidence" was insufficient to establish a severe impairment. (Id. at 14-15.)
*
Here, the ALJ expressly concluded that he lacked sufficient evidence concerning plaintiff's orthopedic and psychological impairments to decide whether plaintiff was disabled. Nevertheless, contrary to his duty under the regulations to develop the record, the ALJ did not re-contact Dr. Mabida, Dr. Byrns, or Dr. Bamji to obtain additional information concerning these alleged impairments. His failure to do so was error. See, e.g., Calzada v. Astrue, 753 F.Supp.2d 250, 264 n. 35, 275 (S.D.N.Y.2010) (remanding because the ALJ failed to "address a clear gap in the record regarding plaintiff's mental status" where the ALJ noted a "lack of any medical records or clinical findings evidencing plaintiff's alleged depression" despite physicians' notes indicating plaintiff was taking prescription depression medications and plaintiff's claims of depression).
Contrary to defendant's assertions, this is not a scenario where the record was complete and the doctors' reports were "contradicted by substantial evidence" in the administrative record. (See ECF No. 11, Def. Mem. at 19.) The ALJ did not identify any evidence in the record to contradict plaintiff's claims of orthopedic and psychological impairments. Indeed, the only arguably contrary evidence the ALJ mentioned was that plaintiff had received no psychiatric treatment and that his mental status examination was normal. (Tr. at 10.) This lack of evidence, however, is not a sufficient basis on which to conclude that plaintiff is not disabled. See Rosado v. Barnhart, 290 F.Supp.2d 431, 440 (S.D.N.Y.2003) ("The ALJ cannot rely on the absence of evidence, and is thus under an affirmative duty to fill any gaps in the record.").
*
Accordingly, the ALJ's failure to re-contact Drs. Mabida, Byrns, and Bamji to obtain additional information concerning plaintiff's alleged orthopedic and psychological impairments requires remand. See Calzada, 753 F.Supp.2d at 275 (remanding case for further development of record regarding mental impairment).
Plaintiff further asserts that the ALJ had a duty to re-contact plaintiff's treating physician, Dr. Byrns, to seek additional information concerning the clinical and diagnostic basis for his Medical Source Statement. (See ECF No. 13, Pl. Mem. at 10, 12-13.) Because the ALJ found that Dr. Byrns's Medical Source Statement did not indicate the basis for his opinion, but did not re-contact Dr. Byrns to ascertain the basis for his opinion, remand is required.
Where a report received from a medical source "does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques, an ALJ has an obligation to re-contact the physician to seek additional evidence or clarification. 20 C.F.R. § 404.1512(e)(1). See 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."); Taylor v. Astrue, No. 07-CV-3469, 2008 WL 2437770, at *3 (E.D.N.Y. June 17, 2008) (where the ALJ found that the treating physician's opinion was not supported by objective clinical findings, the ALJ should have "attempt[ed] to elicit further supporting information directly from [the treating physician] before choosing not to assign controlling weight to [the physician's] opinion"); Mortise v. Astrue, 713 F.Supp.2d 111, 123 (N.D.N.Y.2010) (where the ALJ afforded little weight to physician's opinion because he found it was not based on clinical and diagnostic techniques, the ALJ "had an obligation to re-contact [the physician] to assess on what those opinions were based"). "The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant's treating physician." Devora v. Barnhart, 205 F.Supp.2d 164, 172-73 (S.D.N.Y.2002). See also Rosa, 168 F.3d at 79-80 (stating that the ALJ may not rely on sparse notes or conclusory assessments from a treating physician).
*
In his decision, the ALJ determined that Dr. Byrns's Medical Source Statement was entitled to little weight because it was "not well supported by or consistent with the record as a whole." (Id. at 17.) In addition, the ALJ noted that "Dr. Byrns provided no justification, by way of diagnostic test results or findings on examination, for the extreme degree of limitation he noted." (Id.)
Defendant argues that the ALJ was not required to re-contact Dr. Byrns because "in addition to Dr. [Byrns's] assessment, the record contains [Dr. Byrns's] notes detailing plaintiff's complaints, clinical findings, and treatment" and therefore the record was fully developed with no obvious gaps. (ECF No. 14, Def. Reply at 4.) Although the record does contain Dr. Byrns's "progress notes," which summarize plaintiff's complaints, list his medications, record his vital signs, and note any recommended treatment, (Tr. at 290-92, 307), these notes do not mention any clinical findings or diagnostic techniques that Dr. Byrns used to assess plaintiff's ability to sit, stand, or walk, carry items, or rotate his neck. Cf. Mortise, 713 F.Supp.2d at 122-23 (noting that "objective medical evidence" of plaintiff's impairments included a diminished knee/ankle jerk, tenderness upon palpation of the lumbar spine, and decreased sensation in both lower extremities, and the doctor's clinical diagnostic techniques included having plaintiff ascend and descend stairs, and complete a push test).
Further, although the ALJ stated that Dr. Byrns's Medical Source Statement was not "consistent with the record as a whole," the ALJ did not identify, and the court cannot locate, any other medical opinions in the record that address the issues contained in Dr. Byrns's Medical Source Statement. Cf. Gonzalez v. Chater, No. 96-CV-6250, 1998 WL 398809, at *1 (2d Cir. June 8, 1998) (finding that ALJ did not have to re-contact treating physician where he "did not discredit the opinions of [plaintiff's] treating physicians solely because they were not based on clinical findings but rather gave them `little weight' on this basis combined with the finding that these treating physicians' opinions were inconsistent with several other medical opinions in the record"); Robertson v. Astrue, No. 09-CV-0501, 2011 WL 578753, at *5 (W.D.N.Y. Feb.9, 2011) (where "the record was fully developed and contained comprehensive reports from all three doctors," no additional evidence was needed for the ALJ to determine whether the plaintiff was disabled, and it was within the ALJ's discretion to reject the physician's estimates of the plaintiff's residual functional capacity).
*
Plaintiff alleges that the ALJ erred by issuing a decision without giving plaintiff an opportunity to reschedule his consultative examinations or give good reasons for failing to attend them at the originally scheduled time. (ECF No. 13, Pl. Mem. at 6-9.) The court agrees.
Pursuant to the regulations, if necessary additional information is not readily available from a claimant's physicians or other medical sources, the ALJ "will ask [the claimant] to attend one or more consultative examinations at [the SSA's] expense." 20 C.F.R. § 404.1512(f). See also Sarago v. Shalala, 884 F.Supp. 100, 106 (W.D.N.Y.1995). Nevertheless, "when despite efforts to obtain additional evidence the evidence is not complete, [the ALJ] will make a determination or decision based on the evidence [he has]." 20 C.F.R § 404.1527(c)(4). Accordingly, if a claimant fails or refuses to take part in a scheduled consultative examination and has no good reason for the failure or refusal, a finding of not disabled may be rendered. Id. § 404.1518(a). See also Kratochvil v. Comm'r of Soc. Sec., No. 06-CV-1535, 2009 WL 1405226, at *4-5 (N.D.N.Y. May 18, 2009) (where plaintiff's proffered "good reasons" for failing to attend either of two scheduled consultative examinations were contradicted by the record, plaintiff could not prevail based on a challenge to the adequacy of the record). The regulations instruct claimants, "if you have any reason why you cannot go for the scheduled appointment, you should tell us about this as soon as possible before the examination date." 20 C.F.R. § 404.1518(a). Good reasons for failing to appear at a consultative examination include, but are not limited to (1) illness on the date of the scheduled examination; (2) not receiving timely notice of the scheduled examination or receiving no notice; (3) being furnished incorrect or incomplete information, or being given incorrect information about the physician involved or the time or place of the examination; (4) having a death or serious illness in claimant's immediate family; or (5) claimant's treating physician objecting to the examination. Id. § 404.1518(b)-(c). The regulations also note that an ALJ "will consider [a claimant's] physical, mental, educational, and linguistic limitations (including any lack of facility with the English language) when determining if [the claimant has] a good reason for failing to attend a consultative examination." Id. § 404. 1518(a).
During the June 4, 2009 hearing, the ALJ acknowledged that he lacked sufficient evidence regarding the severity of plaintiff's orthopedic and psychological impairments to decide whether plaintiff was disabled, and informed plaintiff that he planned to schedule two consultative examinations in order to more fully develop the record. (Tr. at 53-54.) The consultative examinations were subsequently scheduled and appointment letters were sent to plaintiff on June 13, 2009. (Id. at 328-29.) On June 18, 2009, plaintiff's counsel notified the SSA that plaintiff could not attend the examinations on the scheduled dates because he was out of the country and would return in September. (Id. at 163.) The SSA cancelled the consultative examinations and no further examinations were scheduled. (See id. at 163-65.) On October 6, 2009, the SSA contacted plaintiff's counsel's office and stated that plaintiff should contact the SSA as soon as he returns, but in any event no later than November. (Id. at 164.) The examinations still were not rescheduled. (See id.) On October 16, 2009, plaintiff's counsel sent a letter to the ALJ asking him to postpone making a decision in the case. (Id. at 165.) The letter explained that plaintiff was still in Cyprus attending to "private matters" but that he "plan[ned] on returning to New York soon in order to attend his consultative examination appointments." (Id.) On October 23, 2009, one week after plaintiff's counsel's October 16 letter, ALJ Jordan issued a decision denying benefits. With respect to the consultative examinations, the decision stated, "the claimant returned to Cyprus after the hearing and did not come back to the United States in September 2009 to attend the examinations as promised. . . . As such, the undersigned was unable to obtain this additional evidence." (Id. at 7.)
*
Nor is this a case where plaintiff refused to cooperate or attend the examinations. See, e.g., Cornell v. Astrue, 764 F.Supp.2d 381, 392 (N.D.N.Y.2010) (finding ALJ fulfilled his duty to develop the record where consultative examinations were scheduled, but plaintiff was unwilling to travel to attend them and declined to do so after being informed that "her non-compliance with the request would result in a decision based upon the evidence already in her file"); Walker v. Barnhart, 172 F. App'x 423, 426-28 (3d Cir.2006) (noting that plaintiff missed rescheduled consultative examinations and repeatedly failed to cooperate with the SSA's scheduling attempts with no indication of better future compliance). Instead, plaintiff's counsel's October 16 letter specifically indicated that plaintiff planned to return to New York soon in order to attend the examinations. (Tr. at 165.) Although plaintiff's failure to return in September as initially expected suggests a lack of urgency on plaintiff's part to reschedule the consultative examinations, he was not actually non-compliant. Indeed, the last notification he received from the SSA instructed him to return by November, presumably so he could proceed with the examinations at that time.
Further, the ALJ's decision makes no mention of whether he found plaintiff lacked good reasons for his failure to attend the scheduled examinations.
*
In addition to the infirmities in the ALJ's decision already discussed, plaintiff presents a number of other challenges. In particular, plaintiff argues that (1) the ALJ failed to properly evaluate the credibility of plaintiff's testimony about his subjective pain, symptoms, and functional limitations, (ECF No. 13, Pl. Mem. at 13-18); and (2) the ALJ erred in setting forth plaintiff's function-by-function abilities, (id. at 5-6).
Because the ALJ did not have a complete and comprehensive medical record before him when he determined that plaintiff was not disabled, it necessarily affected both his analysis of plaintiff's credibility and his assessment of plaintiff's residual functional capacity. On remand, the ALJ shall consider any additional evidence obtained from plaintiff's treating and consulting physicians and shall reevaluate plaintiff's credibility and RFC based on a complete record.
For the foregoing reasons, the court denies plaintiff's and defendant's cross motions for judgment on the pleadings and remands this case for further proceedings consistent with this opinion. On remand, the ALJ shall:
(1) Re-contact Dr. Bamji and Dr. Mabida to request additional information regarding plaintiff's psychological and orthopedic impairments;
(2) Re-contact Dr. Byrns to ascertain the clinical basis of the doctor's May 26, 2009 Medical Source Statement and to obtain additional information regarding plaintiff's psychological and orthopedic impairments;
(3) Provide plaintiff with a meaningful opportunity to reschedule the missed consultative examinations;
(4) Re-evaluate the weight that should be assigned to the medical opinions from plaintiff's treating physicians in light of any new evidence obtained;
(5) Re-evaluate plaintiff's testimonial credibility, subjective complaints of pain and functional limitations, employability, and disability in light of any newly obtained information relevant to plaintiff's claims; and
(6) Re-evaluate plaintiff's residual functional capacity in light of any newly obtained information relevant to plaintiff's claims.
The Clerk of the Court is respectfully requested to close the case.
Not Reported in F.Supp.2d, 2011 WL 4529657, 170 Soc.Sec.Rep.Serv. 653
LAURA TAYLOR SWAIN, District Judge.
*
The Court has considered thoroughly each of the Commissioner's objections and Plaintiff's responses and, for the following reasons, the Court adopts the Report in its entirety.
Plaintiff applied to the Social Security Administration ("SSA") for Disability Insurance Benefits and Supplemental Security Insurance benefits on July 29, 2009, based on his depression, anxiety, and auditory hallucinations associated with post-traumatic stress disorder ("PTSD"). Plaintiff was diagnosed with PTSD in 2009 after, he alleges, he was injured when he was knocked to the ground by police, hitting his face on the concrete and a broken beer bottle. SSA denied his claim on initial review on September 18, 2009. A hearing before an Administrative Law Judge ("ALJ") was conducted on January 27, 2011. The ALJ found on July 1, 2011, that Plaintiff was not disabled.
In denying Plaintiff's application for disability benefits, the ALJ relied on the opinions of three physicians — Plaintiff's treating physician and two consultant physicians. Hidalgo began treatment with psychiatrist Dr. Marc Vital-Herne, on April 16, 2009. Over the next year, Dr. Vital-Herne met with Plaintiff approximately every one to two months. Dr. VitalHerne diagnosed Plaintiff with PTSD and prescribed medication. The doctor also concluded that Plaintiff has a mood disorder and associated issues. "His perception is impaired due to auditory hallucinations and paranoid ideas. These among other symptoms plus side-effects of medications make it very difficult for [Plaintiff] to function in the work setting." (R. 289.) However, because the ALJ determined Dr. Vital-Herne's report was "not fully consistent with treating source records," (R. 25,) the ALJ did not afford the treating physician's opinion controlling weight. The ALJ concluded that Dr. Vital-Herne's report was not entitled to controlling weight because it was inconsistent with the record in that 1) the report states that Plaintiff had an inability to function outside of a highly-supportive environment, yet he lives alone; 2) Plaintiff indicated that he does socialize at times, 3) Dr. Vital-Herne's clinical notes refer to improvement over time with medication; and 4) despite a low Global Assessment of Functioning ("GAF") score, Dr. Vitale-Herne's notes do not reflect a recommendation of more frequent visits. (R. 21-22.).
The ALJ relied on the opinions of two consultant physicians. On September 2, 2009, upon the request of the SSA, Dr. Herb Meadow examined Plaintiff. Dr. Meadow diagnosed Plaintiff with PTSD; however, he concluded that Plaintiff "would be able to perform all tasks necessary for vocational functioning." (R. 257.) Also, on September 17, 2009, after Plaintiff applied for benefits, his record was reviewed by Dr. R. Altmansberger, a State Agency psychologist, who concluded that Plaintiff was capable of functioning in a vocational setting and was not significantly limited in his day to day life.
*
Judge Netburn issued the Report on August 19, 2013, recommending that the Court deny the Commissioner's motion, grant Plaintiff's motion, and remand the case to the ALJ for further development of the administrative record. Judge Netburn concluded that the ALJ erred as a matter of law in failing to apply the treating physician rule properly. Judge Netburn further concluded that this error led to inadequate development of the record because, while he found gaps in the record, the ALJ failed in his affirmative duty to further develop the record. For example, Judge Netburn pointed to the ALJ's finding that Dr. Vital-Herne's treatment notes apparently do not recommend more frequent visits despite Plaintiff's low GAF score. Judge Netburn also held that the ALJ erred because, to the extent he afforded Dr. Meadow's findings relatively greater weight than Dr. Vital-Herne's findings, he failed to state "good reasons" for so doing.
The Commissioner's objections focus principally on Judge Netburn's determination that remand to the Commissioner is warranted because the ALJ failed to develop the record and improperly relied on Dr. Meadow's and Dr. Altmansberger's reports. The Commissioner argues that the regulations permit the ALJ to give greater than limited weight to the report of consultative examiners, and that the record was fully developed. (Docket entry no. 24 at 2-4.) The Commissioner also argues that the ALJ's decision not to give the treating physician's opinion controlling weight was supported by substantial evidence because there were inconsistencies in the treating physician's statements. The Commissioner also argues that the ALJ was not required to seek clarification or additional information concerning those inconsistencies. Finally, the Commissioner argues that the Report errs insofar as it holds that the ALJ may afford "only limited weight [to the opinions of consultative examiners] because of their typically superficial exposure to the plaintiff." (Docket entry no. 24 at 5-6.)
When reviewing a magistrate judge's report and recommendation, the 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.S. § 636(b)(1)(C) (LexisNexis 2012). The district court must make a de novo determination to the extent that a party makes specific objections to a magistrate judge's finding. Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). Courts may set aside a decision of the Commissioner if it is based on legal error, or if it is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). On review of a negative determination by the Commissioner on an application for disability benefits, the district court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." 42 U.S.C.S. § 405(g) (LexisNexis 2012). The Commissioner's factual findings are conclusive if supported by substantial evidence. Id.
*
The "treating physician rule" is a common law rule that was codified in slightly modified form as a series of regulations set forth by the Commissioner detailing the weight to be accorded a treating physician's opinion. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). Specifically, the Commissioner's regulations provide that an applicant's treating source's opinion will receive controlling weight when it "is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." 20 C.F.R. § 404.1527.
Although the treating-physician rule generally requires deference to the medical opinion of a plaintiff's treating physician, Schisler, 3 F.3d at 567-68, a treating physician's opinion need not be given controlling weight if it is inconsistent with other substantial evidence in the record, including the opinions of other medical experts. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.2008). When a treating physician provides a favorable report, the claimant "is entitled to an express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's] favorable . . . report and, if the [ALJ or] Council does not credit the findings of that report, to an explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999), Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010) (Commissioner's failure to consider favorable treating physician evidence ordinarily requires remand pursuant to Snell).
Regardless of whether the ALJ based his decision to give controlling weight to the consultative physicians on substantial evidence, the ALJ failed to adequately analyze and explain the appropriate weight to give to Dr. Vital-Herne's opinion. The ALJ must consider the following factors in determining the weight to be given a treating physician's opinion: (1) "[l]ength of the treatment relationship and the frequency of examination;" (2) "[n]ature and extent of the treatment relationship;" (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the type of condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(c)(1)(6). The ALJ failed to conduct this analysis of the treating physician's opinion and remand is thus necessary.
*
The Commissioner has a duty "to make every reasonable effort to obtain from the individual's treating physician (or other treating health care provided) all medical evidence including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtain from any source on a consultative basis." 42 U.S.C. S. § 423(d)(5)(B) (LexisNexis 2012). The ALJ must contact medical sources and gather additional information if the ALJ believes that the record is inadequate to make a determination. When the ALJ has failed to develop the record adequately, the District Court must remand the case to the Commissioner for further development. See, e.g., Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996).
"[A]n ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record" and, "where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history. . . ." Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999) (citations omitted); accord Duncan v. Astrue, 09 Civ. 4462 KAM, 2011 WL 1748549, at * 21 (E.D.N.Y. May 6, 2011) (Where gaps in the record are present, "the ALJ must affirmatively seek out clarifying information from physicians whose opinions the ALJ discounts.") This duty to develop the record is particularly important where an applicant alleges he is suffering from a mental illnesses, due to the difficulty in determining "whether these individuals will be able to adapt to the demands or `stress' of the workplace." See Lacava v. Astrue, 11 Civ. 7727, 2012 WL 6621731 (S.D.N.Y. Nov. 27, 2012) (noting an "enhanced obligation to obtain a broad view of the claimant's history and abilities" for mental health disorders) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(E)), report and recommendation adopted, 11 Civ. 7727, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
Here, the administrative record contains insufficient information regarding the alleged inconsistencies between Dr. Vital-Herne's report and the treatment notes the ALJ relied upon to discredit Dr. Vital-Herne's report. For instance, while Dr. Vital-Herne's treatment notes contain no prescription for more frequent appointments. Dr. Vital-Herne's notes also do not include a statement that more frequent visits would or would not have aided Plaintiff's recovery. The Report also points to evidence contradicting the ALJ's finding of an inconsistency with respect to Dr. Vital-Herne's report in that Dr. Vital-Herne noted that Plaintiff had improved over-time with Medicine. The Report indicates that Dr. Vital-Herne's report contains information which indicates that the improvement could be associated with Plaintiff's modified behavior to limit social exposure which would be incompatible with many work environments; for instance, although Dr. Vital-Herne noted on January 3, 2011, that Plaintiff felt "calm," he also indicated that Plaintiff had "stayed home from the holiday to prevent problems." (R. 277.) Without further information from Dr. Vital-Herne, it is unclear what effect, if any, the gaps in the record should have on the weight afforded his opinion. The failure to complete the record is more troubling because the ALJ specifically found that Plaintiff is suffering from mental illness, and his determination goes to whether he can function in work setting. See Lacava v. Astrue, 2012 WL 6621731, at 12. The Court finds, therefore, that on remand the Commissioner has an affirmative duty to seek clarification to fill the alleged inconsistences in the record cited by seeking further information from Dr. Vital-Herne.
*
For the foregoing reasons, the Report is hereby adopted in its entirety. This case is remanded to the Social Security Administration pursuant to sentence six of 42 U.S.C. § 405(g), for further proceedings consistent with the Report and this Memorandum Opinion and Order. The Clerk of Court is respectfully requested to effectuate the remand, and to close this case in the District Court subject to reopening upon the completion of proceedings on remand.
This Memorandum Opinion and Order resolves docket entries numbers 17 and 19.
SO ORDERED.
SARAH NETBURN, United States Magistrate Judge.
Plaintiff Carlos M. Hidalgo brings this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for disability insurance and Supplemental Security Insurance ("SSI") benefits. The Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff cross-moved for judgment on the pleadings and, in the alternative, requested remand to the Commissioner for further proceedings.
Because the Administrative Law Judge misapplied the treating physician rule when he denied the plaintiff's application for benefits, I recommend that the Commissioner's motion for judgment on the pleadings be DENIED. I further recommend that the plaintiff's motion to remand the case to the Commissioner for proper application of the treating physician rule and further development of the record be GRANTED.
*
Proceeding pro se, Hidalgo filed a timely complaint in this Court on December 10, 2012. The case was referred to my docket for a report and recommendation on January 14, 2013. Counsel appeared on March 25, 2013. On May 3, 2013, the Government filed a motion for judgment on the pleadings. On June 6, 2013, plaintiff filed an opposition and cross-motion for judgment on the pleadings.
Hidalgo, who was born in 1961 in the Dominican Republic, was 48 years old on the date of the hearing. He alleges that he suffers from depression, anxiety, and auditory hallucinations associated with post-traumatic stress disorder ("PTSD"). His allegations of depression extend back to 2008, but he was diagnosed with post-traumatic stress syndrome ("PTSD") in 2009. The condition stems from an incident on January 30, 2009 when, Hidalgo testified, he was arrested by the police, struggled, and injured his face when he fell to the ground and landed on a broken bottle. Hidalgo was taken to the emergency room at Jacobi Medical Center until the bleeding stopped. CT scans taken the next day showed pre-orbital soft tissue swelling on the left, with metallic densities within the soft tissue swelling. He was seen by a plastic surgeon and received five sutures.
The psychological trauma from this event eclipsed Hidalgo's physical injuries and prior reports of depression. Hidalgo feels nervous and unable to walk in the streets for fear of the police. He often hears calling or knocking at his door and is afraid to go outside. He has frequent crying spells that last for twenty or thirty minutes a day, seven or eight days a month. He has nightmares that keep him up at night; he frequently feels lonely. In addition, Hidalgo experiences panic attacks and depression several times a week that last for several hours. These symptoms have increased since the arrest.
Hidalgo lives alone. He prepares simple meals for himself: rice, chicken, and sandwiches. When he is not too depressed, he is able to do laundry, cleaning, and basic errands. He generally maintains his hygiene and medical reports consistently describe him as well-groomed. He can pay his bills when he has enough money, but several family members help him with rent and basic needs. Hidalgo watches about two to three hours of television each day. He does not go to social functions, and he attends church once a week for an hour-long service. He has a close relationship with his mother and siblings.
*
Hidalgo's medical records begin after he was admitted to the hospital in January 2009. The records show he had a follow-up visit at Jacobi Medical Center on February 12, 2009, when he complained of blurry vision and consulted with an ophthalmologist. The ophthalmologist diagnosed post-trauma to the left side of the face and good visual acuity.
Hidalgo has seen a psychiatrist consistently since early 2009. He has been prescribed numerous medications, including Pristiq (depression), Trazadone (depression), Lexapro (anxiety and major depressive disorder), Zyprexa (manic depression), Wellbutrin (depression), Amandatine (neurological disorders), Prozac (depression), and Klonopine (sleep and panic disorders).
Hidalgo began treatment with Dr. Marc Vital-Herne, a psychiatrist, on April 16, 2009. Hidalgo reported that he felt nervous, preoccupied, and apprehensive, and that he had trouble sleeping at night and experienced nightmares. He said all this began after he was arrested and beaten by the police in January 2009. He had no history of suicide attempts and no history of psychiatric evaluations.
Over the next year and a half, Dr. Vital-Herne met with Hidalgo approximately every one to two months. The sessions reveal continuous, though fluctuating, anxiety, nightmares, and auditory hallucinations, and a slight upward trend in his condition overall. A brief summary of the meetings follows.
On May 7, 2009, Dr. Vital-Herne met with Hidalgo for supportive therapy and prescribed him medication and monthly treatment. On July 6, 2009, Hidalgo indicated that one medication, Pristiq, did not sufficiently control his symptoms — he still felt anxious and depressed — so Dr. Vital-Herne decreased the Pristiq dosage and prescribed Lexapro, Trazadone, and Zyprexa. On August 10, 2009, Dr. Vital-Herne extended the prescription of these medications because Hidalgo complained of continued nightmares and hearing voices. On September 10, 2009, Hidalgo reported to Dr. Vital-Herne that he stopped taking Lexapro because it caused blurry vision and because he had continued to hear voices and knocking at his door. Dr. Vitale-Herne decreased the dosage of Lexapro and prescribed Wellbutrin, Trazadone, and Zyprexa. On October 8, 2009, Hidalgo reported feeling "slightly better," but that the voices, knocking, and nightmares continued. (R. 282.) Dr. Vital-Herne provided therapy and continued the medications. On November 7, 2009, Hidalgo again reported feeling "slightly better," "less depressed," and that he was hearing voices less frequently; however, he reported feeling very sleepy in the morning. (Id.) On December 7, 2009, Hidalgo said that he had been feeling "very nervous" and depressed; he was about to lose his apartment due to back rent. (R. 281.) He admitted to drinking when he felt overwhelmed. He again was hearing voices and knocking at his door. Dr. Vital-Herne prescribed Wellbutrin, Zyprexa, Amandatine, Klonopin, and also added a trial of Prozac.
*
On April 29, 2010, Dr. Vitale-Hern noted that some of Hidalgo's anxiety had lessened but that the nightmares and voices had continued. On May 27, 2010, Dr. Vital-Herne noted that the anxiety had returned, and the auditory hallucinations had continued. In addition, Hidalgo had resorted to drinking heavily on a daily basis to control his nerves. On July 12, 2010, Hidalgo reported that he had started to feel better; he did complain of recent auditory hallucinations but denied any suicidal thoughts. Dr. Vital-Herne noted that his "affect" was "appropriate." Hidalgo reported that he still felt "worried." (R. 278.)
On August 9, 2010, Hidalgo reported feeling "somewhat better," though they spent a lot of time discussing his alcohol consumption. (Id.) On October 25, 2010, Hidalgo reported that he had been "doing better in the sense that he doesn't drink every day," and instead was drinking five to six beers a month. (Id.) The nightmares had continued, as well as his hallucinations of knocking at his door.
On January 3, 2011, the last appointment in the record, Dr. Vital-Herne met with Hidalgo who reported that he felt "calm." (R. 277.) His nightmares had lessened; he had only had one bad dream in the past week.
On January 13, 2011, Dr. Vital-Herne completed a "Mental Impairment Questionnaire," which detailed Hidalgo's impairment and functioning. He diagnosed Hidalgo with PTSD and assessed his Global Assessment Functioning score at 45, noting that his highest score that year was 35.
The questionnaire provided Dr. Vital-Herne with an extensive check list of symptoms. He was asked to identify those experienced by Hidalgo. Dr. Vital-Herne indicated that Hidalgo suffers from: generalized persistent anxiety; mood disturbance; difficulty thinking or concentrating; recurrent and intrusive recollections of a traumatic experience; persistent disturbances of mood or affect; change in personality; apprehensive expectation; paranoid thinking or inappropriate suspiciousness; substance dependence; emotional withdrawal or isolation; perceptual or thinking disturbances; hallucinations or delusions; emotional lability; vigilance and scanning; pathologically inappropriate suspiciousness or hostility; sleep disturbance; recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; and persistent irrational fear of a specific object, activity, or situation that results in a compelling desire to avoid the dreaded object, activity or situation.
*
Dr. Vital-Herne indicated, however, that Hidalgo was "unable to meet competitive standards" in the following areas: remembering work-like procedures; maintaining attention for a two-hour segment; maintaining regular attendance and being punctual within customary, usually strict tolerances; sustaining an ordinary routine without special supervision; working in coordination with or proximity to others without being unduly distracted; completing a normal workday and workweek without interruptions from psychologically-based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; dealing with normal work stress; setting realistic goals or making plans independently of others; and dealing with stress of semiskilled and unskilled work. He concluded that Hidalgo had "no useful ability to function" when faced with normal hazards and would not take appropriate precautions.
Explaining these findings, Dr. Vital-Herne wrote that Hidalgo has a "mood disorder and labile affect. His perception is impaired due to auditory hallucinations and paranoid ideas. These among other symptoms plus the side-effects of medications make it very difficult for Pt. to function in the work setting." (R. 289.)
Regarding Hidalgo's mental abilities and aptitude needed to do particular types of jobs, Dr. Vital-Herne indicated that Hidalgo has "limited but satisfactory" abilities to travel to unfamiliar places and use public transportation. He noted that Hidalgo has "seriously limited, but not precluded," abilities to interact appropriately with general public, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness.
When assessing Hidalgo's functional limitation, Dr. Vital-Herne noted that Hidalgo had "moderate" restriction of activities of daily living, "marked" difficulties in maintaining social function and concentration, persistence, or pace," and that he experienced "one or two" episodes of decompensation within a 12-month period that are at least two weeks' duration. He further predicted that Hidalgo's impairments would cause him to be absent from work more than four days per month. He indicated that Hidalgo's impairment can be expected to last at least 12 months; that he is "constantly anxious and psychotic," (R. 291), and that his symptoms have caused him to abuse alcohol more than before.
*
Dr. Meadow concluded that Hidalgo "would be able to perform all tasks necessary for vocational functioning." (R. 257.) He added, "the results of the examination appear to be consistent with psychiatric and possible cognitive problems, but in itself does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis." (Id.) He concluded that Hidalgo's prognosis was "fair." (Id.) Dr. Meadow's form included the statement, "No doctor-patient relationship exists or is implied by this examination." (R. 258).
On September 17, 2009, after Hidalgo applied for Title II and Title XVI benefits, his record was reviewed by Dr. R. Altmansberger, a State Agency psychologist. Dr. Altmansberger concluded that Hidalgo suffered from an anxiety-related disorder, but one that "does not precisely satisfy the diagnostic criteria" required by the SSA. When assessing Hidalgo's functional limitations, he found that Hidalgo had "mild" restrictions in activities of daily living, "moderate" difficulties in maintaining social functioning, and "moderate" difficulties maintaining concentration, persistence, or pace. Dr. Altmansberger found that Hidalgo "never" experienced repeated episodes of deterioration of extended duration.
When assessing his mental residual functional capacity, Dr. Altmansberger noted that Hidalgo was "not significantly limited" in his understanding and memory or in his ability to maintain concentration and persistence. He further found that Hidalgo was "moderately limited" in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; in his ability to work in coordination or proximity to others without being distracted by them; and in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods.
When evaluating Hidalgo's social interaction skills, he described Hidalgo as "moderately limited" in his ability to interact appropriately with the general public and to accept instructions and respond appropriately to criticism from supervisors; and "not significantly limited" in his ability to ask simple questions or request assistance, get along with coworkers or peers without distracting them, or maintain socially appropriate behavior.
*
A party may move for judgment on the pleadings "[a]fter the pleadings are closed — but early enough not to delay trial." Fed.R.Civ.P. 12(c). A Rule 12(c) motion should be granted "if, from the pleadings, the moving party is entitled to judgment as a matter of law." Dargahi v. Honda Lease Trust, 370 F. App'x 172, 174 (2d Cir.2010). In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
A determination of the ALJ must be supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999). "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995). "Where there is substantial evidence to support either position, the determination is one to be made by the factfinder." Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990). This means that if there is sufficient evidence to support the final decision, a district court must grant judgment in favor of the Commissioner.
If the Court finds that the ALJ decision is not supported by substantial evidence, there are gaps in the administrative record, or the ALJ has applied the improper legal standard, the court should remand the case for further development of the evidence. See, e.g., Rosa, 168 F.3d at 82-83 (citations omitted). If the record provides "persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the court may reverse and remand solely for the calculation and payment of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980); Rosa, 168 F.3d at 83.
A claimant is disabled under the Social Security Act if the claimant 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 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2) (A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d) (3).
*
Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir.2003) (citation omitted). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998). Thus, in order to support a finding that the claimant is not disabled at the fifth step, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's residual functional capacity, age, education and past relevant work experience. 20 C.F.R. §§ 404.1512(f), 404.1560(c), 416.912(f), 416.960(c).
The Code of Federal Regulations provides additional guidance for evaluations of mental impairments. Calling it a "complex and highly individualized process," 20 C.F.R. § 404.1520a(c)(1), the section focuses the ALJ's inquiry on determining how the impairment "interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis," 20 C.F.R. § 404.1520a(c)(2). The main areas that are assessed are: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. The first three are rated on a "five-point scale:" none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). The last area, episodes of decompensation, is rated on a "four-point scale:" none, one or two, three, and four or more. Id. If an impairment is given the rating of "severe," then the ALJ is instructed to determine whether the impairment qualifies as a listed mental disorder. 20 C.F.R. § 404.1520a(d)(2).
*
An anxiety-related disorder will qualify as a "listed impairment" if it is "the predominant disturbance or . . . the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06. To reach the required severity level, the individual must have: generalized persistent anxiety; a persistent irrational fear of a specific object, activity, or situation that results in a compelling desire to avoid it; recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror, and sense of impending doom; recurrent obsessions or compulsions which a source of marked distress; or recurrent and intrusive recollections of a traumatic experience. These symptoms must either (A) result in "marked restriction" in two of the following: (i) activities of daily living; (ii) maintaining social functioning; (iii) maintaining concentration, persistence, or pace; or (iv) repeated episodes of decompensation; or (B) result in complete inability to function independently outside the area of one's home. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06.
To assess Hidalgo's claim of disability, the ALJ followed the five-step analysis required by the Code of Federal Regulations. See 20 C.F.R. §§ 404.1520(a), 416.920(a). Beginning with step one, the ALJ found that Hidalgo had not engaged in substantial gainful activity during the relevant period.
At step two, the ALJ concluded that Hidalgo had a severe impairment within the meaning of the Act arising from his PTSD and alcohol abuse. He noted the trauma to Hidalgo's face, but determined that this did not significantly limit his ability to perform basic work activities.
At step three of the analysis, the ALJ determined that the impairment did not met or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. When examining the requirements of the "B Criteria," for mental disorders (see 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04), the ALJ concluded that Hidalgo had only moderate restrictions in his activities of daily living and social functioning and his concentration, persistence, and pace. He found that Hidalgo had experienced no episodes of decompensation. The ALJ found that Hidalgo also did not satisfy any of the "C Criteria." The ALJ also concluded that Hidalgo did not present the requirements of 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06, which describes anxiety related disorders, but he did not explain this finding.
*
In reaching this conclusion, the ALJ claimed to have considered all symptoms, "the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," and opinion evidence, as required by 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-6p, and 06-3p. (R. 18.) Then the ALJ outlined a twostep process. First, the ALJ considered whether there was an underlying medically determinable impairment that could have produced the claimant's symptoms. Second, the ALJ evaluated the intensity, persistence, and limiting effects of the symptoms to determine how they limited the claimant's functioning. The ALJ explained that, whenever a claimant's statements about symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the statements based on the entire case record.
The ALJ acknowledged the extensive treating notes from Dr. Vitale-Hern that reported Hidalgo's anxiety, depression, nightmares, and auditory hallucinations, and Dr. Vital-Herne's assessment that Hidalgo was unable to meet the competitive standards of work-related activities. But he perceived a disparity between the information contained in Dr. Vital-Herne's treating notes and the assessment of his residual functional capacity. While he believed that Hidalgo experienced the symptoms described, he did not believe that they were debilitating to the extent alleged. The ALJ paid particular attention to the fact that his symptoms seemed to improve with medication, that he maintains relationships with family members, and that he is able to go out of the house and attend social functions, albeit on a very limited basis.
The ALJ noted that, by contrast, Dr. Meadow, the consultative physician, opined that Hidalgo would be able to perform all tasks necessary for vocational functioning. He also noted that Dr. Altmansberger, the State Agency analyst, considered Hidalgo to be suffering from only mild restrictions and limitations in his daily activities, social functioning, and work-related activities. Given "the record as a whole," the ALJ chose not to give Dr. Vital-Herne's report "controlling weight." (R. 22.)
At step four of the analysis, the ALJ assessed whether Hidalgo's RFC allowed him to perform the requirements of his past relevant work. The ALJ, relying on the opinion of the vocational expert, Raymond Cestar, determined that Hidalgo could not perform his past relevant work as a house cleaner, because his "mental capacity is too diminished to permit [him] to return to his past impairment." (R. 22.)
*
After weighing these factors with the testimony of the vocational expert, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Hidalgo could perform. The ALJ concluded that Hidalgo work as a kitchen helper, a packager, and a cook helper.
Referencing section 204.00 of the Medical-Vocational Guidelines, the ALJ found Hidalgo "not disabled" as defined in the Social Security Act.
On appeal to this Court, Hidalgo challenges the ALJ's disregard for the treating physician's opinion, the ALJ's assessment of his residual functional capacity and, by extension, the ALJ's conclusion that there are jobs in significant numbers in the national economy that Hidalgo could perform.
The "treating physician rule" instructs the ALJ to give controlling weight to the opinions of a claimant's treating physician, as long as the opinion is well-supported by medical findings and is not inconsistent with the other evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c). While the decision on the ultimate issue of disability is one reserved for the Commissioner, 20 C.F.R. § 404.1527(d)(2); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) ("A treating physician's statement that the claimant is disabled cannot itself be determinative."), the ALJ cannot substitute his own expertise or view of the medical proof for the treating physician's opinion, Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000).
Even when a treating physician's opinion is not given controlling weight, it is still entitled to "significant weight because the treating source is inherently more familiar with a claimant's medical condition than are other sources." Santiago v. Barnhart, 441 F.Supp.2d 620, 627 (S.D.N.Y.2006) (citations omitted). To determine its precise value, the regulations instruct the ALJ to evaluate the following six factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other significant factors. 20 C.F.R. § 404.1527(c)(2)-(6). This process must be transparent: the regulations state that the Commissioner "will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." 20 C.F.R. § 404.1527(c) (2). Indeed, where an ALJ does not credit the findings of a treating physician, the claimant is entitled to an explanation of that decision. Snell, 177 F.3d at 134; Shaw, 221 F.3d at 134 ("The regulations . . . require the ALJ to set forth her reasons for the weight she assigns to the treating physician's opinion."). In this Circuit, the requirements of the rule are rigorously applied; they are not simply a "bureaucratic box to check." Ellington v. Astrue, 641 F.Supp.2d 322 (S.D.N.Y.2009) As the Court of Appeals has explained:
Snell, 177 F.3d at 134 (citing Jerry L. Mashaw, Due Process in the Administrative State, 175-76 (1985)).
Inextricably linked to the treating physician rule is the ALJ's duty to develop the administrative record. Before a district court can evaluate the ALJ's conclusions, the court must ensure that the claimant received a full hearing. Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.1982) (citing Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir.1972) (holding that an ALJ must ensure that the claimant had a "full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act")). Due to the "non-adversarial nature" of social security proceedings, a full hearing requires the ALJ to "affirmatively develop the record" to reflect the claimant's medical history for at least a twelve-month period. 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 404.1512(d); Echevarria, 685 F.2d at 755. The ALJ must contact medical sources and gather any additional information if the ALJ believes that the record is inadequate to make a determination, and is authorized by the Act to "issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation." 42 U.S.C. § 405(d). The Court of Appeals considers this statutory authorization to impose an affirmative duty on the ALJ to develop the record, whether or not the claimant is represented by counsel. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999).
The ALJ's duty to develop the record is enhanced when the disability in question is a psychiatric impairment. The Regulations articulate that claims concerning mental disorders require a robust examination that is sensitive to the dynamism of mental illnesses and the coping mechanisms that claimants develop to manage them:
*
The duty to develop the administrative record includes the specific obligation to seek clarifying information from the treating physician. If a physician's report is believed to be insufficiently explained, lacking in support, or inconsistent with the physician's other reports, the ALJ must "affirmatively seek out clarifying information from the doctor" before discrediting the opinion. Duncan v. Astrue, 09 Civ. 4462(KAM), 2011 WL 1748549, at * 19 (E.D.N.Y. May 6, 2011); see also Rosa, 168 F.3d at 79-80 (determining that ALJ committed legal error by failing to request supplemental information from treating physicians to explain gaps in the record); Clark v. Comm'r of Social Security, 143 F.3d 115, 118 (2d Cir.1998) (remanding because ALJ appeared to violate duty to develop record by not seeking clarifying information from treating physician to explain inconsistencies in his two reports and instead relying on the inconsistencies to deny benefits); Malarkey v. Astrue, 08 Civ. 9049(JCF), 2009 WL 3398718, at *12-13 (S.D.N.Y. Oct. 20, 2009) (remanding case where ALJ did not attempt to obtain clarification from treating physician regarding the perceived inconsistencies in the treating notes).
When the ALJ fails to develop the record adequately, the district court must remand to the Commissioner for further development. See, e.g., Kercado ex rel. J.T. v. Astrue, 08 Civ. 478(GWG), 2008 WL 5093381 (S.D.N.Y. Dec. 3, 2008) (citing cases).
The key to the ALJ's denial of Hidalgo's benefits application was his decision that the opinion of Dr. Vital-Herne, the treating physician, should "not [be] given controlling weight." (R. 22.) As a result, he formulated his own opinion at two steps in the analysis: at step three, the ALJ determined that Hidalgo did not meet the listing requirements for an affective disorder, even though Dr. Vital-Herne's evaluation indicated that he met the "B Criteria;" at step four, the ALJ determined that Hidalgo had the residual functional capacity to perform a full range of work with certain nonexertional limitations, even though Dr. Vital-Herne had determined that Hidalgo would have difficulty functioning in a work setting, was unable to meet the competitive standard of work-related activities, and would likely miss "more than 4 days of work per month." (R. 289-91.) The central issue before this Court, therefore, is whether the ALJ followed the correct procedure before finding that Dr. Vital-Herne's opinion was not controlling.
*
The ALJ cited four inconsistencies in the record that, in his view, provided evidence that the opinion of Dr. Vital-Herne was not entitled to controlling weight. These were that (1) despite Dr. Vital-Herne's reference to Hidalgo's inability to function outside a highly supportive living arrangement, Hidalgo continues to live alone; (2) Hidalgo indicated at his hearing and at the consultative evaluation that he socializes sometimes; (3) the clinical notes refer to some improvement over time; and (4) despite a low GAF score, Dr. Vital-Herne did not appear to recommend more frequent visits.
The Court disagrees with the ALJ that Dr. Vital-Herne's conclusions regarding Hidalgo's disability were not supported by evidence in the record. See Santiago, 441 F.Supp.2d at 628 (the treating physician rule instructs the ALJ to focus on whether the treating physician's opinion was consistent with "substantial evidence" in the record). The ALJ suggested that the fact that Hidalgo lives alone undercuts a finding a disability. But the record and the testimony show that he does so only with difficulty and with support. Hidalgo's nephew helps him pay his rent, and Hidalgo testified that he does "not always" have the mental capacity to clean his home. (R. 38: "There is sometimes [sic] when I say I'm going to clean my home but then I get sort of like a down, the depression, and I don't do it."). He can do errands only when he is "not in a . . . depressive state," (R. 40), and he grooms himself only after taking his medication, (R. 39: "Since I am depressed I take the medications and I wait until it comes down a little and then I bathe.").
The ALJ's determination was also based on his observation that Hidalgo "does socialize at times." (R. 22.) But at the hearing, Hidalgo indicated that he "quit" attending social functions, (R. 33), and that he does not go to "barbecues, fiestas, parties, dinners," (R. 33). He testified that he does not have any hobbies and that he is often afraid to go outside. He visits with family and friends and relatives once or twice a week "when [he doesn't] have the depression," but that, when he sees them, he talks "about [his] situation, [his] illness." (R. 34). It appears that Hidalgo's only regular activity is going to church once a week.
*
On the whole, the Court is not convinced that the treating physician's opinion was inconsistent with substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Clark, 143 F.3d at 118. The alleged inconsistencies cited by the ALJ reflect habits of a person who manages his life in a way that reduces sources of stress and anxiety. Accordingly, the Court cannot affirm the ALJ's decision to disregard the treating physician's opinion. Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 862 (2d Cir.1990) ("[C]ircumstantial critique by nonphysicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion.").
Even if the Court agreed that the treating physician's opinion was out of sync with the treating notes, the ALJ "did not have the luxury of terminating his inquiry" at that stage in the analysis. Morillo v. Apfel, 150 F.Supp.2d 540, 546 (S.D.N.Y.2001). Instead, each time the ALJ perceived an inconsistency, he had an affirmative duty to "seek clarification and additional information . . . to fill any clear gaps before dismissing the doctor's opinion." Calzada v. Astrue, 753 F.Supp.2d 250, 269 (S.D.N.Y.2010); see also Cleveland v. Apfel, 99 F.Supp.2d 374, 380 (S.D.N.Y.2000) ("When the opinion submitted by a treating physician is not adequately supported by clinical finding, the ALJ must attempt, sua sponte, to develop the record further by contacting the treating physician to determine whether the required information is available.").
Here, the ALJ relied on the gaps in the record to support his decision to disregard Dr. Vital-Herne's finding of disability. For example, the ALJ effectively faulted Hidalgo when he observed that Dr. Vital-Herne's GAF score was not coupled with a recommendation for more frequent visits. Such gaps reflect deficiencies in the record, not necessarily lack of credibility on the part of the plaintiff or his treating physician. See, e.g., Calzada, 753 F.Supp.2d at 275 (the fact that the record did not include information regarding plaintiff's depression to match plaintiff's several prescriptions for anti-depressants, suggests that the absence of any supporting evidence is attributable to "deficiencies in the administrative record rather than fabrication by plaintiff"); Tornatore v. Barnhart, 05 Civ. 6858(GEL), 2006 WL 3714649, at *3 (S.D.N.Y. Dec. 12, 2006) ("The absence of an opinion about specific functions or limitations is a gap to be filled, not a reason to discredit or disregard [the treating physician's] opinion."). Yet there is no evidence that the ALJ attempted to contact Dr. Vital-Herne to clarify these inconsistencies. Compare Cruz v. Astrue, 12 Civ. 953(GWG), 2013 WL 1749364, at *10 (S.D.N.Y. Apr. 24, 2013) (after the ALJ found inconsistencies in the record, he fulfilled his duty to develop the record by contacting the treating physician twice, even though the physician responded with insufficient information).
*
Moreover, even accepting, arguendo, that Dr. Vital-Herne's treatment opinion did not deserve controlling weight, the ALJ was still required to explain what weight he gave to the treating physician and provide "good reasons" for his calculation. Halloran, 362 F.3d at 33. The regulations instruct that "good reasons" include application the six factors specified above to determine the degree of weight the treating physician's opinion receives. 20 C.F.R. § 404.1527(c)(2)-(6); Schall, 134 F.3d at 505; see also Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984) ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or Secretary, . . . but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.") (citations omitted).
Once the ALJ determined that Dr. Vital-Herne's Mental Impairment Questionnaire was not controlling, he simply stated that, "considering the inconsistencies between Dr. Vital-Herne's report and the clinical notes, the report is not given controlling weight." (R. 22.) The ALJ did not specify what weight he attributed to Dr. Vital-Herne's opinion in relation to the other evidence, and he referenced only one of the six factors, the fourth one that refers to the internal consistency of the record. See 20 C.F.R. § 416.927(c). In his summary of the Dr. Vital-Herne's treating notes, the ALJ does not mention the length of the treatment relationship between the physicians and Hidalgo, the nature and extent of the treatment relationship, the evidence in the record that supports Dr. Vital-Herne's opinion, or whether Dr. Vital-Herne specializes in treatment of PTSD and depression. This is inadequate.
The ALJ's explanation of his reasoning did "not comprehensively set forth reasons for the weight assigned to a treating physician's opinion" and did not conform to the requirements of 20 C.F.R. § 404.1527(c)(2)-(6). Halloran, 362 F.3d at 33 ("We do not hesitate to remand when the Commissioner has not provided "good reasons" for the weight given to a treating physician's opinion and we will continue remanding when we encounter opinions from ALJ's that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."); Lopez v. Barnhart, 05 Civ. 10635(JSR), 2008 WL 1859563, at *13 (S.D.N.Y.2008) (remanding because it was "far from clear from the record what weight should have been assigned to [the treating physician's] opinion or what the disability determination would have been had the correct legal standards been applied"). Because the ALJ's decision was based on legal error, remand is appropriate.
*
The Regulations are clear that consulting physicians' opinions are entitled only to limited weight because of their typically superficial exposure to the plaintiff. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(E) ("The results of a single examination may not adequately describe your sustained ability to function. It is, therefore, vital that we review all pertinent information relative to your condition, especially at times of increased stress."); see also Santiago, 441 F.Supp.2d at 629 ("The Treating Physician Rule recognizes that a physician who has a long history with a patient is better positioned to evaluate the patient's disability than a doctor who observes the patient once for the purposes of a disability hearing. The rule is even more relevant in the context of mental disabilities, which by their nature are best diagnosed over time.") (citations omitted).
Dr. Meadow met Hidalgo only once, in September 2009. In contrast, Dr. Vital-Herne's notes span a period from April 2009 to January 2011, during which he met with Hidalgo nearly every month. While it is within the ALJ's discretion to conclude that the weight of the evidence supported Dr. Meadow's findings and not Dr. Vital-Herne's, the ALJ must be explicit about the relative weight of the opinions. To the extent that the ALJ actually relied on Dr. Meadow's opinion to reach his determination without providing "good reasons" for doing so — which the final outcome suggests — this was legal error. See Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y.2000) (the opinion of a physician who saw plaintiff only once deserves limited weight). The sole fact that two opinions contradict each other is not sufficient grounds to disregard that of the treating physician. Villanueva v. Barnhart, 03 Civ. 9021(JGK), 2005 WL 22846, at *12-13 (S.D.N.Y. Jan. 3, 2005)
Hidalgo argues that one of the ALJ's hypothetical questions posed to the vocational expert did not take into account Hidalgo's full range of impairments and was based on the reports of Dr. Meadow and Dr. Altmansberger, the non-treating physicians.
The Court is not in a position to evaluate this argument. The Court has already recommended that this case be remanded because of an incorrect application of the treating physician rule and for further development of the record. Once the perceived inconsistencies in the record have been cleared and the relative weights of the opinions of Drs. Vital-Herne, Meadow, and Altmansberger are clarified, any hypothetical posed to the vocational expert must be adjusted to match the evidence in the record. Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir.1983); Sanchez v. Barnhart, 329 F.Supp.2d 445, 449 (S.D.N.Y.2004) ("The ALJ must pose hypothetical questions to the vocational expert which reflect the full extent of the claimant's capabilities and impairments to provide a sound basis for the vocational expert's testimony.").
*
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2) (C), (D), (E), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Swain. The failure to file these timely objections will result in a waiver of those objections for the purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).
Filed Aug. 16, 2013.
Not Reported in F.Supp.3d, 2014 WL 2884018
Charles E. Binder, Binder & Binder, P.C., New York, NY, for Plaintiff.
Lorraine S. Novinski, Assistant United States Attorney, Southern District of New York, New York, NY, for Defendant.
SCHEINDLIN, J.
*
Plaintiff filed an application for SSI benefits and DIB on October 6, 2000. See Transcript of the proceedings ("Tr.")
Plaintiff was born on June 14, 1963. Tr. at 62. He was thirty-seven years old when he filed his application in October 2000. Id. at 22. He completed nine years of school but never obtained a general equivalency diploma, although he did undergo vocational training in carpentry. Id. at 22-23. Plaintiff lives with his wife and three-year old son in a building without an elevator. Because he lives on the second floor, plaintiff is required to walk up and down short flights of stairs to enter or exit his apartment building. Id. at 92.
Plaintiff testified that he last worked as a hotel manager for about a year in 1994. Id. at 23-24. His duties included answering phones, informing people as to room availability and capacity, and ordering cleaning materials for the building. Id. Plaintiff testified that he had previously worked as a security guard, which required him to sit in a booth and walk around the perimeter of a building to make sure everything was in order. Id. at 25. However, in his application, plaintiff wrote that his injuries first bothered him on August 9, 1994, and he stopped working due to those injuries on January 21, 1997. However, he also checked "NO" to the question, "Did you work at any time after the date your illnesses, injuries or conditions first bothered you?" Id. at 52. Consequently, the record is somewhat inconsistent as to when plaintiff stopped working.
*
Dr. Philome Gracia, an internist at the Narco Freedom Clinic, examined plaintiff on July 21, 2000. Id. at 97-105. Dr. Gracia diagnosed plaintiff as being ambulatory with right knee pain. Dr. Gracia further diagnosed chronic opiate dependence and post-traumatic stress disorder. He recommended the continuation of methadone treatment as well as treatment with Elavil and Celebrex. Id. at 100-01.
Dr. Kenneth Alper, a psychiatrist, examined plaintiff on September 27, 2000. Plaintiff acknowledged a past suicide attempt, past criminal convictions, and past heroin use. Plaintiff also informed Dr. Alper that he was attending a group program at the International Center for the Disabled ("ICD"), where he was being treated by Dr. Bihari. Additionally, he was being treated by Dr. Hyder at "New Beginnings." Dr. Alper sent plaintiff for an EEG, the result of which was normal. Id. at 108-09.
The Social Security Administration ("SSA") contacted Dr. Batari in order to obtain his medical opinion regarding plaintiff's disability. Dr. Batari informed the SSA that he saw plaintiff every two months for medication management and evaluation. He diagnosed plaintiff with heroin abuse, in remission, and dysthymia, in partial remission. Dr. Batari made the following findings. Plaintiff was independent, not formally thought disordered, not suicidal, nor a threat to others. Plaintiff's intellect was average with attention and concentration span intact for simple tasks on an ongoing basis. Dr. Batari felt that although plaintiff was somewhat depressed, he had gained insight into the detrimental aspects of his substance abuse and was somewhat better. Plaintiff had coherent speech and was goal oriented, and resided with his spouse in an amicable relationship. Plaintiff could pursue simple repetitive work if he maintained his daily Zoloft medication regimen. Id. at 70.
On March 26, 1999, plaintiff was taken to the Lincoln Medical and Mental Health Center ("LMMHC") complaining that he felt as if he was about to have a seizure. Id. at 89-90. Plaintiff reported that he had a history of seizures since he sustained a head trauma in 1988. Id. at 89. Laboratory tests indicated that plaintiff's phenytoin level was less than 3.5 μg/mL, far below the effective plasma concentration of 10-20 μg/mL. Id. at 88.
*
Plaintiff returned to LMMHC on September 30, 1999, complaining of increasing pain in his knee, which was not alleviated by Tylenol or Motrin. He reported knee pain and arthritis since 1983. A knee examination showed no swelling or tenderness. The doctor's diagnosis was seizure disorder, for which he recommended continuing Dilantin, and osteoarthritis in the knee. Id. at 80.
On October 6, 1999, Plaintiff went to the orthopedic clinic at the LMMHC. The record indicates that an MRI, CT scan and x-rays all revealed osteoarthritic changes in the knee, tears of the medial and lateral menisci and depression of the medial plateau. Upon examination, the physician noted tenderness in the knee. The physician's diagnosis was osteoarthritis of the right knee with a history of tears of the menisci. His recommendation was surgery at a later point in plaintiff's life, a knee support, physical therapy, and daily use of Voltaren, an anti-inflammatory. Id. at 79.
Dr. Babu Patel, a physician specializing in internal medicine, examined plaintiff on July 19, 2000, on behalf of the SSA. Plaintiff reported that he suffered from post-traumatic stress disorder following a motor vehicle accident in 1997, and intermittent depression, yet reported no history of attempted suicide or hospitalization. Plaintiff also reported a motor vehicle accident that occurred in 1983, which caused a fracture of his right knee for which he underwent surgery at St. Barnabas Hospital. He complained of present pain in his right knee and stated that he could not bend his right knee and that he used a cane for walking. Plaintiff's reported medications included methadone, Elavil and Celebrex. Id. at 92.
Dr. Jorge Kirschtein, a psychiatrist, examined plaintiff on August 1, 2000. Plaintiff reported that he arrived by train unaccompanied. He informed Dr. Kirschtein that he lived with his wife and son, had no friends, and had no difficulty in accomplishing daily activities such as traveling. Plaintiff explained that he was unable to work due to anxiety, depression and substance abuse of many years duration. In addition to depression, plaintiff reported being in a motor vehicle accident in 1997 and suffering from post-traumatic stress disorder since then. He claimed that at one point, he had tried to commit suicide while at Riker's Island. Id. at 106.
Dr. Kirschtein found that plaintiff's allegations were not fully consistent with his examination. Dr. Kirschtein found that plaintiff's ability to understand, carry out and remember instructions was severely impaired, while his ability to respond appropriately to supervision, co-workers and work pressure in a work setting was moderately impaired. Dr. Kirschtein found that plaintiff's activities of daily living were moderately impaired, his social functioning was mildly impaired, and his concentration and persistence in completing tasks in a timely manner were severely impaired. Dr. Kirschtein recommended three months of case management with a dual diagnosis program. He also stated that if plaintiff was compliant with the recommended treatment and if neurological testing showed some impairment, SSI would most likely be the outcome. Id. at 107.
*
Plaintiff also reported a seventeen-year history of joint pains and pain in his right knee. He described difficulty walking and reported using a cane and taking Celebrex twice a day for pain. Plaintiff additionally reported a four-year history of depression for which he took Elavil and Zoloft and saw a psychiatrist. He told Dr. Graham that he had never considered suicide. Id.
Dr. Graham performed a complete physical examination on plaintiff, including an examination of the eyes, ears, nose, throat, neck, spine, chest, heart, abdomen, and extremities as well as a neurological exam, and laboratory exams. Id. at 111. Dr. Graham's final assessment was seizure disorder by history, joint pain by history, mild limitation of function in the right knee, and psychiatric disorder by history. He listed plaintiff's capabilities as being able to sit, stand and walk, although limited by right knee problems, lift objects, but heavy lifting/carrying limited by knee problems, handle objects, hear, speak, and travel, with some travel limitations due to knee problems. Id. at 112.
Dr. Edward Vadeika, a psychiatrist, evaluated plaintiff on November 22, 2000. Plaintiff reported mental distress of three to four years duration. Plaintiff reported feeling depressed and anxious all the time with recurring nightmares and flashback memories of a trauma he suffered several years ago. Plaintiff reported the following symptoms to Dr. Vadeika: difficulty sleeping and concentrating, forgetfulness, and visual and auditory hallucinations. He also told Dr. Vadeika that he attempted suicide on three different occasions. Plaintiff admitted to sniffing heroin and drinking alcohol excessively. He reported receiving therapy at the International Center for the Disabled and taking Amitriptyline and Sertraline (anti-depressants) daily. Id. at 115.
Dr. Vadeika diagnosed plaintiff as having major depression, opiate dependence (methadone maintenance) and abuse in partial remission, and alcohol dependence in partial remission. Id. at 116-17. He further diagnosed plaintiff as having status post old gunshot wound to left arm by history, status post right knee fracture by history, left knee arthralgia by history, and right hip arthralgia by history. Dr. Vadeika described plaintiff's prognosis as guarded, and recommended continuing psychiatric treatment and methadone maintenance. Dr. Vadeika stated that he did not consider plaintiff capable of managing his funds and any benefit payments he might receive in the future. Id. at 117.
*
In reviewing a denial of disability benefits, the Act provides that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.2003). 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." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999). 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. Id.
In deciding disability claims, the ALJ must follow a five step process. See 20 C.F.R. §§ 404.1520, 416.920. 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. Finally, if the claimant satisfies his 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. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002).
The ALJ determined that plaintiff had "not performed substantial gainful activity at least since the application date." Tr. at 13. The ALJ then determined that although the evidence established the existence of a "severe impairment involving back and knee disorders, epilepsy and depression . . . there does not exist any medical findings which meet or equal in severity the olinical criteria of any impairment listed in Appendix 1, Subpart P to Regulations No. 4." Id. at 13-14. The ALJ next found that plaintiff retained the residual functional capacity
*
The regulations require an ALJ to give a treating physician's opinion on the nature and severity of a claimant's impairments controlling weight when it 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. §§ 404.1427(d)(2), 416.927(d)(2). When a treating physician's opinion is not given controlling weight, the ALJ must apply a series of factors in determining the weight to give such an opinion. See id. These factors include: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the opinion's consistency with the record as a whole; and (3) whether the opinion is from a specialist. See id. "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999).
The record here contains reports from two of plaintiff's treating physicians, Dr. Gracia and Dr. Alper as well as reports from LMMHC.
Due to the non-adversarial nature of a disability benefits hearing, the ALJ has an affirmative duty to develop the administrative record.
*
At his hearing, plaintiff testified that he had arthritis in his spine, vision problems, seizures, pain in his knee, and depression. Tr. at 25-29. He also testified that he could not bend, walk, stand or sit for more than two or three minutes before he begins to feel pain. Id. at 30, 32. The ALJ determined that plaintiff's subjective complaints of disabling pain, precluding any type of gainful employment, were not fully credible. Tr. at 14. The ALJ stated that he carefully considered: (1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) precipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) treatment, other than medication, for relief of pain; (5) functional restrictions; and (6) the claimant's daily activities and work record. Id. Because these are the considerations required by the regulations, the ALJ has met his burden.
While plaintiff contends that the ALJ did not fully investigate the demands placed upon a typical security guard, both his hearing testimony and his memorandum in support of his motion for judgment on the pleadings indicate that plaintiff's most recent work had been as a hotel manager and was more akin to a desk clerk. Tr. at 24; Pl. Mem. at 1. This position required very minimal, if any, walking at all. Based on these representations, the ALJ should determine whether plaintiff has the residual functional capacity to perform his past relevant work as a desk clerk.
In sum, because the Commissioner failed to fully develop the record and failed to explain why he discounted the opinions of the treating physicians that were contained in the record, I cannot conclude that the Commissioner's finding of no disability is supported by "substantial evidence."
Given these errors, this matter is remanded for further administrative proceedings. On remand, the Commissioner should obtain detailed reports from plaintiff's treating physicians, to the extent available, describing plaintiff's diagnoses and physical/mental limitations, and how they affect his ability to perform various work-related activities. These reports should be used to determine whether or not plaintiff is disabled. In addition, if the ALJ chooses to discount the reports of plaintiff's treating physicians, he must fully explain his reasons for doing so. Finally, the Commissioner should locate the missing page of Dr. Kirschtein's report.
*
Not Reported in F.Supp.2d, 2004 WL 235260, 93 Soc.Sec.Rep.Serv. 444
PECK, Magistrate J.
*
For the reasons set forth below, the Commissioner's motion is denied and Jimenez's cross-motion is granted only to the extent of remanding to the Commissioner.
On April 21, 1998, plaintiff Felix Jimenez applied for Social Security SSI and disability benefits, alleging an inability to work since September 11, 1997. (Dkt. No. 9: Administrative Record filed by the Commissioner ("R.") at 65-67, 75-82, 341-43.) Jimenez claimed that he was unable to work due to diabetes, bleeding ulcers and poor vision. (R. 77.) Jimenez's applications were denied initially (R. 42-44) and on reconsideration (R. 47-50). At Jimenez's request (R. 51), a hearing was held before an Administrative Law Judge ("ALJ") on December 14, 1998 (R. 28-39). On April 27, 1999, the ALJ issued his decision finding that Jimenez was not disabled. (R. 10-21.) The ALJs decision became the final decision of the Commissioner when the Appeals Council denied Jimenez's request for review on September 8, 2000. (R. 4-6.) This action followed.
The issue before the Court is whether the Commissioner's decision that Jimenez was not disabled was properly determined without counsel and without further inquiry to his medical records.
On December 14, 1998, a hearing was held before ALJ Dennis G. Katz. (R. 28.) Jimenez testified through a Spanish language interpreter. (R. 30.) Before taking testimony, the ALJ discussed the procedure for the hearing with Jimenez. (R. 30-31.) The ALJ commented that Jimenez had a Notice of Hearing in front of him, and that this Notice of Hearing informed Jimenez of his rights:
*
Jimenez, who was born in 1946 (e.g., R. 65), was fifty-two years old at the time of the hearing. He was born in the Dominican Republic (R. 13, 35), and arrived in the United States in 1980 (R. 35). Jimenez was educated through the eighth grade and able to read and write in Spanish and understand and speak minimal English. (R. 35-36.) He worked through the beginning of 1996 as a floor cleaner in a factory. (R. 32-33, 81.) Jimenez testified that he had to stop working due to a bleeding ulcer and because of his diabetes, which made him "very dizzy." (R. 33.)
Jimenez testified that his diabetes causes pain in his legs and that he has to monitor his blood. (R. 31-32, 36-37.)
He explained that he takes Naprosyn
Jimenez testified that he also takes medication for his diabetes, and that he checks his own blood sugar levels in order to properly medicate. (R. 36-37.)
Jimenez cited his bleeding ulcer (as well as his diabetes) as the reason he stopped working. (R. 33.) The treatment for Jimenez's bleeding ulcer began in 1997 at "Junio" (R. 34) — apparently a reference to Union Hospital (R. 145). Jimenez was sent by "Junio" to St. Barnabas that same day, and Jimenez still receives treatment at St. Barnabas for his stomach in the form of daily medication. (R. 34, 37.) When asked if the medication helps his stomach, Jimenez explained that the medication "all eviates it, but then I still continue having a lot of pain in my stomach." (R. 37.)
When the ALJ asked Jimenez if there was anything else about his medical condition that the ALJ should know, Jimenez testified that he has "problems with [his] eyesight," was unable to read or write anything without his glasses, and wears glasses all the time. (R. 38.)
The ALJ closed the brief hearing by informing Jimenez that he would review all the medical evidence and then issue a written opinion. (R. 38.)
The medical evidence in the record includes records from St. Barnabas Hospital covering the period when Jimenez was hospitalized for gastrointestinal bleeding from September 11, 1997 until September 13, 1997 (R. 96-108, 132-76) as well as records of Jimenez's continued care at St. Barnabas (R. 177-340).
*
Jimenez continued to be treated at St. Barnabas through at least December 16, 1998, i.e., through at least the time of his hearing before the ALJ (R. 260-61.) Jimenez's treatment at St. Barnabas consisted of numerous follow-up visits for his ulcer, Type II diabetes and vision. (R. 178-340.) Jimenez's physicians kept him on medications throughout his treatment, and monitored his conditions. (R. 178-340.)
On September 18, 1997, Jimenez had his first post-hospitalization follow-up visit at St. Barnabas. (R. 225-28.) The doctor reported that Jimenez was in good condition and was taking Diabeta for his diabetes. (R. 225.) At Jimenez's next follow-up visit on October 2, 1997, he was prescribed Pepcid for his ulcer.
On January 8, 1998, Jimenez visited St. Barnabas for another follow-up appointment. (R. 211-12.) Jimenez complained of mild epigastric discomfort. (R. 211.) On January 22, 1998, Jimenez told St. Barnabas that he felt "very well," with "no complaints." (R. 209.) On February 19, 1998, Jimenez returned to St. Barnabas for a follow up visit, where he complained of "a bitter taste in the mouth, especially during the night." (R. 207.) Jimenez also complained of hoarseness in his voice and a fever. (R. 207.) The doctor placed Jimenez on Glyburide for his diabetes.
On July 2, 1998, Jimenez returned to St. Barnabas complaining of mild epigastric discomfort. (R. 197.) On July 28, 1998, Jimenez came for prescription refills and had no complaints. (R. 194.) On Jimenez's next follow-up visit on September 11, 1998, the doctor prescribed Naprosyn for Jimenez's joint pain. (R. 190-91.) On October 8, 1998, Jimenez visited a dietician in order to help control his diabetes and ulcer. (R. 186.) The dietician indicated that Jimenez understood the diet recommendation of small and frequent meals. (R. 186.) On October 10, 1998, when Jimenez went to St. Barnabas for follow-up, he remained on Glyburide, Prilosec and Naprosyn and had no complaints except for some "bloating." (R. 182.) The doctor noted that Jimenez's diabetes was under "poor control." (R. 182.)
*
On November 13, 1998, the doctor at St. Barnabas found that Jimenez had "unsatisfactory sugar control." (R. 180.) The doctor noted that Jimenez had Type II diabetes and recommended that Jimenez begin to check his blood sugar levels at home. (R. 180.) On November 28, 1998, Jimenez had another follow-up visit at St. Barnabas. (R. 178.) Jimenez's diabetes was not under control, and the doctor told Jimenez to take an additional daily dosage of Glyburide. (R. 178-79.) On December 16, 1998, when Jimenez returned to St. Barnabas once again for blood sugar monitoring, the doctor noted that his diabetes was "still poorly controlled." (R. 187.)
Jimenez also went to optometrists at St. Barnabas for his eyes. (R. 189, 192-93, 196, 202, 204.) Jimenez was given prescription eye drops on at least three occasions. (R. 189, 193, 196.) Jimenez complained that his eyes felt hot, especially when it was hot outside. (R. 189, 196.) Jimenez also complained that his eyes teared and that he could not read without his glasses. (R. 204.) In addition, Jimenez told the optometrist that he had trouble walking because he felt dizzy. (R. 204.)
On May 14, 1998, Dr. Wei Kao, an internist from K-M.D. Medical Services, examined Jimenez as a consultative examiner on behalf of the Commissioner. (R. 115-18.) Dr. Kao's report stated that Jimenez requested disability on the basis of diabetes, joint pain, and peptic ulcer. (R. 115.) Dr. Kao took a medical history from Jimenez, who reported diabetes for nine years for which he currently took Glyburide, joint pains for three years for which he took Tylenol, and a peptic ulcer for eight months for which he took Ranitidine and Prilosec. (R. 115.)
Dr. Kao concluded that Jimenez's diabetes was "stable." (R. 118). Regarding Jimenez's joint pain, Dr. Kao found that Jimenez had no difficulty undressing or dressing or getting on or off the examining table, and that Jimenez's joints had a full range of motion with "no swelling, deformity, redness or heat." (R. 116, 117.) Dr. Kao noted that Jimenez's "[m]uscle strength is adequate, symmetrical and commensurate with body build," and that Jimenez could make a fist, squat and stand on his toes normally. (R. 117.) Dr. Kao stated that Jimenez suffered from "mild degenerative joint disease." (R. 118.) Finally, Dr. Kao noted that Jimenez's pepticulcer disease was "stable." (Id.)
On June 1, 1998, Dr. Marasegan performed a Residual Physical Functional Capacity Assessment on Jimenez and concluded that Jimenez did not have any physical limitations. (R. 123-29.) Dr. Marasegan did not find any exertional (R. 124), postural (R. 125), manipulative (R. 126), visual (R. 126), communicative (R. 127) or environmental limitations (R. 127).
*
As to Jimenez's ulcer, the ALJ stated that Jimenez had been diagnosed with a clean gastric ulcer, and that the endoscopy report noted that the risk of rebleed was low. (R. 16.) The ALJ found that upon discharge, Jimenez was in stable condition and doing well, and that Jimenez reported improvement after being diagnosed. (R. 16.) The ALJ noted that Jimenez took Ranitidine and Prilosec for his ulcer. (R. 17.) The ALJ noted that Jimenez was in stable condition, and that medical records from December 1997 and January 1998 showed that Jimenez "had no complaints . . . and that he was feeling `very well."' (R. 16.)
As to Jimenez's joint pain, the ALJ noted that when Jimenez complained of pain in February 1998, he was only advised to take Tylenol. (R. 16.) The ALJ noted that Jimenez "reported a 3 years history of joint pain . . . [and] difficulty in walking and in combing his hair." (R. 17) The ALJ found that in October 1998 Jimenez started taking a non-steroidal anti-inflammatory medication for his joint pain, and that "such medication provides `good relief." '(R. 16.)
As to Jimenez's diabetes, the ALJ found Jimenez reported "a 9 year history of diabetes for which he takes Glyburide." (R. 17.) The ALJ stated that as of November 1998, Jimenez's "diabetes mellitus had not been satisfactorily controlled" and that Jimenez "said that he feels `ok."" (R. 18.) As of December 1998, Jimenez's "diabetes was still poorly controlled, but it was determined that [Jimenez] was not compliant with his diabetic medication."
The ALJ summarized that "in evaluating the claimant's complaints regarding all symptoms, including but not limited to pain, fatigue, shortness of breath, weakness and/or nervousness, the undersigned has considered the nature, location and intensity of the pain and other symptoms, any precipitating or aggravating factors, the effectiveness of medication and other treatment . . . [and] [t]he undersigned finds that the claimant's allegations of symptoms and limitations, as well as his testimony, are not supported by the aforementioned objective clinical evidence or by his own statements and admissions." (Id.) The ALJ noted that "[s]ome of the claimant's testimony was equivocal and misleading" and that Jimenez's allegations "are simply not supported by the medical evidence and are being taken at less than full value as a result of some of the inconsistencies previously noted in the claimant's testimony, which tends to be exaggerated." (Id.)
*
A person is considered disabled for Social Security benefits purposes when he 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 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir.2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996).
is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A); see, e.g., Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.1983).
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Shaw v. Chater, 211 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Tejada v. Apfel, 167 F.3d at 773; Rosa v. Callahan, 168 F.3d at 77; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Perez v. Chater, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991); Mongeur v. Heckler, 722 F.2d at 1038; Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983).
*
However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error."' E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). The Second Circuit has articulated the five steps as follows:
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); accord, e.g., Shaw v. Chater, 221 F.3d at 132; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995).
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Curry v. Apfel, 209 F.3d at 122; Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467.
*
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
20 C.F.R. § 404.1527(d)(2); see, e.g., Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998).
Jimenez's counsel asserts that the ALJ "did not obtain the necessary intelligent, knowing and voluntary waiver of [Jimenez's] right to counsel."
*
"Moreover, it is the rule in our circuit that the ALJ unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." Tejada v. Apfel, 167 F.3d 770, 774-75 (2d Cir.1999) (internal quotations & alterations omitted); accord, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996); Cruz v. Sullivan, 912 F.2d at 12; Echevarria v. Secretary, 685 F.2d at 755.
"[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well, as in this case, [the courts] have `a duty to make a "searching investigation" of the record' to make certain that the claimant's rights have been adequately protected." Cruz v. Sullivan, 912 F.2d at 11 (quoting Gold v. Secretary, 463 F.2d at 43); see, e.g., Echevarria v. Secretary, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d at 895.
The ALJ is thus obligated to explore the facts by obtaining relevant medical records and asking questions of a pro se claimant to assist the claimant in developing his case. See, e.g., Rosa v. Callahan, 168 F.3d at 80 (ALJ required to request additional records from physicians); Perez v. Chater, 77 F.3d at 47 (ALJ required to make "`every reasonable effort to help [the claimant] get medical reports from [his] own medical sources"') (quoting 20 C.F.R. § 404.1512(d)); Cruz v. Sullivan, 912 F.2d at 11 (ALJ required to obtain hospital records and ask plaintiff about his asthma attacks); Echevarria v. Secretary, 685 F.2d at 755-56 (ALJ failed to explore claimant's subjective complaints or obtain necessary medical records).
The ALJs responsibility to assist a claimant in obtaining the claimant's medical records carries particular importance in light of the well-established treating physician rule, which requires an ALJ to grant special deference to the opinions of a claimant's treating physicians. (See pages 16-17 above.) As Judge Glasser explained:
*
In this case, while the ALJ had all of Jimenez's medical records, that was not enough. The ALJ had Jimenez's medical records from St. Barnabas Hospital. (See R. 30-31, 96-108, 132-340.) When Jimenez began his testimony, the ALJ asked Jimenez if he needed to add any medical records to his file. (R. 31.) Jimenez responded: "Like what?" (Id.) The ALJ explained that he wanted to be sure he had all of Jimenez's medical evidence. (Id.) Jimenez referred to the list of his medications and the ALJ responded that he saw the medication list in the file. (Id.) While this colloquy was somewhat inconclusive, just a few pages later Jimenez acknowledged that all of his medical records were in the St. Barnabas records and that "all the records are there," i.e., in the exhibit before the ALJ. (R. 34.) (See pages 2-3 above.) Jimenez is represented by counsel here and his counsel does not suggest any particular treating source medical records that the ALJ should have obtained. Thus, this is not a case where the ALJ failed to obtain the claimant's medical records. Compare, e.g., Jones v. Apfel, 66 F.Supp.2d 518, 539 (S.D.N.Y.1999) (Pauley, D.J. & Peck, M.J.) (ALJ failed to obtain medical records from some of claimant's treating sources); Craven v. Apfel, 58 F.Supp.2d 172, 186 (S.D.N.Y.1999) (Preska, D.J. & Peck, M.J.) (same).
Nonetheless, there were serious shortcomings with the ALJs examination of Jimenez's case. The ALJ should have: (1) questioned Jimenez more thoroughly concerning his testimony, (2) developed Jimenez's functional capacity, and (3) obtained more detailed opinions from Jimenez's treating physicians, or informed Jimenez that his claim was unpersuasive and that Jimenez could obtain more detailed statements and opinions from his treating doctors.
First, the ALJ should have questioned Jimenez more thoroughly concerning various aspects of his testimony. The entire hearing transcript is only nine pages long. (R. 30-39.) Despite references in the medical record to Jimenez's arthritis (see, e.g., R. 216), the ALJ never directly questioned Jimenez about this condition, despite its relevance to determination of whether Jimenez's joint pain was severe enough to qualify as a listed impairment. When the ALJ did inquire about the pain in Jimenez's legs (R. 31, 37), Jimenez replied that the Naprosyn only helps "a little," and that he always felt pain in his legs, especially while walking and at night. (R. 31.) Jimenez even mentioned that he had been seen by a specialist for his legs. (R. 37.) The ALJ did not ask further questions about Jimenez's complaints of subjective leg pain but rather proceeded to ask Jimenez how far the hospital is from his house. By failing to ask Jimenez more detailed questions about his arthritis and leg pain, the ALJ failed to adequately fulfill his affirmative obligation to assist Jimenez in developing his case by failing to explore the nature and extent of Jimenez's subjective symptoms. See, e.g., Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755-56 (2d Cir.1982) ("The ALJ failed adequately to explore the nature and extent of [the claimant]'s subjective symptoms . . . [D]espite numerous references in the medical records and testimony by [the claimant] concerning his subjective symptoms of serious pain, the ALJ did not fully inquire into what specifically caused [the claimant] to leave his job or the full degree of the pain and the extent to which it prevents him from working."); Fernandez v. Schweiker, 650 F.2d 5, 9 (2d Cir.1981) (case remanded where, inter alia, the "[c]laimant was only perfunctorily questioned by the administrative law judge as to the extent of her ailments"); Hankerson v. Harris, 636 F.2d 893, 895-96 (2d Cir.1980) ("[W]here the medical record before the ALJ contained a number of references to plaintiff's subjective symptoms, it was particularly important that the ALJ explore these symptoms with plaintiff so that the ALJ could effectively exercise his discretion to evaluate the credibility of the claimant in order to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of pain alleged by the claimant.") (internal quotations & alterations omitted); Gonzalez v. Apfel, 113 F.Supp.2d 580, 587 (S.D.N.Y.2000) ("Rather than abruptly ending his inquiry here, the ALJ . . . should have also posed a thorough set of follow-up questions. . . ."); Lopez v. Apfel, 98 Civ. 9036, 2000 WL 633425 at *10 (S.D.N.Y. May 17, 2000) ("It is worth noting that the transcript of the ALJ hearing is only eleven pages long. . . . `[T]he record is replete with instances where the ALJ should have questioned plaintiff more fully concerning various aspects of his testimony.' . . . In failing to ask more questions at the hearing, both about the extent to which plaintiff's [medical condition] imposed a `marked limitation of function' and about whether plaintiff's [medical condition] was `responding to prescribed treatment,' the ALJ did not adequately develop the record."); Craven v. Apfel, 58 F.Supp.2d 172, 187 (S.D.N.Y.1999) (Preska, D.J. & Peck, M.J.) ("The ALJ should have questioned [plaintiff] more fully concerning various aspects of her testimony."); Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290 at *4 (S.D.N.Y. Feb.20, 1998) (Sotomayor, D.J.) ("The record is replete with instances where the ALJ failed to question the plaintiff fully — or at all — concerning critical aspects of his claim."); Rodriguez v. Apfel, 96 Civ. 1132, 1997 WL 691428 at *6-7 (S.D.N.Y. Nov.4, 1997) (remanding to SSA where "the ALJ failed to prob@e into the severity of [plaintiff's] inflammation and its impact on his capabilities and functions. . . . [T]he ALJ did not adequately explore [plaintiff's] condition or allow him to explain all of his medical problems."); Mejias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *7 (S.D.N.Y. Sept.23, 1998) (remanding where "[l]ess than a page of the hearing transcript consists of questions about plaintiff's subjective symptoms, although the Second Circuit has repeatedly emphasized that a claimant's testimony concerning her pain and suffering `is not only probative on the issue of disability, but "may serve as the basis for establishing disability. . .""'); Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at *6 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.) ("By not questioning plaintiff about her subjective claims of bronchitis, suffering with her legs, arthritis in her knee cap, and other ailments, the ALJ did not satisfy his duty to assist the plaintiff in developing the record so that all of the elements of proving the plaintiff's disability were available to be considered.").
*
Third, the ALJ should have called Jimenez's treating doctors to testify or at least instructed Jimenez to obtain more detailed and clearer statements from his treating physicians, especially since the medical reports which appear in the administrative record are often illegible and do not contain any conclusions. See, e.g., Pratts v. Chater, 94 F.3d 34, 38 (2d Cir.1996) ("[T]he medical records that do appear in the record are frequently incomplete or illegible and provide no coherent overview of [plaintiff's] treatment."); Vaughn v. Apfel, 98 Civ. 0025, 1998 WL 856106 at *7 (S.D.N.Y. Dec.10, 1998) ("The problem here however is that the ALJ did not specifically request the doctor's opinion as to the plaintiff's claimed disabilities, . . . despite the fact that the treating physician's opinion is all but controlling in social security cases. . . . [T]he Court must remand this case in order to obtain oral testimony or a legible (preferably typed) opinion from the treating doctor. Indeed, courts have held that illegibility of important medical records is a factor in warranting a remand for darification and supplementation."), clarification on reconsideration, 1999 WL 314163 (S.D.N.Y. May 18, 1999); Taveras v. Apfel, 97 Civ. 5369, 1998 WL 557587 at *5 (S.D.N.Y. Sept.2, 1998) (remand appropriate where, inter alia, records are illegible); Rodriguez v. Apfel, 97 Civ. 1132, 1997 WL 691428 at *5 (S.D.N.Y. Nov.4, 1997).
*
The ALJ had a duty to inform Jimenez that he could call, subpoena or request a clearer statement from his treating physicians. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79-80 (2d Cir.1999); Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir.1990) ("We have repeatedly stated that when the ALJ rejects the findings of a treating physician because they were conclusory or not supported by specific clinical findings, he should direct a pro se claimant to obtain a more detailed statement from the treating physician."); Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 756 (2d Cir.1982) ("`basic principles of fairness require that the [ALJ] inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement"') (quoting Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir.1980) ("The ALJ also erred in failing to advise plaintiff that he should obtain a more detailed statement from his treating physician.")); Jones v. Apfel, 66 F.Supp.2d 518, 540 (S.D.N.Y.1999) (Pauley, D.J. & Peck, M.J.) (& cases cited therein); Mejias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *6 (S.D.N.Y. Sept.23, 1998) (remand appropriate where ALJ "did not consider exercising his authority to issue subpoenas" in order to produce additional evidence or "inform plaintiff that she should — or even could — produce additional evidence or call her treating physicians as witnesses"); Rosa v. Apfel, 97 Civ. 5831, 1998 WL 437172 at *4 (S.D.N.Y. July 31, 1998) ("At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that he considers the claimant's case unpersuasive and suggest that he produce additional evidence or call his treating physician as a witness."); Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290 at *5 (S.D.N.Y. Feb.20, 1998) (Sotomayor, D.J.) ("ALJ had a duty to inform [pro se] plaintiff of his ability to call or subpoena [treating physician] as a witness"); Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at *5 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.) ("[B]efore denying a pro se claimant's application, the ALJ should advise the claimant that he considered his or her case unpersuasive, and suggest that he or she produce additional medical evidence or call his or her treating physician as a witness.") (internal quotations & alterations omitted); Rivera v. Chater, 942 F.Supp. 178, 183-84 (S.D.N.Y.1996) (where medical information supplied by treating physician is insufficient, "the ALJ has a duty to inform a pro se claimant of the inadequacies and the remedial action required"); Carroll v. Secretary of Health & Human Servs., 872 F.Supp. 1200, 1204 (E.D.N.Y.1995); Santiago v. Schweiker, 548 F.Supp. 481, 486 (S.D.N.Y.1982).
*
For all of the above reasons, the case is remanded to the Commissioner to further develop the record. As the Second Circuit has explained:
Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.1999) (internal quotations & alterations omitted); see also, e.g., Hankerson v. Harris, 636 F.2d at 896 (remand "appropriate due to the ALJs failure to assist this pro se litigant in securing all of the relevant medical testimony.").
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied and Jimenez's motion for judgment on the pleadings is granted to the extent of remanding to the Commissioner for further proceedings consistent with this Opinion.
SO ORDERED
Not Reported in F.Supp.2d, 2001 WL 935521, 74 Soc.Sec.Rep.Serv. 472
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
*
Molina applied for SSI benefits on October 18, 2010, alleging that he became disabled on June 1, 2003. See Administrative Record, filed Nov. 6, 2013 (Docket # 13) ("R"), 89-97. Molina contends that he is entitled to SSI benefits because he became disabled after he was involved in a motor vehicle accident in April 2003. R. 89; 151-55. In response to an SSI application question that asked Molina to list all of the physical conditions that "limit your ability to work," Molina wrote "chronic backache." R. 108.
On January 21, 2011, the Commissioner denied Molina's application for SSI benefits. R. 43-47. Molina requested a hearing before an administrative law judge ("ALJ"). R. 48-50. A hearing before an ALJ was held on April 26, 2012. R. 20-42. On May 14, 2012, the ALJ issued a decision finding that Molina was not disabled. R. 5-16. The Appeals Council denied Molina's request for review on May 6, 2013. R. 1-4. On July 3, 2013, Molina filed the instant pro se lawsuit seeking review of the ALJ's decision under 42 U.S.C. §§ 405(g) and 1383(c)(3). See Complaint, filed July 3, 2013 (Docket # 2). On November 6, 2013, the Commissioner moved for judgment on the pleadings. See Notice of Motion, filed Nov. 6, 2013 (Docket # 14); Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings, filed Nov. 6, 2013 (Docket # 15) ("Comm'r Mem."). When Molina failed to respond to the Commissioner's motion, or submit any other correspondence since the case was filed, the Court issued an order requiring him to inform the Court whether he sought additional time to oppose the motion. See Order, dated Jan. 16, 2014 (Docket # 20). Molina sent a letter to the Court on February 3, 2014, indicating that he was requesting additional time to file opposition papers because he had "not been able to obtain legal representation." See Letter, dated Feb. 3, 2014 (Docket # 22). The Court thereafter extended Molina's time to respond to the Commissioner's motion until February 28, 2014. See Order, dated Feb. 7, 2014 (Docket # 23). Notwithstanding this extension of time, Molina has filed no papers in opposition to the Commissioner's motion.
The Commissioner has provided a summary of the medical evidence contained in the administrative record. See Comm'r Mem. at 2-8. Molina has not contested the Commissioner's summary of this evidence. Having examined the administrative record, the Court incorporates by reference the Commissioner's summary as accurate and complete.
*
With regard to his alleged disability, Molina testified that his main impairments concerned his "lower back," his "upper back," and his "neck." Id. He explained that he was in a motor vehicle accident in 2003 and "went through the whole process . . . MRI's and stuff and therapy and stuff." Id. He testified that he had undergone MRI's in 2003 and 2011, R. 33, and that he has "had many treatments," id. These included "physical therapy" and "pain management," but Molina stated, "basically they have not been able to do anything for me. So I have been basically taking Advil's, and Motrin's and stuff of that nature." Id. The ALJ asked if Molina had undergone any surgical procedures, and Molina responded that after the 2011 MRI was taken, "the doctor then suggested that I either take surgery or injections, and I refused to take both of them." Id. With respect to Motrin and ibuprofen, Molina stated, "[t]hey seem to work a lot better, and the symptoms are not as bad as the drugs that I've taken." Id. He stated that he did not take any other medications besides the ones he mentioned. Id.
The ALJ asked Molina if he suffered from any other conditions, aside from his back problems, and Molina stated that he had "been suffering for the past few years of sinusitis and sinus infection," and that he had sought treatment for these issues and was "presently under the same medication." Id. He added, "[t]hat seems to be working fine for me." R. 33-34. The ALJ noted that the record contained a diagnosis of high blood pressure, and Molina stated that he did have high blood pressure. R. 34. The ALJ asked if he was on medication for that condition, and Molina responded, "[o]n and off. I really — I really didn't like the symptoms of the medications that I've been taking." Id. The ALJ then asked if Molina suffered from any other conditions not yet discussed, and Molina responded, "[t]here is one treatment that I've been neglecting a lot, and been neglecting to see a doctor is extreme depression, you know. I've been a single parent with this child since he was born, and I've really gone through a lot, you know." Id. The ALJ sought clarification on this condition, and Molina confirmed that he had not received any treatment for depression, but he was "thinking about seeking some type of treatment." Id. Molina also confirmed that nobody had diagnosed depression, but added, "I, I, I can feel it, you know. I can feel depressed. I'm segregating myself sometimes from my family. I'm basically a loner, and I don't go out very often." Id.
*
The ALJ then heard testimony from Raymond Cestar, a vocational expert. Id. The ALJ asked the vocational expert to assume a hypothetical individual with the same age, education, and work experience as Molina with the following residual functional capacity: the person could perform up to a light exertional limitation, meaning he could lift up to 20 pounds occasionally and lift or carry up to 10 pounds frequently, stand or walk for approximately six hours per eight hour work day, sit for approximately six hours for an eight hour work day with normal breaks, and unlimited pushing and/or pulling including the operation of hand and/or foot controls. The person could not climb ladders, ropes, or scaffolds, but could occasionally climb ramps and stairs, with occasional balancing, stooping, kneeling, crouching, and crawling, with no manipulative limitations, no visual limitations, and no communicative or environmental limitations. Id. The ALJ asked the vocational expert if there would be work in the regional or national economy that such a person could perform. Id. In response, the vocational expert testified that such a person could perform the jobs at the "light" level of exertion and that there were jobs available locally and nationally such as cleaner/ housekeeper, folder of laundry, and dry cleaning bagger. R. 37-38.
*
The ALJ assessed Molina's residual functional capacity and found that Molina had "the residual functional capacity to perform light work . . . except [he] is unlimited in pushing or pulling with his upper extremities and with the operation of bilateral foot controls." Id. at 11. The ALJ further found that Molina could never climb ladders, ropes, or scaffolds; that he could occasionally climb ramps or stairs; that he is limited to occasional balancing, kneeling, crouching, stooping, and crawling; and that he has no limitations in gross or fine manipulations, as well as no visual limitations, communicative limitations, or environmental limitations. Id.
The ALJ noted that Molina alleged that he had stopped working in 2003 "due to his conditions" but that a review of Molina's earnings record showed that he had not had any substantial earnings since 1993. R. 12. The ALJ also summarized Molina's account of his daily activities, which include helping his son with his homework, cleaning, and doing laundry without assistance. Id. The ALJ noted that Molina said he had no difficulty with basic activities of daily living, including bathing, grooming, feeding himself, and making meals, and that Molina said he leaves home approximately three times per week and that he travels by himself via public transportation. Id. The ALJ then noted that despite Molina's account of his lifestyle, he "also alleges that he cannot lift, that he can only stand for seven to eight minutes, that he can only walk one to three blocks, but that sitting helps his back" and that he "has to take his time climbing stairs and has difficulty kneeling or squatting." Id. He added that Molina said he has "no difficulty using his hands or reaching." Id.
The ALJ then recounted relevant portions of Molina's hearing testimony and noted several inconsistencies between that testimony and Molina's prior allegations, as well as inconsistencies that arose within the hearing testimony itself. The ALJ noted that Molina testified that he had not worked since 1993 "contrary to his prior allegations," id. — apparently referring to the statement in his application that he had stopped working in 2003. Molina testified that he stopped working in 1993 "because he was looking for other work," but he also testified that he has "not worked since 1993 since he had to care for his son." Id. Regarding Molina's treatment history, the ALJ noted that Molina "testified to having several different types of treatment for his pain, including pain management and physical therapy. However, he then testified that he is now only taking over-the-counter medications." Id. Molina had also refused surgery or injections, which were offered by his doctors, and testified that the over-the-counter medications "do help with his pain." Id. The ALJ noted that Molina "testified that his son is mentally handicapped, but that his son helps him shop for groceries and do things around the house" and that "[c]ontrary to his prior allegations, [he] testified that he does not cook often and he has family members that do his laundry." Id. Similarly, the ALJ highlighted Molina's October 22, 2010, visit with Dr. Prajna Latika at Bronx-Lebanon Hospital, during which Dr. Latika noted that he came "to the clinic for purposes of [a] letter of disability as patient suffer[s] from chronic lower back pain which started after an automobile accident in 2003 and is worse since [November] 2009 when he used to lift heavy boxes." R. 13 (alterations in original). The ALJ noted that "this is drastically different from [Molina's] testimony that he has not been able to work since being involved in a car accident in 2003" and that Molina "did not make any mention of reinjuring his back in 2009." Id.
*
The ALJ also considered the opinion evidence contained in the record. The ALJ gave no weight to the opinion of Rafael Mastov, a physical therapist who had opined on October 22, 2010, that Molina was not a candidate for employment but should be reevaluated in six weeks. Id. The ALJ found that Mastov was "not an acceptable medical source," meaning that his opinion was not entitled to any special weight, and that substantial medical evidence of record also directly contradicted the "extraordinary limitations" described by Mastov. Id. In particular, Mastov's opinion was contradicted by "Dr. Latika's unremarkable physical examination" of Molina. Id. Additionally, the ALJ found that Mastov's opinion was contradicted by Molina's own allegations and testimony that he was able to travel independently, go grocery shopping, and perform activities of daily living without incident. Id. The ALJ gave "great weight" to the opinion of Dr. William Lathan, who performed an internal medicine consultative examination on Molina. R. 13-14. Dr. Lathan had concluded that Molina was moderately limited in bending, lifting, pushing, pulling, or strenuous exertion. R. 14. This opinion was based on a "direct examination" of Molina and was "consistent with Dr. Latika's examination and with [Molina's] most recent MRI." Id. As for Dr. Amos Alabi from Doctors Medical Group, who had opined on February 11, 2011, that Molina's "back pain does not permit [him] to be employed," the ALJ gave this opinion no weight. Id. Despite finding that Molina was not employable, Dr. Alabi "also described [his] back pain as moderate" and stated that "physical therapy has helped manage" the pain. Id. The ALJ found that Dr. Alabi's opinion was contradicted by the physical examinations performed by Drs. Lathan and Latika, and that his opinion was not consistent with the most recent MRI of Molina's lumbar spine. Id.
The ALJ concluded that Molina's medically determinable impairments could "reasonably be expected to cause the alleged symptoms" but that Molina's "statements concerning the intensity, persistence and limiting effects of these symptoms" were not fully credible. Id. The ALJ concluded that Molina could sit for up to six hours in an eight-hour day, stand and/or walk for six hours in an eight-hour day, lift up to ten pounds frequently and twenty pounds occasionally, except that he could never climb ladders, ropes, or scaffolds; he could occasionally climb ramps or stairs; he is limited to occasional balancing, kneeling, crouching, stooping, and crawling; he has no limitations in gross or fine manipulations; and he has no visual limitations, communicative limitations, or environmental limitations. Id.
*
A court reviewing a final decision by the Commissioner "is limited to determining whether the [Commissioner's] conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.2013) (citation and internal quotation marks omitted); accord Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008); see generally 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Substantial evidence is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); accord Burgess, 537 F.3d at 127-28; Matthews v. Leavitt, 452 F.3d 145, 152 n. 9 (2d Cir.2006); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000).
"Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010) (citation and internal quotation marks omitted). Thus, "[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists." Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y.2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990)). The Second Circuit has characterized the substantial evidence standard as "a very deferential standard of review — even more so than the `clearly erroneous' standard." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir.2012) (citation omitted). "The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Id. (emphasis in original) (citation and internal quotation marks omitted). "The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision." Johnson, 563 F.Supp.2d at 454 (citations and internal quotation marks omitted). Importantly, it is not a reviewing court's function "to determine de novo whether [a claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998) (citation omitted).
*
To evaluate a Social Security claim, the Commissioner is required to examine: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam) (citations omitted).
Regulations issued pursuant to the Social Security Act set forth a five-step process that the Commissioner must use in evaluating a disability claim. See 20 C.F.R. § 404.1520(a)(4); see also Burgess, 537 F.3d at 120 (describing the five-step process). First, the Commissioner must determine whether the claimant is currently engaged in any "substantial gainful activity." 20 C.F.R. § 404.1520(a)(4)(i). Second, if the claimant is not engaged in substantial gainful activity, the Commissioner must decide if the claimant has a "severe medically determinable physical or mental impairment," id. § 404.1520(a)(4)(ii), which is an impairment or combination of impairments that "significantly limits [the claimant's] physical or mental ability to do basic work activities . . .," id. § 404.1520(c). Third, if the claimant's impairment is severe and is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, or is equivalent to one of the listed impairments, the claimant must be found disabled regardless of his age, education, or work experience. Id. § 404.1520(a)(4)(iii). Fourth, if the claimant's impairment is not listed and is not equal to one of the listed impairments, the Commissioner must review the claimant's residual functional capacity ("RFC") to determine if the claimant is able to do work he or she has done in the past, i.e., "past relevant work." Id. § 404.1520(a)(4)(iv). If the claimant is able to do such work, he or she is not disabled. Id. Finally, if the claimant is unable to perform past relevant work, the Commissioner must decide if the claimant's residual functional capacity permits the claimant to do other work. Id. § 404.1520(a) (4)(v). If the claimant cannot perform other work, he or she will be deemed disabled. Id. The claimant bears the burden of proof on all steps except the final one — that is, proving that there is other work the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009) (per curiam).
*
In general, the ALJ must give "more weight to opinions" of the claimant's treating physician when determining if a claimant is disabled. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004) (the ALJ must give "a measure of deference to the medical opinion of a claimant's treating physician"). Treating physicians "may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations . . . ." 20 C.F.R. §§ 404.1527(c) (2), 416.927(c)(2). An ALJ must accord "controlling weight" to a treating physician's medical opinion as to the nature and severity of a claimant's impairments if the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record . . . ." Id. §§ 404.1527(c) (2), 416.927(c)(2). Inversely, the opinions of a treating physician "need not be given controlling weight where they are contradicted by other substantial evidence in the record." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002) (citations omitted). Thus, the general rule of deference does not apply where "the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts." Halloran, 362 F.3d at 32; see also Veino, 312 F.3d at 588 (citations omitted).
If an ALJ does not give controlling weight to a treating physician's opinion, the ALJ must provide "good reasons" for the weight given to that opinion. Halloran, 362 F.3d at 32-33 (citing Schaal, 134 F.3d at 505). When assessing how much weight to give the treating source's opinion, the ALJ should consider factors set forth in the Commissioner's regulations, which include: (i) the length of the treatment relationship and the frequency of the examination; (ii) the nature and extent of the treatment relationship; (iii) the supportability of the opinion with relevant evidence, particularly medical signs and laboratory findings; (iv) the consistency of the opinion with the record as a whole; (v) whether the opinion is from a specialist; and (vi) other relevant evidence. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c) (2); see also Ellington v. Astrue, 641 F.Supp.2d 322, 330-31 (S.D.N.Y.2009) ("the ALJ should weigh the treating physician's opinion along with other evidence according to the factors" listed in 20 C.F.R. § 404.1527(c)(2)). Courts "do not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physician[']s opinion and [should] continue remanding when [they] encounter opinions from ALJ's that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion." Halloran, 362 F.3d at 33.
*
*
Additionally, the report in which Dr. Alabi made this assessment appears to rest in substantial part on Molina having reported that he was "exempted from employment" as a result of his chronic back pain. R. 205. Such an "exemption" is not supported by any record evidence. As a result, the ALJ did not commit error when he assigned no weight to Dr. Alabi's opinion that Molina was unemployable given that this opinion was contradicted by the physical examinations of Drs. Lathan and Latika. See generally Halloran, 362 F.3d at 32 (treating physician's opinions not entitled to controlling weight where they were "not particularly informative and were not consistent with those of several other medical experts"); see also Van Dien v. Barnhart, 2006 WL 785281, at * 13 (S.D.N.Y. March 24, 2006) (the "ALJ appropriately gave less than controlling weight to [the treating physician's] opinion and relied more heavily on the evidence provided in the consultative opinions" where treating physician did not indicate what medical techniques were used in arriving at conclusion).
*
We next turn to the question of whether the ALJ's decision was supported by substantial evidence. Molina has not responded to the Commissioner's motion, and thus has not made arguments as to specific findings that he believes are improper. Accordingly, we examine the findings that were material to the ALJ's determination and that appeared to be contested by the claimant at the hearing. See, e.g., DeJesus v. Colvin, 2014 WL 667389, at *18 (S.D.N.Y. Feb. 18, 2014). In this case, Molina testified that he had pain in his back and neck and that doctors "have not been able to do anything" for him. R. 32-33.
We begin by finding that the ALJ could properly discount Molina's testimony as to the severity of his impairments and the effect of these impairments on Molina's ability to work. R. 14. "It is the function of the [Commissioner], not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Aponte v. Sec'y, Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir.1984) (some alterations in original) (citation omitted). Thus, the ALJ, "after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility . . . may decide to discredit the claimant's subjective estimation of the degree of impairment." Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir.1999). However, where an ALJ rejects witness testimony as not credible, the basis for the finding "must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 643 (2d Cir.1983)); accord Snell, 177 F.3d at 135.
*
In light of this finding, and in light of the significant medical evidence that justified the ALJ's rejection of the treating physicians' opinions already discussed, the ALJ's conclusions were supported by substantial evidence.
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings should be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. George Daniels, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010).
Not Reported in F.Supp.3d, 2014 WL 2573638
Charles E. Binder, Binder and Binder P.C., New York, NY, for Plaintiff.
Amanda Frances Parsels, Office of the United States Attorney, New York, NY, for Defendant.
HONORABLE RONALD L. ELLIS, U.S.M.J.:
*
On May 27, 2016, Burgess moved for judgment on the pleadings, asking the Court to reverse the decision of the Commissioner and remand the case for a calculation and award of benefits or, alternatively, to remand the case for further proceedings. (Doc. No. 14.) Burgess argues that (1) the Administrative Law Judge ("ALJ") failed to weigh the medical evidence in accordance with the treating physician rule; and (2) the ALJ failed to properly evaluate Burgess's credibility. (Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl. Mem.") at 7-15.) On June 27, 2016, the Commissioner filed a cross-motion for judgment on the pleadings, asking the Court to affirm her final decision. (Doc. No. 16.) The Commissioner argues that (1) the ALJ properly weighed the opinion evidence; (2) the ALJ's credibility finding was supported by substantial evidence; and (3) the ALJ's residual functional capacity finding was supported by substantial evidence. (Mem. of Law. in Supp. of Def.'s Mot. for J. on the Pleadings ("Def. Mem.") at 15-25.) For the reasons that follow, Burgess's motion is
Burgess applied for Supplemental Security Income Benefits ("SSI") on June 23, 2011, alleging disability beginning July 26, 2010. (Transcript of Administrative Hearing ("Tr.") at 10, 238.) The application was initially denied on September 21, 2011. (Id. at 105-10.) On October 6, 2011, Burgess submitted a request for a hearing. (Id. at 111-12.) A hearing was held before ALJ Selwyn S. C. Walters on May 8, 2012. (Id. at 56-79.) Burgess appeared pro se. (Id. at 58.) On August 17, 2012, ALJ Walters issued a decision denying Burgess's SSI claim on the grounds that Burgess was not disabled within the meaning of the Act. (Id. at 82-98.)
On October 12, 2012, Burgess submitted a request for review of the ALJ's decision to the Appeals Council. (Id. at 145.) The Appeals Council granted the appeal on November 8, 2013, under the substantial evidence and new and material evidence provisions of the Act. (Id. at 101.) The Appeals Council found that there was no vocational evidence in the record regarding the extent to which the assessed non-exertional limitations erode the occupational base for light exertion work, and new and material evidence was submitted that indicates Burgess's impairments may be more limiting than found in the decision. (Id.) The Appeals Council vacated the decision and remanded the case to an ALJ. (Id. at 102.) On April 2, 2014, a video hearing was held before ALJ Sheena Barr. (Id. at 10.) Burgess was represented by Ryan Peterson, an attorney. (Id.) Victor G. Alberigi, an impartial vocational expert, also appeared at the hearing. (Id.) On June 27, 2014, ALJ Barr issued a decision denying Burgess's SSI claim on the grounds that Burgess has not been disabled within the meaning of the Act since June 23, 2011, the date the application was filed. (Id. at 10-20.) Burgess appealed the decision on July 25, 2014. (Id. at 34.) On October 21, 2015, the Appeals Council denied Burgess's request for review and the ALJ's decision became the Commissioner's final decision. (Id. at 1-3.) Burgess filed this Complaint on December 8, 2015. (Doc. No. 1.)
*
Burgess testified that he stays with different family members. At the time of his hearing with ALJ Walters, he was staying at the home of his children's mother. (Id. at 63-64.) At the time of his hearing with ALJ Barr, he had been staying at his cousin's house for approximately a year. (Id. at 42.) At his cousin's house, he helps take out the garbage and babysit his cousin's daughter. (Id. at 43.) He spends most of his time watching television. (Id. at 44.) Although he has a driver's license, he testified that he does not drive "at all." (Id. at 65.) When asked if he attended social functions, he testified that he tries but suffers from migraines. (Id. at 65.) He visits family "sometimes," because his family lives elsewhere and it is "hard to travel." (Id. at 66.) He testified that he does not go out with his friends because "when [he is] around . . . they can't do nothing [sic]." (Id. at 65.) He testified that he does not have any hobbies and does not smoke, drink, or do drugs. (Id. at 67.) He was previously incarcerated for four years for selling drugs and gun possession. (Id. at 67.)
Burgess calls his four children every day. (Id. at 43.) He testified that it was "hard to see them" because "it makes [his] anxiety and depression come on." (Id.) He feels like he "can't do anything for them" and it "hurts [his] feelings." (Id.) He is "scared of being . . . somewhere with just [them]" because he is afraid of experiencing an anxiety attack alone. (Id.).
Burgess testified that he last worked in 2008. (Id. at 38.) From 2006, he was a driller's helper in construction work and did heavy labor work, including lifting pipes and carrying boxes. (Id. at 38-39.) He performed soil sampling and rock testing, and typically had to lift sixty pounds. (Id. at 46-47.) He worked for a catering service for a few months in 2007. (Id. at 49.) He supplied food to schools for about 2,000 people, and had to lift more than twenty pounds. (Id. at 49-50.) He also worked as a messenger for a delivery service between 2005 and 2006, where he drove the company van. (Id. at 48, 51.) He also had a job repairing fire extinguishers from 2005 to 2006. (Id. at 76.)
Burgess testified that his illness started after he attended a party where someone slipped him drugs. (Id. at 39.) He suffered a stroke in his face and was diagnosed with Bell's Palsy. (Id. at 40.) Since then, he has been having panic attacks, chest pains, migraines, anxiety and depression. (Id. at 39.) The incident occurred in 2006 but the symptoms "just started coming back [. . .] harder and harder" and he has "been fighting it most of the time." (Id. at 69-70.) He has panic attacks "everyday" where he "feel[s] like [he's] going to die," which cause headaches and sometimes cause him to blackout. (Id. at 40.) There are no identifiable triggers. (Id.) He suffers from migraine headaches "all the time" because his nerves have not fully recovered from Bell's Palsy. (Id. 40-41, 68, 74.) The headaches can get so intense that he has "blurry vision." (Id. at 41.) When he walks outside, he feels like he is "dreaming" and everyone is "lighting up," which "hurts [his] eyes" and makes him feel "scared." (Id. at 44.) He also "get[s] dizzy fast." (Id.) He testified that he tries to leave the house "at nighttime where there [are] no lights," and has to "stay focused." (Id.) Although he "can pay attention . . . for a little while," "everything just gets boring" and "it makes [him] depressed." (Id.) He testified that he can travel alone "sometimes" but the last time was "a long time ago." (Id. at 64.) When he is on a train with many people, he gets "nervous" and his "heart starts racing." (Id.)
*
Burgess sees a psychiatrist, Dr. Sharma. (Id. at 41-42.) At the time of his hearing before ALJ Barr, he had been seeing Dr. Sharma once a month for a year. (Id.) At his hearing before ALJ Walters, Burgess testified that he was seeing Dr. Fink, a psychiatrist, and Carol Newmark, whom he identified as a physical therapist at Montefiore Medical Center. (Id. at 60.) He has also made several visits to the emergency room at Montefiore. (Id. at 61.)
Burgess takes Lexapro and Alprazolam for his migraines. (Id. at 41, 71-72.) He also takes Ibuprofen, which "[takes] the headache away a little bit," but not "fully." (Id. at 74.) The medication causes him to become drowsy. (Id. at 41.) He also takes medication for anxiety, depression, panic attacks, and insomnia. (Id.) When ALJ Walters asked about the effectiveness of the medication, Burgess testified that he has days when he is "doing good" and "doing bad again," and "there's really no medication" that works because it is "really mental." (Id.) Burgess testified that the medicine he took gave him side effects, including "a drip in the throat" and "nausea." (Id. at 45.) The medication takes "a whole half-an-hour to a[n] hour just to let it settle." (Id. at 44.) He has to "lay down with all the lights off" until it has "kicked in" because of the nausea. (Id. at 45.) The medicine makes him "high all day." (Id.) Burgess also works on "breathing exercises" and "relaxation exercises." (Id. at 72.)
Dr. Parvesh Sharma is a psychiatrist with University Behavioral Associates, under Montefiore Behavioral Care. (Tr. at 520.) He has been treating Burgess since December 4, 2012. (Id. at 455, 518.) The record contains copies of prescriptions from Dr. Sharma and notes from December 27, 2012, to February 20, 2014. (Id. at 449, 452, 464-66, 525-29.) In his intake assessment, Burgess complained that he "feel[s] very anxious all the time." (Id. at 520.) Dr. Sharma recorded symptoms of "anxiety," "panic attacks," and "paranoia." (Id.) The mental status evaluation recorded a "cooperative" attitude, "anxious" mood, "coherent" and "age-appropriate" speech and comprehension, and an "intact" thought process with no hallucinations or delusions. (Id. at 522-23.) Dr. Sharma's biopsychosocial formulation was that Burgess suffered from panic disorder with symptoms of panic attacks. (Id. at 523.) In his treatment plan, Dr. Sharma identified problems of "panic disorder," "poor sleep," and "low self-esteem." (Id. at 524.) He estimated that it would take about nine to twelve months to achieve the treatment goals. (Id.)
In a psychiatric questionnaire completed on December 27, 2012, Dr. Sharma diagnosed Burgess with panic disorder and a risk of psychiatric disorder. (Id. at 455.) Using the American Psychiatric Association's multi-axial system, Dr. Sharma diagnosed Burgess with panic disorder on Axis I, deferred diagnosis on Axis II, and assigned a GAF score of 56.
*
Dr. Rebecca Fink is a psychiatrist with Montefiore Medical Center. The record reflects visits from February 23, 2011, to February 22, 2012. (Tr. at 548.) In a treatment plan dated November 16, 2011, Burgess is diagnosed with a GAF score of 60. (Id. at 553.) In a report from December 29, 2011, his mental status examination is normal except for a "depressed" mood. (Id. at 549.) Dr. Fink notes that Burgess is "inconsistent" in adhering to medication. (Id.) She encouraged "daily compliance" in taking medication "for maximal therapeutic effect." (Id.) In another report dated February 17, 2012, Burgess's problems are listed as "panic attack" and being "unemployed," and he was given a GAF score of 62. (Id. at 551.)
Carole Newmark is a social worker at Montefiore Medical Center. (Tr. at 377.) In a letter dated January 31, 2011, she wrote that she has been treating Burgess biweekly for "Panic Disorder without Agoraphobia" since August 16, 2010. (Id.) His panic attacks began approximately two years ago and have been "a deterrent to his working in construction." (Id.) The report notes that Burgess is taking Lexapro and Alprazolam for depression and anxiety, as diagnosed by the psychiatrist, Dr. Yel. (Id.) In a letter signed by Dr. Zinaida Yel dated January 19, 2011, it is noted that Burgess has been in treatment at Montefiore since August 16, 2010, for panic disorder. (Id. at 376.)
In a progress note from September 20, 2011, Newmark noted that Burgess complained that he had anxiety "all the time." (Id. at 476.) He complained of increased lethargy and feeling "tense, dizzy [and] headachy [sic]." (Id.) He also complained about his medication because he "feels they're not working." (Id.) The mental status examination recorded a mood that was "irritable" and "anxious," but noted that Burgess was adhering to his medication. (Id.) Newmark recommended that Burgess continue with medication and see his primary care physician. (Id.) She also wrote that he should "[continue] to seek employment." (Id.) In another progress note dated October 19, 2011, Newmark noted that Burgess complained that he is "not doing good." (Id. at 480.) The mental status examination reflects that his mood was "depressed" and "irritable." (Id.) It noted that Burgess was adhering to medication, and again recommended that he continue to take medication and to seek employment or go back to school. (Id.) In a progress note from November 4, 2011, Newmark noted that Burgess reported having anxiety attacks. (Id. at 491). Burgess also reported being "afraid to work" because he was afraid of "becoming dizzy and ill." (Id.) The mental status exam reflected a mood that was "irritable" and "anxious." The plan was to continue to "seek school to learn electronics." (Id.) In a progress note from November 17, 2011, Newmark wrote that Burgess reports that he is "tired." (Id. at 492.) Burgess reported that he has been able to "ride out the anxiety attacks" and is "making good progress." (Id.) The plan recommended that he continues to go forward with electronics training. (Id.) In a progress note dated December 29, 2011, Burgess reported that he is "feeling a little better." (Id. at 493.) He reported that he had "a few anxiety attacks," but was "able to work through the anxiety." (Id.)
*
Jaime Franco is a Master's Level Psychologist and Licensed Clinical Social Worker. (Tr. at 433.) In a letter dated July 20, 2012, and addressed to Bronx Family Court, Franco notes that Burgess has been a client since June 22, 2012. (Id.) He notes that Burgess was experiencing "multiple symptoms of acute anxiety" and "accompany depression," which "seriously affect his overall functioning and greatly compromise his ability to work at present." (Id.) Franco opined that "given the severity of his symptoms, Mr. Burgess's condition will probably last for at least a few months." (Id.)
The record shows that Burgess made numerous visits to the emergency room in Montefiore from December 6, 2009, to June 19, 2012. Burgess was admitted to the Montefiore Emergency Department on December 6, 2009, and discharged on the same day. (Tr. at 336.) He complained of ear pain and headache. (Id. at 336.) Dr. Gerald Brody noted "right ear pain, inability to move right side of face normally, right facial numbness and decreased taste right side of tongue with constant frontal headache," but the physical examination was otherwise normal. (Id. at 337-38.) A CT scan revealed "ventricles somewhat dilated for age." (Id. at 337.) He was diagnosed with Bell's Palsy and referred to a neurology specialist. (Id.)
Burgess was admitted again on July 24, 2010, and discharged on July 26, 2010. (Id. at 342.) He was admitted with "chest pain of [one] day duration, palpitations, tingling sensation in chest." (Id.) He was placed under security watch in the hospital. (Id. at 344.) He reported "feeling anxious for the last [three] days" and that he "feels high although he didn't do any drugs." (Id. at 345.) He also reported that "he feels dizzy at times, and he feels his heart beat fast." (Id.) He was diagnosed with panic disorder without agoraphobia. (Id. at 342.) Burgess was evaluated by a psychiatrist and prescribed psychiatric medication. (Id.) Burgess told the physician that "the attacks [have] been getting longer and more intense." The psychiatrist's assessment recorded anxiety, leukocytosis, and anemia. (Id. at 356-358.) Burgess also underwent an internal medicine check that recorded that the "physical exam is unremarkable." (Id. at 358.) A radiology exam showed "no evidence of acute cardiopulmonary disease" and was "unremarkable." (Id. at 369.)
Burgess was also admitted on August 18, 2010. (Id. at 439.) He was diagnosed with "headache," "panic attack," and "anxiety." (Id.) The doctors prescribed regular-strength Tylenol for his headaches. (Id.)
Burgess was admitted again on February 22, 2011. (Id. at 378.) He was diagnosed with "Headache, Type Unknown," and "Anxiety State (Unspecified)." (Id.) The records noted that "all of the tests performed today were normal." (Id. at 379.)
Burgess was also admitted on October 3, 2011, and discharged the same day. (Id. at 417.) He complained of chest pain, headache, and dizziness, (Id.) He was sent for a chest X-ray, an EKG, and blood work, which revealed no abnormalities. (Id. at 424.)
*
On June 19, 2012, Burgess visited Montefiore's Fordham Family Practice with complaints of acute headaches. (Id. at 538.) He complained of pain of ten on a scale of one to ten. (Id.) Dr. Uche Akwuba requested an MRI and on August 2, 2012, Burgess was sent for an MRI of his brain that showed no abnormalities. (Id. at 534-36.)
Dr. Herb Meadow is a consultative psychiatrist with Industrial Medicine Associates. He examined Burgess on August 10, 2011. (Tr. at 385.) During the examination, Burgess told Dr. Meadow that he has difficulty falling asleep. (Id.) He testified that he has a poor appetite and had lost thirty pounds in the past year. (Id.) Dr. Meadow identified symptoms of depression, "dysphoric moods, irritability, low energy, diminished self-esteem, difficulty concentrating, [and] being socially withdrawn." (Id.) The mental status examination showed that Burgess had a "cooperative" demeanor and his manner of relating was "adequate." (Id. at 386.) His appearance, speech, thought process, and other indicators were normal. (Id.) Dr. Meadow noted that his mood was "depressed" and "anxious," and that his cognitive functioning was "average" with the "general fund of information somewhat limited." (Id.)
Dr. Meadow opined that Burgess "would have some difficulty dealing with stress" but otherwise "would be able to handle [. . .] other tasks necessary for vocational functioning." (Id. at 387.) The results of the examination "appear to be consistent with psychiatric problems," but the problems do not "appear to be significant enough to interfere with [Burgess's] ability to function on a daily basis." (Id.) He diagnosed Burgess with "depressive disorder, NOS [not otherwise specified]," "panic disorder without agoraphobia," and "generalized anxiety disorder," on Axis I; he deferred diagnosis on Axis II; and he identified "headaches," "dizziness," and "hypertension" on Axis III. (Id.) He recommended that Burgess continue with psychiatric treatment. (Id.)
Dr. David Mahony is a psychiatrist with Industrial Medicine Associates. He saw Burgess on January 14, 2014, for a consultative examination. (Tr. at 472.) Dr. Mahony's notes show that Burgess reported symptoms of depression. (Id. at 473-74.) He noted that Burgess has "cognitive deficits secondary to symptoms of anxiety, including concentration difficulties and difficulty learning new material." (Id. at 473.) The mental status examination was normal except that Dr. Mahony noted that Burgess was "depressed." (Id.)
Dr. Mahony diagnosed Burgess with "generalized anxiety disorder" and "major depressive disorder, mild." (Id. at 474.) Dr. Mahony opined that "there is no evidence of limitation" in Burgess's ability to follow and understand simple directions and perform simple tasks. (Id.) He opined that Burgess has "mild difficulties" maintaining attention and concentration and maintaining a regular schedule, and "moderate limitation" in learning new tasks, performing complex tasks, making appropriate decisions, relating to others, and dealing with stress. (Id.) He traced these to "psychiatric problems" and opined that "these will interfere with the claimant's ability to function on a daily basis." (Id.) He recommended that Burgess continue to receive psychiatric treatment, but noted that Burgess "does not appear to be responding to psychiatric treatment." (Id. at 475.)
*
Dr. Barbara Akresh is a physician with Industrial Medicine Associates. Burgess was referred to her by the Division of Disability Determination on August 10, 2011. (Tr. at 389.) Dr. Akresh recorded that Burgess's chief complaint was the incident when he was drugged at a party. (Id.) He also reported that "sometimes his vision becomes blurred, and he cannot walk very far." (Id.) He also complained about migraine headaches everyday "for the past [one and a half] years." (Id.) Dr. Akresh noted a history of Bell's palsy "which he states was attributed to stress," but further noted that "this has resolved." (Id.) Dr. Akresh's physical examination was normal. (Id. at 390.) Burgess's general appearance, gait, and station were normal and he had no difficulties walking or moving around. (Id. at 391.) His head and face were normal. (Id.) His neurologic examination was also normal with "no sensory deficit noted." (Id.)
Dr. Akresh's prognosis of Burgess was "good." (Id. at 392.) She opined that Burgess has "mild limitations in his ability to be exposed to bright lights, secondary to the history of chronic migraine headaches." (Id.)
Dr. Benjamin Kropsky is a physician with Industrial Medicine Associates, Burgess was referred to him on December 5, 2013, by the Division of Disability Determination. (Tr. at 467.) Dr. Kropsky notes that Burgess "has occasional asthmatic bronchitis, but does not have chronic asthma." (Id.) He also notes that Burgess had Bell's Palsy in the past and has "right facial paresis secondary to the Bell's palsy." (Id. at 468.)
Dr. Kropsky diagnosed Burgess with "depression, anxiety, and panic attacks," "migraine headaches," "chest pains of uncertain etiology," "Bell's palsy with a right facial paresis," and "recurrent episodes of asthmatic bronchitis." (Id. at 470.) His prognosis for the above diagnoses is "fair," except for "depression, anxiety, and panic attacks," which is "fair to guarded." (Id.) He opined that Burgess "should avoid dust smoke and other known respiratory irritants because of the asthmatic bronchitis," and that Burgess is "limited in activities because of his psychological problems" but "has no definite physical limitation." (Id.)
Vocational expert Victor Alberigi testified at the hearing before ALJ Barr. (Tr. at 50.) ALJ Barr suggested a hypothetical individual
*
On June 27, 2014, ALJ Barr issued a decision denying Burgess's application for SSI. (Tr. at 10.) The ALJ followed the required five-step sequential analysis to make her determination of disability. 20 C.F.R. § 416.920(a). First, she established that Burgess has not engaged in substantial gainful activity since June 23, 2011, the date of application. (Id. at 12.) Second, she found that Burgess had severe impairments of anxiety, panic attacks, mood disorder, and headaches. (Id.) She noted that Burgess has a history of Bell's Palsy but there is no indication that it has caused significant limitations in his ability to work, and therefore it is not severe. (Id.) Third, she found that Burgess does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, and is not presumptively disabled. (Id. at 12-14.)
At the fourth step of the analysis, ALJ Barr concluded that Burgess has the residual functional capacity
(Id. at 14.) ALJ Barr determined that Burgess's medically determinable impairments could reasonably be expected to cause the alleged symptoms but that his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id. at 15.) Specifically, ALJ Barr noted that Burgess reported that he has "debilitating anxiety and panic attacks, but his mental status examinations were largely normal." (Id. at 18.) Burgess also told Dr. Fink and Newmark that he was doing some work and school, and "although it provoked some anxiety, he was still able to do it." (Id.) ALJ Barr also noted that Burgess was "inconsistent with his medication use" and "cancelled or did not show up to many psychotherapy or medication management treatment sessions." (Id.) ALJ Barr also focused on Burgess's activities of daily living, noting that he testified that he babysits and takes out the garbage. (Id.) She noted that he can "play games on his phone and focus on the television for a while" even though "the light hurts his eyes." (Id.)
Under the fourth step, ALJ Barr also weighed the medical opinion evidence to inform her determination of Burgess's residual functional capacity. (Id. at 17-18.) She assigned "little weight" to the opinion of Carole Newmark because "it directly contradicts her treatment notes in which she states that the claimant should seek employment," and "is also inconsistent with the findings of the mental status examinations, which were largely normal." (Id. at 18.) She assigned "little weight" to the opinion of Jaime Franco because "it is unsupported by any treatment notes" and is "inconsistent with the medical evidence." (Id.) She assigned "little weight" to Dr. Parvesh Sharma's medical source statement because it was written "after only one appointment" and Burgess's mental status examination at the appointment showed that "he was fully alert, had no delusions, and had intact memory and concentration." (Id.) In contrast, she assigned "significant weight" to Dr. Barbara Akresh's opinion "because it is consistent with the medical evidence documenting the claimant's history of migraines." (Id.) She assigned "little weight" to Dr. Benjamin Kropsky's opinion that Burgess should avoid respiratory irritants as there is "no objective evidence in the record of any history of asthmatic bronchitis," but assigned "significant weight" to his opinion that Burgess has no other physical limitations "because it is consistent with the claimant's physical examinations." (Id.) She assigned "significant weight" to the opinions of Drs. Herb Meadow and David Mahony because they are "based on clinical findings" and "consistent with the medical evidence." (Id.) She assigned "great weight" to Dr. Reddy's opinion because "it is based on a review of the record and is consistent with the objective evidence." (Id.)
*
Upon judicial review, "[t]he of findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. § 405(g), 1383(c)(3). Therefore, a reviewing court does not determine de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); accord Mathews v. Eldridge, 424 U.S. 319, 339 n.21 (1976) (citing 42 U.S.C. § 405(g)). Rather, the court is limited to "two levels of inquiry." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C. § 405(g); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999) (citing Johnson, 817 F.2d at 986); accord Brault, 683 F.3d at 447. Second, the court must decide whether the Commissioner's decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g). If the Commissioner's decision meets both of these requirements, the reviewing court must affirm; if not, the court may modify or reverse the Commissioner's decision, with or without remand. (Id.)
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided that the failure "might have affected the disposition of the case." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)); accord Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., Kohler, 546 F.3d at 265 (regulation); Schaal v. Callahan, 933 F.Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the court may remand the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair record to explain his reasoning. Crysler v. Astrue, 563 F.Supp.2d 418, 428 (N.D.N.Y. 2008) (citing Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y. 1999)).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the court must "conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision." Brault, 683 F.3d at 447 (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). The Supreme Court has defined substantial evidence as requiring "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Brault, 683 F.3d at 447-48. The substantial evidence standard means once an ALJ finds facts, a reviewing court may reject those facts "only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
*
Under the Social Security Act, every individual considered to have a "disability" is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines "disability" as an "inability 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 12 months." Id. at § 416(i)(1)(A), 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505, 416.905. A claimant's impairments must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B); see also 20 C.F.R. § 404.1505, 416.905.
To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct the following five-step inquiry: (1) determine whether the claimant is currently engaged in any substantial gainful activity; (2) if not, determine whether the claimant has a "severe impairment" that significantly limits his or her ability to do basic work activities; (3) if so, determine whether the impairment is one of those listed in Appendix 1 of the regulations — if it is, the Commissioner will presume the claimant to be disabled; (4) if not, determine whether the claimant possesses the RFC to perform his past work despite the disability; and (5) if not, determine whether the claimant is capable of performing other work. 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F.Supp.2d 24, 29 (S.D.N.Y. 1999). While the claimant bears the burden of proving disability at the first four steps, the burden shifts to the Commissioner at step five to prove that the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012).
The ALJ may find a claimant to be disabled at either step three or step five of the Evaluation. 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4). At step three, the ALJ will find that a disability exists if the claimant proves that his or her severe impairment meets or medically equals one of the impairments listed in the regulations. 20 C.F.R. § 404.1520(d), 416.920(d). If the claimant fails to prove this, however, then the ALJ will complete the remaining steps of the Evaluation. 20 C.F.R. § 404.1520(e), 404.1545(a) (5), 416.920(e), 416.945(a)(5). A claimant's RFC is "the most [she] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a), 416.945(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also S.S.R. 96-9P (clarifying that a claimant's RFC is her maximum ability to perform full-time work on a regular and continuing basis). The ALJ's assessment of a claimant's RFC must be based on "all relevant medical and other evidence," including objective medical evidence, such as x-rays and MRIs; the opinions of treating and consultative physicians; and statements by the claimant and others concerning the claimant's impairments, symptoms, physical limitations, and difficulty performing daily activities. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1545(a)(3)); see also 20 C.F.R § 404.1512(b), 404.1528, 404.1529(a), 404.1545(b).
*
In making the determination of whether there is any other work the claimant can perform, the Commissioner has the burden of showing that "there is other gainful work in the national economy which the claimant could perform." Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (citation omitted).
The SSA regulations require the Commissioner to evaluate every medical opinion received. See 20 C.F.R. § 404.1527(c); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The opinion of a claimant's treating physician is generally given more weight than the opinion of a consultative or non-examining physician because the treating physician is likely "most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)." 20 C.F.R. § 404.1527(c)(2), 416.927(c) (2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (discussing the "treating physician rule of deference"). A treating physician's opinion is entitled to "controlling weight" if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2); see also Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015) ("SSA regulations provide a very specific process for evaluating a treating physician's opinion and instruct ALJs to give such opinions `controlling weight' in all but a limited range of circumstances.").
If the treating physician's opinion is not given controlling weight, the Commissioner must nevertheless determine what weight to give it by considering: (1) the length, nature, and frequency of the relationship; (2) the evidence in support of the physician's opinion; (3) the consistency of the opinion with the record as a whole; (4) the specialization of the physician; and (5) any other relevant factors brought to the attention of the ALJ that support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)(i)— (ii); Schisler, 3 F.3d at 567-69. The Commissioner may rely on the opinions of other physicians, even non-examining ones, but the same factors must be weighed. 20 C.F.R. § 416.927(e).
The ALJ is required to explain the weight ultimately given to the opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion"). Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand. Greek, 802 F.3d at 375 (citing Burgess, 537 F.3d at 129); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) ("We do not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physician's opinion and we will continue remanding when we encounter opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."). Reasons that are conclusory fail the "good reasons" requirement. Gunter v. Comm'r of Soc. Sec., 361 Fed. Appx. 197, 199-200 (2d Cir. 2012) (finding reversible error where an ALJ failed to explain his determination not to credit the treating physician's opinion). The ALJ is not permitted to arbitrarily substitute his own judgment of the medical proof for the treating physician's opinion, Balsamo, 142 F.3d at 81.
*
Finally, the ALJ must give advance notice to a pro se claimant of adverse findings. Snyder v. Barnhart, 323 F.Supp.2d 542, 545 (S.D.N.Y. 2004) (citing Infante v. Apfel, No. 97 Civ. 7689 (LMM), 2001 WL 536930, at *6 (S.D.N.Y. May 21, 2001)). This allows the pro se claimant to "produce additional medical evidence or call [her] treating physician as a witness." Brown v. Barnhard, 02 Civ. 4523 (SHS), 2003 WL 1888727, at *7 (S.D.N.Y. April 15, 2003) (citing Santiago v. Schweiker, 548 F.Supp. 481, 486 (S.D.N.Y. 1981)).
The ALJ generally has an affirmative obligation to develop the administrative record. 20 C.F.R. § 404.1512(d); Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). Under the Act, the ALJ must "make every reasonable effort to obtain from the individual's treating physician . . . all medical evidence, including diagnostic tests, necessary in order to properly make" a determination of disability. 42 U.S.C. § 423(d)(5)(B). Furthermore, when the claimant is unrepresented by counsel, the ALJ "has a duty to probe scrupulously and conscientiously into and explore all relevant facts . . . and to ensure that the record is adequate to support his decision." Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999), citing Dechirico v. Callahan, 134 F.3d 1177, 1183 (2d Cir. 1998); Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 37-38 (2d Cir. 1996). Remand to the Commissioner is appropriate when there are "obvious gaps" in the record and the ALJ has failed to seek out additional information to fill those gaps. See Lopez v. Comm'r of Soc. Sec., 622 Fed. Appx. 59 (2d Cir. N.Y. 2015), citing Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).
Burgess argues that the ALJ failed to properly weigh the opinion of his treating psychiatrist. Dr. Sharma, when the opinion was not assigned controlling weight. (Pl. Mem. at 7-12.) Burgess also argues that the ALJ assigned too much weight to the opinions of the consultative psychiatrists, Dr. Meadow and Dr. Mahony. (Id.) The Court agrees and finds that remand is warranted.
Burgess argues that Dr. Parvesh Sharma's opinion should have been assigned controlling weight because it is based on appropriate medical findings and is not contradicted by other substantial evidence in the record. (Pl. Mem. at 11.) A treating physician's opinion as to the nature and severity of the impairment is given controlling weight "so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal citations omitted); 20 C.F.R. § 404.1527(d)(2). Burgess argues that it is harder to find objective medical evidence to support a psychiatric diagnosis. (Pl. Mem. at 9.) A medical opinion may be assigned more weight if it is supported by psychiatric signs, which are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g. abnormalities of behavior, mood, thought, memory, orientation, development, or perception. See 20 C.F.R. § 416.927(c)(3) and § 416.928. In assigning little weight to Dr. Sharma's opinion, the ALJ made no mention of the treating physician rule and did not address whether Dr. Sharma was a treating physician.
*
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). If an ALJ gives a treating physician opinion something less than "controlling weight," she must provide good reasons for doing so. Failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). In the present case, the ALJ only cited the length of the treatment relationship at the time the opinion was produced and its consistency with records from the same day. (Tr. at 18.) She did not consider factors that weigh in favor of assigning greater weight to Dr. Sharma's opinion, including the continuing relationship between Burgess and Dr. Sharma, Dr. Sharma's psychiatric specialty, or other evidence on the record that supported Dr. Sharma's opinion. For example, Dr. Mahony's opinion stated that Burgess's impairments "will interfere with [his] ability to function on a daily basis." (Id. at 474.) Most importantly, in the Court's view, the ALJ failed to address Burgess's multiple visits to the Montefiore emergency department over several years, which reflect the severity of Burgess's panic attacks. (Id. at 336-79, 414-30.)
Where "the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability." Petrie v. Astrue, 412 Fed.Appx. 401, 407 (2d Cir. 2011) (citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). Although the ALJ need not explicitly consider every item of evidence in the record, in the present case she failed to consider the record as a whole or discuss the regulatory factors in weighing Dr. Sharma's opinion. The ALJ erred in assigning Dr. Sharma's opinion little weight with minimal discussion. Therefore, the Court recommends that the case be remanded for a comprehensive weighing of the regulatory factors.
The ALJ assigned "significant weight" to the opinions of Drs. Meadow and Mahony because they are "based on clinical findings" and "consistent with the medical evidence." (Tr. at 18.) Burgess argues that the consultative psychiatrists' opinions should have received less weight because they did not receive the necessary background information to evaluate Burgess's disability. (Pl. Mem. at 10.) He does not, however, identify any specific background information that might have led to a different result. (Id.) The reports from Dr. Meadow and Dr. Mahony show that they obtained a detailed personal history from Burgess, including information on when he was drugged and his history of drug and alcohol use. (Tr. at 385-86, 472-73.) The Court does not find that the ALJ erred in this regard.
*
The Commissioner argues that even if Dr. Meadow's opinion was set aside, Dr. Mahony's opinion is sufficient "substantial evidence." (Def. Mem. at 19.) Although Dr. Meadow and Dr. Mahony's opinions are similar, Dr. Mahony's opinion reflects more severe limitations. In particular, Dr. Meadow found that the examination results "appear to be consistent with psychiatric problems, but in itself, this does not appear to be significant enough to interfere with [Burgess's] ability to function on a daily basis." (Tr. at 387.) In contrast, Dr. Mahony found that the results "will interfere with [Burgess's] ability to function on a daily basis." (Id. at 474.) While Dr. Meadow opined that Burgess "would have some difficulty dealing with stress," Dr. Mahony opined that Burgess faced mild difficulties in "maintaining attention and concentration and maintaining a regular schedule," and moderate limitations in "learning new tasks, performing complex tasks, making appropriate decisions, relating to others, and dealing with stress." (Id. at 387, 474.) Given that both opinions received significant weight, it is likely that Dr. Meadow's opinion influenced the ALJ's decision.
The Commissioner's argument that relying on Dr. Meadow's opinion was harmless error is also unpersuasive because it is not the role of the Court to overlook a legal error save for very limited circumstances. See Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (discussing Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010)) (affirming that a legal error was not prejudicial because "the excluded evidence is essentially duplicative of evidence considered by the ALJ"). In the present case, the ALJ explicitly assigned "significant weight" to Dr. Meadow's opinion when it reflected milder limitations than other psychiatrists' reports, and it is likely that it influenced the ALJ's analysis. The Court concludes that the risk of legal error is too high and the case should be remanded.
Setting aside the issue of Dr. Meadow's opinion, the ALJ's decision to assign significant weight to the consultative physicians is also contrary to the treating physician rule. The Second Circuit has cautioned ALJs not to rely heavily on the findings of consultative physicians after a single examination. Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013). "Consultative exams are often brief, are generally performed without benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only passing consideration to subjective symptoms without stated reasons." Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (citing Torres v. Bowen, 700 F.Supp. 1306, 1312 (S.D.N.Y. 1988)). This is especially important for a psychiatric diagnosis. Dr. Sharma's report reflects that Burgess has good days and bad days. (Tr. at 461.) Dr. Sharma treated Burgess for over a year and there are no indications that he amended his opinion, while Dr. Meadow and Dr. Mahony only saw Burgess on a single day each and over two years apart. The Court rejects the Commissioner's assertion that two evaluations by different consultative psychiatrists "provided a more longitudinal picture" of Burgess's condition than an evaluation by his treating psychiatrist. (Def. Mem. at 17.) The treating physician rule also holds that the opinion of a treating physician on the subject of medical disability is "entitled to some extra weight, even if contradicted by substantial evidence, because the treating source is inherently more familiar with a claimant's medical condition than are other sources." Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 2000). Therefore, the Court remands the case for proper weighing of the opinions of treating and consulting psychiatrists.
*
ALJ Barr determined that Burgess's medically determinable impairments could reasonably be expected to cause the alleged symptoms but that his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id. at 15.) Specifically, the ALJ notes Burgess's treatment regime, his activities of daily living, his attendance at work and school, and his mental status examinations. (Id. at 18.)
The substantial evidence review standard is "a very deferential standard of review — even more so than the "clearly erroneous" standard." Brault v. Social Sec. Admin., Com'r, 683 F.3d 443, 448 (2d Cir. 2012). "[T]he court may not substitute its own judgment for that of the Secretary, 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. Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). "If there is substantial evidence to support the determination, it must be upheld." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence, however, requires "more than a mere scintilla." Selian, 708 F.3d at 417 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In making the credibility finding, the ALJ discussed factors set forth in 20 C.F.R. § 404.1529(c) (3) and § 416.929(c)(3), namely Burgess's daily activities and treatment regime. By citing to specific parts of the record and demonstrating their inconsistencies, the ALJ has satisfied the requirement that she must discuss "the crucial factors in any determination . . . with sufficient specificity to enable the reviewing court to decide whether the determination is supported by substantial evidence." Calzada v. Astrue, 753 F.Supp.2d 250, 269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
Burgess takes specific issue with the ALJ's discussion of his non-compliance with medical treatment. (Pl. Mem. at 14.) The Commissioner "will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints." SSR 16-3p, 2016 WL 1020935 (March 16, 2016). "A claimant's denial of psychiatric disability or the refusal to obtain treatment for it is not necessarily probative." De Leon v. Sec'y of Health & Human Servs., 734 F.2d 930, 934 (2d Cir. 1984). The Commissioner argues that Burgess did not show that his noncompliance with medication was based on his psychological disorder, and Burgess's mental status examinations show that his judgment was good or fair. (Def. Mem. at 21-22.) The Court agrees with the Commissioner. The record also shows that Burgess failed to attend some appointments because he was not having panic attacks, not because of his psychological disorder. (Tr. at 529.)
*
Burgess's final contention is about the mental status examinations on the record. (Pl. Mem. at 13-14.) This argument is related to the weight assigned to the opinions of treating and consultative physicians. Because the Court has decided that the ALJ erred in this regard, it cannot discuss whether the decision was issued based on substantial evidence. Therefore, the Court remands the case for application of the correct legal principles.
Under 42 U.S.C. § 405(g), the District Court has the power to affirm, modify, or reverse the ALJ's decision with or without remanding for further proceedings. Where an ALJ has committed a legal error that may have affected the disposition of the case, such failure constitutes reversible error. Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004). Remand may be appropriate if "the ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). Because ALJ Barr failed to apply the correct legal standard for weighing the opinions of Burgess's treating and consultative physicians, remand is appropriate. Burgess did not argue that the ALJ's residual functional capacity finding was not supported by substantial evidence so the Court does not decide this issue. On remand, the Commissioner shall assign proper weight to the opinions of Burgess's treating physicians and consultative physicians.
For the foregoing reasons, Burgess's motion is
Having resolved Doc. Nos. 14 and 16, the Clerk of Court is directed to terminate this action.
Slip Copy, 2016 WL 7339925
SARAH NETBURN, United States Magistrate Judge.
*
Plaintiff Rose Lacava brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for disability insurance benefits. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 16.) Plaintiff cross-moved for judgment on the pleadings and, in the alternative, requested remand to the Commissioner for further proceedings, (Docket No. 19.) For the reasons set forth below, I respectfully recommend that the Commissioner's motion be DENIED, the plaintiff's motion be GRANTED in part and DENIED in part, and the case be remanded to the Commissioner for further development of the record.
At issue in this case is the duty of the Administrative Law Judge ("ALJ") to develop the administrative record. This duty requires resolution of factual inconsistencies in the record that are critical to the plaintiff's claim and consideration of retrospective diagnoses that are not contradicted in the record. The Court concludes that the ALJ did not meet his affirmative duty to develop the record in this case in two respects. First, he failed to recognize or resolve a factual inconsistency in the record that was dispositive to his ruling. Second, he failed to recognize the legal relevance of medical records referring to a period of time after that of the alleged disability. As a result, the ALJ overlooked the need to obtain retrospective opinions and diagnoses of treating physicians. In the absence of a complete record, this Court is unable to determine whether the ALJ's decision regarding Lacava's disability was supported by substantial evidence, and the case should be remanded to the Commissioner for further development.
Plaintiff Rose Lacava has suffered from schizoaffective disorder, major depressive syndrome, and asthma for several decades. She applied to the Social Security Administration ("SSA") for disability benefits on April 8, 2009, (R. 97-100), alleging disability from July 15, 1983 through December 31, 2007, the date she last met her disability insured status under the Social Security Act (the "Act"). When the SSA denied initial review on September 14, 2009, (R. 54-57), Lacava requested a hearing before an ALJ (R. 58). With appointed counsel, (R. 95), she amended the onset date to October 10, 2007, the date of the earliest medical evidence in the record at the time. ALJ Dennis Katz reviewed the application de novo on March 2, 2011. (R. 28-49.) On March 25, 2011, the ALJ decided that Lacava was not disabled within the meaning of the Act during the period under review. (R. 13-22.) The Appeals Council denied Lacava's request for further review on August 24, 2011, making the ALJ decision final and reviewable by this Court under 42 U.S.C. § 405(g) and § 1383(c)(3).
Lacava filed a timely complaint in the United States District Court for the Southern District of New York on October 26, 2011. (Docket No. 2.) The case was referred to Magistrate Judge Debra Freeman on November 11, 2011 for a report and recommendation and re-assigned to my docket on September 24, 2012. (Docket Nos. 6, 24.)
*
Lacava has been prescribed and has taken numerous medications over the years; Seroquel and Zyprexia, frequently prescribed for schizophrenia; Trazadone, Triliptal, and Wellbutrin, which are antidepressants; Ritalin, prescribed for attention deficit problems; Albuterol and Adavair, prescribed for asthma; and Effexor, for night sweats. (R. 148, 305, 310, 312, 415.) During the period at issue, she was prescribed Seroquel and Trazadone. (R. 305.)
There are two medical records available, both from the HRPC, that reflect Lacava's condition during the disputed period, October, 2007 through December, 2007. The first, dated October 10, 2007, notes the existing diagnosis of schizoaffective disorder and major depressive disorder, (R. 305), though it is unclear whether that diagnosis is a result of a contemporaneous evaluation or based on Lacava's testimony to the staff The record shows that Lacava reported insomnia, hearing voices, and low motivation, appetite, and energy. The HRPC staff member indicated that Lacava complained of poor short-term memory and concentration and noted that she displayed "isolating" behavior and "tangential and racing" thought processes. (Id.) The staff member described her as "appropriately dressed," "well groomed," and "cooperative." (Id.)
Lacava's second examination during the period at issue was on October 22, 2007.
*
On April 13, 2009, Lacava began treatment at Putnam Family and Community Services ("PFCS"). According to the screening notes, Lacava had been arrested three times in the previous year. (R. 270.) The notes relay that the Putnam County Jail considered her "quite psychotic" and deemed her a suitable candidate for the Mental Health Court; that court had sent her to PFCS for treatment. (Id.)
The initial screening notes from PFCS, dated April 13, 2009, describe Lacava's mental health history and childhood, (R. 270-72), and describe her strengths as "engaging, intelligent, motivated to get her life back on track" (R. 273). The notes further state: "[i]t appears Rose has been mentally ill for many years, but received erratic treatment due to financial issues (too much money to qualify for benefits, too little to pay out of pocket). Rose could benefit from consistent attendance at [Continuing Day Treatment] . . . ." (R. 274.) At the second visit on April 15, 2009, the staff member described her as "a bit overwhelmed . . . but is open about her overwhelm [sic], and is doing her best to manage. Rose is friendly when approached, but as of now, is keeping to herself and not initiating much contact with other clients. She is quiet as well in groups but attentive to the process." (Id.)
According to a PFCS treatment report on June 5, 2009, Lacava received treatment "5 days weekly." (R. 254.) Her treating physician, Dr. Robert Roy, Medical Director at PFCS, reported on June 5, 2009 that her current symptoms were "Mood Lability — depressed and irritable," "anxiety," "low tolerance for stress," "poor impulse control," and "difficulty maintaining concentration." (Id.) At that time, Lacava was prescribed Wellbutrin, Seroquel, and Trileptil. (R. 255.) Dr. Roy described the expected duration of Lacava's condition as "ongoing, prognosis fair." (Id.) When prompted to describe Lacava's history, Dr. Roy wrote:
*
The treatment at PFCS appeared to have had a positive effect on Lacava's life; on December 17, 2009, the staff member who screened the Lacava noted that Lacava "currently feels fine and better than she has ever felt." (R. 314.)
The records from Putnam County Correctional Facility ("PCCF"), (R. 324-27), do not include extensive descriptions of her condition. But in a questionnaire completed on January 7, 2010, as part of the Suicide Prevention Screening at PCCF, the examiner answered "No" to the statements, "Detainee shows signs of depression" and "Detainee appears overly anxious, panicked, afraid, or angry." (R. 326,)
The records from Putnam Hospital Center are mostly physical in nature, representing several visits between July 9, 2009 and September 10, 2010 for rib pain, (R. 343), rectal bleeding, (R. 360), neck pain, (R. 369), an abdominal abscess, (R. 375), and asthma problems (R. 391).
Lacava completed the twelfth grade, (R. 119, 305), and is fluent in English (R. 112). Since April 2009, she has lived in an apartment program run by Search for Change in Brewster, New York. (R. 37-38.) Lacava lives alone, but she can call counselors who are available 24 hours a day for assistance. Mental health care is required for residents and included in the arrangements. (Id.) Lacava indicates that her mental impairments cause her to lead a simple life. She cooks "easy" things for herself: soup, spaghetti, grilled cheese. (R. 38.) She grocery shops, but always with a counselor or friend. (Id.) She needs this guidance to help her "stay on track." (R. 39.) She reports that she loses concentration easily and that the bright lights, high ceilings, and the people at the store make her anxious. (Id.) In general, she describes high levels of anxiety when she has to catch a bus at a certain time or attend an appointment: "I just obsess over it." (R. 43.) She likes to read, listen to music, crochet, and garden, (R. 130), but notes that she has an increasingly hard time reading because she gets distracted and has to "read the same thing over and over" (R. 130). She indicated that she had not watched a movie in a long time because she could not concentrate long enough. (R. 44, 130.)
*
At the hearing, the ALJ inquired whether Lacava experienced the symptoms she described during the time period of alleged disability, October 10, 2007 to December 31, 2007. Lacava responded that she began hearing voices in the 1990s and continued to hear them in 2007. (R. 41-42.) She also said that she isolated herself and avoided other people in 2007. (Id.)
Lacava has a varied work history. The earliest job on record is cleaning houses, which she reports as lasting from 1985 to 2000. (R. 135.) Since then, Lacava's jobs included working as a teacher's assistant at United Cerebral Palsy ("UCP"), (R. 114, 135, 168), as an assistant manager and cashier at a car wash, (R. 31, 114, 135, 168, 185, 306), and on the production line at a store called Edible Arrangements (R. 31-33, 135-36, 168).
The precise dates of these jobs are inconsistent in the record. The record states that Lacava worked at UCP from April 1998 to August 1999, (R. 114), and from September 1999 to November 2000 (R. 168). The record states that Lacava worked at the car wash from May 2006 to January 2007, (R. 135), April 2006 to February 2007, (R. 306), and May 2007 to February 2008 (R. 35, 168). In response to this confusion, on June 22, 2011, Lacava wrote to her attorney at the time, Brian Parker of Legal Services of Hudson Valley, to clarify her employment at the car wash. She wrote, "I need to clarify the dates of my employment at the SPLASH Car Wash. I was hired in the spring of 2006. I worked through the summer, fall, and early winter in 2007." (R. 185.)
Lacava's employment dates at Edible Arrangements are similarly confused in the record. In the SSA Claimant's Work History Background, she reported that she worked there from May 2008 through August 2008, though these entries are accompanied by question marks. (R. 168.) In the SSA Work History Report, Lacava recorded that she worked there from May 2007 to July 2007. (R. 135.) From other evidence in the record, the end date appears to be on or before August 7, 2007, the date Lacava was arrested for possession of stolen property. (R. 306.) After this arrest, Edible Arrangements would not rehire her. (R. 35, 306.)
Lacava asserts that she has progressively cut back her working hours. She now works two-and-a-half hours per week as a receptionist at the Mental Health Association. (R. 33-34.)
Lacava reports that her mother was physically and emotionally abusive when she was growing up, and that her uncle abused her physically and sexually when she was 12 years old. Lacava has two children through her former husband, one is disabled and lives in a group home. (R. 306.) Her marriage ended in 2001, and Lacava began living with a partner who died in 2005. (Id.)
*
At the administrative hearing, the ALJ questioned Lacava directly. He focused on her work history, questioning her about her various jobs and the responsibilities she held at each one, as well as her reason for leaving. (R. 31-36.) Lacava's attorney inquired about her living situation at Search for Change Housing and her habits of daily living, focusing on the strategies that Lacava has developed to reduce stress in her life. (R. 37-40.) He also asked her to elaborate on the auditory hallucinations she had experienced over the years, as well as the situations that trigger stress and panic. (R. 41-46.) The ALJ re-examined Lacava for further clarification on her living situation. (R. 47-48.)
The ALJ issued a decision on March 25, 2011, in which he concluded that Lavaca was not disabled from October 10, 2007 to December 31, 2007, her date last insured. (R. 13-22.)
Following the final administrative determination, Lacava's counsel submitted a brief to the SSA Appeals Council arguing that the ALJ decision was not supported by substantial evidence, and that the dates supplied by Lacava for her work activity were incorrect. (R. 178-80.) Counsel also submitted a notarized letter from Lacava providing the dates of her employment at the SPLASH Car Wash, "spring of 2006 . . . through summer, fall, and early winter in 2007," (R. 185), and submitted additional medical records that reflected various medical visits between March 11, 1994 and August 23, 2011 (R. 418-31).
On August 24, 2011, the Appeals Council denied Lacava's request for review of the ALJ's decision, stating that there was no reason under its rules to review the ALJ decision. (R. 1.) On October 26, 2011, Lacava filed a complaint in the United States District Court for the Southern District of New York requesting review of the Commissioner's decision. (Docket No. 2.)
*
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). A determination of the ALJ may be set aside only if it is based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999). "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995). "Where there is substantial evidence to support either position, the determination is one to be made by the factfinder." Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990). This means that if there is sufficient evidence to support the final decision, a district court must grant judgment in favor of the Commissioner.
A claimant is disabled under the Social Security Act if the claimant 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 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." § 423(d)(2) (A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." § 423(d)(3).
Under the authority of the Act, the Social Security Administration has established a five-step sequential evaluation process when making disability determinations. See 20 C.F.R. §§ 404.1520, 416.920. The steps are followed in order; if it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. The Court of Appeals for the Second Circuit has described the process as follows:
*
Title 20 C.F.R. § 404.1520a provides additional information to guide evaluations of mental impairments. Calling it a "complex and highly individualized process," 20 C.F.R. § 404.1520a(c)(1), the section focuses the ALJ's inquiry on determining how the impairment "interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 404.1520a(c)(2). The main areas that are assessed are activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation; each is rated on a five-point scale. 20 C.F.R. § 404.1520a(c) (3)-(4). If an impairment is given the rating of "severe," then the ALJ is instructed to determine whether the impairment qualifies as a listed mental disorder. 20 C.F.R. § 404.1520a(d).
A mental disorder such as schizophrenia will qualify as a "listed impairment" if there is "medically documented persistence, either continuous or intermittent, of . . . delusions . . . hallucinations . . . or . . . emotional withdrawal and/or isolation . . . resulting in at least two of the following: Marked restriction of activities of daily living; Marked difficulties in maintaining social functioning; Marked difficulties in maintaining concentration, persistence, or pace; or Repeated episodes of decompensation, each of extended duration. . . ." 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.03(A), 12.03(B). If the mental disorder does not qualify as a listed impairment under these standards, it will still qualify as a disability if there is:
*
To assess Lacava's claim of disability, the ALJ followed the five-step analysis required by 20 C.F.R. § 404.1520. Beginning with step one, the ALJ concluded that Lacava had not engaged in substantial gainful activity during the relevant period. (R. 18.)
At step two, the ALJ concluded that Lacava had severe impairments within the meaning of the SSA arising from her schizoaffective disorder. He noted her additional asthma diagnosis, but determined that this has not caused limitations in the workplace. (R. 18-19.)
At step three of the analysis, the ALJ determined that the impairment did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ concluded that Lacava did not have any restrictions in her daily living and social functioning and only moderate restrictions in her concentration, persistence, and pace. He noted that during the evaluation on October 10, 2007, Lacava was appropriately dressed and well-groomed. (R. 19.)
Before continuing to step four of the analysis, the ALJ assessed Lacava's residual functioning capacity ("RFC"), which evaluates the applicant's exertional limitations. The ALJ determined that Lacava had no exertional limitations and remained capable of performing basic, unskilled work. To reach this conclusion, the ALJ considered "objective medical evidence," "other evidence," and "opinion evidence," in accordance with 20 C.F.R. 404.1529 and the Social Security Rulings ("SSR") 96-4p, 96-7p, 96-2p, 96-5p, 96-6p and 06-3p. (Id.) Then the ALJ outlined a two-step process. First, the ALJ considered whether there was an underlying medically determinable mental impairment that could have produced the claimant's pain or symptoms. Second, the ALJ evaluated the intensity, persistence, and limiting effects of the symptoms to determine how they limited the claimant's functioning. (Id.) The ALJ explained that, whenever claimant's statements about symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the statements based on the entire case record. (R. 19-20.)
The ALJ acknowledged Lacava's history of schizoaffective disorder, a medically determinable impairment. (R. 20.) To evaluate the limiting effects of the disorder, he examined the treating notes from October 10, 2007, noting her complaints of hearing voices and her anxious mood and affect. He also cited the treating notes that described her thoughts as well-organized and her GAF of 55. (R. 21.)
Noting the paucity of treating notes from the disputed period, the ALJ supplemented the medical evidence with an evaluation of Lacava's credibility. He cited Lacava's testimony that she worked at a car wash for almost a year during the period she claims to have been disabled, February 2007 to February 2008.
*
At step four of the analysis, the ALJ assessed whether Lacava's RFC allowed her to perform the requirements of her past relevant work. The ALJ determined that Lacava did not have any past relevant work because none of her past jobs was performed at substantial gainful activity levels. (Id.)
At step five, the ALJ considered whether Lacava could be expected to do any other work in the national economy. The ALJ mentioned Lacava's RFC, age, education, and work experience and referred to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. The ALJ found that Lacava was considered a person approaching advanced age as of the date last insured, according to 20 C.F.R. 404.1563(d), had at least a high school education and was able to communicate in English. (Id.) The ALJ further found that Lacava did not have work skills transferable to the skilled or semiskilled activities of other work. (Id.) Finally, the ALJ concluded that jobs existed in significant numbers in the national economy that Lacava could perform. (Id.) He stated that Lacava's ability to perform work at all exertional levels was compromised only by nonexertional limitations that had "little or no effect" on the occupational base of unskilled work at all exertional levels. Again referencing section 204.00 of the Medical-Vocational Guidelines, the ALJ found Lacava "not disabled" as defined in the Social Security Act. (R. 22).
On appeal to the District Court, neither party challenges the ALJ's analysis at steps one, two, and three. Both parties agree that Lacava did not engage in substantial gainful activity during the relevant period, and that Lacava had severe impairments arising from her schizoaffective disorder. Plaintiff does not explicitly refute the ALJ's decision that her impairment did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Rather, Lacava challenges the validity of the hearing itself. She argues that the ALJ, instead of contacting treating physicians and considering the retrospective diagnosis, substituted his own opinion for those of the treating physicians. (Pl. Br. at 5, 9, 13-19.) Lacava further argues that the ALJ's finding that she had the residual functional capacity for work at all exertional levels was not supported by substantial evidence (step four) and that the Commissioner did not carry his burden to show that plaintiff could perform work in the national economy (step five). (Pl. Br. at 19-20.) Finally, Lacava argues that the ALJ's finding that her subjective complaints were not credible was not supported by substantial evidence. (Pl. Br. at 19-23.)
*
The central issue before this Court, therefore, is the extent of the ALJ's duty to develop the record before making a determination of disability. The Court finds that the ALJ did not fulfill his duty to develop the record. First, he did not resolve a critical factual inconsistency. Second, he disregarded the importance of obtaining a retrospective diagnosis under these circumstances. These errors render the record incomplete and the Court unable to evaluate the final agency determination.
When the ALJ assesses a claimant's alleged disability, the ALJ must develop the claimant's medical history for at least a twelve-month period. 42 U.S.C. § 423(d)(5) (b), 20 C.F.R. § 404.1512(d). Further, the Act authorizes the Commissioner to "issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation." 42 U.S.C. § 405(d).
The Court of Appeals for the Second Circuit considers this statutory authorization to impose an affirmative duty on the ALJ to develop the record. Indeed, before a district court can evaluate the ALJ's conclusions, the court must ensure that the claimant received a full hearing. Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.1982) (holding that an ALJ must ensure that the claimant had a "full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act" (citing Gold v. Secretary of HEW, 463 F.2d 38. 43 (2d Cir.1972))). Due to the "non-adversarial nature" of social security proceedings, a full hearing requires the ALJ to "affirmatively develop the record." Echevarria, 685 F.2d 751 at 755. Whether or not the claimant is represented by counsel, Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999), the ALJ must contact medical sources and gather any additional information if the ALJ believes that the record is inadequate to make a determination. When the ALJ has failed to develop the record adequately, the district court must remand to the Commissioner for further development. See, e.g., Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996).
The ALJ's duty to develop the record is enhanced when the disability in question is a psychiatric impairment. The Regulations articulate that claims concerning mental disorders require a robust examination that is sensitive to the dynamism of mental illnesses and the coping mechanisms that claimants develop to manage them:
*
The enhanced obligation to obtain a broad view of the claimant's history and abilities is especially relevant once the ALJ has recognized an impairment and subsequently must determine the date of its onset. Caputo v. Astrue, 07 Civ. 3992(DLI)(JO), 2010 WL 3924676, at *3 (E.D.N.Y. Sept. 29, 2010). Social Security Ruling 83-20 states, "because mentally ill persons may not be capable of protecting themselves from possible loss of benefits by furnishing necessary evidence concerning onset, development should be undertaken in such cases to ascertain the onset date of the incapacitating impairment. Contact with the individual's family, former employers, and other associates may lead to information about previous hospitalizations, medical treatment, or manifestations of symptoms prior to the current hospitalization." SSR 83-20. Therefore, in cases where the inquiry includes determination of the date of disability and the ALJ is faced with sparse information, the ALJ's duty to develop the record extends to collecting affidavits and testimony from individuals close to the claimant.
The ALJ's development of the record centers around the opinions and diagnoses of the claimant's treating physician. The "treating physician rule" instructs the ALJ to give controlling weight to the opinions of a claimant's treating physician, as long as the opinion is well-supported by medical findings and is not inconsistent with the other evidence in the record. 20 C.F.R. § 404.1527(c)(2). While the decision on the ultimate issue of disability is one reserved for the Commissioner, 20 C.F.R. § 404.1527(d) (2); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) ("A treating physician's statement that the claimant is disabled cannot itself be determinative."), the ALJ may not discredit the opinion without "affirmatively seek[ing] out clarifying information from the doctor." Duncan v. Astruc, 09 Civ. 4462(KAM), 2011 WL 1748549, at *19 (E.D.N.Y. May 6, 2011). Indeed, the ALJ cannot discount a treating physician's opinion unless the ALJ believes that it "lack[s] support or [is] internally inconsistent." Id.
If the ALJ decides to discredit the opinion of a treating physician, the ALJ must follow a structured evaluative procedure. This procedure evaluates the following factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other significant factors. 20 C.F.R. § 404.1527(c)(2)-(6). This process must be transparent: the regulations state that the Commissioner "will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." 20 C.F.R. § 404.1527(c) (2). Indeed, where an ALJ does not credit the findings of a treating physician, the claimant is entitled to an explanation of that decision. Snell, 177 F.3d at 134.
*
The "treating physician rule" applies to physicians providing retrospective diagnoses. Retrospective diagnoses and opinions are those from a treating physician that relate to a time period in the past, including periods when the physician was not the treating source. Although retrospective diagnoses do not command the same deference as contemporaneous diagnoses, they are afforded substantial weight unless contradicted by other medical evidence or by "overwhelmingly compelling" non-medical evidence. Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir.2003); Rivera v. Sullivan, 923 F.2d 964, 968-69 (2d Cir.1991). Indeed, "the fact that a treating physician did not have that status at the time referenced in a retrospective opinion does not mean that the opinion should not be given some, or even significant weight." Monette v. Astrue, 269 Fed.App'x 109, 113 (2d Cir.2008).
Where there is ambiguity regarding whether a treating physician's statement bears on the alleged period of disability, the ALJ must seek to resolve this ambiguity through testimony. Rogers v. Astrue, 05 Civ. 7506(KMK) (LMS), 2012 WL 4473266, at *9 (S.D.N.Y. Sept. 28, 2012) ("[I]t was legal error for the ALJ to rely on Plaintiff's lack of evidence from the relevant time period to deny benefits without first attempting to adequately develop the record, or to pursue the possibility of retrospective diagnosis.") (citations omitted); Wiebicke v. Astrue, 10 Civ. 3371(BSJ)(FM), 2012 WL 2861681, at *17 (S.D.N.Y. July 2, 2012) ("To discharge his duty to develop the record, the ALJ should have sought clarification from [the treating physician] as to whether his [later] impressions applied to the [earlier] period at issue.").
Consideration of the duty to develop the record, together with the inclusion of retrospective diagnoses in the scope of the treating physician rule, produces an obligation that encompasses the duty to obtain information from physicians who can provide retrospective opinions about the claimant. The need for such rigorous development of the record is especially acute when claimants with mental disorders do not have an extensive medical record from the period of alleged disability. See SSR 85-15. Indeed, the ALJ possesses the statutory authority to request that physicians provide clarification regarding the claimant's condition during the relevant period. 42 U.S.C. § 405(d).
*
Although the Court agrees with Lacava that the ALJ did not meet his affirmative duty to develop the record, Lacava mischaracterizes the factors that trigger this duty. In fact, the ALJ obtained all relevant treatment records available from the statutorily-required time period. The ALJ made no indication in his opinion that he considered the medical data insufficient, or that he considered any part of the record ambiguous.
Instead, the ALJ considered the treating notes from October 10, 2007, and made an evaluation, as is his role. The ALJ focused on the fact that, according to Dr. Alarkson, Lacava presented well and appeared to be in charge of her thoughts and behaviors. (R. 305.) While the ALJ acknowledged the existing diagnosis of schizoaffective disorder and major depressive disorder, as well as Lacava's complaints of hearing voices, insomnia, and isolating behavior, he was doubtful of the disabling effects of the symptoms. Instead, the ALJ was swayed by the testimony that Lacava had worked at the car wash from February 2007 to February 2008, the time period during which she claims to have been disabled. As a result, the ALJ concluded that "the evidence does not establish that the claimant's schizoaffective disorder precluded her from performing all work activity through her date last insured." (R. 20.) Barring other deficiencies, the ALJ is entitled to make an evaluation of the evidence in the record and assess the claimant's RFC. Indeed, even in the face of contradictory evidence, the ALJ is the ultimate factfinder. See, e.g., Alston, 904 F.2d at 126.
Nevertheless, the ALJ made two errors in his analysis that render the record inadequate. First, the ALJ failed to recognize the factual inconsistency regarding Lacava's work history. Lacava offered several conflicting dates for her work at the SPLASH Car Wash. In the SSA Claimant's Work Background, she indicated that she worked from May 2007 to February 2008, and included question marks to indicate uncertainty. (R. 168.) At the hearing, the ALJ asked her if she worked from May 2007 to February 2008 and Lacava answered "Right." (R. 34.) But in the SSA Work History Report, Lacava indicated that she worked at SPLASH Car Wash from May 2006 to January 2007 (R. 135); in the SSA Disability Report, she indicated that she worked there from 2006 to 2007 (R. 114). Lacava and her previous attorney attempted to clarify this confusion before the Appeals Council decision by supplying a letter in which Lacava wrote that she was employed by the car wash from "spring 2006" through "summer, fall, winter in 2007."
*
Factual errors require remand to the ALJ when there is insufficient information in the record to support the ALJ's position without the disputed fact. See, e.g., Cruz v. Barnhart, 04 Civ. 9011(GWG), 2006 WL 1228581, n. 6 (S.D.N.Y. May 8, 2006). When selective reading of the record leaves the facts of a case ambiguous, the record is rendered inadequate and the reviewing court is unable to say with confidence whether the ALJ decision is supported by substantial evidence. Pratts, 94 F.3d at 38 (holding that a factual error involving a missing portion of a transcript required remand because the ALJ's conclusions were not corroborated by the full record); Valerio v. Comm'r of Soc. Sec., 08 Civ. 4253(CPS), 2009 WL 2424211, at *15 (E.D.N.Y. Aug. 6, 2009) (finding that the ALJ's credibility assessment was not supported by substantial evidence when it was based on the factually erroneous notion that the plaintiff chose not to wear a back brace when the evidence showed that he did). Courts have been particularly inclined to remand when the excluded evidence is significantly more favorable to the claimant than the included facts. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010); Snell, 177 F.3d at 134. Remand due to factual mistakes is unnecessary only where the excluded evidence is duplicative of the evidence considered or correct application of legal principles could lead to only one conclusion. Zabala, 595 F.3d at 409.
In this case, the ALJ considered one version of Lacava's work history; that she worked at the SPLASH Car Wash from February 2007 to February 2008. This version turned out to be dispositive in his ruling. (R. 21.) He disregarded, or failed to notice, the evidence that Lacava may have worked there from May 2006 to February 2007, before the period of her alleged disability. This inconsistency leaves the facts of the case ambiguous in a way that holds legal significance. Given the nature of Lacava's claim and the timing of her alleged disability, inclusion of the 2006-07 dates would be significantly more favorable than the other dates. In the face of evidence pointing in two directions — a diagnosis of mental illness and reports of her apparent competency — the ALJ used the dates of her employment as the deciding factor. Because the Court cannot know how the ALJ's decision would have changed with different work dates, it is unable to say with confidence whether the ALJ's decision was supported by substantial evidence.
*
The treating records from 2008 and 2009 portray a person in poor condition. In October 2008, Dr. Alarkson noted a "characterological pattern of histrionic, borderline, and antisocial traits." (R. 312.) The Putnam Family and Community Services reported that Putnam County Jail described her as "quite psychotic" in 2009. (R. 270.) The PFCS staff consistently describes her as having a long-lasting untreated mental illness. (R, 256, 270.) The records also include several statements about Lacava's ability to work. Dr. Roy concluded that Lacava was "unable to work outside of a workshop setting for the disabled," that is, the three hours weekly that Lacava worked in a supervised capacity at the Mental Health Association. (R. 258.)
Although the ALJ is not required to accept any single opinion as dispositive of the disability determination, he must provide reasons for not crediting a treating physician's opinion. 20 C.F.R. § 404.1527(c); Wiebicke, 2012 WL 2861681, at *11. Here, the ALJ disregarded Dr. Alarkson's 2008 statements and explicitly disregarded Dr. Roy's reports as "not relevant" because they concerned a period after Lacava's alleged disability. (R. 21.) Given the retrospective diagnoses prong of the treating physician rule, this rationale is wrong. For the following reasons, this Court finds that this evidence required further development of the record in order to clarify its retrospective nature.
First, as Lacava's treating physician through the alleged period of disability, the opinion of Dr. Alarkson from 2008 is entitled to significant weight. See, e.g., Stieberger v. Apfel, 95 Civ. 5622(LBS), 1998 WL 556156, at *10 (S.D.N.Y. Aug. 31, 1998) ("[A] retrospective opinion based on a current course of treatment . . . should not have been dismissed merely because it was retrospective."); Wagner v. Sec'ty of Health and Human Servs., 906 F.2d 856 (2d. Cir.1990) (reversing an ALJ's denial of disability benefits where a treating physician diagnosed his patient's condition four years after her alleged onset date and his opinion was not contradicted by other evidence in the record).
This applies to Dr. Roy as well, even though he did not treat Lacava until 2009, Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981) (reversing the ALJ's denial of benefits where a present physician reflected on the claimant's condition before he was his patient and testified that the claimant had probably been disabled six years earlier). Even when a disability is progressive or degenerative, as Lacava's schizoaffective disorder may have been between 2007 and 2009, the retrospective opinion of physicians bears on an evaluation of disability. Rivera, 923 F.2d at 968 ("The mere fact that . . . a claimant's condition is degenerative does not render invalid a physician's retrospective opinion.").
*
In the face of such ambiguity, the ALJ should have sought clarification from the treating physicians by requesting a retrospective testimony. Wiebicke, 2012 WL 2861681, at *17 ("To discharge his duty to develop the record, the ALJ should have sought clarification from [the treating physician] as to whether his [later] impressions applied to the period at issue."). Indeed, the ALJ is authorized to do so under 42 U.S.C. § 405(d). The physicians, as experts, understand the development of mental illnesses and can describe the development of mental illness and the dynamic nature of schizoaffective disorder and depression more generally. Most relevant for the purposes of Lacava's claim, they could speculate about whether the sparseness of the medical records from the relevant period is due to a stable condition and lack of disability, or whether it was due to, as one staff member expressed in 2009, lack of money and support. (R. 274.) Finally, the opinions are not contradicted by the October 10, 2007 records, which include Lacava's reports of among other symptoms, auditory hallucinations, poor concentration, and anxiety. (R. 305-09.) The ALJ's failure to consider the value of the retrospective opinions and diagnoses requires remand in this case. Brown v. Apfel, 97 Civ. 4404(JG), 1998 WL 767140, at *4-5, n. 5 (E.D.N.Y. July 22, 1998) (holding that failure to request retrospective diagnosis from treating physician required a remand when the evidence from the period of alleged disability is sparse).
Remand will correct the two errors in the ALJ's reasoning: the disregard for a critical factual inconsistency and the failure to develop the record to include retrospective diagnoses. In addition, remand will enable a comprehensive examination of Lacava's condition, consistent with the instructions of the Social Security Regulations. While it is impossible and unnecessary for this Court to predict whether the correction of these errors will result in a favorable outcome for Lacava, it is worth noting the similarity between the statements from the Social Security Administration regarding the behavior of individuals with mental illnesses and Lacava's decisions over the past several years. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(E); SSR 85-15. She has transitioned to a group home with regular therapy and the availability of 24-hour assistance; that is, she has worked to eliminate sources of stress in her life.
The ALJ's reliance on the work history dates and the disregard of the 2008-09 medical reports allowed a swift determination that ignored the nuances of mental health disability determinations. On remand, the ALJ should consider these factors alongside the physical appearance of competency and organization.
*
The burden at step five of the evaluation of disability rests with the Commissioner, who must show that the claimant has the residual functional capacity to perform substantial gainful activity in the national economy. Schaal, 134 F.3d at 501. The Medical-Vocational Guidelines guide this evaluation, placing claimants with exertional impairments into grid categories according to their RFC, age, education, and work experience, 20 C.F.R. § 404.1520(f). Where a claimant is placed in the grid affects the evaluation of whether or not the claimant can engage in gainful work in the national economy.
When a claimant's impairment is not purely physical (that is, it is "nonexertional"), the responsibility of the ALJ is enhanced because the Medical-Vocational Guidelines are not "fully applicable." Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e). If nonexertional impairments diminish a claimant's abilities to perform work, the "decisionmaker must not assume that failure to meet or equal a listed mental impairment equates with capacity to do at least unskilled work." SSR 85-15, Rather, to evaluate the effect of significant nonexertional impairments on a claimant's ability to perform work, the ALJ should seek out the testimony of a vocational expert or other relevant evidence. Rosa, 168 F.3d at 78, 82 ("[S]ole reliance on the [g]rid [s] may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments. . . . Instead, the Commissioner must introduce the testimony of a vocational expert . . . that jobs exist in the economy which claimant can obtain and perform.") (internal quotations omitted) (citing Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir.1986)). Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden. Acevedo v. Astrue, 11 Civ. 8853(JMF)(JLC), 2012 WL 4377323 (S.D.N.Y. Sept. 4, 2012); Giannasca v. Astrue, 07 Civ. 341(VB), 2011 WL 4445141 (S.D.N.Y. Sept. 26, 2011).
In this case, the ALJ did not consult a vocational expert to reflect on Lacava's ability to perform unskilled work presumably because he had already concluded that Lacava's mental limitations had "little or no effect on the occupational base of unskilled work." (R. 22.) See Cotto v. Astrue, 10 Civ. 9005(KBF), 2012 WL 2512054, at *7 (S.D.N.Y. June 28, 2012) (holding that the ALJ did not err by failing to take the testimony of a vocational expert when the nonexertional impairments of the plaintiff were not so significant that reliance on the grids was inappropriate). The ALJ's conclusion was based on the fact that Lacava purportedly worked during her period of alleged disability and on the exclusion of retrospective diagnoses.
*
For the foregoing reasons, the Court recommends that the Commissioner's motion for judgment on the pleadings be DENIED, and plaintiff's cross motion for judgment on the pleadings be DENIED in part and GRANTED in part. The Court recommends REMAND for further development of the administrative record.
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2) (C), (D), (E), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley III at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Pauley. The failure to file these timely objections will result in a waiver of those objections for the purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
Not Reported in F.Supp.2d, 2012 WL 6621731
Herbert S. Forsmith, Esq., New York, NY, for Plaintiff.
Susan D. Baird, Esq., U.S. Attorney's Office, SDNY, New York, NY, for Defendant.
WILLIAM H. PAULEY III, District Judge.
*
In reviewing a Report and Recommendation, 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)(C). "To accept those portions of the report to which 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." Simms v. Graham, No. 09 Civ. 1059(KBF), 2011 WL 6072400, at *1 (internal citation and quotation marks omitted).
This Court has reviewed Magistrate Judge Netbum's thorough and well-reasoned Report and Recommendation and finds that it is not facially erroneous. See 28 U.S.C. § 636(b)(1)(C). Accordingly, this Court adopts the Report and Recommendation in its entirety, denies the Commissioner's motion for judgment on the pleadings, grants in part and denies in part Lacava's motion for judgment on the pleadings, and remands the case to the Commissioner for further development of the record. The parties' failure to file written objections to the Report and Recommendation precludes appellate review of this decision. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The Clerk of the Court is directed to terminate all pending motions, mark this case closed, and enter judgment remanding this case to the Commissioner of Social Security.
SO ORDERED.
Not Reported in F.Supp.2d, 2012 WL 6621722
