JUDITH C. McCARTHY, Magistrate Judge.
Plaintiff Mariama Barrie ("Plaintiff"), appearing pro se, commenced this action on behalf of her daughter ("F.T.") pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security ("the Commissioner"), which denied F.T.'s application for disability benefits, finding her not disabled. Presently before this Court is the Commissioner's motion for judgment on the pleadings to affirm the Commissioner's decision pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Rule 12(c)"). (Docket Nos. 12, 13). Plaintiff has not filed a cross-motion. For the reasons below, I respectfully recommend that the Commissioner's motion should be denied and the case should be remanded
F.T. was born on June 24, 2002. (R.
Thereafter, Plaintiff appealed the SSA's decision by submitting her complaint in the present action to the Pro Se Office of this Court on June 29, 2016. (Docket No. 2). The Commissioner filed a motion for judgment on the pleadings under Rule 12(c) on December 12, 2016. (Docket Nos. 12, 13). Plaintiff did not timely oppose the motion or cross move. By Order dated February 21, 2017, the Court extended Plaintiff's time to respond or otherwise notify the Court as to her status until March 7, 2017. (Docket No. 14). Plaintiff did not respond, and the Court deemed this matter fully submitted.
The administrative record reflects treatment F.T. received for her kidneys, bladder and urinary tract starting in 2006.
F.T. had numerous appointments at Pediatric Urology Associates, P.C. ("Pediatric Urology") from at least May 2007 through March 2013; her treatment there continued through the relevant period, as discussed infra Section 1(A)(2)(b). It appears that F.T. was treated primarily by Dr. Israel Franco, whom she saw at least twenty-five times prior to the period at issue, (e.g., R. 265-66, 269-70, 272-77, 280-96, 298-305, 317-24, 348-54), and Dr. Paul Zelkovic, whom she saw less frequently, but on at least ten occasions before the relevant period, (e.g., R. 267-68, 278-79, 325-26, 328-29, 344-47, 421, 423). She received treatment for repeated urinary tract infections ("UTI"), (e.g., R. 276, 287, 289, 293, 333, 412, 421-23, 426), and had multiple operations related to a kidney transplant and a Mitrofanoff, which is a procedure for bladder drainage, (e.g., R. 269-71; 282-86, 321-22, 330, 348). For example, an operative report prepared by Dr. Franco and dated July 14, 2009 diagnosed F.T. with obstruction of her transplant kidney and indicated that Dr. Franco performed the following procedures: (i) cystoscopy of pouch via Mitrofanoff; (ii) nephroscopy; (iii) insertion of new "sp tube;" (iv) balloon dilation of ureteral stricture; and (v) insertion of ureteral catheter. (R. 282-83; see also R. 493-94
Many of the operative reports from Pediatric Urology are repeated in the records from Westchester Medical Center. (Compare, e.g., R. 285-86, with 492). In addition, the records from Westchester Medical Center include an operative report from Dr. Franco, dated January 30, 2006, in which he described F.T. as a patient with end-stage renal disease and a dysplastic right kidney, and explained that she had a pyelostomy performed at birth, which was in the process of being reversed. (R. 498). He diagnosed her with chronic renal failure with pyelostomy, and indicated that he performed a closure of the pyelostomy, an open insertion of a stent, and a revision of the wound. (R. 498). The records further reflect multiple lab reports ordered by Dr. Anna Zolotnitskaya. (R. 452-61, 463-68). It is also clear from the Westchester Medical Center records that F.T. was hospitalized several times. For example, she was hospitalized from July 5, 2011 through July 7, 2011 and was treated by Dr. Zolotnitskaya for transplant glomerulonephropathy. (R. 200-10). She was hospitalized again from December 31, 2012 through January 3, 2013 for a UTI. (R. 170).
F.T. received treatment from Dr. Zolotnitskaya at the Children's and Women's Physicians of Westchester, Section of Pediatric Nephrology. (R. 297). In a letter dated May 23, 2008, Dr. Zolotnitskaya wrote that she had seen F.T. two days earlier for a follow-up of her renal transplant status. (R. 297). She noted that her physical exam was "significant for a discharge from her gastrostomy site," and that "[d]espite the fact that [it] was closed over a year ago, there is persistent discharge[.]" (R. 297). She also found that F.T.'s "urinary drainage remains from ureterostomy," and indicated that there were "no immediate plans to reconstruct her urinary tract." (R. 297). She recommended that F.T. follow up with Pediatric Urology and Pediatric Surgery, and that she would see F.T. again in three months. (R. 297). However, there are no further records from the Children's and Women's Physicians of Westchester.
Treatment notes from Montefiore Medical Center immediately precede the period at issue. On May 22, 2013, F.T. had a pediatric follow up with Dr. Aldo Chavez. (R. 234-36). She received a PCV13 immunization, as recommended by her nephrologist, Dr. Zolotnitskaya. (R. 234). She had a well child checkup with Dr. Barbara Lew on June 27, 2013. (R. 237-46). Dr. Lew noted that her last asthma attack was over one year earlier, and that she had seen her pulmonary doctor six months prior to the visit. (R. 237). She described F.T. as an "excellent student," noted that she wanted to be a doctor, and that her activities included "friends" and basketball. (R. 238).
F.T. had a follow-up visit with Dr. Lew on August 28, 2013. (R. 247-52). She noted that F.T. was "doing well," and that she had an appointment with nephrology in one month. (R. 247). She reviewed F.T.'s past medical history, noting "many hospitalizations" at Westchester Medical Center, a kidney transplant in 2006, a Mitranoff [sic] revision in 2013, and that F.T. self-catheterized every three to four hours. (R. 247). Dr. Lew listed F.T.'s treating physicians as follows: (i) Dr. Zolotnitskaya as her nephrologist; (ii) Dr. Trigger as her pulmonologist; (iii) Dr. Franco as her urologist; and (iv) Dr. Zang as her eye doctor. (R. 247). F.T. was eleven years and two months old at the time of her visit, was in the seventy-second percentile of height and the sixty-second percentile of weight. (R. 248). In terms of her gastrointestinal system, F.T. denied vomiting, diarrhea, constipation and abdominal pain, and a review of her genitourinary system revealed that she had good urine output. (R. 247). Upon physical examination, F.T.'s lungs were clear to auscultation, with no rhonchi, rales or wheezing. (R. 249). Dr. Lew assessed F.T.'s congenital renal dysplasia as unchanged and her asthma as improved, and also noted her history of kidney transplantation. (R. 249-50). Her medications were: (i) Cellcept 250 mg, two caps twice daily; (ii) Ferrex 150 mg, one cap daily; (iii) Flovent HFA 44 MCG, two puffs twice daily; (iv) Macrodantin 50 mg, one cap daily; (v) Prograf 0.5 mg, three caps every morning; (vi) Prograf 1 mg, two caps every evening; (vii) Ventolin HFA 108 MCG, two puffs every four hours as needed; (viii) Benzoyl peroxide 10% lotion, once or twice daily; and (ix) Benzoyl peroxide 10% gel, daily. (R. 250). F.T. had three immunizations. (R. 251).
F.T.'s treatment at Pediatric Urology continued during the relevant period. She was treated from at least October 2013 through April 2015. (R. 307-16). On October 1, 2013, she had an appointment with Dr. Franco regarding her kidney transplant. (R. 315). He noted that she was eleven years and three months old at the time. (R. 315). She was "still . . . having issues with leaking from the Mitrofanoff," although Plaintiff told Dr. Franco that F.T. "spen[t] only a minute waiting for the urine to come out before she stops draining." (R. 315). Upon physical examination, F.T.'s stoma was "patent and pink" and "leaked" when Dr. Franco pressed on her abdomen. (R. 315). Her right kidney was palpable. (R. 315). He concluded that a urodynamic analysis was needed to determine "when she leaks and at what pressure she leaks," and commented that "[i]f the pressures are low at leakage then we may need to revise the stoma once again." (R. 315).
On October 8, 2013, F.T. returned to Pediatric Urology for a urodynamic study with Dr. Lori Dyer. (R. 313-14). F.T. reported leaks from the Mitrofanoff when full more than once per day over the previous several months. (R. 313). She also indicated leaks from the Mitrofanoff overnight and complained of bladder spasms, but stated that she had no difficulty catheterizing. (R. 313). The assessment revealed, inter alia, low storage pressures and uninhibited contractions during the second half of filling, which Plaintiff sensed. (R. 313). The first study was stopped due to F.T.'s discomfort, and a second study was performed, with similar results. (R. 313). F.T. saw Dr. Franco again on November 4, 2013, to review the results of the urodynamic study. (R. 311-12). His notes indicate that he "hope[d] that the Ditropan can staunch these contractions[,] which are likely due to ileocecal segment," and that "[i]f the oral Ditropan doesn't work we can try intravesical Ditropan which in some cases can be effective." (R. 311). Dr. Franco instructed F.T. to follow up in two to six months, including for additional urodynamics. (R. 312).
The next treatment record from Dr. Franco is from March 10, 2014, approximately four months later. (R. 309-10). He stated that she "continue[d] to leak urine when she holds her urine for long periods of time," and that this "seem[ed] to be a problem at school when they do not allow her to catheterize when she has the urge to urinate." (R. 309). He further noted that she continued to leak overnight, when her bladder was filled to capacity. (R. 309). Physical examination indicated that F.T.'s right kidney was palpable, that her stoma was pink, patent and had a Mitrofanoff, and that she had multiple, well-healed scars; there was no tenderness. (R. 309). He determined that F.T. should try to use a Foley catheter throughout the night, which he thought would stop nighttime leakage as well as reduce pressure on her kidney. (R. 309). Dr. Franco also gave her a note for school instructing that she was "not necessarily on a fixed time schedule," but that instead she felt the "sensation to void as any other normal sensate person should do." (R. 309-10). He instructed her to follow up in six months. (R. 310).
Finally, F.T. saw Dr. Edward Reda on April 17, 2015. (R.307-08). Dr. Reda noted that she was twelve years old at the time of the visit. (R. 307). F.T. complained that she continued to leak urine and that she "soak[ed]" overnight. (R. 307). Further, she self-catheterized three times per day at school but sometimes leaked between catheterizations. (R. 307). She reported no difficulty catheterizing. (R. 307). She also complained of constipation. (R. 307). Upon physical examination, her kidneys were not palpable, the Mitrofanoff site was benign, and her scars from surgical incisions were well-healed; she did not report any tenderness. (R. 307). Dr. Reda increased her prescription for Ditropan, instructed her to continue using the Foley catheter overnight to help control leakage, and ordered another urodynamic test to evaluate her bladder. (R. 307).
The administrative record contains an evaluation by consulting physician Steven Tsoutsouras, M.D. (R. 254-59). Dr. Tsoutsouras completed a pediatric examination of F.T. on November 9, 2013. (R. 254). F.T.'s parents accompanied her on the visit and provided her medical history. (R. 254). Regarding her kidneys, F.T. had congenital agenesis of the left kidney with an associated obstruction of the right kidney, and agenesis of the renal bladder. (R. 254, 258). These conditions required a nephrostomy, which was performed at Westchester Medical Center when she was a newborn. (R. 254-55, 258). She also underwent a kidney transplant in 2006 and bladder reconstruction in 2007, both at Westchester Medical Center. (R. 254-55, 258). Prior to her kidney transplant, she suffered from frequent UTIs. (R. 254, 258). At the time of the appointment, F.T. catheterized herself through the umbilicus several times a day. (R. 254, 258). She had monthly visits with a urologist and a nephrologist, and had been advised that she might need further surgeries in the future. (R. 254, 258).
Turning to other medical issues, Dr. Tsoutsouras noted that F.T. suffered from asthma since infancy and was affected year-round; specifically, she became short of breath when exercising. (R. 254, 258). She had been hospitalized once for her asthma at Westchester Medical Center when she was about three years old, and had last seen a healthcare provider for asthma approximately one year prior to the examination. (R. 254). F.T. also had congenital hypothyroidism, for which she was not taking any medication, and anemia, for which she took iron supplements. (R. 254, 258). Finally, F.T. had a vision problem and had been wearing glasses for several years, and had a strabismus of the left eye. (R. 254, 258). She had missed approximately five days of school in the previous school year. (R. 254). At the time of the examination, she was taking the following medication: (i) Cellcept; (ii) Prograf; (iii) Ferrex; (iv) Macrodantin; (v) Ventolin; and (vi) Ditropan. (R. 255).
Dr. Tsoutsouras noted that F.T. had been born at thirty-two weeks' gestation by cesarean section and weighed three pounds and four ounces at birth; she was in the neonatal intensive care unit for four months. (R. 255). He further stated that she was in special education due to her health issues. (R. 255). Her daily activities included watching television, listening to music, playing, doing her homework, reading, drawing and coloring, and playing on the computer. (R. 256). Upon physical examination, Dr. Tsoutsouras found that F.T. was in the fiftieth percentile of both height and weight. (R. 256). She did not need help getting on or off the exam table, and her gait was normal for her age. (R. 256). However, he observed "multiple surgical scars in the lower abdomen and extending to the right flank," and that she had a "small opening in the umbilicus where [she] catheterize[d] herself," and that the "area [was] leaking." (R. 257). Further, he indicated that her vision was "not grossly normal for [her] age." (R. 256).
Dr. Tsoutsouras gave F.T. the following diagnoses with associated prognoses: (i) agenesis of the left kidney with congenital obstruction of the right kidney, status post kidney transplant, prognosis unknown; (ii) asthma, prognosis fair; (iii) congenital hypothyroidism, prognosis fair; (iv) anemia, prognosis unknown; (v) vision problem, prognosis unknown. (R. 258). He concluded that F.T. should follow up with her primary care provider or healthcare provider for her asthma, congenital hypothyroidism and anemia, and with an ophthalmologist for her vision problem. (R. 258).
A state agency medical consultant, S. Putcha, M.D., assessed the evidence of record on November 18, 2013. (R. 63-66). Dr. Putcha reviewed F.T.'s medical history, including her kidney problems, asthma and hypothyroidism. (R. 64). He found that the following diagnoses applied to F.T.: (i) congenital anomalies of urinary system; (ii) thyroid gland, all disorders (except malignant neoplasm); and (iii) asthma. (R. 63). He considered the impairments in the Listing of Impairments (individually, a "Listed Impairment"), and in particular, Listed Impairment 106.07 for congenital genitourinary impairment, and Listed Impairment 103.03 for asthma. (R. 63). Dr. Putcha found that although F.T.'s impairment or combination of impairments was severe, it did not meet, medically equal, or functionally equal a Listed Impairment. (R. 63). Specifically, he indicated that F.T. had no limitation in the first five functional domains,
F.T. attended P.S. 23 in the Bronx, The New Children's School, from September 2006 through the date of her application. (R. 139). In September 2011, Maria Almanzar, a school psychologist, completed a New York City Department of Education Psychological Update. (R. 229-31). Ms. Almanzar found that F.T. was "very strong with verbally expressing her ideas," and that she had "solid" scores in her abilities to read and write. (R. 230). Her "weakest area of development" was in math. (R. 230).
An Individualized Education Program ("IEP") for F.T. was completed in May 2013. (R. 216-28). The report indicated that F.T. was meeting grade level standards in reading and writing, and approaching grade level standards in math. (R. 216). The IEP further noted that F.T. "[got] along well with both adults and peers," that she "enjoy[ed] socializing with her friends at lunch, without her paraprofessional present," and that she did not need to have the paraprofessional with her at lunch. (R. 216). F.T. had a catheter, which she changed by herself throughout the day, she went to the bathroom by herself, and she visited the nurse three to four times daily, always before gym and after lunch. (R. 217). The report explained that she required nursing support due to her use of the catheter, that she was classified as "Other Health Impaired," and that she had bladder surgery in 2009. (R. 217). It was further observed that F.T. was "prone to getting pneumonia," that she took "asthma medication in school on an as needed basis," and that she could request to use the elevator if she felt "fatigued or sick," but that she was encouraged to use the stairs. (R. 217). The report concluded that F.T. demonstrated awareness of her medical needs and could advocate for herself, and that she could participate in the general education class with the support of Special Education Teacher Support Services and Health Services. (R. 217).
In October 2013, F.T.'s teacher for all academic areas, Marissa O'Connor, completed a teacher's questionnaire. (R. 144-54). Ms. O'Connor saw her Monday through Friday for about seven hours each day. (R. 145). She indicated that Plaintiff did not require any special education services, and that she did not have an unusual degree of absenteeism. (R. 145, 153). Ms. O'Connor assessed F.T.'s limitations in the six functional domains
A second IEP was completed in May 2014, when F.T. was in fifth grade. (R. 500-08). Her reading was assessed as above grade level, her writing was at grade level, and her math was approaching grade level. (R. 500). The report indicated that she "like[d] to read and write." (R. 501). As in the IEP from the previous year, it was reported that F.T. "[got] along well with both adults and peers," that she "enjoy[ed] socializing with her friends at lunch, without her paraprofessional present," and that she did "not need to have a paraprofessional with her at lunch." (R. 501). In terms of her physical development, F.T. could change her catheter by herself throughout the day, went to the bathroom by herself, but also visited the nurse two to three times per day because she required support for the use of her catheter. (R. 501). She also required the supervision of a 20% health paraprofessional "to ensure her health and safety throughout the school day and to help her to become independent in handling her medical needs." (R. 501). Although F.T. demonstrated awareness of her health needs, the report recommended that the paraprofessional should help her develop a system for monitoring her catheterization supplies, and should also remind her to drink enough water throughout the day. (R. 501-02). It was again noted that she was "prone to getting pneumonia," and that although she required access to an elevator, she should "be encouraged to use the stairs." (R. 501). F.T. could participate in the general education class with the support of Special Education Teacher Support Services and Health Services, but required special transportation accommodations. (R. 502, 506).
On the date of F.T.'s application for SSI, July 23, 2013, Plaintiff completed an SSA function report form. (R. 122-31). She checked boxes to indicate that F.T. had problems seeing, (R. 123), and that she was "not sure" whether F.T.'s ability to progress in learning was limited, but then proceeded to check boxes indicating that F.T. could perform all of the learning-related skills that were listed, (R. 126). She did not provide any remarks in the narrative section of the report. (R. 131).
Plaintiff and F.T. both testified at the June 9, 2015 hearing before ALJ Grossman, as did a medical expert, Dr. Robert Berk.
Plaintiff testified next, and was questioned both by F.T.'s attorney and ALJ Grossman. (R. 33, 50-55). She testified that her daughter was reading above grade level and that she sometimes did her homework, but that she was "not doing that well" in math. (R. 33). Plaintiff said that the school doctor called when her daughter was unwell, approximately once a week, and that F.T. had in fact missed more than five or six days of school. (R. 50-51). While she could not remember the exact number, she said that it was "a lot of days." (R. 51). She further explained that F.T. took a "disability bus" to school. (R. 53). Regarding her daughter's recent hospitalization, Plaintiff stated that she brought her daughter to the emergency room after she complained of a stomach ache and that she was diagnosed with a UTI, which was treated with antibiotics. (R. 51-52). Plaintiff stayed at the hospital overnight. (R. 52). Finally, she testified that she helped her daughter tie her shoes every day, because F.T. could not tie them. (R. 55).
F.T.'s counsel argued that she met Listed Impairments 106.04 for chronic kidney disease with kidney transplant, and 106.07 for congenital genitourinary disorder. (R. 35-37; see also 20 C.F.R. pt. 404, subpt. P., app. 1, 106.00 et seq.). She argued that F.T. had a residual impairment because she had a re-constructed bladder and was unable to urinate, and had to use a Mitrofanoff catheter. (R. 36).
Dr. Berk testified last. (R. 55-58). He testified that he had considered Listed Impairment 106.04. (R. 56). The ALJ asked him whether he was correct that F.T. did not meet any Listed Impairment, and Dr. Berk responded: "I think that's correct that she does not meet a listing." (R. 57). Turning to the six functional domains the ALJ was required to assess,
The ALJ applied the three-step evaluation process for determining disability in a child in his August 6, 2015 decision. (R. 6-24). He noted that she was a school-aged child on the date the application was filed, and that she was an adolescent on the date of his decision. (R. 12). At the first step, ALJ Grossman found that F.T. had not engaged in "substantial gainful activity since July 23, 2013, the application date." (R. 12). At the second step, the ALJ determined that F.T. had the following severe impairments: an opening in her umbilicus, status post kidney transplant, status post catheter installation and asthma. (R. 12).
At the third step, the ALJ held that F.T. did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled the Listed Impairments found at "20 C.F.R. Part 404, Subpart P, Appendix 1." (R. 12). In determining whether F.T.'s impairments functionally equaled the severity of a Listed Impairment, ALJ Grossman assessed six functional domains
In coming to these conclusions, ALJ Grossman considered "all of the relevant evidence in the case record" and "considered the opinion evidence in accordance with 20 C.F.R. [§] 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (R. 12, 13). The ALJ gave highly significant weight to the opinions Dr. Berk expressed at the hearing, with the exception of his opinion that F.T. had extreme limitations in the functional domain of health and physical well-being, which he accorded less than significant weight. (R. 13-14). Rather, he found that the evidence of record did not support an extreme limitation in the domain of health and physical well-being. (R. 20-23). The ALJ also gave highly significant weight to the opinions set forth in F.T.'s IEPs. (R. 14). The ALJ accorded significant weight to the report of Dr. Tsoutsouras, the consultative examiner. (R. 14). Finally, he gave partial weight to the Teacher Questionnaire submitted by F.T.'s general education teacher. (R. 14). He found that the assessments in the Teacher Questionnaire regarding the first five functional domains were supported by the evidence of record, but that the teacher's opinion regarding F.T.'s limitation in the sixth domain of health and well-being was not supported. (R. 14). The ALJ concluded that F.T. had not been disabled, as defined in the Act, since July 23, 2013, the date the application was filed. (R. 24).
The Commissioner argues that the ALJ's decision was supported by substantial evidence and should be affirmed. (Docket No. 13). More specifically, the Commissioner asserts that there is substantial evidence in the record that supports the ALJ's conclusions regarding each of the six functional domains,
Plaintiff's form complaint summarily argues that ALJ Grossman's decision "was erroneous, not supported by substantial evidence in the record, and/or contrary to law." (Docket No. 2 at ¶ 9). As noted above, Plaintiff did not file a motion for judgment on the pleadings, or an opposition to the Commissioner's motion. 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). Moreover, because Plaintiff is proceeding pro se, she is "entitled to a liberal construction of [her] pleadings," and her complaint "should be read to raise the strongest arguments that [it] suggest[s]." Id. at *6 (citations and quotation marks omitted).
A claimant under the age of 18 is disabled if he or she "has 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). "[T]he SSA has enacted a three-step sequential analysis to determine whether a child [is] eligible for SSI benefits on the basis of a disability." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (citing 20 C.F.R. § 416.924(a)). At step one, "the ALJ considers whether the child is engaged in `substantial gainful activity.'" Id. (quoting 20 C.F.R. § 416.924(b)). At step two, "the ALJ considers whether the child has a `medically determinable impairment that is severe,' which is defined as an impairment that causes `more than minimal functional limitations.'" Id. (quoting 20 C.F.R. § 416.924(c)). At the third, and last, step, "if the ALJ finds a severe impairment, he or she must then consider whether the impairment `medically equals' or . . . `functionally equals' a disability listed in the regulatory `Listing of Impairments.'" Id. (quoting 20 C.F.R. § 416.924(c)-(d); id. pt. 404, subpt. P., app. 1).
Whether a child's impairment is a functional equivalent of a Listed Impairment requires an assessment of six domains, the child's: (i) ability to acquire and use information; (ii) ability to attend and complete tasks; (iii) ability to interact and relate with others; (iv) ability to move about and manipulate objects; (v) ability to care for oneself; and (vi) health and physical well-being. Pollard, 377 F.3d at 190 (quoting 20 C.F.R. § 416.926a(a)-(b)). If the child exhibits a "marked" limitation in two of these domains, or an "extreme" limitation in one of these domains, the child's disability is functionally equivalent to a Listed Impairment. 20 C.F.R. § 416.926a(a); Pollard, 377 F.3d at 190 (citation omitted). A "marked" limitation in a domain exists when the child's "impairment(s) interferes seriously with [his or her] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). "It is the equivalent of the functioning [the SSA] would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean." Id. An "extreme" limitation in a domain exists when the child's "impairment(s) interferes very seriously with [his or her] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i). An "extreme" limitation "does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning [the SSA] would expect to find on standardized testing with scores that are at least three standard deviations below the mean." Id. In evaluating the child's domains, the SSA "will assess the interactive and cumulative effects of all of the impairments for which [it has] evidence, including any impairments [the child has] that are not `severe.'" 20 C.F.R. § 416.926a(a).
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). 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, 377 F.3d at 189 (citation and quotation marks omitted). "Where there are gaps in the administrative record or the ALJ has applied an improper legal standard," remand to the Commissioner "for further development of the evidence" is appropriate. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (citations and quotation marks omitted).
The ALJ has an affirmative obligation to develop the record due to the nonadversarial nature of the administrative proceeding. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (citations omitted). This duty to develop the record remains where the claimant is represented by counsel. Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). As part of this obligation, the ALJ "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 recontract 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). In carrying out this duty, "[t]he ALJ also has authority to subpoena medical evidence on behalf of the claimant." Oliveras, 2008 WL 2262618, at *6 (citing 42 U.S.C. § 405(d)).
The ALJ's duty to develop the record "dovetails with the treating physician rule, which requires controlling weight be given [to] the opinion of a claimant's treating physician when it is supported by accepted diagnostic techniques and not inconsistent with other evidence in the record." Oliveras, 2008 WL 2262618, at *6; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 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). Specifically, "the ALJ must obtain the treating physician's opinion regarding the claimant's alleged disability; `raw data' or even complete medical records are insufficient by themselves to fulfill the ALJ's duty . . . . It is the opinion of the treating physician that is to be sought; it is his opinion as to the existence and severity of a disability that is to be given deference.'" Oliveras, 2008 WL 2262618, at *6 (emphasis in original) (citing Dimitriadis v. Barnhart, No. 02 Civ. 9203 (DC), 2004 WL 540493, at *9 (S.D.N.Y. Mar. 17, 2004)). 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.'" Id. (alteration in original) (quoting Pabon v. Barnhart, 273 F.Supp.2d 506, 514 (S.D.N.Y. 2003)).
Here, as in Oliveras, there are no opinions in the record from F.T.'s numerous treating physicians. See 2008 WL 2262618, at *7. It is clear from the treatment notes in the record that, at the very least, Dr. Franco, Dr. Lew, Dr. Zelkovic and Dr. Zolotnitskaya were F.T.'s treating physicians. (E.g., R. 247-52, 267-68, 297, 309-12, 315-16). Moreover, the following doctors were explicitly listed as F.T.'s treating physicians, either on the Disability Report Appeal Form SSA-3441 and/or by Dr. Lew: (i) Dr. Lew for primary care; (ii) Dr. Trigger for asthma care and pulmonology at Children's and Women's Physicians of Westchester; (iii) Dr. Zolotnitskaya for nephrology; (iv) Dr. Zelkovic for urology; (v) Dr. Franco for urology; and (vi) Dr. Zang for vision. (R. 159, 238, 247). Even the report of the consulting physician, Dr. Tsoutsouras, which the ALJ gave significant weight, (R. 14), stated that F.T. had monthly appointments with a urologist and a nephrologist, (R. 254, 258). Nevertheless, there is no indication that the ALJ sought or considered an opinion from any of F.T.'s treating physicians, despite his assertion that he complied with the treating physician rule.
Furthermore, although Dr. Trigger is listed at least three times as F.T.'s treating pulmonologist, (R. 159, 238, 247), and although the ALJ found that asthma was one of F.T.'s severe impairments, (R. 12), there are no records from Dr. Trigger, or any pulmonologist. Likewise, despite multiple indications that Dr. Zolotnitskaya was F.T.'s treating nephrologist, there is only one record from her practice. (R. 297). When F.T. was represented, her attorney wrote to Chief ALJ Selwyn S.C. Walters to request that a subpoena be issued to "Bradhurst Peds Nephrology, Children's and Women's Physicians of Westchester LLP." (R. 361). It appears that both Dr. Trigger and Dr. Zolotnitskaya may have been associated with that facility. (R. 159, 297). Chief ALJ Walters responded that the request lacked sufficient "particulars," and there is no indication that a subpoena was issued thereafter. (R. 360). However, the ALJ has authority to subpoena such medical evidence, and indeed has a duty to do so, even where a claimant is represented. See Oliveras, 2008 WL 2262618, at *6; Shaw, 221 F.3d at 134; 20 C.F.R. § 405(d).
The ALJ's failure to further develop the record warrants a remand.
The Commissioner contends that the ALJ's decision was supported by substantial evidence. (Docket No. 13). 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 Armstrong v. Colvin, No. 12 CV 8126 (VB)(PED), 2013 WL 6246491, at *19 (S.D.N.Y. Dec. 3, 2013) (finding that "[b]ecause there is legal error requiring remand, it is unnecessary to determine whether the ALJ's decision was supported by substantial evidence" as "the ALJ's failure to develop the administrative record would frustrate such an exercise." (citation omitted)); Truesdale v. Barnhari, No. 03-CV-0063 (SAS), 2004 WL 235260, at *7 (S.D.N.Y. Feb. 6, 2004) ("[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.
Having determined that the ALJ's failure to develop the record was a legal error, the Court next considers what relief is appropriate. Sentence four of 42 U.S.C. § 405(g) states, "[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Courts "have opted simply to remand for a calculation of benefits" where there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision[.]" Rosa, 168 F.3d at 83; see also Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980) (reversing and ordering that benefits be paid where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose."). On the other hand, "remand for further development of the evidence" may be appropriate "where there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa, 168 F.3d at 82-83 (citations omitted).
Here, ALJ Grossman erred in failing to fully develop the record. Where "further findings will plainly help to assure the proper disposition of the claim," and "it is entirely possible that a complete record would justify the SSA's current conclusion that plaintiff was not disabled at the relevant time, remand for calculation of benefits is not appropriate[.]" Lugo v. Barnhart, No. 04 Civ. 1064 (JSR)(MHD), 2008 WL 515927, at *25 (S.D.N.Y. Feb. 8, 2008) (citation and quotation marks omitted), report and recommendation adopted, 2008 WL 516796 (S.D.N.Y. Feb. 27, 2008); see also Booker v. Colvin, No. 16-CV-1753 (JMF)(KNF), 2017 WL 633782, at *4 (S.D.N.Y. Jan. 31, 2017), report and recommendation adopted sub nom. Booker v. Comm'r of Soc. Sec., 2017 WL 627457 (S.D.N.Y. Feb. 15, 2017) (finding legal error where the ALJ, inter alia, failed to develop the record, and remanding pursuant to sentence four of 42 U.S.C. § 405(g)). Consequently, I recommend that the case be remanded under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings.
For the foregoing reasons, I conclude and respectfully recommend that the Commissioner's motion should be denied and the case should be remanded for further administrative proceedings.
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).
DEBRA FREEMAN, United States Magistrate Judge.
*
For the reasons set forth below, Plaintiff's motion is granted, to the extent that Plaintiff requests that her claim be remanded to the Social Security Administration (the "Agency") for calculation and award of benefits, and Defendant's cross-motion is denied.
The Record contains ample evidence regarding Plaintiff's treatment at two mental health clinics, including the opinions of two treating psychiatrists with respect to Plaintiff's functional impairments. The Record also contains two consultative reports, one of which was based on an examination of Plaintiff.
Plaintiff sought treatment from St. Mark's Place Institute for Mental Health ("St. Mark's") on December 19, 2006, at which point Marzena Sroczynska, then in training to become a certified alcoholism and substance abuse counselor, completed an initial assessment.
*
The Record also contains several treatment plans completed by Ms. Sroczynska, each of which was also signed by Plaintiff, her psychiatrist, and the medical director at St. Mark's or another supervisor. These are dated January 19, 2007 (id. at 379-84), April 19, 2007 (id. at 373-78), July 18, 2007 (id. at 447-52), October 16, 2007 (id. at 441-46), January 14, 2008 (id. at 434-40), April 11, 2008 (id. at 427-433), July 10, 2008 (id. at 420-426), November 4, 2008 (id. at 369-72), February 4, 2009 (id. at 365-68), and May 4, 2009 (id. at 361-64). Each indicates Axis I diagnoses of bipolar disorder "NOS" (i.e., "not otherwise specified") or bipolar II,
Plaintiff saw psychiatrist Dr. Giovanny Nunez from January 2007 until September 2009. Dr. Nunez's notes from Plaintiff's first visit indicate that Plaintiff reported anxiety and depression, and that she was concerned that her medication was not working.
*
In March 2008, Dr. Nunez's notes indicate that Plaintiff reported that her sleep and appetite were poor, and her energy level was low. (Id. at 535.) Dr. Nunez described Plaintiff's attitude as negativistic, her affect as restricted, and her mood as dysphoric and anxious. (Id.) Plaintiff was, at that time, taking Pexeva
In May 2008, Dr. Nunez also provided a short clinical summary regarding Plaintiff's treatment history and status. (Id. at 299-300.
*
On November 8, 2008, Dr. Nunez completed another mental status examination of Plaintiff. (Id. at 406-10.) The results of this examination were largely the same as those of the August 2008 examination although the doctor indicated that Plaintiff's concentration was "fair" (rather than "good") and, in her summary of findings, noted that Plaintiff was "psychologically stable." (Id. at 409.) She listed Axis I diagnoses of bipolar II and cocaine dependency, in full remission. (Id. at 410.) She assigned Plaintiff a GAF score of 61 to 70, and again indicated that Plaintiff should take antipsychotics, antidepressants, and hypnotics. (Id.)
Dr. Nunez's treatment notes from November 2008 through September 2009 indicate that Plaintiff regularly reported feeling the "same" or "better," and Dr. Nunez consistently assessed Plaintiff's condition as "stable within normal limits." (Id. at 411-19.) On July 9, 2009, Dr. Nunez provided a short letter, stating that Plaintiff had a psychiatric history of bipolar disorder and cocaine dependence, in full remission, and that she required ongoing psychiatric treatment. (Id. at 342.) Her medications at that time were Seroquel, Neurontin, Paxil,
*
In terms of clinical findings supporting her diagnosis, Dr. Nunez indicated that Plaintiff demonstrated poor memory, sleep disturbance, personality change, mood disturbance, emotional lability,
The questionnaire solicited Dr. Nunez's opinion as to Plaintiff's functional limitations, asking that she rate Plaintiff's capacity to perform certain activities in the context of Plaintiff's "capacity to sustain the activity over a normal workday and workweek, on an ongoing basis in a competitive work environment."
*
Plaintiff began treatment at New Beginnings Counseling Center in February 2010.
On February 24, 2010, psychiatrist Dr. Michael Hargrove performed an initial psychiatric evaluation of Plaintiff. (Id. at 559-60.) In this examination, Dr. Hargrove noted that Plaintiff was calm and cooperative and that her speech was non-pressured, coherent, relevant, and goal directed. (Id. at 559.) He further noted that her mood was irritable, that her impulse control was good during the interview, that her memory was grossly intact, that her judgment was intact, and that her insight was limited. (Id. at 559-60.) He listed Plaintiff's Axis I diagnoses as bipolar I disorder and polysubstance dependence (in full sustained remission), deferred making an Axis II diagnosis, and assigned Plaintiff a GAF score of 55. (Id. at 560.)
The Record contains Dr. Hargrove's monthly progress notes from March 2010 through June 2012. (Id. at 586-605.) Throughout this period, Dr. Hargrove noted that Plaintiff's diagnosis was bipolar disorder, that she did not report hallucinations or suicidal or homicidal ideations, that no delusions were elicited, and that, except as noted below, she did not complain of side effects from her medications. Dr. Hargrove's notes from this period reflect Plaintiff's reported symptoms, as well as adjustments Dr. Hargrove made to Plaintiff's medications. On March 25, 2010, Plaintiff reported that she was feeling "so so," but would go into "rages" at times, and Dr. Hargrove prescribed lithium.
*
On August 26, 2011, Dr. Hargrove, as well as Plaintiff's therapist, provided a letter stating that Plaintiff was "unable to hold a job of any sort at [that] time due to multiple mental health problems" and that she was "unable to be in close proximity to people in [a] crowd with[out] exhibiting behavioral extremes." (Id. at 577.) They indicated that Plaintiff had been diagnosed with bipolar I disorder, and that her prognosis was guarded. (Id.) They stated that Plaintiff experienced the following symptoms: mood disturbance, emotional lability, hostility, irritability, sleep disturbance, panic attacks, severe anxiety, manic syndrome, poor judgment, and difficulty thinking and concentrating. (Id.)
From October through December 2011, Plaintiff complained of feeling irritable and of poor sleep, and Dr. Hargrove continued to adjust her medications. (Id. at 603-04.) On January 26, 2012,
*
Dr. Hargrove completed two Psychiatric/Psychological Impairment Questionnaires in connection with Plaintiff's application for SSI benefits.
In the first questionnaire, dated August 25, 2010 (id. at 568-75), Dr. Hargrove listed Plaintiff's Axis I diagnosis as bipolar I disorder and her Axis II diagnosis as "none," assigned her a GAF score of 55, and stated that her prognosis was "guarded" (id. at 568). He indicated that the following clinical findings supported his diagnosis: sleep disturbance, mood disturbance, emotional lability, psychomotor agitation or retardation, difficulty thinking or concentrating, manic syndrome, and hostility and irritability. (Id. at 569.) Dr. Hargrove indicated that Plaintiff's poor concentration, emotional lability, and irritability were her most frequent/and or severe symptoms, but that insomnia, easy agitation, and self-isolation were also primary symptoms. (Id. at 570.)
In the questionnaire, Dr. Hargrove opined that Plaintiff experienced several work-related functional limitations. Specifically, he stated that Plaintiff was mildly limited in her ability to sustain an ordinary routine without supervision; to ask simple questions or request assistance; to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and to set realistic goals or make plans independently. (Id. at 571-73.) He also opined that Plaintiff was moderately limited in her ability to remember locations and work-like procedures; to understand, remember and carry out one or two-step instructions; to make simple work-related decisions; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to respond appropriately to changes in the work setting; and to travel to unfamiliar places or use public transportation. (Id.) Lastly, Dr. Hargrove opined that Plaintiff was markedly limited in her ability to understand, remember and carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; to work in coordination with or proximity to others without being distracted by them; to complete a normal workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods; and to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. (Id.)
*
Dr. Hargrove completed a second questionnaire on January 5, 2012. (Id. at 607-14.) He listed Plaintiff's Axis I diagnoses as bipolar I disorder and polysubstance dependence, in full sustained remission. (Id. at 607.) He assigned a GAF score of 55, and stated that her prognosis was "guarded," as a result of chronic depression and mania. (Id.) In this questionnaire, he indicated several clinical findings that had not been present previously, according to the August 2010 questionnaire, this time indicating that Plaintiff experienced poor memory, sleep disturbance, time or place disorientation, mood disturbance, social withdrawal or isolation, emotional lability, delusions or hallucinations, decreased energy, manic syndrome, recurrent panic attacks, obsessions or compulsions, anhedonia or pervasive loss of interests, intrusive recollections of a traumatic experience, paranoia or inappropriate suspiciousness, generalized persistent anxiety, feelings of guilt/worthlessness, difficulty thinking or concentrating, hostility and irritability, and suicidal ideation or attempts. (Id. at 608.) He indicated that Plaintiff's primary and most frequent and/or severe symptoms were chronic mood swings, anger outbursts, anxiety attacks, racing thoughts, insomnia, auditory hallucination (specifically, hearing voices in her head), visual hallucination (specifically, seeing dark figures), and irritability. (Id. at 609.) He also indicated that Plaintiff had required hospitalization or emergency room treatment for her symptoms, which he had not previously indicated. (Id.)
In rating her work-related functional limitations, Dr. Hargrove this time indicated that Plaintiff experienced marked limitations in most areas, and moderate limitations in the remainder. (Id. at 610-12.) He again indicated that Plaintiff experienced episodes of deterioration or decompensation, elaborating that Plaintiff's severe mood swings, low tolerance to changes, poor impulse control, and hallucinations would affect work performance. (Id. at 612.) He further noted that Plaintiff had problems with authority figures and tended to isolate herself. (Id.) As in his previous questionnaire, he noted that Plaintiff was not a malingerer, and could not tolerate even low work stress, as a result of a "low frustration threshold to any changes," aggression, and argumentativeness. (Id. at 613.) He noted that Plaintiff experienced both good and bad days, but "mostly" bad days, and that she would likely be absent from work more than three times per month as a result of her impairments or treatment. (Id. at 613-14.)
*
Regarding Plaintiff's then-current functioning, Dr. Zelen noted that Plaintiff woke up three times each night, that her appetite was normal, and that she had "depressive symptoms including dysphoric moods, crying spells, diminished sense of pleasure, and social withdrawal." (Id.) Plaintiff also reported having rapidly shifting moods and anxiety-related symptoms (including excessive apprehension, racing thoughts, palpitations, and sweats), flashbacks and "hyperstartle response,"
In her mental status examination, Dr. Zelen noted that Plaintiff was cooperative and related adequately; that her thought processes were coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia; and that her attention, concentration, and memory skills were intact. (Id. at 302-03.) She rated Plaintiff's insight and judgment as "fair" and her cognitive functioning as average. (Id. at 303.) With respect to her mode of living, Dr. Zelen indicated that Plaintiff could dress, bathe, and groom herself, and could clean, do laundry, shop, and take public transportation. (Id.) She also noted, however, Plaintiff's report that she did not socialize and did not have friends (id.), but rather spent her days attending St. Mark's and seeing her children (id.).
In her medical source statement, Dr. Zelen opined that Plaintiff was able to follow and understand simple directions and instructions, perform simple tasks independently, and make simple decisions. (Id. at 302-03.) Dr. Zelen also found that Plaintiff "appear[ed] able" to maintain her attention and concentration for tasks, so as to be able to perform complex tasks independently. (Id. at 303-04.) She indicated, though, that Plaintiff "may have difficulty maintaining a regular schedule due to mood lability," "may have some difficulty relating adequately with others due to irritability," and "would have difficulty managing stress." (Id. at 304.) Dr. Zelen stated that these results were consistent with psychiatric problems that "may significantly interfere with [Plaintiff's] ability to function on a daily basis." (Id.) Dr. Zelen listed Plaintiff's Axis I diagnoses as "depressive disorder, NOS, rule out posttraumatic stress disorder," alcohol abuse in full remission and cocaine dependence in remission. (Id.) She stated that Plaintiff's prognosis was "fair, given continued mental health treatment and further stability." (Id.)
*
With respect to work-related limitations, Hochberg opined that Plaintiff was moderately limited in several areas: her ability to understand, remember and carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; 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; and to accept instructions and respond appropriately to criticism from supervisors. (Id. at 331-32.) Hochberg opined that Plaintiff was "not significantly limited" in the remainder of the areas covered in the questionnaire, for example, in her ability to understand, remember and carry out very short and simple instructions; to sustain an ordinary routine without special supervision; to work in coordination with or proximity to others without being distracted by them; to respond appropriately to changes in the work setting; and to travel in unfamiliar places or use public transportation. (Id.)
On May, 23, 2008, Plaintiff filed an application for SSI benefits, alleging disability as of January 1, 2003.
On September 23, 2009, Plaintiff, represented by counsel, appeared and testified at a hearing before ALJ Mark Solomon. (Id. at 7-27.) Plaintiff's testimony at the hearing focused on her anxiety and panic attacks — which, she testified, prevented her from taking public transportation — as well as her anger, aggression, and mood swings. (See id. at 14-15, 22-25.) She also testified as to her activities of daily living, stating that she spent significant time at her mother's house, where she cooked, cleaned, and spent time with her children when they were not in school. (Id. at 16-21.)
*
On January 20, 2010, Plaintiff requested that the Appeals Council review ALJ Solomon's decision (id. at 162-63), later supplementing this request with both written arguments as to why reversal or remand was required and a copy of Dr. Hargrove's August 2010 questionnaire (id. at 273-80). On June 7, 2011, the Appeals Council issued an order vacating ALJ Solomon's decision and remanding Plaintiff's case, based on a determination that ALJ Solomon's conclusions regarding Plaintiff's functional limitations were not sufficiently supported by the medical evidence. (Id. at 100-05.) The Appeals Council determined that ALJ Solomon's decision "lack[ed] an adequate evaluation" of Dr. Nunez's opinion, as stated in the doctor's psychiatric/psychological questionnaire. (Id. at 102-03.) The Appeals Council ordered that, upon remand, the ALJ develop the record as necessary, further evaluate Plaintiff's mental impairments, obtain evidence from a medical expert (as available) with respect to Plaintiff's functional limitations, and obtain evidence from a vocational expert with respect to the newly assessed limitations. (Id.)
Upon remand, the case was assigned to ALJ Hilton Miller. ALJ Miller held a hearing on March 6, 2012, at which Plaintiff appeared, represented by counsel, and at which a vocational expert testified. (Id. at 28-48.)
At the hearing, Plaintiff testified that, at that time, she was living with her wife, who supported her financially. (Id. at 32.) She testified that she had been placed in special education when she was in the third grade, that she had completed school through the 11th grade (id. at 36-37), and that she had tried to get her GED, but had failed (id. at 37). She testified that she had first begun seeing a therapist when she was 14 years old (id. at 36), that she had "never held a job," and that, since being released from prison in 2004, she had "always had someone supporting [her]" (id. at 34-35).
In response to questioning by the ALJ, Plaintiff testified that she could not work because of her medication and her mood swings, which had been worsening. (Id. at 32-33.) With respect to her mood swings, she testified that "one minute [she was] okay, the next [she would be] flipping out" (id. at 33), and that she believed her mood disorder precluded her from working (id. at 36). In response to questioning by her attorney, Plaintiff stated that, in her typical day, she would wake up at around seven in the morning, taking her morning medications, and, depending on how she was feeling, either go back to sleep, or do some cleaning and then wait for her wife to return home. (Id. at 38.) She testified that she did not have friends or socialize with others. (Id. at 39.) She also testified that she was unable to take the subway, because, when she was around too many people, she would experience panic attacks that made her feel as though she was suffocating. (Id.) These occurred once or twice each day, and had begun occurring at home. (Id. at 42.) Her last panic attack had lasted 15 to 20 minutes. (Id.) Plaintiff further testified that she experienced mood swings daily, and sometimes more than once a day. (Id. at 39.) She stated that once, when angry, she had thrown a knife at her ex-husband and cut his leg, and that she experienced crying spells. (Id. at 40.)
*
The ALJ then took testimony from vocational expert David Sypher (the "VE"). (Id. at 43-48.) The ALJ asked the VE to consider a hypothetical individual of Plaintiff's age, education, and work experience, with the following work-related limitations: the ability to perform only simple and routine tasks and make only simple decisions, the ability to tolerate only occasional changes in routine, and the ability to interact only occasionally and superficially with others. (Id. at 44.) The VE testified that such an individual could work as a table worker, a small products assembler, or an ampoule sealer. (Id. at 44-45.) Plaintiff's counsel then asked what work such an individual could perform if he or she experienced any of the following limitations: the requirement of taking two 15 to 20 minute breaks in addition to customary breaks, the inability to focus for more than an hour before requiring a five to 10 minute break, and the inability to maintain a regular work schedule. (Id. at 46-47.) The VE testified that any of these additional limitations would "effectively rule out all work." (Id.)
On March 29, 2012, ALJ Miller issued a decision finding that Plaintiff was not disabled under the Act. (Id. at 52-65.) This decision is reviewed in detail in Section II, below.
On May 14, 2012, Plaintiff requested review by the Appeals Council. (Id. at 6.) On August 27, 2013, the Appeals Council denied Plaintiff's request for review, noting that it found no basis for reviewing the ALJ's decision. (Id. at 1-3.) The Appeals Council also noted that, in making this determination, it had considered additional medical records, specifically Dr. Hargrove's treatment records from January through June 2012. (Id. at 1, 4.) With the Appeals Council's denial of review, ALJ Miller's March 29, 2012 decision became the final decision of the Commissioner.
On October 28, 2013, Plaintiff initiated this action, seeking review of ALJ Miller's decision. (See Civil Complaint, dated Oct. 28, 2013 (Dkt. 1.).) Defendant answered the Complaint on May 27, 2014. (See Answer, dated May 27, 2014 (Dkt.9).)
On August 11, 2014, Plaintiff filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Motion for Judgment on the Pleadings, dated Aug. 11, 2014 (Dkt.13); Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated Aug. 11, 2014 ("Pl.Mem.") (Dkt.14).) Defendant cross-moved for judgment on the pleadings on Jan. 26, 2015. (Notice of Motion, dated Jan. 26, 2015 (Dkt.21); Defendant's Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of Defendant's Cross-Motion for Judgment on the Pleadings, dated Jan. 26, 2015 ("Def.Mem.") (Dkt.22).) Neither party has filed a reply. In their submissions, the parties raise a number of arguments, which the Court addresses below.
*
The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence "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) (internal citation and quotation marks omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002) ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir.1997). Therefore, if the correct legal principles have been applied, the Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir.1998) (affirming decision where substantial evidence supported both sides).
To be entitled to disability benefits under the Act, a plaintiff must establish his or her "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. § 1382c(a)(3)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). An individual is considered to be disabled only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).
*
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a "severe" impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). Id. § 416.920(a)(4)(iii). If it does, then the claimant is presumed to be disabled "without considering [the claimant's] age, education, and work experience." Id.
Where the plaintiff claims mental impairment, steps two and three require the ALJ to apply a "special technique," outlined in 20 C.F.R. § 416.920(a), to determine the severity of the claimant's impairment at step two, and to determine whether the impairment satisfies Social Security regulations at step three. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.2008). If the claimant is found to have a "medically determinable mental impairment," the ALJ is required to "specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s)" and then to "rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of [section 416.920a]," which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation."
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determined, based on all the relevant evidence in the record, the claimant's residual functional capacity ("RFC") to perform physical and mental work activities on a sustained basis. Id. § 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her "past relevant work." Id. § 416.920(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, then the fifth step requires the ALJ to determine whether, in light the claimant's RFC, age, education, and work experience, the claimant is capable of performing "any other work" that exists in the national economy. Id. §§ 416.920(a)(4)(v), (g).
*
Where the claimant suffers only from exertional impairments, the Commissioner may satisfy this burden by referring to the Medical-Vocational Guidelines set out in 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2008). Where, however, the claimant suffers non-exertional impairments (such as psychiatric impairments), see 20 C.F.R. § 416.929a(c), that "`significantly limit the range of work permitted by his [or her] exertional limitations,' the ALJ is required to consult with a vocational expert," rather than relying exclusively on the published guidelines. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.2010) (quoting Bapp v. Bowen, 802 F.2d 601, 604-05 (2d Cir.1986)).
The medical opinion of a treating source
Where the ALJ decides to give less than controlling weight to a treating physician's opinion, and also in determining the weight to be accorded to the medical opinion of a non-treating physician, the ALJ is required to consider a number of factors. These include: (1) the length, nature, and extent of the relationship between the claimant and the physician; (2) the supportability of the physician's opinion; (3) the consistency of the physician's opinion with the record as a whole; and (4) the specialization of the physician providing the opinion. 20 C.F.R. §§ 416.927(c)(2)-(5); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000) (noting that these factors "must be considered when the treating physician's opinion is not given controlling weight"). An ALJ may also consider "other factors . . . which tend to support or contradict the opinion," such as "the amount of understanding of [the] disability programs and their evidentiary requirements that an acceptable medical source has," and "the extent to which an acceptable medical source is familiar with the other information in [a claimant's] case record." 20 C.F.R. § 416.927(c)(6).
*
The ALJ employed the five-step evaluation process with respect to Plaintiff's claim.
At step one of the inquiry, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 23, 2008, the date of Plaintiff's application. (R. at 54.) At step two, the ALJ determined that Plaintiff had the severe impairment of bipolar I disorder, and that she had non-severe impairments of diabetes and alcohol and cocaine dependence, in full sustained remission. (Id. at 55.)
Next, at step three, the ALJ concluded that Plaintiff's conditions did not meet or equal an impairment in the Listings. (Id.) Specifically, the ALJ determined that Plaintiff's mental impairments did not meet or equal the listing for affective disorders (i.e., Listing 12.04
The ALJ assessed Plaintiff with the following RFC:
*
In support of this determination, the ALJ summarized Plaintiff's hearing testimony and the medical records and reports of Drs. Nunez, Zelen, and Hargrove. (Id. at 57-60.) He stated that Plaintiff's treatment record, including both Plaintiff's description of her symptoms to her health providers, over the years, and her providers' "objective findings," "simply [did] not match well with [Plaintiff's] hearing testimony." (Id. at 58.) In this respect, the ALJ specifically noted, inter alia, that Dr. Nunez had stated that Plaintiff was "psychologically stable" and could perform her activities of daily living independently, and that Dr. Zelen had purportedly noted that Plaintiff had traveled to the examination alone by public transportation.
The ALJ concluded, on this basis, that, while Plaintiff's medically determinable impairments "could reasonably be expected to cause" the symptoms she alleged, Plaintiff's statements regarding her symptoms were not credible to the extent that they were inconsistent with the assessed RFC. (Id. at 58.) He also determined that, "based strictly on the objective findings, including the GAF scores [as well as the progress notes and treatment plans], it [was] not apparent from the record that [Plaintiff's] mental impairments would preclude her from functioning in all types of employment." (Id. at 61.)
The ALJ then turned to weighing the medical opinion evidence. (Id. at 62-63.) With respect to Dr. Nunez's May 2008 letter, indicating that Plaintiff was "psychiatrically stable" and could perform her activities of daily living, he stated that he gave the assessment "great weight," as it was "well supported by the objective treating and examining source evidence," as described. (Id. at 62.) He stated that he gave "some weight" to Dr. Nunez's July 2009 letter noting Plaintiff's need for ongoing treatment, although he found that this letter was also well supported by objective medical evidence. (Id.)
The ALJ stated, however, that he gave only "minimal weight" to Dr. Nunez's September 2009 questionnaire because of internal inconsistency as well as inconsistency with other medical evidence. (Id.) Specifically, the ALJ found that the GAF score in the 61 to 70 range was inconsistent with the functional impairments listed in the questionnaire itself, and further found that the questionnaire was internally inconsistent because Dr. Nunez "stated at the same time that [Plaintiff] was capable of low stress work, but likely to be absent from work more than three times a month." (Id.) Finally, the ALJ found that Dr. Nunez's September 2009 questionnaire was inconsistent with her own treatment notes — which purportedly "showed stable symptoms and a GAF remaining at 55 even with non-compliance with therapy"
*
Next, the ALJ turned to Hochberg's assessment, to which he gave "great weight." (Id. at 62-63.) He indicated that Hochberg was "an expert for purposes of disability program rules and medical record review," and found that Hochberg's conclusions were well-supported by objective records. (Id. at 63.) He noted that, although Hochberg did not review the file after July 2008, "the objective records submitted after that date [did] not justify different conclusions." (Id.)
Finally, the ALJ stated that Dr. Hargrove's "conclusions about [Plaintiff's] greatly limited employability" were "entitled to no more than minimal weight," based on "[Dr. Hargrove's] own findings, including his [assignment to Plaintiff of a] GAF rating of 55." (Id. at 63.) The ALJ expressly noted, as an example, that Dr. Hargrove had stated that Plaintiff experienced side effects from her medications, hallucinations, severe mood swings, and poor impulse behavior, all of which contributed to her inability to work. (Id.) The ALJ found that "these statements [were] simply not supported by and [were] indeed flatly contradicted by [Dr. Hargrove's] progress notes." (Id.) Specifically, the ALJ stated that Dr. Hargrove's progress notes "repeatedly show[ed] no medication side effects, [showed] a resolution of short-term symptoms after a change in the medication dosage, and [showed] no hallucinations." (Id.) He also noted that the progress notes did not evidence frequent or severe mood swings, or more than one instance of "poor impulse behavior." (Id.)
The ALJ concluded his analysis by stating that the assessed RFC was "supported by the objective evidence," and that, based on the medical evidence, any assessment of more significant limitations was not warranted. (Id.)
At step four, the ALJ determined that Plaintiff had no past relevant work. (Id.) He then proceeded to step five, where, based on the VE's testimony at the hearing, he concluded that Plaintiff, given the assessed RFC, could perform work existing in the national economy. (Id. at 64.) He therefore determined that Plaintiff was not disabled within the meaning of the Act. (Id.).
In her motion, Plaintiff argues that the ALJ erred by (1) failing to consider the medical evidence in accordance with the treating physician rule, (2) failing to evaluate Plaintiff's credibility properly, and (3) relying on flawed vocational expert testimony. (Pl. Mem., at 11-23.) Defendant, in her cross-motion, responds to each of Plaintiff's arguments and contends that the ALJ's decision was supported by substantial evidence in the Record. (Def. Mem., at 15-20.) The Court finds the parties' arguments with respect to the ALJ's consideration of the medical evidence to be dispositive and, as a result, does not address the remainder of their contentions.
*
The ALJ concluded that the opinions set out by Dr. Nunez in her September 2009 questionnaire were entitled to only "minimal weight," due to purported internal and external inconsistencies. While, in defending the ALJ's decision, Defendant argues that it was appropriate for the ALJ to have discounted the weight accorded to this questionnaire (see Def. Mem., at 16-17), Plaintiff contends that Dr. Nunez's opinions were supported by clinical and diagnostic findings and were "uncontradicted by other substantial evidence," and, as a result, were entitled to controlling weight (Pl. Mem., at 12-16).
With respect to internal inconsistency, the ALJ found that Dr. Nunez's opinions in the questionnaire that Plaintiff suffered from several moderate and marked limitations were inconsistent with the assessed GAF score in the 61 to 70 range, and found additional internal inconsistency because Dr. Nunez "stated at the same time that [Plaintiff] was both capable of low stress work, but likely to be absent from work more than three times a month." (R. at 62.) With respect to external inconsistency, the ALJ found that Dr. Nunez's assessment was inconsistent with her own treatment notes (which, the ALJ stated, demonstrated "stable symptoms and a GAF remaining at 55 even with non-compliance with therapy"
First, the ALJ did not apply the correct legal standards in determining the weight to be accorded to Dr. Nunez's opinions in the September 2009 questionnaire. Even if there were certain inconsistencies within the doctor's questionnaire, or between the opinions expressed in the questionnaire and the underlying treatment records, the ALJ was not permitted — as he effectively did here — to reject this treater's opinions entirely, without first considering all of the factors set forth in 20 CFR § 416.927. See Social Security Ruling 96-2p (S.S.A. July 2, 1996) (stating that a findings of inconsistency "means only that the opinion is not entitled to `controlling weight," not that the opinion should be rejected," and that the opinion "is still entitled to deference and must be weighed using all of the factors" listed in 20 CFR § 416.927(c)). These factors include not only consistency, but also the length of the doctor's treating relationship with the claimant, the nature and extent of the relationship between the doctor and the claimant, the supportability of the doctor's opinion, and the nature of the doctor's specialization. 20 C.F.R. § 416.927(c). In this regard, the ALJ made only the conclusory assertion that the September 2009 questionnaire did not "satisfy the necessary prerequisites for giving controlling or even significant weight to the treating source." (R. at 62.) Dr. Nunez, however, was not only a psychiatrist (i.e., a treater with highly specialized expertise), but she had served as Plaintiff's treating psychiatrist for a steady and substantial period of time, seeing her as a patient monthly, for nearly three years. The ALJ fails to explain how, in this light of this substantial treatment history, it was reasonable or justifiable to accord no more than "minimal" weight to Dr. Nunez's opinions as to the functional limitations resulting from Plaintiff's mental impairments.
*
Third, the ALJ was not entitled, under the law, to substitute his own lay opinion of the medical evidence for that of a physician, see, e.g., Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998) (an ALJ may not "arbitrarily substitute his own judgment for competent medical opinion" and "is not free to set his own expertise against that of a physician" (internal quotation marks and citations omitted)); Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999) (finding that the ALJ, as a lay person, had "improperly made a medical determination" in finding that "the absence of muscle spasms would . . . preclude the disabling loss of motion described by [the treating physician]"), and it appears that this is precisely what the ALJ did, in determining that the questionnaire was internally inconsistent and inconsistent with other evidence. Regarding internal inconsistency, the ALJ found that Dr. Nunez's listing of a GAF score in the 61 to 70 range was inconsistent with her indications in the questionnaire that Plaintiff suffered from several moderate and marked functional limitations, and used this as a basis essentially to disregard Dr. Nunez's opinions. (R. at 62.) In making this determination, however, the ALJ expressed a lay opinion of medical evidence — namely, that a GAF score in the 61 to 70 range was inconsistent with work-preclusive limitations — which was impermissible.
The ALJ's findings of external inconsistency were similarly improper because they, too, were apparently based on his lay interpretation of the medical evidence. In this regard, the ALJ determined that Dr. Nunez's opinions indicating work-preclusive limitations were inconsistent with the doctor's own treatment notes. To be sure, Dr. Nunez's treatment notes from mid-2008 and 2009 appear to demonstrate that Plaintiff's condition had improved in some respects and that she had attained some degree of relative stability — indicating, for example, that Plaintiff regularly reported feeling the "same" or "better," that Plaintiffs' cocaine dependence was in full remission, and that Plaintiff's GAF scores had improved to the low-60s range. A lay person, however, would be unable to assess the significance of these developments in the context of Plaintiff's full medical history, diagnoses, treatment regimen (including the various medications she had been prescribed, and the adjustments Dr. Nunez made to those medications), and prognosis. It was therefore improper for the ALJ to determine, based on his own view of certain of Dr. Nunez's treatment notes, that those notes were inconsistent with significant functional limitations.
*
Similarly, with respect to external inconsistency, the ALJ appears to have seen inconsistency in places where there was none. For example, the ALJ made much of Dr. Nunez's statement that Plaintiff was "psychiatrically stable," finding this assessment to be inconsistent with the work-related functional limitations assessed by Dr. Nunez in the questionnaire.
Dr. Nunez's treatment notes, however, reflect that Plaintiff's condition from the outset and throughout the course of her treatment remained "stable within established limits" — neither improving nor worsening — and there is no inconsistency apparent between this determination and the specific work-related limitations Dr. Nunez assessed, particularly given Plaintiff's clinical history.
For all of these reasons, the ALJ's decision to give only "minimal" weight to Dr. Nunez's opinions regarding Plaintiff's work-related functional limitations, as expressed in the September 2009 questionnaire, was neither made in accordance with proper legal standards, nor supported by substantial evidence in the Record.
As described above, Dr. Hargrove completed two questionnaires in connection with Plaintiff's application for SSI benefits: the first in August 2010, and the second in January 2012. Although, in both questionnaires, Dr. Hargrove indicated that Plaintiff suffered from significant work-related functional limitations, the January 2012 questionnaire, on the whole, indicates that Plaintiff suffered from more symptoms and greater limitations than those indicated in the August 2010 questionnaire. In his decision, the ALJ considered the two questionnaires together, and determined that Dr. Hargrove's opinions that Plaintiff suffered from significant work-related limitations were entitled to "no more than minimal weight" based on purported inconsistencies between the questionnaires, on the one hand, and Dr. Hargrove's own treatment notes, on the other. Plaintiff argues that this determination was erroneous for largely the same reasons that the ALJ's determination with respect to Dr. Nunez's September 2009 questionnaire was erroneous (Pl. Mem., at 17), and Defendant again argues that the ALJ's determination was proper (Def. Mem., at 17-18).
*
In addition, as with the ALJ's determination with respect to Dr. Nunez's September 2009 questionnaire, the ALJ's decision to discredit Dr. Hargrove's opinions on the ground of inconsistency was not supported by substantial evidence in the Record. In reasoning that both of Dr. Hargrove's questionnaires and all of the opinions contained therein were entitled to "no more than minimal weight," the ALJ referred, for an example, to purported inconsistencies between Dr. Hargrove's January 2012 questionnaire and his treatment notes. Specifically, the ALJ stated that the January 2012 questionnaire indicated that Plaintiff's inability to work was "supported by side effects from medications and by her hallucinations, as well as by severe mood swings and impulsive behavior," but that these indications "were flatly contradicted by [Dr. Hargrove's] own progress notes." (R. at 63.) Contrary to this determination, however, Dr. Hargrove's treatment records in fact document that Plaintiff experienced mood swings and impulsive behavior at various points during the course of her treatment. For instance, as set out above (see supra, at Background Section A(2) (a)), Dr. Hargrove's notes indicate that Plaintiff reported feeling "agitated and irritable"; that she experienced crying spells for no discernible reason; that, at times, she wanted to isolate; and that she would sometimes go into "rages." In his decision, the ALJ minimized all of these reported symptoms (suggesting that the notes demonstrated nothing more than that Plaintiff experienced "short-term symptoms" that were resolved through
Dr. Hargrove's adjustments of her medication (R. at 63)), as opposed to considering them as evidence of an ongoing chronic condition that interfered with Plaintiff's functioning.
*
In his decision, the ALJ gave "some weight" to Dr. Zelen's medical source statement, reasoning that this was warranted because "the objective findings noted in [her] report [would] not support a conclusion that [Plaintiff was] significantly limited," but Dr. Zelen, in her medical source statement, came "to the opposite conclusion." (Id. at 62.) Plaintiff contends that this assessment was erroneous, specifically arguing that the ALJ should not have allowed his lay interpretation of the medical evidence to supersede Dr. Zelen's medical opinion, and that, even if it could, the ALJ impermissibly ignored probative evidence of disability in forming his opinion. (Pl. Mem., at 17-18.) Defendant responds that the ALJ's determination was proper, as "an ALJ may accept or reject portions of an opinion that he or she believes is well-supported." (Def. Mem., at 18.) Defendant's argument misses the mark.
Defendant is correct in stating that an ALJ is not required to accept or reject the report of a medical source in full; rather, to the extent that such a report contains separate opinions, an ALJ may consider the opinions separately in accordance with 20 C.F.R. § 416.927. See Social Security Ruling 96-5p (S.S.A. July 2, 1996) ("Adjudicators must remember, however, that medical source statements may actually comprise separate medical opinions regarding diverse physical and mental functions . . . and that it may be necessary to decide whether to adopt or not adopt each one"). An ALJ may not, however, reject an examining source's conclusions based on the ALJ's own interpretation of the medical evidence, because, as discussed above, an ALJ may not substitute his own opinion of the medical evidence for that of a medical professional. In this case, in determining that Dr. Zelen's findings did not support her conclusions that Plaintiff suffered from significant limitations, the ALJ did not rely on the opinion of any medical other professional, but instead appears to have relied on his own interpretation of the evidence.
*
The opinions of state agency medical and psychological consultants are considered medical opinion evidence, and are to be reviewed in accordance with the factors listed in 20 C.F.R. § 416.927(c)(1)-(6). 20 C.F.R. § 416.927(e) (2)(ii). As such consultants often do not examine the claimant, this means that their opinions are frequently to be accorded less weight than the opinions of treating and examining sources. In some circumstances, however, the opinion of a state agency consultant may be entitled to greater weight than that of a treating source, such as, for example, "if the [s]tate agency medical or p[s]ychological consultant's opinion is based on a review of a complete case record that includes a medical report from a specialist in the individual's particular impairment which provides more detailed and comprehensive information than what was available to the individual's treating source." Social Security Ruling 96-6p (S.S.A. July 2, 1996).
This case does not present circumstances in which the ALJ's determination that Hochberg's opinion was entitled to "great weight" — in contrast with the "minimal" weight given to the opinions of Plaintiff's treating sources — can be upheld as a proper application of 20 C.F.R. § 416.927. First, Hochberg was a non-treating and non-examining source, which militates against giving greater weight to Hochberg's opinion than to those of the other medical sources. This is particularly true where, as here, Drs. Nunez and Hargrove were psychiatrists who had treated Plaintiff for years, as the length, nature, and extent of the treatment relationship are also relevant factors. With respect to supportability, the evidence reviewed by Hochberg was extremely limited: in opining with respect to Plaintiff's functional limitations, Hochberg reviewed only Dr. Zelen's report and Dr. Nunez's May 2008 letter. By contrast, the information available to Plaintiff's treating sources — including each source's treatment records and observations from multiple years of treatment — was ample.
*
Plaintiff requests that the Court reverse the ALJ's decision and remand Plaintiff's claim for a calculation and award of benefits (Pl. Mem., at 23); in the alternative, Plaintiff requests that the Court remand Plaintiff's claim for a new hearing and decision. (Id.)
A court reviewing a Commissioner's final decision may, in its discretion, remand a claim for further proceedings or solely for the calculation of benefits. 42 U.S.C. § 405(g) (sentence four) (a reviewing court may enter, upon the pleadings and the administrative record, "a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing"); See Butts v. Barnhart, 388 F.3d 377, 386-87 (2d Cir.2004) (district court's remand for further proceedings was within its discretion), amended on other grounds on reh'g, 416 F.3d 101 (2d Cir.2005). In exercising this discretion, a court must assess the completeness of the administrative record, including whether further development of the record is necessary to "assure the proper disposition" of the claim, and whether there is a "basis to conclude that a more complete record might support the Commissioner's decision." Butts, 388 F.3d at 386-87 (internal citations and quotation marks omitted). Where "`no purpose would be served'" by additional Agency proceedings, remand for calculation of benefits is warranted. Id. at 387 (quoting Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.2000)). In addition, in determining whether further proceedings are warranted, "the hardship to a claimant of further delay should be considered." Id.
As an initial matter, the Court notes that Plaintiff applied for SSI benefits in May 2008, and that nearly seven years have passed since her initial application. Furthermore, in this case, the medical record does not require further development; it contains records pertaining to Plaintiff's mental health treatment for over five years at two different mental health clinics, including the monthly treatment notes of Plaintiffs' psychiatrists, the treatment plans developed by her mental health professionals, and even nearly two years' worth of therapy notes. Finally, each of the physicians who treated or examined Plaintiff provided his or her medical opinion with respect to Plaintiffs' work-related functional limitations.
In assessing the purposes to be served by remand for further consideration, then, the Court must assess whether, upon an application of the proper legal standards, substantial evidence might support a determination that Plaintiff was not disabled under the Act. See Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir.1998) (remanding for calculation of benefits after determining that the ALJ had reached an erroneous conclusion on a complete record). The Court finds that the Record in this case presents a situation like the one presented in Balsamo, in which the Second Circuit reversed the district court's affirmance of the Commissioner's decision, and remanded for calculation of benefits, reasoning that remand would serve no further purpose. In this case, both of Plaintiff's treating psychiatrists — at different points over the course of over five years — determined that Plaintiff suffered from significant work-related limitations as a result of her bipolar disorder. All three questionnaires completed by Drs. Nunez and Hargrove indicate that Plaintiff suffered from bipolar disorder — as supported by clinical findings including sleep disturbance, mood disturbance, emotional ability, and hostility and irritability — and, as discussed above, these findings are all documented in the treatment notes of these physicians. Drs. Nunez and Hargrove agreed, in each of these questionnaires, that, as a result of her mental impairments, Plaintiff was markedly limited in, inter alia, her abilities to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; and to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. They also each opined that Plaintiff would be likely to be absent from work more than three days each month as a result of her condition or treatment. Consultative examiner Dr. Zelen's findings were largely consistent, as she opined, based on her one-time examination, that Plaintiff "may have difficulty maintaining a regular schedule due to mood lability," "may have some difficulty relating adequately with others due to irritability," and "would have difficulty managing stress," and that all of these findings were "consistent with psychiatric problems, [which] may significantly interfere with [Plaintiff's] ability to function on a daily basis."
*
For the foregoing reasons, it is hereby Ordered as follows:
SO ORDERED.
Not Reported in F.Supp.3d, 2015 WL 1903146
SARAH NETBURN, United States Magistrate Judge
*
Because I conclude that substantial evidence supports the Commissioner's final determination, and because the administrative law judge did not commit legal error justifying remand, the Commissioner's motion is GRANTED.
On October 5, 2012, the plaintiff Winona Brown filed an application for Supplemental Security Income ("SSI") with the Social Security Administration (the "SSA") on behalf of her twelve-year-old son, T.S., who allegedly became disabled under the Social Security Act on September 1, 2008, due to Attention Deficit Hyperactivity Disorder ("ADHD"), disruptive behavior disorder, not otherwise specified (NOS), and a reading disorder. On January 17, 2013, the Commissioner denied the application, and on March 4, 2013, Brown requested a review of the Commissioner's decision at a hearing before an administrative law judge. Brown and T.S. appeared with counsel for a hearing before Administrative Law Judge Mark Solomon (the "ALJ") on June 17, 2014. The ALJ denied Brown's application for disability benefits in a written decision dated July 30, 2014. The Appeals Council denied Brown's application for review of the ALJ's decision on July 6, 2015, thereby rendering the decision of the Commissioner final.
On August 24, 2015, Brown, proceeding pro se, filed this action on behalf of T.S. pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), before the Honorable Lorna G. Schofield. On December 8, 2015, the parties consented to my jurisdiction. On December 10, 2015, the Commissioner filed the administrative record and a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The Court sua sponte extended Brown's time to oppose the motion to January 29, 2016, but she did not do so.
The following facts are taken from the administrative record.
T.S. was born on August 13, 2000. He was 12 years old at the time of his application and 13 years old at the time of the ALJ's decision. He lived with his mother and two older siblings. At the time of the hearing before the ALJ, his uncle also temporarily resided with the family.
In a November 26, 2012 SSA questionnaire, Brown reported that T.S. exhibited some behavioral issues at home and at school. She wrote that he angered easily if he lost a game and that he "ha[d] an attitude." (AR 176.) She stated that T.S. had "minor discipline issues" at school, and was once on "superintendents suspension."
*
Brown testified that T.S. experienced difficulty expressing his feelings and frustrations, and often bottled up his emotions and then later released them as rage. She said that he often expressed his anger by slamming doors and walking away to be by himself. Brown was not aware of T.S. engaging in any physical confrontations at school or with his siblings. She said that she had never seen T.S. harm himself.
Brown testified that T.S. attended therapy once a week at the Family Children Institute at St. Luke's Hospital. She said that therapy was also available to him at school, if he needed additional support. She said that T.S. met with a psychiatrist once a month to monitor his ADHD mediation.
Brown testified that T.S. rode the train to and from school every day by himself. She said that she often had to "fight with him" to do his homework, but that he always completed his assignments. (AR 41.) Brown stated that T.S. normally attended the after-school program at Harlem Children's Zone, but that he recently had been attending a two-week "credit recovery" program for students who needed to improve their grades in order to graduate from the eighth grade. Brown stated that during the summer, T.S. planned to attend a summer program at Harlem Children's Zone as a part-time camper and part-time worker.
T.S. testified that he had a group of friends at school. He said that in his free time, he enjoyed playing basketball, football and video games. T.S. stated that his grades over the past year had been "not so good," but added that he thought he would do better. (AR 50.) He said that his best grades were in math, science, and physical education, and that his grades in social studies fluctuated. T.S. testified that he sometimes needed more time than his peers to process and understand something he had just read, but that he usually was able to understand material that was written at his reading level. He said that when writing, he sometimes had an idea in his head that he found difficult to write down.
On May 15 and 16, 2012, T.S. underwent a Psychoeducational Evaluation at his school. He was referred for a special education evaluation by his mother, who was concerned about his academic progress. The report noted that T.S. had failed to meet the standards for English/Language Arts ("ELA") and math on his past state exams. On a recent report card, T.S. had received failing grades in ELA, math, social studies and science. The evaluator noted that T.S. was a "cooperative and engaging student." (AR 195.) T.S.'s IQ score was measured at 90, which corresponded to the 25
*
In a Speech/Language Evaluation dated June 27, 2012, T.S.'s teacher, Ms. Nott, reported that he had difficulties with reading and comprehending higher-level skills. She stated that he was a hard worker and had a good attitude toward learning, but placed him in the middle-bottom one-third of her class. Other teachers also reported that T.S. had difficulty remaining on task, and often socialized with his friends. The speech/language evaluation examiner found that T.S.'s "core language skills were found to be grossly intact delayed," with "severe delays" noted in his ability to recall information. (AR 203.) The evaluator also noted "severe delays" in one area of language functioning, which he wrote were "imperative, severe and crucial" to T.S.'s ability to succeed academically.
An IEP dated September 21, 2012, placed T.S.'s reading comprehension and reading fluency in the 9
In order to accommodate T.S.'s slow processing speed, the IEP recommended that his teachers preview unfamiliar vocabulary with him and give slow and simplified instructions for assignments. The IEP stated that T.S. frequently needed to read books at his grade-level and develop more active reading habits. The IEP also recommended daily remedial reading support and routine instruction to improve his writing. T.S. was placed in integrated co-teaching classes for math and ELA. He was also enrolled in a speech-language therapy class that met twice a week. His teachers were directed to give him time and a half for all tests, and to place him in a separate room to minimize distractions from other students.
On March 11, 2013, T.S.'s 7th grade teachers Linda Dershowitz and Linda JeanMary jointly completed an SSA questionnaire. They reported that he read at a 5th grade level and was capable of completing math problems at a 6th grade level. In an assessment of T.S.'s abilities to acquire and use information, they rated his level of impairment as "a very serious problem" in the area of "expressing ideas in written form," and rated his level of impairment as a "serious problem" in the following areas: comprehending oral instructions, reading and comprehending written material, and providing organized oral explanations and adequate descriptions. (AR 259.) T.S. had "obvious problem[s]" in the areas of understanding school and content vocabulary, comprehending and doing math problems, understanding and participating in class discussions, learning new material, and applying problem-solving skills in class discussions.
*
Regarding T.S.'s ability to attend and complete tasks, his teachers reported that he frequently had "serious problem[s]" focusing long enough to finish an assigned activity, refocusing to task when necessary, completing class or homework assignments, working without distracting himself or others, and working at a reasonable pace or finishing assignments on time. (AR 260.) They also reported problems under the domain of interacting and relating with others, noting "serious problem[s]" in the areas of seeking attention appropriately, expressing anger appropriately, following rules, and respecting/obeying adults in authority.
Under the domain of caring for himself, Ms. Dershowitz and Ms. JeanMary reported that T.S. had "serious problem[s]" with handling frustration appropriately, using appropriate coping skills to meet daily demands of the school environment, and knowing when to ask for help. They wrote that he became "excited, finicky and reacts physically." (AR 263). They also reported that he needed reminders to focus on his class assignments, and did not independently ask his teachers for help with his work. T.S.'s teachers noted that he became "much more focused" and "happy" after starting Concerta. (AR 264.) They reported that without the medication, he was "angry, defiant, and unable to participate effectively."
In April 2012, T.S. began regularly meeting with Gemma Burgio, MPS Art Therapist at the child and Family Institute Outpatient Department of St. Luke's Child and Family Institute. Ms. Burgio noted that T.S. had Axis I diagnoses of ADHD-I, disruptive behavior disorder NOS, and reading disorder, and a Global Assessment Functioning ("GAF") score of 55.
*
There is a gap in treatment notes from October 2012 until January 2013, when T.S. stopped attending therapy sessions at St. Luke's and instead went to an afterschool program. At his next visit with Ms. Burgio, on January 18, 2013, she noted that his mother wanted him to re-enroll him in individual or group therapy.
T.S. began meeting with Mr. Gotay on February 8, 2013, when he attended a family session with his mother. Brown told Mr. Gotay that she felt the Concerta had improved T.S.'s focus. She expressed continued concerns about T.S.'s grades, intermittent low frustration tolerance, and occasional arguing with his brother.
At May 24, 2013 family session, Brown reported that T.S. was doing better in school and earning grades in the 70s. She said that at a recent IEP review, the school decided to enroll T.S. in speech therapy. Brown said that T.S. continued to argue occasionally with his older brother. Mr. Gotay encouraged Brown to provide praise and positive feedback to T.S. when he behaved appropriately at school and to verbalize an understanding of T.S.'s feelings at least three times a week.
In a treatment plan dated October 9, 2013, Mr. Gotay noted that T.S. and his mother reported fair behavior at school, improved attention span, positive medication compliance, sporadic verbal conflict with his siblings, stable peer relations, positive experiences at summer sleep-away camp, fair adjustment to eighth grade, and a "significant decrease to absence in angry outbursts." (AR 360.) T.S. expressed ambivalence about attending his after-school program.
On January 16, 2014, Mr. Gotay noted that T.S. reported positive school work completion and fair attention span at school, which he said could still be improved. T.S. stated that his Concerta dosage had been increased "due to psychologist Dr. Muhkerjee's recommendation." (AR 326.) On January 23, 2014, T.S. reported occasional poor class participation due to shyness and fear that his peers would laugh at him. He reported no bullying at school, and positive schoolwork completion.
In a treatment plan dated January 27, 2014, Mr. Gotay noted that Dr. Muhkerjee had performed a neuropsychological evaluation of T.S. on November 6, 2013. The evaluation revealed a "continued neurocognitive defect in attention skills," "significant difficulties" in reading skills, a disorder of written expression, and symptoms consistent with anxiety disorder. (AR 317.) Mr. Gotay discussed with T.S. and Brown the benefits of positive behavior, methods for maintaining good grades, conflict resolution challenges, and anger management techniques.
At a session on February 20, 2014, T.S. reported an anger score of 3/10 and an anxiety score of 1/10. Mr. Gotay observed that T.S. was in a "mild angry mood," and T.S. explained that he recently had a minor argument with a family member. (AR 309.) Mr. Gotay discussed anger coping skills with T.S., who was responsive to Mr. Gotay's suggestions.
At a family session on February 25, 2014, Brown discussed issues with T.S.'s IEP and said that she was working with an education lawyer to help her to find the appropriate high school for T.S. She reported "recurring moderate anger" at home related to restrictions she had placed on T.S.'s access to his video games. (AR 308.)
*
Throughout April 2014, T.S. reported low anxiety and anger scores. He said that he had experienced some mild anxiety about the ELA state tests, and had a minor argument with his brother. T.S. reported positive schoolwork completion and no bullying by his peers.
In early May 2014, T.S. told Mr. Gotay that he had experienced some elevated anxiety in connection with a math test. On May 8, 2014, he reported an anger score of 6/10 stemming from conflicts with his uncle, who was staying temporarily with T.S.'s family. Mr. Gotay explored coping skills with T.S. and commended him for doing well in school. In late May, T.S. reported low anger and anxiety scores. He told Mr. Gotay that he was graduating from middle school on June 27, and planned to attend Urban Technology High School in the fall.
Pediatric Neuropsychologist Preetika Mukherjee, Ph.D., conducted a Confidential Neuropsychological Assessment of T.S. on June 28 and 29, 2012. Brown told Dr. Mukherjee that T.S. had exhibited difficulty with attention since the third grade. He was easily distracted and forgetful, and generally had a low frustration tolerance that was often communicated through temper tantrums. Dr. Mukherjee noted that T.S. had been suspended from school the previous year for making a blow torch outside school premises.
Dr. Mukherjee noted that T.S. was adequately related, fully oriented and cooperative. She wrote that his mood was euthymic and he displayed full range of affect. Dr. Mukherjee did not observe any anxiety or mood symptoms. She found that his linguistic abilities, including speech pace, volume and intonation quality, were within normal limits, but noted some difficulties in sentence structure and usage. Dr. Mukherjee found T.S. to be "persistent," but found that he "exhibited difficulty with maintaining a consistent focus on tasks for sustained periods of time." (AR 212.)
In the neurocognitive evaluation, Dr. Mukherjee noted poor sequencing and visuo-spatial skills. She found that in areas of expressive language. T.S. had word retrieval difficulties. His language processing and comprehension skills were "generally average," although he showed some mild problems with verbal organization.
Dr. Mukherjee concluded that T.S. had ADHD — inattentive type, which was characterized by "being disorganized, easily pulled off course, forgetful and inattentive, making careless mistakes, and not paying close attention to detail, as well as having difficulty organizing work, planning a strategy, and keeping track of multiple things held in mind."
*
Dr. Mukherjee found that T.S.'s language-based learning difficulties affected his ability to acquire academic materials in the areas of reading and writing. He exhibited "significant weakness" in reading comprehension, consistent with a DSM-IV diagnosis of reading disorder.
Dr. Mukherjee recommended a consultation with a psychiatrist for medication management for ADHD, as well as social skills therapy to help T.S. with perception and coping skills. Regarding his learning disorders, Dr. Mukherjee wrote that T.S. should attend speech therapy twice a week, and receive daily reading/writing intervention on an individual basis in order to address his reading comprehension and structural writing problems.
Dr. Mukherjee met with T.S. and Brown for family counseling sessions in November 2013. She noted that they discussed T.S.'s cognitive and academic difficulties, and the relationship between his emotional functioning and academic difficulties. She recommended that he complete a new round of neuropsychological testing in December 2013.
On August 30, 2012, Dr. Noam Koenigsberg performed an initial psychiatric evaluation on T.S. Dr. Koenigsberg noted that Dr. Mukherjee had diagnosed T.S. with ADHD, inattentive, type, and reading disorder. Brown informed Dr. Koenigsberg that T.S. had anger problems, and recalled an incident when he punched and consequently broke the flat screen TV in their apartment. T.S. told Dr. Koenisberg that he occasionally punched himself in the arm when he felt angry. He also reported that on a few occasions in the past two weeks, he had heard voices in his head telling him to hurt himself. T.S. denied any other symptoms of psychosis.
T.S. told Dr. Koenigsberg that he struggled with reading and writing, but did well in math and science. When asked about the blow torch incident at school, T.S. stated that he did not intend to hurt anyone, but was merely trying to "be cool" and show off for his friends. (AR 436.) In retrospect, he acknowledged that it was a bad idea.
Dr. Koenigsberg assigned T.S. a GAF score of 70. He noted that T.S. was "very calm and cooperative" and appeared to be able to focus and concentrate throughout the interview. (AR 436.)
In a January 2, 2013 report to the New York State Office of Temporary Disability Assistance, Dr. Koenigsberg wrote that he had diagnosed T.S. with ADHD — inattentive type, the symptoms of which included inability to concentrate, distractibility, difficulty following directions and frequently losing things. He wrote that T.S. was taking 18 mg of Concerta daily, which had resulted in improved concentration and better performance in school. Dr. Koenigsberg rated T.S.'s sensory abilities, communication skills and social/ emotional skills as "age appropriate" (AR 236, 238.) He rated his cognitive abilities, however, as not age appropriate. Dr. Koenigsberg noted that T.S.'s mood was euthymic with full affect, and characterized his attention and concentration as "fair." (AR 239.)
*
On January 22, 2013, Dr. Koenigsberg reported that T.S. had had three episodes of "acting out in school." (AR 416.) T.S. explained that there had been a substitute teacher at school and other students were misbehaving, which distracted him and caused him also to misbehave. Brown told the doctor that the regular teachers, and not the substitute teacher, had called her to report T.S.'s behavioral issues. Dr. Koenigsberg suggested treating the behavioral issues with a combination of a higher dosage of Concerta to improve T.S.'s concentration, along with group or individual therapy to help him to "deal with his frustration in a more productive manner." (AR 416.) He increased T.S.'s daily Concerta dosage from 18 to 27 mg.
On February 12, 2013, T.S. told Dr. Koenigsberg that was attending counseling sessions with Mr. Gotay, with whom he planned to continue some of the art projects he had worked on with Ms. Burgio. T.S. reported a large increase in his concentration after beginning the higher dosage of Concerta.
Treatment notes from April through June 2013 indicate that T.S. continued to do well on the increased dosage of Concerta. Brown told Dr. Koenigsberg that T.S.'s medication wore off by the end of the school day. After speaking with T.S., however, Dr. Koenigsberg concluded that T.S. found it more difficult to concentrate and remain focused toward the end of each class period, rather than toward the end of the day. Dr. Koenigsberg noted that T.S. planned to take a drug holiday over the summer. Dr. Koenisberg recommended that T.S. undergo a new psychiatric evaluation over the summer, while he was not taking the Concerta. He noted that after the summer, T.S. would begin meeting with a new psychiatrist.
On July 11, 2013, Dr. Andrew O'Hagan, M.D., became T.S.'s treating psychiatrist. T.S. told Dr. O'Hagan that he sometimes felt bullied by his older siblings, but added that he was currently getting along better with them. When asked about his anger control issues, T.S. reported "vague feelings of helplessness." (AR 380.) Dr. O'Hagan wrote that T.S.'s remote memory was grossly intact, with "some mild impairment on attention and concentration testing."
On September 3, 2013, Dr. O'Hagan met with T.S. to refill his Concerta prescription. T.S. told Dr. O'Hagan that he had "a pretty good" summer at camp, but was not sure how he felt about returning to school. (AR 370.) T.S. said that he was looking forward to seeing his friends again. He denied having any issues with his temper, or fighting with his mother or siblings. Dr. O'Hagan started T.S. on 18 mg Concerta, with a planned follow-up visit in two weeks. On October 8, 2013, Dr. O'Hagan increased T.S.'s dosage to 27 mg.
At a November 12, 2013 appointment, Brown told Dr. O'Hagan that there were no behavioral issues at home or school. She said that she expected T.S. to earn poor grades that quarter, and expressed doubt that T.S.'s school was providing him with the sufficient support in compliance with his IEP. Brown stated that she noticed "some degree of moodiness and anxiety" related to school, which T.S. denied. (AR 341.) Dr. O'Hagan ran a "scared assessment" and found that T.S. scored subthreshold for all anxiety disorders.
*
On January 16, 2014, T.S. and Brown reported that T.S. continued to struggle academically. Brown was eager to address changes in his IEP with the school's attorney. T.S. said that he could focus easier, but reported difficulty with making a schedule. He said that he continued to grow very anxious when asked to do tasks publicly in the classroom. Dr. O'Hagan increased T.S.'s Concerta dosage to 54 mg per day.
At his next appointment on February 20, 2014, T.S. reported that his school-related anxiety had improved with therapy and medications. His mother stated that he was "doing well, had a few better grades, but we are waiting on his report card." (AR 314.)
On March 20, 2014, Dr. O'Hagan noted that T.S. appeared to be doing well and had improved grades in all subjects except ELA.
On May 8, 2014, Dr. O'Hagan noted that Brown informed him that T.S. was doing better in school. He wrote that T.S. denied any psychiatric symptoms, other than some mild anxiety in the classroom.
Dr. Michael Kushner, Ph.D., conducted a consultative psychiatric evaluation of T.S. on December 31, 2012. He noted that T.S. was in the seventh grade, enrolled in his first year of special education classes, and also received speech therapy at school. T.S. told Dr. Kushner that he saw Dr. Koenigsberg once a month and Ms. Burgio once a week. Dr. Kushner noted that T.S. was currently taking 18 mg of Concerta once a day.
Dr. Kushner found that T.S.'s demeanor and responsiveness were cooperative, and that his manner of relating and social skills were age appropriate. He noted that T.S.'s attention and concentration were intact, and that his recent and remote memory skills were intact and age appropriate. Dr. Kushner wrote that with regard to daily functioning, T.S.'s ability to attend to, follow and understand age-appropriate instructions might be somewhat impaired due to this attention problems. Dr. Kushner diagnosed T.S. with attention deficit disorder, and concluded that "the results of the evaluation appear to be consistent with cognitive problems, but in itself, this does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis." (AR 231.).
On January 15, 2013, State Agency pediatric consultant Dr. J. Randall, M.D., completed a consultative evaluation in which he determined that T.S. was not disabled. After finding that T.S.'s sole "severe impairment" was ADHD, Dr. Randall concluded that his symptoms did not meet, medically equal, or functionally equal, the requirements for a Listing disorder under 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.11. In assessing T.S.'s functioning in each of the six domains on the childhood disability evaluation, Dr. Randall found that T.S. had no limitations in the domains of moving about and manipulation of objects, caring for yourself, and health and physical well-being. In the domain of acquiring and using information, Dr. Randall concluded that T.S. had "less than marked" limitations, associated with his slowed processing speed. Dr. Randall found that T.S. had "average" cognitive functioning, and described his thought process as "coherent and goal directed." (AR 69.) He likewise characterized T.S.'s limitations in the domain of attending and completing tasks as "less than marked," noting that his medical reports showed "good response to medication."
*
In anticipation of the hearing before the ALJ, Dr. Brust submitted a short report with a summary of T.S.'s medical records and social history, as well as a short description of her own conclusions. She wrote that T.S.'s "main problem is his difficulty in processing information." (AR 461.) She noted that his scores fell into the "borderline range" for processing speed, indicating that it was "very difficult for him to thrive in a general education environment." (AR 461.) Dr. Brust considered the Listings requirements for cognitive delays (20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05), expressive language delays (no listing), and ADHD (20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.11), and determined that T.S. did not meet or medically equal any Listings. She found that he functionally had a "marked limitation" in acquiring and using information, and a "less than marked" limitation in attending and completing tasks. (AR 461.) Other domains were not affected.
At the hearing, Dr. Brust testified that T.S. had a deficit in processing speed, ADHD, and an anxiety disorder. She opined that T.S.'s processing speed impairment was "the core of his problems." (AR 57.). Dr. Brust concluded that the symptoms of T.S.'s ADHD, anxiety and slow processing speed, when considered in combination, "borderline" met or medically equaled the Listings criteria for anxiety and ADHD. (AR 56.) In response, the ALJ asked Dr. Brust whether, in light of T.S.'s improvements over the past year and a half, he currently had a condition that met or medically equaled the Listings. Dr. Brust responded that with medication and appropriate schooling, T.S.'s symptoms did not meet or medically equal the Listings' requirements. The ALJ then asked whether at any time between November 6, 2012, and the date of the hearing, there was a 12-month period during which T.S. may have met or equaled the Listings. Dr. Brust responded that there may have been a period in or around 2012 when he met or medically equaled the Listings, but added that because she did not know the exact date on which T.S.'s symptoms began to improve, she could not definitively answer the ALJ's question.
The ALJ then asked Dr. Brust to describe T.S.'s levels of limitation within each of the six functional equivalence domains. In the domain of acquiring and using information, Dr. Brust testified that T.S. has "less than marked limitation, based on his academic delays associated with his processing speed." (AR 58-59.) In the domain of attending and completing tasks, Dr. Brust described T.S.'s limitations as "less than marked because of ADHD." (AR 59.) She also assigned less than marked limitations to the domain of health and physical well-being because T.S. was prescribed medication to treat his ADHD. In the three remaining domains of moving about and manipulation objects, caring for self, and interacting and relating with others, Dr. Brust testified that T.S. had no limitations.
When pressed by T.S.'s counsel to explain her conclusions regarding his limitations in the domains of acquiring and using information and attending and completing tasks, Dr. Brust stated "there's no way you can put it at a marked" because T.S.'s processing speed impairment was "not affecting him that much." (AR 61.) Dr. Brust pointed to the fact that T.S. was currently passing all of this classes and suggested that in order to improve his ability to process new materials, he should do his homework assignments aloud. As a follow-up question, T.S.'s attorney asked Dr. Brust whether she would have described T.S.'s limitations as "marked" in 2012, when he was not passing some of his classes. Dr. Brust answered that assuming T.S. was not passing all of his classes at the time, he would have had marked limitations in both domains.
*
A determination of the ALJ may be set aside only if it is based upon legal error or is not supported by substantial evidence.
"Before determining whether the Commissioner's conclusions are supported by substantial evidence, however, `we must first be satisfied that the claimant has had a full hearing under the . . . regulations and in accordance with the beneficent purposes of the Act."
Though generally entitled to deference, an ALJ's disability determination must be reversed or remanded if it is not supported by "substantial evidence" or contains legal error.
*
Pro se litigants "are entitled to a liberal construction of their pleadings," and, therefore, their complaints "should be read to raise the strongest arguments that they suggest."
Under the Act, a child, defined as someone under the age of 18, is considered disabled if the child "has 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). To determine whether a child claimant qualifies for SSI, the ALJ must conduct a three-step inquiry.
If a claimant's impairments do not meet or medically equal any of the listings, the ALJ must determine whether they functionally equal a Listing. Impairments functionally equal a Listing where they result in "marked" limitations in two of the six domains of functioning or an "extreme" limitation in one of the six domains.
*
On July 30, 2014, after evaluating T.S.'s claims pursuant to the three-step sequence, the ALJ issued a decision finding that T.S. was not disabled within the meaning of the Act since October 5, 2012, the date his application was filed. The ALJ found at step one that T.S. had not engaged in substantial gainful activity since October 5, 2012. At step two, the ALJ found that T.S. had the following severe impairments: ADHD, an anxiety disorder and a learning disorder. At step three, the ALJ found that T.S. did not have impairments that, alone or in combination, met or medically equaled one of the impairments in the Listings. To determine whether T.S.'s impairments functionally equaled a Listing, the ALJ analyzed each of the six domains of functioning. He concluded that T.S.'s impairments did not result in either "marked" limitations in any two domains, or "extreme" limitations in any one domain. Accordingly, he found that T.S. was not disabled under the Act and thus not eligible for SSI benefits.
The ALJ found that Brown's statements concerning the intensity, persistence and limiting effects of T.S.'s impairments and symptoms were not supported by objective evidence and therefore not credible in establishing that T.S. is disabled under the applicable guidelines.
He discussed at length Dr. Brust's findings and conclusions. He gave "substantial weight" to her findings regarding T.S.'s functional limitations, noting that they were consistent with the treatment notes in the record, other examination findings and T.S.'s current level of functioning. (AR 20.) The ALJ reviewed Dr. Brust's findings for each of the six functional domains set forth in 20 C.F.R. §§ 416.926a. Under "acquiring and using information," Dr. Brust concluded that T.S. had less than marked limitations, based primarily on academic delays associated with his processing speed. (AR 16.) In the domain of attending and completing tasks, she found that he had a less than marked limitation due to his ADHD and processing speed. Dr. Brust found no limitations related to interacting and relating with others, moving or manipulating objects, and caring for himself. She concluded that T.S. had less than marked limitations in health and physical well-being "as a result of improvement in his ADHD due to medication." (AR 20.) Based on these findings, the ALJ concluded that T.S. did not have "marked" limitations in two domains of functioning, or an "extreme" limitation in one domain of functioning.
The ALJ only assigned "partial weight" to Dr. Brust's hearing testimony that T.S.'s impairments may have equaled the Listings, noting that Dr. Brust admitted that she was unaware of when T.S.'s symptoms began to improve. (AR 20.) The ALJ noted that Drs. Kushner and Randall both concluded that no Listings-level disorder was met and found that no marked limitations had persisted past January 2013.
The ALJ gave "partial weight" to Dr. Kushner's findings in December 2012 that T.S. had some degree of cognitive problems secondary to ADHD, including "somewhat impaired" abilities to attend to, follow and understand age-appropriate directions and complete age-appropriate tasks. (AR 22.) The ALJ concluded that although Dr. Kushner's findings were consistent with other evidence in the record, they were based on only one exam and failed to fully address any of the "critical domains."
*
Lastly, the ALJ considered treatment notes from T.S.'s regular psychiatric evaluations and outpatient treatment notes from St. Luke's Hospital. He referenced Dr. Mukherjee's findings in June 2012 that T.S. experienced difficulty concentrating and focusing and was easily pulled off task, forgetful and inattentive. He also noted that Dr. Mukherjee had linked T.S.'s language-related problems to his reading impairments, and that subsequent speech/ language evaluations performed by his school had shown no expressive language deficits. The ALJ found that Dr. Koenigsberg's psychiatric evaluation reports were "consistent with gradual improvement in [T.S.'s] academic functioning as well as a more-or-less continuous absence of behavioral or serious emotional issues, particularly after he was placed on Concerta, which resulted in significant improvement in his ADHD symptoms as well as other emotional issues . . . ." (AR 23.) He noted that T.S.'s anxiety and anger issues had decreased over time, and that his grade point average had notably increased from 66 to 75. The ALJ acknowledged that T.S. continued to struggle with English, and occasionally reported experiencing mild anxiety at school. Overall, however, the ALJ found that the treatment notes reflected a significant improvement in T.S.'s performance in school, exhibited through his increased attention span and the completion of assignments in a timely manner.
The Listing requirements for ADHD are met if the claimant shows medically documented findings of (i) marked inattention; and (ii) marked impulsiveness; and (iii) marked hyperactivity. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.11. Additionally, the claimant must show that his impairment results in at least two of the following: (i) marked impairment in age-appropriate cognitive/ communicative function; (ii) marked impairment in age-appropriate social functioning; (iii) marked impairment in age-appropriate personal functioning; or (iv) marked difficulties in maintaining concentration, persistence, or pace. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.02(B)(2).
There is substantial evidence to support the ALJ's conclusion that T.S. was not disabled. Both Dr. Randall and Dr. Brust, in her initial report, found that T.S. did not meet the Listing requirements for ADHD. Although Dr. Brust testified at the ALJ hearing that T.S.'s impairments "borderline" met or medically equaled the Listing for ADHD, when pressed by the ALJ, Dr. Brust stated that with medication and appropriate schooling, his symptoms did not meet the Listing requirements. She also admitted that she was not able to testify with certainty as to whether there was a 12-month period after November 6, 2012, when he met or medically equaled the Listing. Furthermore, Dr. Brust testified that there was "no way" his limitations in the domains of acquiring and using information and attending and completing tasks qualified as marked because his processing speed impairment did not "affect[ ] him that much." (AR 61.)
*
Treatment notes from T.S.'s psychiatrists at St. Luke's Hospital also support a finding that T.S.'s symptoms greatly improved over time and, therefore, did not satisfy the Listing criteria. In January 2013, Dr. Koenigsberg reported that T.S.'s sensory abilities, emotional, and communication skills were age-appropriate. Although he found that T.S.'s cognitive skills had not yet reached the age-appropriate level, his focus and concentration had improved with regular use of Concerta. In July 2013, Dr. O'Hagan noted only "some mild impairment on attention and concentration testing," but otherwise found that T.S. exhibited age-appropriate behavior and an intact memory. (AR 380.) In November 2013, Brown told Dr. O'Hagan that T.S. was well-behaved at both home and school. He increased T.S.'s dosage of Concerta, and in December 2013, both T.S. and Brown reported increased focus and ability to complete homework.
Improvement in T.S.'s behavior and academic performance also are reflected in Mr. Gotay's treatment notes. In May 2013, Brown told Mr. Gotay that T.S. was doing better in school and earning grades in the 70s. In October 2013, both Brown and T.S. reported good behavior at school, improved attention span, and a fair adjustment to the eighth grade. In March 2014, T.S. showed Mr. Gotay his report card, which showed that his overall average had increased from 66 to 75.
Because both medical and non-medical evidence support the ALJ's finding that T.S.'s ADHD symptoms did not persist for a twelve-month period at the level of severity required by the Listings, there was substantial evidence to support the ALJ's finding that T.S.'s impairment does not meet or medically equal the Listings requirements for ADHD.
In order to satisfy the Listing requirements for an anxiety disorder, the claimant must present medically documented findings of at least one of the following:
Additionally, the claimant must present evidence showing that his impairment results in at least two of the following: (i) marked impairment in age-appropriate cognitive/ communicative function; (ii) marked impairment in age-appropriate social functioning; (iii) marked impairment in age-appropriate personal functioning; or (iv) marked difficulties in maintaining concentration, persistence, or pace. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.02(B)(2).
*
Dr. Brust was the only expert to opine that T.S. might qualify for the Listing requirements for an anxiety disorder. The ALJ properly gave her opinion partial weight because it conflicted with the opinions expressed by the other consulting experts, as well as the treatment notes from T.S.'s treating physicians. Additionally, Dr. Brust did not include a Listing disorder of anxiety in her initial report.
Because there is no additional evidence on the record consistent with the Listing's requirements of an anxiety disorder, the ALJ's decision was supported by substantial evidence.
After determining that T.S.'s impairment did not meet or medically equal a Listings impairment, the ALJ proceeded to consider whether T.S.'s impairments functionally equaled a Listing. In assessing a claimant's functional limitations, the ALJ must consider (i) how well the child can initiate and sustain activities, how much extra help he needs, and the effects of a structured or supportive setting; (ii) how well the child functions at school; and (iii) the effects of any medications or other treatment.
In the domain of acquiring and using information, the ALJ considers how well the claimant acquires or learns information, and how well the claimant uses the information he has learned.
The ALJ properly relied on Dr. Brust's conclusion that T.S. had a less than marked limitation in this domain. Although the record indicates that T.S. has difficulty with reading comprehension and recalling details from lessons or stories, Dr. Brust testified that there was "no way" that T.S.'s limitations in acquiring and using information could be described as "marked." In the 2012 neuropsychological evaluation, Dr. Mukherjee identified T.S.'s slow working/ reading speed as his main cognitive difficulty. This conclusion was supported by his teachers' statements that T.S. processed information slowly and often had difficulty retrieving information on the spot or discussing newly acquired information in class. In a psychoeducational evaluation from May 2012, the evaluator noted that T.S.'s attention problems, paired with relatively weak verbal abilities, language development and vocabulary, likely accounted for his trouble with reading and writing. The evaluator suggested that T.S.'s impairment could be improved if he read more age-appropriate books to strengthen his vocabulary and reading comprehension skills. Additionally, Dr. Kushner found that T.S. could "learn in accordance to cognitive functioning, although his attention problems may inhibit him in this realm at times." (AR 231.)
*
Taken together, there is substantial evidence in the record to support the ALJ's finding that T.S. had a less than marked limitation in the domain of acquiring and using information.
In the domain of attending and completing tasks, the ALJ examines how well the claimant is able to focus and maintain attention, and how well the claimant begins, carries through and finishes activities, including the pace at which the claimant performs activities and the ease with which he changes them.
Here, too, there is substantial evidence to support the ALJ's conclusion that T.S. had a "less than marked" limitation in the domain of attending and completing tasks. This conclusion was supported by the findings of Drs. Brust and Randall, who both concluded that T.S. had "less than marked" limitations in this domain. The ALJ acknowledged that, before taking Concerta, T.S. experienced problems with attention and focus. He also assigned partial weight to Dr. Kushner's finding that T.S.'s attention problems might somewhat impair his abilities to attend to, follow and understand age-appropriate instructions.
After beginning treatment with Concerta, however, T.S.'s abilities to focus and maintain attention increased over time. Treatment notes with his doctors and therapists at St. Luke's confirm that the Concerta greatly improved his ability to focus and concentrate at school. His teachers also reported that he became "much more focused" after starting Concerta, and his mother reported that he was no longer exhibiting behavioral problems at home. There is therefore substantial evidence to support the ALJ's finding that T.S. did not have a "marked" or "extreme" limitation in the domain of attending and completing tasks.
In this domain, the ALJ considers how well the claimant initiates and sustains emotional connections with others, develops and uses the language of his community, cooperates with others, complies with rules, responds to criticism, and respects and takes care of the possessions of others.
*
The ALJ's conclusion is further supported by Dr. Brust's finding that T.S. had no limitations in this domain. Likewise, Dr. Koenigsberg wrote in his treatment notes that T.S. had normal communications skills and social/emotional skills. Dr. O'Hagan observed that T.S. was "pleasant, well related" and exhibited "age appropriate behavior," (AR 380.), and Dr. Kushner found that T.S.'s manner of relating and social skills were age appropriate. These medical findings belie Dr. Randall's finding that T.S. had "less than marked limitations" in this domain. There is therefore substantial evidence to support the ALJ's finding that T.S. had no limitations in the domain of interacting and relating with others.
Under this domain, the ALJ considers how well the claimant moves his body from one place to another and how the claimant moves and manipulates things.
In this domain, the ALJ considers how well the claimant maintains a healthy emotional and physical state, including how well the claimant gets his physical and emotional wants and needs met in appropriate ways, how he copes with stress and changes in his environment, and whether he can take care of his own health, possessions and living area.
Finally, in the domain of health and physical well-being, the ALJ will consider the cumulative effects of physical or mental impairments and their associated treatments or therapies on the claimant's functioning, which were not considered under the domain of moving about and manipulating objects.
*
It is the ALJ's role to evaluate a claimant's credibility and to decide whether to discredit a claimant's subjective estimate of the degree of his impairment.
The ALJ wrote that Brown's statements concerning the intensity, persistence and limiting effects of T.S.'s impairments and symptoms were not supported by objective evidence and therefore not credible in establishing that T.S. is disabled under the applicable guidelines. Although he failed to provide a discussion of specific factors considered in his credibility analysis, such error was harmless because the record as a whole contains substantial evidence supporting the ALJ's negative credibility determination. As discussed above, both of T.S.'s treating physicians noted improvements in his focus and concentration after he began taking Concerta. Brown and T.S. told his therapist that his grades were gradually improving, and in 2014, T.S. received passing marks in most subjects and was accepted to high school. The ALJ noted that T.S. told Dr. Kushner that his medication helped his attention and hyperactivity symptoms, but did not eliminate them completely. He also noted that Brown told Dr. Kushner that she thought T.S. was more anxious than her other children, but that T.S. denied experiencing any symptoms of depression or anxiety. Although T.S. occasionally reported elevate feelings of anxiety to Mr. Gotay, his mother's concerns about an anxiety disorder were controverted by Dr. O'Hagan's findings. In light of the abundance of evidence indicating that T.S.'s ADHD symptoms improved over the course of his treatment, there is substantial evidence to support the ALJ's credibility finding.
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings is GRANTED and the plaintiff's claims are dismissed with prejudice.
Slip Copy, 2016 WL 3039892
Karen V. Daley, Atlanta, GA, pro se.
KATHERINE B. FORREST, District Judge.
*
On July 13, 2013, plaintiff filed a complaint seeking judicial review of the ALJ's decision. (ECF No. 2.) On September 9, 2013, defendant moved for judgment on the pleadings. (ECF No. 17.) Plaintiff filed no opposition. For the reasons set forth below, defendant's motion is GRANTED.
The Court recites here only those facts relevant to its review.
At the time of the May 2011 hearing, plaintiff, born in 2002, was eight years old and in the third grade. (R. at 36, 111.) Plaintiff testified that he enjoyed school, particularly art and gym class; that he liked playing video games and could manipulate game controllers and type on a computer; and that he bathed independently and sometimes did household chores. (R. at 36-40.) Plaintiffs mother, Karen Daley, testified that plaintiff had a separation disorder, ADHD, and difficulty falling asleep, and that Dr. Aurora Tiu had prescribed medication for aid in sleeping and for ADHD. (R. at 41-42.) Ms. Daley also testified that plaintiff had failed his Individualized Education Program ("IEP") at school, that when he returned to school he would enter a special education class, and that plaintiff could not complete his homework by himself. (R. at 48, 51.) Ms. Daley further testified that she was disabled, and that plaintiff assisted her in managing her condition by providing her with ice water and insulin and calling 911 for assistance. (R. at 52.)
In plaintiffs application for SSI benefits, Ms. Daley stated that plaintiff was able to see, hear, and talk, and that he had friends and got along with adults, but that he could not make new friends and that he did not get along with schoolteachers. (R. at 112-13, 117.) Ms. Daley further stated that plaintiff's impairments did not affect his ability to help himself and cooperate with others in taking care of personal needs. (R. at 118.)
*
On December 13, 2010, consultative psychologist Dr. Tedoff made the following findings:
(R. at 204-06.)
Dr. Tedoff further found that plaintiff could attend to, follow, and understand most age-appropriate directions and complete most age-appropriate tasks. (R. at 206.) While plaintiff did not seem to maintain appropriate social behavior, he was not a behavior problem. (Id.) Dr. Tedoff's report stated that plaintiff was learning in a manner consistent with relatively good cognitive functioning, and that his interaction with adults was good, though his interaction with peers was inadequate. (Id.) Dr. Tedoff's examination results were consistent with psychiatric problems, but he found that, on medication, this did not significantly interfere with plaintiff's ability to function on a daily basis. (Id.) He diagnosed plaintiff with ADHD and a sleeping problem, and ruled out a learning disorder in reading. (Id.)
On December 28, 2010, state agency medical consultant K. Prowda reviewed the record evidence and evaluated plaintiff's condition. (R. at 208-13.) Dr. Prowda found that plaintiff's ADHD was severe but that it did not meet, medically equal, or functionally equal the requirements of a listed impairment. (R. at 208.) The doctor further found that plaintiff had a less-than-marked limitation in four domains (acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself) and no limitations in the other two domains (moving about and manipulating objects and health and physical well-being). (R. at 210-11.) Dr. Prowda also noted that both plaintiff's teacher and Dr. Tedoff had found that plaintiff's behavioral and psychiatric problems improved after medication. (R. at 213.)
On November 22, 2010, plaintiff's third-grade teacher, Joy C. Pell, noted that plaintiff had an "obvious" to "very serious problem" in certain domains prior to beginning his course of medication for ADHD, but that his medication caused a "[d]efinite change" in which he was "less impulsive, works better," and was "[m]ore focused." (R. at 125-27, 130.)
Plaintiff's report card and other educational records dated 2010 and 2011 reflect that plaintiff performed below grade level and below standards. (R. at 163, 167, 175.)
*
A notice from plaintiff's school dated May 11, 2011 indicates that plaintiff was classified as learning-disabled and that he would receive integrated coteaching services as well as speech and language therapy. (R. at 160.)
"After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The Court reviews Rule 12(c) motions for judgment on the pleadings under the same standard as Rule 12(b)(6) motions to dismiss. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.2010). Therefore, "[t]o survive a Rule 12(c) motion, the complaint `must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010)).
Even where a motion stands unopposed, the Court does not embrace default judgment principles. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir.2004) (applied in context of summary judgment). Though an unopposed motion "allow[s] the district court to accept the movant's factual assertions as true, the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law." Id. at 246 (citations and quotation marks omitted); see also Martell v. Astrue, No. 09 Civ. 1701 (NRB), 2010 WL 4159383, at *2 n. 4 (S.D.N.Y. Oct. 20, 2010) (noting that the same standard applies in the context of a pro se unopposed Social Security benefits appeal).
"[W]hen the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally," and interpret them as raising the strongest arguments they suggest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004).
In order to establish disability under the Act, plaintiff must establish that he has "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).
Under the Commissioner's regulations, if a child's impairment or combination of impairments meets, medically equals, or functionally equals the requirements of any impairment contained in the listing of impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Appendix 1"), the child will be found disabled. See 20 C.F.R. §§ 416.925, 416.926a(a).
*
A "marked" limitation occurs when an impairment "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An "extreme" limitation occurs when an impairment "interferes very seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i). A child's day-to-day functioning may be seriously or very seriously limited when the impairment(s) limit(s) only one activity or when the interactive and cumulative effects of the impairment(s) limit(s) several activities. 20 C.F.R. § 416.926a(e)(2)(i), (e)(3)(i).
The Commissioner and ALJ's decisions are subject to limited judicial review. The Court may only consider whether the Commissioner has applied the correct legal standard and whether her findings of fact are supported by substantial evidence. When these two conditions are met, the Commissioner's decision is final. 42 U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir.2008) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000)); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998) ("We set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.").
If the Commissioner and ALJ's findings as to any fact are supported by substantial evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995). 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.'" Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court must consider the record as a whole in making this determination, but it is not for this Court to decide de novo whether the plaintiff is disabled. See Veino, 312 F.3d at 586 ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir.1997).
*
Particularly in light of the deferential standard of review required of this Court, the ALJ correctly conducted the analysis required by 20 C.F.R. §§ 416.925 and 416.926a. Pursuant to the three-step sequential evaluation analysis set forth at 20 C.F.R. § 416.924(a)-(d), the ALJ first found that plaintiff had never engaged in substantial gainful employment. (R. at 19.) At step two, the ALJ found that plaintiff had ADHD, which was a severe impairment. (Id.) However, at step three, the ALJ found that this impairment did not meet or medically equal the requirements of any impairment listed in Appendix 1, because plaintiff's "condition [was] not attended by clinical signs and findings that meet or clinically equal the severity criteria under any section of Appendix 1." (Id.; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.11 (requiring "[m]arked inattention," "[m]arked impulsiveness," and "[m]arked hyperactivity" for an attention disorder to qualify under Appendix 1).)
The ALJ then evaluated plaintiff's impairments to determine whether they were "functionally equivalent" to a listed impairment, and determined that they were not, because plaintiff had a less-than-marked limitation in three domains and no limitation in the other three domains. (R. at 19-27.) The ALJ supported his findings regarding plaintiff's limitations in the six domains listed at 20 C.F.R. 416.926a with substantial evidence.
First, substantial evidence supported the ALJ's finding that plaintiff had a less-than-marked limitation in acquiring and using information. In this domain, the ALJ considers "how well [a child] acquire[s] or learn[s] information, and how well [he] use[s] the information [he has] learned." 20 C.F.R. § 416.926a(g). Here, the record evidence supports the ALJ's finding that plaintiff had good cognitive functioning, made adequate grades, and showed improvement after commencing medication. (R. at 22, 124-31, 168-76, 204-07.) In particular, Dr. Tedoffs report found that plaintiff was cooperative and attentive, could sustain concentration, had coherent thought processes, and was learning in a manner consistent with relatively good cognitive functioning. (R. at 205-06.)
Similarly, the ALJ appropriately determined that plaintiff had a less-than-marked limitation in attending and completing tasks. This domain concerns "how well [the child is] able to focus and maintain [his] attention, and how well [he] begin[s], carr[ies] through, and finish[es his] activities." 20 C.F.R. § 416.926a(h). Substantial record evidence indicates that, as the ALJ found, plaintiff had a less-than-marked limitation in this area. (R. at 23.) For example, plaintiff's third-grade teacher, Ms. Pell, noted a problem with plaintiff's ability to attend to and complete tasks, but reported that medication significantly improved this problem. (R. at 23, 126.) Dr. Prowda's report also assessed plaintiff as having a less-than-marked limitation in this domain. (R. at 210-11.)
*
In the fifth domain, caring for oneself, substantial evidence again confirmed the ALJ's conclusion that plaintiff had no limitation. The ALJ considered Dr. Prowda's report, which had assessed a less-than-marked limitation based on the plaintiff's deficiencies in the classroom before beginning medication, rather than no limitation. (R. at 211.) However, the ALJ also considered plaintiff's statements that he bathes himself and sometimes does household chores, and noted that plaintiff's mother did not allege that plaintiff had any difficulties taking care of personal needs. (R. at 39-40, 118.)
Plaintiff did not allege any limitations in the fourth and sixth domains of moving about and manipulating objects and health and physical well-being. (R. at 116.) Dr. Prowda's report confirms that plaintiff had no limitations in these two domains. (R. at 211.) The ALJ therefore appropriately determined that plaintiff had no such limitations. (R. at 24, 26.)
In sum, substantial evidence supports the ALJ's finding that plaintiff did not have an extreme limitation in any domain and did not have a marked limitation in two or more domains. Accordingly, his impairments were not functionally equivalent to a listed impairment, and the ALJ reasonably found that plaintiff was not disabled. See 20 C.F.R. § 416.926a(a).
For these reasons, defendant's motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 17 and to terminate this action.
SO ORDERED.
Not Reported in F.Supp.3d, 2014 WL 642858
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 undertectable, 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. Id.
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 panchytopenia 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 physician's 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 evidenced 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, uses 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's 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 rationable 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 hearing 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. Byrans. (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 physician's 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 at 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
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 claims 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 absences, (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 along 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 spareness 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 transistioned 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 Reports 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 Reports 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 remaining this case to the Commissioner of Social Security.
SO ORDERED.
Not Reported in F.Supp.2d, 2012 WL 6621722
Remanded.
West Headnotes (2)
Binder and Binder, By: Charles E. Binder, New York, New York, David N. for Plaintiff.
CHIN, J.
*
Plaintiff filed an application for SSI benefits on June 29, 1999. (Tr. 26-38).
The Appeals Council granted plaintiff's request for review based on new evidence, vacated the ALJ's decision on April 29, 2000, and remanded the case for further proceedings. (Id. 185-89). Plaintiff appeared at a new hearing on August 9, 2001. (Id. 257-73). After considering plaintiff's claim de novo, the ALJ found, on September 5, 2001, that plaintiff was not disabled. (Id. 8-16).
The ALJ found that plaintiff was capable of performing a broad range of sedentary work activity on a competitive basis. (Id. 14). He found that plaintiff was able to sit without limitation, stand and/or walk up to two hours in an eight-hour day, lift up to five pounds occasionally. (Id.). The ALJ precluded plaintiff from work involving exposure to temperature extremes or environmental irritants, due to his asthma. (Id.).
The ALJ's September 5, 2001 decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on September 23, 2002. (Id. 3-7).
Plaintiff was born on June 8, 1956 and was forty-five years old at the time of the September 5, 2001 ALJ decision. (Id. 16, 261, 277). Plaintiff completed one year of college and worked as a retail sales manager from 1974 to 1989. (Id. 56-57, 62, 87, 262, 277-79). His job as a retail sales manager required five hours of walking and three hours of standing each day. (Id. 57). His duties included assisting customers, supervising employees, completing reports and paperwork, and answering phone calls. (Id.).
*
Plaintiff's treating sources have been physicians at Beth Israel Medical Center ("Beth Israel") and St. Luke's-Roosevelt Hospital Center ("St.Luke's"). (Id. 265).
An August 2, 1999 report signed by Dewitt R. Scott, a physician's assistant, but stamped with both Scott's name and that of Dr. Carlotta John-Hull, reflects that plaintiff had undergone treatment three times weekly beginning in March 1990 for opiate dependence, mitral valve disease, and a history of endocarditis with septic embolus. (Id. 89-104). Plaintiff had last been examined in March 1999. (Id. 89). According to the report, plaintiff received methadone treatment but did not display any abnormal behavior and had no mental impairment. (Id. 90, 96). The report described plaintiff's daily activities and ability to function in a work setting as within normal limits. (Id. 98). The report indicated that plaintiff had a history of shortness of breath and coughing. (Id. 90). The report also noted that plaintiff had no asthmatic episodes, tested positive for cyanosis, and was not taking pain medication. (Id. 91).
The report indicated that plaintiff performed activities such as shopping, walking, household chores, and socializing. (Id. 100). Scott described plaintiff as "restricted from exertion" and unable to lift, carry, push, or pull more than five pounds. (Id. 101-02). Moreover, Scott reported that plaintiff could walk or stand less than two hours per day and could sit up to eight hours per day. (Id.). Scott opined that plaintiff was "disabled." (Id. 101).
On August 23, 2000, Fred Roche, plaintiff's counselor at Beth Israel, verified that plaintiff was in treatment at the Beth Israel Methadone Maintenance Treatment Program and reported that plaintiff continued to improve. (Id. 149). Roche stated that plaintiff had complied with the methadone program and showed no signs of chemical abuse. (Id.).
Plaintiff was treated at St. Luke's Hospital Center December 21-25, 1999 for fever, diffuse multiple joint pains, shortness of breath on exertion, and gingival pain. (Id. 163-84, 217-35). Plaintiff was noted to be generally healthy and active in all activities of daily living. (Id. 179). His blood pressure was 150/80. (Id. 165, 180). He was wheezing. An EKG showed normal sinus rhythms but nonspecific T wave abnormalities. (Id. 167). Tests for endocarditis were negative. (Id. 173, 235). Plaintiff was diagnosed with pneumonia. (Id. 172). Plaintiff was discharged without restrictions. (Id.).
*
Plaintiff was seen at the asthma clinic on March 31, 2000 and complained of shortness of breath on exertion. (Id. 162). His blood pressure was 150/100. His chest was clear to auscultation, but heart sounds indicated a systolic murmur. Plaintiff was advised to lose weight and stop smoking. (Id.).
Pulmonary function studies were performed on plaintiff on August 7, 2000. (Id. 150-51, 202-03). Plaintiff's predicted one second forced expiratory volume ("FEV1") value was 3.95. (Id. 202). On testing, plaintiff's FEV1 value was 2.66 before administration of bronchodilators and 2.97 after administration of bronchodilators, which was 75 percent of the predicted value. (Id.). Plaintiff's predicted forced vital capacity ("FVC") value was 5.32. (Id.). Before administration of bronchodilators, plaintiff's FVC value was 4.29. After administration of bronchodilators, plaintiff's FVC value was 4.88, 92 percent of the predicted rate.
Plaintiff was seen on February 14, 2001. (Id. 200). He complained of shortness of breath and wheezing. (Id. 201). His asthma was described as "well controlled," and he was instructed to continue his current treatment. (Id. 200). An EKG showed normal sinus rhythm with no acute ST or T wave changes. (Id.). His blood pressure was 170/100. (Id.).
Dr. Cristina Tita prepared a "Physician's Employability Report" on February 20, 2001. (Id. 199). She reported that plaintiff had been diagnosed with asthma and had recently been diagnosed with hypertension. (Id.). She stated that plaintiff had an exercise tolerance of one-half block and further indicated that plaintiff had dyspnea on exertion, exertional chest pain, and dizziness. (Id.).
In an undated "Physician's Employability Report" by Dr. Kamran Firoozi, who was described as plaintiff's "primary care physician in a June 5, 2001 letter by Gretchen Harris, Director of Patient Relations at St. Luke's, Dr. Firoozi stated that plaintiff had been diagnosed with asthma, ischemic heart disease, and endocarditis "in the past." (Id. 194, 196). According to Dr. Firoozi, a stress test had shown a perfusion defect, and a further work-up was in progress. (Id.). In describing plaintiff's work limitations, Dr. Firoozi stated that plaintiff had a limitation from doing "heavy exertion" such as "lifting" or "running." (Id.). Dr. Firoozi stated that plaintiff could walk, but "not fast." (Id.). When asked what type of work plaintiff could perform, Dr. Firoozi answered, "No lifting. No running." (Id.).
*
Plaintiff's gait and station were normal. (Id. 129). He had no difficulty getting up from a seated position, dressing, or getting on or off the examining table. Plaintiff had full grasping strength and manipulative functioning. Plaintiff had no muscle tenderness or spasm and had full range of motion of his spine and peripheral joints. Plaintiff had no joint abnormalities and could perform "straight leg rais[es]" and could "heel, toe and tandem walk" without difficulty. (Id.). Plaintiff's motor functioning, muscle tone and strength, and sensation were normal. (Id. 130).
Dr. Fajardo diagnosed plaintiff with status post endocarditis, status post pleural effusion, status post pulmonary embolism, bronchial asthma without bronchospasm, opioid dependence under methadone maintenance, right breast swelling and urinary tract infection. (Id.). Dr. Fajardo opined that plaintiff could sit, stand, lift, carry, handle objects, hear, speak, and travel. He further opined that plaintiff had "minimal limitation in walking secondary to shortness of breath, wheezing and coughing, most likely secondary to bronchial asthma." (Id.).
Dr. Bernard Gussoff conducted a consultative examination of plaintiff on November 8, 1999. (Id. 133-41). Plaintiff weighed 282 pounds, his gait was normal, and he had no difficulty getting on or off the examining table or dressing. (Id. 134). He had a normal range of spinal motion with no muscle spasm or tenderness and could perform a straight leg raise normally. (Id. 134-35). Plaintiff had adequate muscle strength and no muscle wasting. (Id. 135).
Plaintiff's blood pressure was 170/110. (Id. 134). His heart rate was regular, and palpation showed no cardiomegaly. Dr. Gussoff heard a systolic murmur radiating to the axilla and no friction rubs. (Id. 134). He assessed plaintiff's EKG as "borderline," showing a regular sinus rhythm and an incomplete bundle branch block. (Id. 136). Plaintiff's chest x-ray was normal. (Id. 135). The diameter and excursion of plaintiff's chest wall were normal, and his lungs were resonant to percussion. (Id.). Other than occasional rhonchi and wheezing, plaintiff's lungs were clear, and plaintiff's expiration was not prolonged. Pulmonary function testing showed moderate obstruction and a low vital capacity. (Id. 135, 140). Plaintiff's predicted FVC was 5.25 liters. (Id. 14). Plaintiff achieved an FVC of 4.07 before bronchodilation and 4.44 after bronchodilation, 85 percent of the predicted value. (Id.). Plaintiff's predicted FEV1 was 4.23 liters per second. (Id.). Plaintiff's FEV1 was 2.75 before bronchodilation and 3.08 after bronchodilation, which is 73 percent of the predicted value. (Id. 140).
*
State agency review physician Dr. G. Hughes reviewed the medical evidence and assessed plaintiff's residual functional capacity on August 9, 1999. (Id. 143). Noting plaintiff's EKG and stress test results, Dr. Hughes opined that plaintiff had the residual functional capacity for medium work. (Id. 143).
Dr. Hughes assessed plaintiff's residual function capacity again on November 18, 1999. (Id. 142). He noted that endocarditis is an acute disease with no chronic component. He opined that plaintiff had the residual functional capacity for medium work. (Id.).
Plaintiff submitted additional notes, detailing treatment from April to September 2001 at St. Luke's clinics, to the Appeals Council. (Id. 206-16, 236-56).
On April 26, 2001, plaintiff's blood pressure was 150/80. (Id. 206, 247). On May 17, 2001, it was 150/100. (Id. 207, 245). Myocardial perfusion testing performed on May 23, 2001 showed large mild septal and inferior wall scarring and questionable minimal ischemia, thought to be insignificant. (Id. 250-51).
On June 1, 2001, plaintiff's blood pressure was 160/110 and his chest was clear. (Id. 208, 243). On June 4, 2001, his blood pressure was 140/90. (Id. 209). Echocardiography confirmed that plaintiff's heart had good wall motion and normal cardiac valves. (Id. 209, 211, 242, 250-52).
According to a June 6, 2001 note by Dr. Firoozi, plaintiff was being followed for asthma and angina. (Id. 210, 241). The note also expressed the possibility that plaintiff had coronary artery disease. (Id.).
On July 3, 2001, plaintiff's blood pressure was 140/90. (Id. 213). Treatment notes indicated that plaintiff had decreased exertional symptoms and no wheezing. (Id.). Plaintiff's asthma was noted as "under control." (Id. 214).
A cardiac catheterization performed on August 20, 2001 revealed normal left ventricular functioning and pulmonary hypertension. (Id. 216, 248, 253).
Dr. Amir Steinberg, internal medicine intern at St. Luke's, completed a "Medical Report for Claim of Disability and Exemption from Work Experience Program" on September 14, 2001, after the decisions in this case were rendered by the ALJ. (Id. 252-56).
*
Dr. Steinberg indicated that plaintiff had angina, low back pain, and arthritis, which did or could produce pain. (Id.). Dr. Steinberg stated that plaintiff "must lie down at home for most of day as it is difficult for him to walk and function in a normal lifestyle." (Id. 254). Dr. Steinberg listed the following activities as those plaintiff could perform every day on a "sustained competitive basis": (1) occasionally lift and carry up to five pounds; (2) stand up to two hours without stopping to rest; (3) sit for up to four hours continuously; and (4) walk a maximum of one-half block without stopping to rest. (Id.). The report further indicated that plaintiff was limited in his ability to bend, squat, stand, climb, reach, turn, twist, push and pull arm controls, operate left controls with either foot, and perform simple grasping and fine manipulation motions. (Id. 255).
Dr. Steinberg further indicated that plaintiff's medical problems restricted him from: (1) working at unprotected heights; (2) working around moving machinery; (3) exposure to changes in temperature or humidity; (4) driving a motor vehicle; and (5) exposure to dust, fumes, and gases. (Id.). Dr. Steinberg also commented that plaintiff "appears and is in severe distress/discomfort with regards to pulmonary symptoms and occasionally with his angina." (Id.).
Plaintiff stated in his disability reports that he experienced continuous "generalized" pain, including aching, stabbing, burning, cramping, and throbbing pains. (Id. 72). He stated that his pain limited his ability to walk, stand, carry, lift, and go up and down stairs. (Id.). Plaintiff reported to being able to travel unaccompanied on public transportation. (Id. 87). He stated that he lived with his landlord who assisted him with shopping, cooking, and cleaning. (Id. 80, 86). He indicated that he was able to take care of his personal hygiene. (Id. 67).
*
Plaintiff testified at the August 9, 2001 hearing that he had drug counseling once per week. (Id. 269). He testified that he did not do very much housework because he developed chest pain from any exertion, although he dusted occasionally. (Id. 270). He stated that he could walk only three or four blocks before he began sweating. (Id.). He stated that he weighed between 280 and 290 pounds. (Id.). He also testified that his medications made him feel lightheaded sometimes and caused loss of appetite and that his inhalers caused him to get colds and respiratory infections. (Id. 271). He testified that he could possibly work from home but he would be unable to commute to a job because he could not climb stairs. (Id. 272).
A court may set aside the Commissioner's decision to deny disability benefits only when it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). 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." Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997) (internal quotations and citations omitted). A district court's review of the Commissioner's determination is therefore limited to "whether the Commissioner applied the proper legal standards, whether its factual findings were supported by substantial evidence, and whether [she] provided a full and fair hearing." Saul v. Apfel, No. 97 Civ. 1616(DC), 1998 WL 329275, at *3 (S.D.N.Y. June 22, 1998). The Commissioner's decision is to be afforded considerable deference; the reviewing court should not "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review."' Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991) (quoting Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984)).
*
Id. § 423(d)(2)(A). If a claimant is engaged in substantial gainful activity, however, he will be found "not disabled regardless of [his] medical condition or [his] age, education, and work experience." 20 C.F.R. § 416.920(b).
The Commissioner has promulgated regulations establishing a five-step procedure for evaluating disability claims. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has summarized this procedure as follows:
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996)). The claimant bears the burden of proof with regard to the first four steps; the Commissioner bears the burden of proving the last step. Id.
The Commissioner "must consider" the following in determining a claimant's entitlement to benefits: (1) objective medical facts and clinical findings; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability; and (4) claimant's educational background, age, and work experience. Id. (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983)). Moreover, the Commissioner must accord the assessment of a treating physician controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [it] is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998). The ALJ may not arbitrarily substitute his own judgment for the treating physician's competent medical opinion. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999).
*
In keeping with this heightened obligation, the ALJ must obtain the treating physician's opinion regarding the claimant's alleged disability; "raw data" or even complete medical records are insufficient by themselves to fulfill the ALJ's duty. Peed v. Sullivan, 778 F.Supp. 1241, 1246 (E.D.N.Y.1991); see Almonte v. Apfel, No. 96 Civ. 1119(JGK), 1998 WL 150996, at *7 (S.D.N.Y. Mar.31, 1998); Soler v. Chater, No. 93 Civ. 2905, 1995 WL 520020, at *2-3 (E.D.N.Y. Aug. 16, 1995).
Peed, 778 F.Supp. at 1246.
Plaintiff moves for judgment on the pleadings on the grounds, inter alia, that the ALJ failed to properly develop the record. The Commissioner cross-moves for judgment on the pleadings dismissing the complaint on the grounds that the Commissioner's decision that plaintiff was not disabled was supported by substantial evidence. Because I conclude that the ALJ failed to properly develop the record, I do not address the remaining grounds the parties raise for judgment on the pleadings. Although the record here is a substantial one, it was nonetheless incomplete because the ALJ did not obtain full opinions or any opinions at all from four treating physicians, and the ALJ did not have the benefit of the opinion of a fifth treating physician that was not submitted until later.
*
Plaintiff contends that the ALJ failed to obtain an opinion from Dr. John-Hull. The ALJ did, however, obtain an opinion signed by Dewitt R. Scott, physician's assistant to Dr. John-Hull. (Tr. 89-103). Although the report was stamped with both Scott's and Dr. John-Hull's names, the ALJ noted that Dr. John-Hull had not signed the report and that physicians' assistants do not qualify as acceptable medical sources. (Id. 14-15 (citing 20 C.F.R. § 416.913(a))). Accordingly, the ALJ gave the report "some" but not "great weight." (Id. 15).
It is clear that the ALJ had an obligation to obtain an opinion from Dr. John-Hull. See Peed, 778 F.Supp. at 1246; Serrano v. Barnhart, No. 02 Civ. 6372(LAP)(AJP), 2003 WL 22683342, at *17 (S.D.N.Y. Nov. 14, 2003) (remanding for further development of record based, inter alia, on absence of opinions from treating physicians); Connor v. Barnhart, No. 02 Civ. 2156(DC), 2003 WL 21976404, at *7 (S.D.N.Y. Aug. 18, 2003) (same); Vaughn v. Apfel, No. 98 Civ. 0025(HB), 1998 WL 856106, at *7 (S.D.N.Y. Dec.10, 1998) (same); Soler, 1995 WL 520020, at *3 (same). Because Scott's report was not signed by Dr. John-Hull, the ALJ gave the opinion significantly less weight than he would have, if Dr. John-Hull had clearly provided her own opinion. Rather than give Scott's report less weight, the ALJ should have obtained an opinion from Dr. John-Hull that would deserve the fuller weight conferred to an opinion from a treating physician. See id.; Rosa, 168 F.3d at 78-79 ("The opinion of a treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence."). Indeed, if Dr. John-Hull were to confirm Scott's findings, that could very well change the result in this case.
Plaintiff further argues that the ALJ failed to obtain an opinion from Dr. Firoozi at St. Luke's. The record does, however, contain documents from Dr. Firoozi. (See Tr. 196, 210, 241). One of the documents consists of Dr. Firoozi's treatment notes from plaintiff's June 6, 2001 visit to St. Luke's. The notes fall far short of an "opinion as to the existence and severity of a disability." Peed, 778 F.Supp. at 1246. The notes state that plaintiff was seen for asthma and angina and that test results showed a "possibility of coronary artery disease." (Tr. 210, 241). The notes do not evaluate or express an opinion as to plaintiff's alleged disability. The other document the Commissioner cites is a Physician's Employability Report completed by Dr. Firoozi. (Id. 196). Regarding plaintiff's work restrictions, Dr. Firoozi indicated that plaintiff "has limitation doing heavy exercise (Lifting.Running.)" and that plaintiff "can walk (not fast)." (Id.). In answer to the question concerning what type of work plaintiff can perform, Dr. Firoozi indicated "No Lifting. No Running." Although Dr. Firoozi's comments arguably qualify as an opinion as to plaintiff's disability and ability to work, they are, nonetheless, far from specific. The sparseness of Dr. Firoozi's evaluation is further reason for a remand. See Rosa, 168 F.3d at 79-80 (holding that ALJ failed to fully develop record by neglecting to seek information or explanation to supplement treating physician's "sparse" notes which were "conclusive of very little"); see also Serrano, 2003 WL 22683342, at *17; Connor, 2003 WL 21976404, at *7; Vaughn, 1998 WL 856106, at *7; Soler, 1995 WL 520020, at *3.
*
Lastly, plaintiff asserts that the medical report prepared by Dr. Steinberg at St. Luke's on September 14, 2001 should have been before the ALJ. I reject plaintiff's argument that the ALJ was under an obligation, prior to rendering his September 2001 decision, to consider Dr. Steinberg's medical report. Dr. Steinberg completed his report nine days after the ALJ rendered its September 5, 2001 decision. Plaintiff seems to suggest that the ALJ should have waited to issue its decision after the August 9, 2001 hearing in anticipation of further, as yet unknown, medical reports.
Plaintiff did ultimately submit Dr. Steinberg's report, along with additional treatment notes from St. Luke's, to the Appeals Council. (Id. 206-16, 236-56). Although the ALJ could not have considered the report when he made his September 2001 determination, upon remand, he should consider Dr. Steinberg's report because it may be meaningful in the context of the other evidence on the record.
Although plaintiff does not make this argument, the record is also inadequate because it lacks an opinion from treating physician Dr. Tita, who saw plaintiff on February 20, 2001 at St. Luke's. Dr. Tita's "Physician's Employability Report" from this date is only partially completed. (Id. 199). Although Dr. Tita did indicate that plaintiff had an exercise tolerance of one-half block and noted plaintiff's asthma, hypertension, dyspnea, chest pain, and dizziness, she did not answer the questions asking her to describe plaintiff's work limitations or offer an opinion as to the type of work plaintiff could perform. (Id.). An opinion from Dr. Tita, as one of plaintiff's treating physicians, would obviously have assisted the ALJ in assessing plaintiff's claim. Accordingly, remand is appropriate for the ALJ to obtain an opinion from Dr. Tita. See Peed, 778 F.Supp. at 1246; Serrano, 2003 WL 22683342, at *17; Connor, 2003 WL 21976404, at *7; Vaughn, 1998 WL 856106, at *7; Soler, 1995 WL 520020, at *3.
The Commissioner suggests that the ALJ was not required to obtain the opinions of plaintiff's treating physicians because the decision in Peed, 778 F.Supp. 1241, upon which plaintiff relies, was rendered prior to new Health and Human Services regulations decreasing the weight given to treating physicians' opinions. In support of its position, the Commissioner cites Schisler v. Sullivan, 3 F.3d 563, 568-69 (2d Cir.1993), in which the Second Circuit upheld the new regulations. Id. (upholding validity of, inter alia, 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). The issue of what weight to give to the treating physicians' opinions, however, is distinct from whether the ALJ is required to obtain opinions from a claimant's treating physicians. In fact, post-Schisler, the ALJ's duty to develop the record by seeking supplementary information, explanations, and opinions from treating physicians has remained intact. See Rosa, 168 F.3d at 79-80 (holding that ALJ failed to fully develop record by neglecting to seek information or explanation to supplement treating physician's "sparse" notes which were "conclusive of very little"); Serrano, 2003 WL 22683342, at *17; Connor, 2003 WL 21976404, at *7; Vaughn, 1998 WL 856106, at *7; Soler, 1995 WL 520020, at *3.
*
The case is remanded to the Commissioner for further administrative proceedings consistent with this decision. For the reasons set forth above, plaintiff's motion for judgment on the pleadings is granted to the extent of the remand. The Commissioner's motion for judgment on the pleadings is denied. The Clerk of the Court shall enter judgment accordingly and close this case.
SO ORDERED.
Not Reported in F.Supp.2d, 2004 WL 540493, 94 Soc.Sec.Rep.Serv. 593
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.
The Hearing Before the ALJ
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. 115-118.) 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).
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:
*
1. The ALJ Did Have All of Jimenez's Medical Records 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.").
*
Physicians to Testify or Advised Jimenez to Do So 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 given 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
BRICCETTI, District Judge.
*
Subsequent to the filing of the R & R, plaintiff filed a motion for an order "foregoing further administrative proceedings and rule on the plaintiff's filing as a dispositive motion urging the Court to vacate and reverse." (Doc. # 27).
The Court presumes familiarity with the factual and procedural background of this case. For the following reasons, the Court (i) adopts the R & R as the opinion of the Court, (ii) denies defendant's motion, (iii) deems plaintiff's opposition to defendant's motion to be a motion for judgment on the pleadings, and grants plaintiff's motion to the extent that the case is remanded for further administrative proceedings consistent with the R & R, pursuant to 42 U.S.C. § 405(g), sentence four, and (iv) denies plaintiff's motion to forego further administrative proceedings.
A district court reviewing a magistrate judge's report and recommendation "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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific[,] written," and submitted within 14 days after being served with a copy of the recommended disposition. Fed.R.Civ.P. 72(b) (2); 28 U.S.C. § 636(b)(1).
Insofar as a report and recommendation deals with a dispositive motion, a district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y.2008); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008).
Neither party objected to Judge Davison's thorough and well-reasoned R & R.
The Court has reviewed the R & R and finds no error, clear or otherwise.
Accordingly, the R & R is adopted in its entirety as the opinion of the Court.
Defendant's motion for judgment on the pleadings is DENIED.
Plaintiff's affirmation in opposition to defendant's motion is deemed to be a motion for judgment on the pleadings, and is GRANTED to the extent that the case is REMANDED for further administrative proceedings consistent with the R & R, pursuant to 42 U.S.C. § 405(g), sentence four.
*
The Clerk is instructed to enter Judgment accordingly and close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED:
PAUL E. DAVISON, United States Magistrate Judge.
Plaintiff Terrence Armstrong, proceeding pro se, brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security (the "Commissioner") denying his application for benefits on the ground that he is not disabled within the meaning of the Social Security Act (the "Act"), 42 U.S.C. §§ 423 et seq.
Presently before this Court, pursuant to an order of reference, Dkt. No. 7, is the Commissioner's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. Nos. 16 (Defendant's Notice of Mot.), 17 (Defendant's Memorandum of Law ("Def.'s Mem.")). Because Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion, Dkt. No. 23 ("Pl.'s Mem."), affirmatively urges this Court to vacate and reverse the Commissioner's decision, Plaintiff's filing will be treated as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
Plaintiff applied for Supplemental Security Income ("SSI") benefits on May 27, 2009, and Disability Insurance Benefits ("DIB") on June 4, 2009. R 78-79, 95-107, 111-36.
*
The record evidence concerning plaintiff's medical history is sparse. The only medical evidence that appears in the record from before plaintiff's alleged onset date is a report from Dr. Carol McLean-Long on Renaissance Health Care Network letterhead, dated March 23, 1996, indicating that Plaintiff was treated for a fall from a bike in which he strained his left knee and index finger and suffered abrasions. R. 266.
The next evidence, from October 3 through October 10, 2008, shows that Plaintiff underwent a "biopsychosocial" evaluation at the Institute for Family Health in Manhattan, operated within the FEGS Health and Human Services System ("FEGS Report"). See R. 153-167. The FEGS report indicates that Plaintiff lived alone on the fifth floor of an apartment building in Manhattan. R. 155. A case manager noted that Plaintiff had a stable work history, that he had last worked in June 2008, and that he reported experience as a laborer and construction worker. R. 165. Plaintiff also reported a history of legal problems; he stated that he had been "arrested in the past due to a misdemeanor," but that he did not have any problems at the present. R. 157. Kollie Saygbe, a social worker, noted that Plaintiff reported alcohol abuse issues but that he denied problems with other drugs. R. 157-58. Plaintiff stated to Ms. Saygbe that he used alcohol 2-3 times per week, and had, in fact, consumed 60 ounces of beer on October 2, 2008, the day before he met with Ms. Saygbe. R. 158.
Ms. Saygbe conducted a mental status examination of Plaintiff. R. 158. Plaintiff reported that he had never received treatment "for Nerves, Depression, or an Emotional Problem," and that he was not currently receiving mental health treatment. R. 158. He stated that he had never thought about hurting himself or others, and accordingly, had never tried to do so. R. 158. Plaintiff reported that he felt "down, depressed or hopeless" and that he felt "tired or [had] little energy" for "several days" over the previous two weeks. R. 158. However, with respect to all other problems, Plaintiff reported that he was "not at all" bothered. R. 158. Plaintiff stated that the problems he was experiencing made it "somewhat difficult" to do his work, take care of things at home and get along with other people. R. 159. Ms. Saygbe assessed Plaintiff with a PHQ-9 score of 2,
The FEGS report states that Plaintiff had no travel limitations and was able to travel independently by bus and train. R. 159. With respect to other daily activities, Plaintiff reported that he was able to wash dishes, wash clothes, sweep and mop the floor, vacuum, watch television, make beds, shop and cook, read, socialize, get dressed, bathe, use the bathroom and groom himself. R. 160. Plaintiff also reported that he had friends and family that he could rely on for emotional support. R. 160. Plaintiff stated that he was currently "searching for employment," but that he could "no longer perform the jobs he once held because of his back injury." R. 160. Plaintiff also reported a "history of back injury, joint pains, and strained right shoulder." R. 161.
*
With respect to Plaintiff's capacity to do work, Dr. Rosenblum stated that, during an 8 hour workday, Plaintiff could sit for 6-8 hours, stand for 4-5 hours, walk for 4-5 hours, pull for 1-3 hours, kneel for 1-3 hours, reach for 1-3 hours and grasp for 6-8 hours, R. 165. Plaintiff would be unable to climb or bend for any amount of time. R. 165. Plaintiff could lift, carry or push weights of less than 10 pounds 15 or more times per hour, lift or carry weights of 10-20 pounds 1-10 times per hour, and push weights of 10-20 pounds 10-15 times per hour. R. 165. Plaintiff was unable to lift, carry or push any weights greater than 20 pounds. R. 165, Dr. Rosenblum diagnosed Plaintiff with sciatica and a history of right shoulder injury. R. 166. She recommended vocational rehabilitation "with the above limitations to avoid strenuous activities." Tr. 167.
On November 6, 2009, an "Order Audit Trail Report" from Metropolitan Hospital Center in Manhattan indicates that Dr. Lily Lam referred Plaintiff to a drug rehabilitation clinic. R. 208. Dr. Lam noted that Plaintiff had ten prior visits. R. 208. Dr. Lam also noted that Plaintiff had chronic low back pain and that he was applying for SSI. R. 208.
A letter to Plaintiff from Beth Rabinove, a licenced social worker at Union Settlement Association, dated December 1, 2009, indicates that Plaintiff's case was being closed due to Plaintiff's failure to attend a treatment session. R. 210. Ms. Rabinove remarked that Plaintiff had expressed interest in treatment for his "substance abuse problem" and enclosed a list of drug treatment programs "if your referral to Metropolitan Hospital drug treatment program doesn't meet your needs." R. 210.
On August 31, 2010, the City of New York Human Resources Administration referred Plaintiff for a mandatory appointment with the Substance Abuse Service Center in connection with his continued receipt of public assistance benefits. R. 217. Plaintiff attended his appointment, where he reportedly began the admission process into a treatment program; a follow-up appointment was scheduled for September 2, 2010. R. 218.
*
On October 6, 2010, Plaintiff underwent a magnetic resonance imaging ("MRP") of his left ankle and right foot. R. 212-13. Dr. Satish Chandra noted that Plaintiff's left ankle was "[r]elatively unremarkable." R. 212. With respect to Plaintiff's right foot. Dr. Chandra noted "[m]ild arthropathy of the first metatarsophalangeal joint." R. 213.
Several service authorization reports from Healthfirst, "a not-for-profit managed care organization,"
On December 15, 2010, Plaintiff visited Metropolitan Hospital Center and vaccinated for the flu and hepatitis B.R. 265. Plaintiff was advised to follow up in three weeks. R. 265.
A letter to Plaintiff from Jennifer Hogan, a licensed social worker at Northside Center for Child Development, dated January 5, 2011, indicates that Plaintiff had missed treatment sessions and that if he did not attend a session scheduled for January 11, his case would be closed. R. 211. A follow-up later dated January 25, 2011, also from Ms. Hogan, indicates that Plaintiff did not attend his January 11 appointment and that, consequently, his case was being closed. R. 248.
On February 26, 2011, Plaintiff was again referred by the Human Resources Administration to a mandatory treatment program in connection with his continued eligibility for public assistance benefits. R. 253. Plaintiff did not appear for his intake appointment, resulting in the discontinuance of his public assistance benefits on April 2, 2011. Tr. 254.
On August 10, 2009, Plaintiff underwent a consultative internal medical examination with Dr. Rahel Eyassu of Industrial Medicine Associates, P.C. R. 172. Plaintiff complained to Dr. Eyassu of chronic right foot and left ankle pain, the result of a right foot fracture and unspecified left ankle "trauma," respectively. R. 172. Plaintiff stated that he heard a "cracking" sound in his left ankle when walking. R. 172. Dr. Eyassu noted that Plaintiff had "a history of right-side sciatica since 2007 that is exacerbated with strenuous activity," as well as "a history of PTSD and depression." R. 172. Plaintiff was taking no medication. R. 172.
*
With respect to Plaintiff's activities of daily living, Dr. Eyassu noted that Plaintiff cooked three times weekly, and cleaned, laundered and shopped once weekly. R. 172. He further noted that Plaintiff was able to shower and dress himself, and that he enjoyed watching television. R. 172.
Upon physical examination, Dr. Eyassu noted only the following abnormalities: "Left ankle pain on ROM. Dorsiflexion
On August 10, 2009, Plaintiff also underwent a consultative psychological evaluation with Dr. Haruyo Fujiwaki of Industrial Medicine Associates, P.C. R. 175. Plaintiff told Dr. Fujiwaki that he had last worked in June 2008 "doing manual labor such as construction, moving and loading," but had stopped working because of "back problems and lack of work." R. 175. Plaintiff reported that he had never been hospitalized for psychiatric reasons, but had seen a psychiatrist in 2002 "for a few months." R. 175. Dr. Fujiwaki noted that "[t]his treatment was recommended by [Plaintiff's] lawyer because he was involved in a court case." R. 175.
Plaintiff reported that he had "frequent wakening," loss of appetite and that he had "experienced depression since 2000 when he was arrested by police and jailed for three days." R. 175. Plaintiff's 2000 arrest caused him to become anxious and irritable, and he started to use more drugs in an attempt to alleviate his pain. R. 175.
Under "Drug and Alcohol History," Dr. Fujiwaki noted that Plaintiff had consumed three 22-ounce cans of beer and smoked "two blunts of marijuana" the previous Saturday. R. 176. Dr. Fujiwaki further stated that Plaintiff drank alcohol when he could afford it and that, in 2005, he had received drug treatment at North General. R. 176. Under "Family History," Dr. Fujiwaki noted "[p]ositive for substance abuse problems." R. 176.
Dr. Fujiwaki conducted a mental status examination of Plaintiff, and noted no unusual findings. R. 176-77. Plaintiff reported that he was able to dress, bathe, groom himself, cook, clean, do laundry and shop for food, but that he had difficulty with managing money. R. 177. Plaintiff also reported that he sometimes socialized and that he had one friend. R. 177. Dr. Fujiwaki noted that Plaintiff "spen[t] his days watching TV and sometimes he goes out to find metal cars." R. 177.
*
R. 177. Dr. Fujiwaki then diagnosed Plaintiff as follows: "AXIS 1: Depressive disorder, NOS ["not otherwise specified"]. Anxiety disorder, NOS. Alcohol dependance. Cannabis dependance. AXIS II: Personality disorder, NOS with antisocial features. AXIS III: History of neck and foot fracture. Back problems." R. 178. He recommended that Plaintiff undergo psychiatric, psychological and substance abuse treatment. R. 178.
On August 31, 2009, Dr. Fujiwaki added an addendum to his report, amending his Medical Source Statement to remove the sentence "He is not capable of dealing with stress and needs supervision." R. 180.
On September 11, 2009, state agency psychological expert Dr. E. Kamin reviewed the record and provided an opinion regarding the severity of Plaintiff's alleged mental impairments and Plaintiff's residual functional capacity ("RFC"). R. 185-201. Dr. Kamin stated that Plaintiff suffered from depressive disorder, anxiety disorder, and alcohol and cannabis dependance. R. 195. Dr. Kamin opined that Plaintiff had mild restrictions on his activities of daily living, as well as mild difficulties in maintaining social functioning and concentration, persistence or pace. R. 195. Dr. Kamin noted no episodes of deterioration. R. 195.
A Mental Residual Functional Capacity Assessment was also completed by Dr. Kamin on September 11, 2009. R. 199. Dr. Kamin noted no limitations in the category of "Understanding and Memory." R. 199. In the category of "Sustained Concentration and Persistence," Dr. Kamin noted that Plaintiff was moderately limited in his "ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances," as well as "[t]he ability to work in coordination with or proximity to others without being distracted by them." R. 199. Plaintiff was not significantly limited in his "ability to sustain an ordinary routine without special supervision" and "make simple work-related decisions" R. 199. In the category of "Social Interaction," Dr. Kamin indicated that Plaintiff was not significantly limited in his ability to "interact appropriately with the general public," "accept instructions and respond appropriately to criticism from superiors," and "maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness." R. 200. Dr. Kamin indicated moderate limitations in Plaintiff's "ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes." R. 200. Finally, with respect to the category of "Adaptation," Dr. Kamin indicated that Plaintiff was markedly limited in his "ability to set realistic goals or make plans independently of others" and moderately limited in his "ability to respond appropriately to changes in the work setting." R. 200. Dr. Kamin concluded that Plaintiff's mental status was within normal limits, and that "although [Plaintiff] has difficulties caused by substance abuse problems, he remains capable of performing simple work." R. 201.
*
After Plaintiff's application was initially denied on September 15, 2009, Plaintiff timely requested a hearing before an administrative law judge ("ALJ"). R. 85-86. On March 30, 2011, a hearing was conducted by ALJ Jerome Hornblass, at which Plaintiff appeared pro se. R. 51-76.
At the beginning of the hearing, prior to Plaintiff being sworn in, Plaintiff and ALJ Hornblass discussed a false arrest/malicious prosecution case brought by Plaintiff in 2000. R. 53-61. According to the Plaintiff, the conduct alleged in that case, which was later settled, gave rise to his PTSD. R, 53-61. ALJ Hornblass and Plaintiff also had a colloquy, quoted extensively in the analysis section below, concerning whether Plaintiff would proceed without representation. R. 53-61. Ultimately, Plaintiff chose to proceed without representation. R. 61.
After being sworn in, Plaintiff testified that he was born on January 7, 1974, and was thus 37 years old on the date of the hearing. R. 62. He stated that he had completed high school and had also attended college until he was arrested in August 2000 for criminal sale of a controlled substance, after which time he had not returned to school. R. 62-63, 66. Since 2000, according to Plaintiff, he had been arrested numerous times for criminal possession of a controlled substance. R. 64.
Plaintiff testified that he smoked marijuana and had received drug treatment for his marijuana use. R. 66. He stated that, in addition to drug treatment, he would receive psychiatric therapy at the treatment facilities, in the form of monthly visits with a psychiatrist. R. 66. Plaintiff stated that his most recent therapy treatment had ended because of a "[m]iscommunication," but did not elaborate further and was not asked to. R. 67.
Plaintiff stated that he had been hospitalized on January 1, 2004, due to "pretty much alcohol poisoning," but had never been hospitalized due to intoxication at any other time. R. 67-68. He also stated that he had never been hospitalized in a mental institution for any reason. R. 68.
Plaintiff testified that he suffered from depression and that he had been suffering from depression since "that whole case," presumably referring to his 2000 false arrest/ malicious prosecution case. R. 68. He stated that he had been diagnosed with PTSD by a psychiatrist named Robert O'Connor during his 2000 case and had since been re-diagnosed. R. 69.
*
Plaintiff testified that he had the capability to brush his teeth and shower every day, as well as prepare meals. R. 70. He stated that he used to engage in "hyperactive extreme sports," including skateboarding, but was unable to do so anymore because of back pain and other skateboarding-related injuries. R. 70. He also stated that he had been a bike messenger from 1995 through 2005, but no longer rode a bike. R. 71. He stated that he had difficulty walking, that he suffered pain and heard an audible "cracking" noise when doing so. R. 71. According to Plaintiff, this injury was "mostly from the skateboarding." R. 71. Plaintiff added that "when [he] lost the physical ability to do those things, the release was more turning to alcohol, drugs, things like that." R. 71.
Plaintiff testified that he still smoked marijuana and drank alcohol; in fact, he stated that he had consumed roughly 75 ounces of beer and smoked marijuana by himself the night prior to the hearing. R. 73. Plaintiff stated that he had recently begun taking medications for depression and anxiety. R. 73. He testified that he took Lexapro for his psychological problems, ibuprofen for his foot pain and a vitamin D supplement. R. 75.
By decision dated May 5, 2011, ALJ Hornblass determined that Plaintiff was not disabled within the meaning of the Act and denied Plaintiff's claim. R. 13-24. In sum, ALJ Hornblass found that although Plaintiff suffered from a disability, his substance abuse was a contributing factor to the determination of his disability, rendering him ineligible for benefits under the Social Security Act, R. 13-14.
ALJ Hornblass first determined that Plaintiff met the insured status requirement of the Act through September 30, 2011, and then applied the five-step analysis set forth in 20 C.F.R. §§ 404.1520, 416.920. R. 15.
After Plaintiff's application was initially denied on September 15, 2009, Plaintiff timely requested a hearing before an administrative law judge ("ALJ"). R. 85-86. On March 30, 2011, a hearing was conducted by ALJ Jerome Hornblass, at which Plaintiff appeared pro se. R. 51-76.
At the beginning of the hearing, prior to Plaintiff being sworn in, Plaintiff and ALJ Hornblass discussed a false arrest/malicious prosecution case brought by Plaintiff in 2000. R. 53-61. According to the Plaintiff, the conduct alleged in that case, which was later settled, gave rise to his PTSD. R, 53-61. ALJ Hornblass and Plaintiff also had a colloquy, quoted extensively in the analysis section below, concerning whether Plaintiff would proceed without representation. R. 53-61. Ultimately, Plaintiff chose to proceed without representation. R. 61.
After being sworn in, Plaintiff testified that he was bom on January 7, 1974, and was thus 37 years old on the date of the hearing. R. 62. He stated that he had completed high school and had also attended college until he was arrested in August 2000 for criminal sale of a controlled substance, after which time he had not returned to school. R. 62-63, 66. Since 2000, according to Plaintiff, he had been arrested numerous times for criminal possession of a controlled substance. R. 64.
Plaintiff testified that he smoked marijuana and had received drug treatment for his marijuana use. R. 66. He stated that, in addition to drug treatment, he would receive psychiatric therapy at the treatment facilities, in the form of monthly visits with a psychiatrist. R. 66. Plaintiff stated that his most recent therapy treatment had ended because of a "[m]iscommunication," but did not elaborate further and was not asked to. R. 67.
Plaintiff stated that he had been hospitalized on January 1, 2004, due to "pretty much alcohol poisoning," but had never been hospitalized due to intoxication at any other time. R. 67-68. He also stated that he had never been hospitalized in a mental institution for any reason. R. 68.
Plaintiff testified that he suffered from depression and that he had been suffering from depression since "that whole case," presumably referring to his 2000 false arrest/ malicious prosecution case. R. 68. He stated that he had been diagnosed with PTSD by a psychiatrist named Robert O'Connor during his 2000 case and had since been re-diagnosed. R. 69.
*
Plaintiff testified that he had the capability to brush his teeth and shower every day, as well as prepare meals. R. 70. He stated that he used to engage in "hyperactive extreme sports," including skateboarding, but was unable to do so anymore because of back pain and other skateboarding-related injuries. R. 70. He also stated that he had been a bike messenger from 1995 through 2005, but no longer rode a bike. R. 71. He stated that he had difficulty walking, that he suffered pain and heard an audible "cracking" noise when doing so. R. 71. According to Plaintiff, this injury was "mostly from the skateboarding." R. 71. Plaintiff added that "when [he] lost the physical ability to do those things, the release was more turning to alcohol, drugs, things like that." R. 71.
Plaintiff testified that he still smoked marijuana and drank alcohol; in fact, he stated that he had consumed roughly 75 ounces of beer and smoked marijuana by himself the night prior to the hearing. R. 73. Plaintiff stated that he had recently begun taking medications for depression and anxiety. R. 73. He testified that he took Lexapro for his psychological problems, ibuprofen for his foot pain and a vitamin D supplement. R. 75.
By decision dated May 5, 2011, ALJ Hornblass determined that Plaintiff was not disabled within the meaning of the Act and denied Plaintiff's claim. R. 13-24. In sum, ALJ Hornblass found that although Plaintiff suffered from a disability, his substance abuse was a contributing factor to the determination of his disability, rendering him ineligible for benefits under the Social Security Act, R. 13-14.
ALJ Hornblass first determined that Plaintiff met the insured status requirement of the Act through September 30, 2011, and then applied the five-step analysis set forth in 20 C.F.R. §§ 404.1520, 416.920. R. 15.
At step one, ALJ Hornblass found that Plaintiff had not engaged in substantial gainful activity since June 30, 2008, his alleged disability onset date. R. 15.
At step two, ALJ Hornblass determined that Plaintiff suffered from the following severe impairments:
R. 16 (citing 20 C.F.R. 404.1520(c), 416.920(c)). Curiously, ALJ Hornblass did not address Plaintiff's allegations of PTSD.
At step three, ALJ Homblass found that none of Plaintiff's impairments, either singly or in combination, met or equaled any of the listed impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 16 (citing 20 C.F.R. 404.1520(d), 416.920(d)). With respect to Plaintiff's mental impairments, which included his substance abuse issues, ALJ Homblass found that they imposed no restrictions with respect to Plaintiff's activities of daily living, noting that Plaintiff's activities included "cooking, cleaning, laundering, shopping, showering, grooming and dressing himself" as well as using public transportation. R. 16. ALJ Hornblass concluded that Plaintiff's mental impairments caused moderate difficulties with social functioning, citing to Dr. Fujiwaki's consultative examination. R. 16. With respect to Plaintiff's concentration, persistence or pace, the ALJ also found that plaintiff suffered from mild difficulties, stating that Plaintiff had difficulty adhering to a schedule and keeping appointments; the ALJ further stated that "[d]ifficulties with attention and concentration are typically symptoms of substance abuse," and further opined that "perhaps . . . [Plaintiff] was less dysfunctional in this area at some times (perhaps when not using marijuana and/or alcohol) than at others." R. 16-17. Finally, the ALJ found that Plaintiff had suffered no episodes of mental decompensation. R. 17.
*
20 C.F.R. § 404.1567(b).
At step five, ALJ Hornblass determined that there were no jobs that existed in the national economy that Plaintiff would be capable of performing, given that his substance abuse disorders "so narrow the range of work the claimant can perform that a finding of `disabled' is appropriate under the framework of this rule." R. 20-21.
Having determined that Plaintiff was essentially totally disabled for purposes of the Act, the ALJ turned to the issue of whether Plaintiff's substance abuse problems were material to the determination of his disability, which would disqualify him from the receipt of disability benefits.
Plaintiff requested review of the ALJ's decision by the Appeals Council, but the Appeals Council denied his request on August 27, 2012. R. 1-3. The ALJ's May 5, 2011, decision thus became the final decision of the Commissioner and thereby is subject to review in this federal court action, which was commenced by Plaintiff on October 26, 2012. Dkt. No. 2.
*
To qualify for benefits under the Act, a claimant must demonstrate that he is disabled. 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." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). In addition, a claimant is eligible for disability benefits under the Act only if:
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
The SSA uses the following five-step analysis to evaluate disability claims:
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In determining whether a claimant is disabled, 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); see also 20 C.F.R. § 404.1529. "`[S]tatements about [a claimant's] pain or other symptoms will not alone establish that [the claimant is] disabled.'" Cruz v. Astrue, No. 06 Civ. 3670(LTS)(DCF), 2009 WL 1024242, at *13 (S.D.N.Y. Apr. 9, 2009) (quoting 20 C.F.R. §§ 404.1529(a), 416.929(a)). "Where an ALJ makes a credibility assessment and decides to discount a claimant's subjective complaints of pain, the reviewing court must defer to that credibility assessment, as long as the ALJ's findings are supported by substantial evidence," Id.
"In determining whether the agency's findings are supported by substantial evidence, `the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.'" Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.2012) (quoting Mongeur, 722 F.2d at 1038). Substantial evidence is `"more than a mere scintilla'" and `"means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.2009) (quoting Richardson v. Perales. 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). The substantial evidence standard is "even more" deferential than the "`clearly erroneous' standard." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir.2012). The reviewing court must defer to the Commissioner's factual findings and the inferences drawn from those facts, and the Commissioner's findings of fact are considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Shaw, 221 F.3d at 131. Accordingly, "once an ALJ finds facts." the reviewing court "can reject those facts `only if a reasonable factfinder would have to conclude otherwise.'" Brault, 683 F.3d at 47 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir.1994)).
In considering any medical opinions set forth in the administrative record, the ALJ should give the opinion of a claimant's treating physician "`controlling weight'" if 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.'" Ocasio v. Colvin, No. 12-CV-6002 (JG), 2013 WL 1395846, at *9 (E.D.N.Y. Apr.5, 2013) (quoting 20 C.F.R. § 404.1527(d)(2)). A "`treating source'" is a claimant's `"own physician, psychologist, or other acceptable medical source who provides [a claimant], or has provided [a claimant] with medical treatment or evaluations and who has, or has had, an ongoing treatment relationship with [a claimant]."`
*
Defendant argues that the Commissioner's decision correctly applied the applicable law and was supported by substantial evidence. See Def.'s Mem. at 1. Plaintiff argues that (1) the ALJ "did not give [him] a chance to have a representative at [his] hearing," (2) he was deprived of a full and fair hearing due to the ALJ's failure to develop the record in several respects, and (3) the ALJ's decision was not supported by substantial evidence. See PL's Mem. at 1-6.
In his decision denying benefits, ALJ Hornblass stated that "[a]lthough informed of the right to representation, the claimant chose to appear and testify without the assistance of an attorney or other representative." R. 13. Plaintiff, in contrast, contends that the ALJ did not "give [him] a chance" to have a representative at his hearing. PL's Mem. at 2.
The Court of Appeals has set forth the following framework for analyzing claims of involuntary waiver of right to representation:
*
Here, the record makes clear that the Commissioner satisfied her duty under 42 U.S.C. §§ 406(c) and 1383(d) (2)(D) to notify the Plaintiff of his right to obtain representation for his hearing. Indeed, on at least four separate occasions prior to his hearing, Plaintiff was notified in writing of his right to representation. See R. 35-36, 79-84, 85-86, 87-94.
Claimant: So let me, you just want to have a discussion with me off the record or is this on the record?
R. 53-54. Plaintiff then gave the ALJ a letter prepared by an attorney, Mr. Fred Lichtmacher, Esq., who had represented Plaintiff in his 2000 false arrest / malicious prosecution case. R. 54-55, 223. After a brief discussion of that case, the following colloquy took place:
R. 58-61. After this colloquy, plaintiff was sworn in and his testimony was taken by the ALJ.
In Santiago v. Apfel, the court concluded that a Social Security claimant's waiver of her right to representation was not voluntary when made in the following manner:
Santiago, supra, 2000 WL 488467 at *4-*5.
Here, the ALJ's lapse arguably exceeds the conduct held improper by the court in Santiago. Indeed, ALJ Hornblass did not make any effort to ascertain whether Plaintiff was aware of his right to representation or of the benefits that having counsel would confer. In fact, by informing Plaintiff that he had all of his evidence submitted, see R. 58-61, he did just the opposite. ALJ Hornblass also did nothing to correct Plaintiff's misconception that having an attorney was "not necessarily" advantageous, which appears to have arisen from a conversation between Plaintiff and a member of ALJ Hornblass's staff. Like Santiago, the ALJ's statements to Plaintiff that, in the event of an unfavorable decision "[i]t's not the end" and that Plaintiff could "get a lawyer at that time" if he wanted to "minimized the benefits of a lawyer by suggesting that counsel could be obtained on appeal." Id. at *5. Unsurprisingly, the ALJ did not mention that an appeal from an unfavorable decision would be subjected to a much less favorable standard of review. Finally, the ALJ's emphasis on the expediency of proceeding without an attorney, i.e., his statement "I think you want to move. You don't want to be stationary," R. 59-60, inappropriately appealed to Plaintiff's desire to conclude the matter and further interfered with Plaintiff's ability to voluntarily waive his right to counsel. Accordingly, for all of the foregoing reasons, I respectfully recommend that your Honor conclude that Plaintiff did not knowingly waive right to representation.
*
Plaintiff next asserts that the ALJ did not "give [him] a full and fair hearing." PL's Mem. at 2. He argues that the ALJ failed to develop the record, specifically, that the ALJ he did not "find out who [his] doctors were and ask them for reports about [his] health." Pl.'s Mem. at 4.
As noted above, an ALJ "has an obligation to develop the record . . . regardless of whether the claimant is represented by counsel." Shaw, 221 F.3d at 131. Moreover, in cases involving pro se disability claimants, the duties of an ALJ are heightened, and "[t]he ALJ must `adequately protect apro se claimant's rights by ensuring that all of the relevant facts are sufficiently developed and considered' and by `scrupulously and conscientiously prob[ing] into, inquir[ing] of, and explor[ing] for all the relevant facts.'" Moran v. Astrue, 569 F.3d 108, 113 (2d Cir.2009), (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990)). In Cabrera v. Astrue, the court discussed several facets of an ALJ's heightened duties to pro se claimants:
*
Here, minimal effort was made by the ALJ to obtain medical records on Plaintiff's behalf, as is evident from the absence from the record of virtually any evidence generated prior to plaintiff's alleged disability onset date. This is perplexing, given that over the course of the disability application and appeals process, Plaintiff identified numerous medical professionals and treating sources from whom evidence might have been obtained to support his claims.
Perhaps the clearest example of the ALJ's failure to develop the administrative record concerns Dr. Lily Lam of Metropolitan Hospital Center, who Plaintiff identified as his treating physician in his initial application for disability benefits, R. 115, and who the Commissioner acknowledges is "plaintiff's primary care physician." Def.'s Mem. at 9. Because Dr. Lam was Plaintiff's treating physician, the ALJ was obligated to obtain not only medical records from Dr. Lam, but also to procure "a report that set[ ] forth [her] opinion . . . as to the existence, the nature and the severity of the claimed disabilit[ies]." Peed v. Sullivan, 778 F.Supp. 1241, 1246 (E.D.N.Y.1991); see also Aceto v. Comm'r of Soc. Sec., No. 6:08-CV-169 (FJS), 2012 WL 5876640, at * 16 (N.D.N.Y. Nov.20, 2012) (finding that, because "the ALJ had nothing more than treatment records and consultative reports to review, he had an affirmative duty to develop the record and request that Plaintiff's treating physicians assess her RFC"); Felder v. Astrue, No. 10-CV-5747 (DL1), 2012 WL 3993594, at *11 (E.D.N.Y. Sept. 11, 2012) (noting that, while the "absence of an RFC statement from the record does not necessarily make the record incomplete," the "Commissioner has an affirmative duty to request RFC assessments from a Plaintiff's treating sources despite what is otherwise a complete medical history"); Mezzacappa v. Astrue, 749 F.Supp.2d 192, 207 (S.D.N.Y.2010) (noting that, "even when the claimant is represented by counsel," ALJ is "`compel[led] . . . to obtain from the treating source expert opinions as to the nature and severity of the claimed disability'" and finding that, "[a]lthough the SSA twice attempted to contact [plaintiff's treating physician] so that he could provide a residual functional capacity analysis of [plaintiff], that did not absolve the ALJ of his responsibility to follow up with" treating physician) (quoting Oliveras v. Astrue, 07 Civ. 2841(RMB)(JCF), 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008) (Report & Recommendation), adopted by 2008 WL 2540816 (S.D.N.Y. June 25, 2008)); Kirton v. Astrue. No. 06-CV-4080 (KMK) (PED), 2009 WL 2252092, at *7 (S.D.N.Y. July 28, 2009) (finding that "medical documentation included in the administrative record is insufficient to support the negative inference drawn by the ALJ because Plaintiff's doctors were not asked to, and did not, provide any assessment of Plaintiff's functional limitations" but rather "consist[ed] entirely of raw treatment records provided in response to form letters from SSA requesting `all medical records'") (Report & Recommendation), adopted by 2009 WL 2252092. No treatment records or medical opinions from Dr. Lam appear in the administrative record, and Dr. Lam is not even mentioned in the ALJ's decision.
*
On remand, I respectfully recommend that the ALJ attempt to obtain medical records from all of the treating sources identified by Plaintiff in his disability application. Where appropriate, medical opinion evidence should also be obtained.
Because there is legal error requiring remand, it is unnecessary to determine whether the ALJ's decision was supported by substantial evidence. See Henderson v. Astrue. 07 Civ. 10564(RMB) (HBP), 2011 WL 197213 at *20 (S.D.N.Y.Jan. 19, 2011). Indeed, the ALJ's failure to develop the administrative record would frustrate such an exercise. Nevertheless, in the interest of providing further guidance on remand, I briefly address two additional points.
First, despite the fact that Plaintiff alleged PTSD as a disabling impairment, R. 111, and that Dr. Eyassu diagnosed him with the condition, R. 174, the ALJ made no mention of PTSD in his decision. On remand, the ALJ shall consider Plaintiff's allegations of PTSD along with any medical evidence and opinions about the condition in the record and set forth his basis for his determination regarding the severity of the condition.
Second, an internal memorandum promulgated by the Social Security Administration concerning drug and alcohol abuse disorder ("DAA") states that "[w]hen it is not possible to separate mental restrictions and limitations imposed by the DAA and the various mental disorders shown by the evidence, a finding of `not material' would be appropriate." Questions and Answers Concerning DAA from the 07/02/96 Teleconference-Medical Adjudicators, EM-96200 (Aug. 30, 1996). Although the memorandum "does not have the force of law and is entitled to deference only insofar as it has the power to persuade," Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 125 (2d Cir.2012) cert. denied, ___ U.S. ___, 133 S.Ct. 2881, 186 L.Ed.2d 913 (U.S.2013), courts have not hesitated to remand on this basis. See, e.g., Badgley v. Astrue, 07-CV-399C, 2009 WL 899432 (W.D.N.Y. Mar.27, 2009); Frankhauser v. Barnhart, 403 F.Supp.2d 261, 274 (W.D.N.Y.2005). Here, the ALJ stated that "[i]t is difficult if not impossible to separate the claimant's mental complaints from his substance abuse," but nevertheless determined that Plaintiff's substance abuse was material. R. 17. In doing so, he relied on only a single medical opinion, that of Dr. Fujiwaki, the consultative psychological examiner, who stated that Plaintiff's "[d]ifficulties are caused by substance abuse problems." R. 177. The ALJ did not acknowledge or discuss the position advanced by Plaintiff, namely, that his substance abuse issues resulted from his attempts to cope with his PTSD. Because the Second Circuit has "cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination," Selian v. Astrue, 708 F.3d 409, 419 (2d Cir.2013), and because the ALJ's statement appears to conflict with the Social Security Administration's internal guidance, I respectfully recommend that on remand, the ALJ should obtain additional medical evidence regarding the nature of Plaintiff's substance abuse issues and how they might relate to his other alleged psychological conditions.
*
Not Reported in F.Supp.2d, 2013 WL 6246491, 197 Soc.Sec.Rep.Serv. 197.
[1] ALJ failed to provide good reasons for not crediting opinions of claimant's treating physicians;
[2] ALJ failed to develop administrative record; but
[3] ALJ properly determined that claimant's subjective complaints of pain were not credible.
Vacated and remanded.
West Headnotes (4)
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).
*
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.
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
MICHAEL H. DOLINGER, United States Magistrate Judge.
*
Plaintiff Jose Lugo filed this action pursuant to the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3). He seeks review of the December 6, 2003 determination by the Commissioner of the Social Security Administration ("Commissioner") denying his three merged applications for Supplemental Security Income ("SSI") benefits-dated December 22, 1993, November 12, 1997, and August 31, 1999, respectively-based on a finding that he was not disabled.
The Commissioner has moved to remand this action for further administrative proceedings. He seeks this remand to reopen the evidentiary record and to permit the Administrative Law Judge ("ALJ") to explain how he weighed the medical evidence and medical opinions to arrive at his conclusion that plaintiff was able to perform light work. Plaintiff has cross-moved for remand solely for calculation of SSI benefits.
For the reasons that follow, we recommend that the Commissioner's determination be reversed, that his motion for a remand be granted, that the plaintiff's cross-motion be denied and that the case be remanded for further administrative proceedings.
On December 28, 1993, plaintiff filed his first application for SSI benefits. (Administrative Record Transcript ("Tr.") 39-41.) A Disability Determination and Transmittal form, dated March 30, 1994, indicated Lugo's primary diagnosis as alcoholism and his secondary diagnosis as arthralgia.
On January 5, 1996, ALJ Cerbone issued her decision. (Tr. 10-18.) She found the plaintiff not disabled and not eligible for SSI payments despite his alleged drug, alcohol, kidney and low-back problems. (Tr. 13.) Specifically, she found that while Lugo could not perform his past relevant work, he could perform a "wide range of light work," that there were no "significant" non-exertional limitations that would compromise his capacity to perform light work, and that his testimony regarding constant and totally disabling pain was "not . . . credible to the extent alleged." (Tr. 17-18.)
Plaintiff subsequently filed a request for review with the SSA Appeals Council. On April 10, 1997, the Appeals Council denied plaintiff's request. (Tr. 5-6.)
*
On September 28, 1998, the District Court declined to adopt Judge Katz's R & R and instead remanded the case "to further consider any relevant evidence bearing on plaintiff's claims of severe pain and, if she adheres to her original determination, to set forth the reasons these claims are found incredible." (Tr. 217.) The SSA remanded the case to ALJ Newton Greenberg, who conducted a hearing on August 28, 2000. (Tr. 218-25.) For purposes of that hearing, the ALJ merged Lugo's 1993 application with two subsequent applications-one filed in November 1997, while his lawsuit was pending here, and the other filed in August 1999, after the remand order from this court. The decision by ALJ Greenberg at the 2000 hearing, later affirmed by the Appeals Council, is the subject of this Report and Recommendation.
While Lugo's lawsuit was pending in federal court, he filed a second application for SSI benefits, on November 12, 1997, alleging disability based on diabetes, arthritis and mental problems. (Tr. 243-45, 260-65.) On February 2, 1998, the SSA denied his application, finding that his condition was not severe enough to keep him from working. (Tr. 228-31.) Lugo filed for reconsideration (Tr. 232-33), and on May 12, 1998, the SSA denied the request. (Tr. 234-37.) In June 1998, plaintiff requested a hearing before an ALJ. (Tr. 238-39.)
On January 13, 1999, ALJ Greenberg presided over a hearing on the 1997 application, at which Lugo was represented by Christopher Bowes, Esq., of the Center for Disability Advocacy Rights. (Tr. 538-50.) In a decision rendered March 17, 1999, ALJ Greenberg denied Lugo's application (Tr. 169-77), finding that while he could not return to his past relevant work (Tr. 175), he retained the ability to perform the full range of light work and that his capacity for light work was not significantly compromised by any non-exertional limitations. (Tr. 177.) In asserting that plaintiff was capable of performing light work, ALJ Greenberg found that while plaintiff's arthritis could cause back pain, "these symptoms are not of such intensity or frequency to preclude work activity," particularly given that his condition did not require physical therapy or orthopedic surgery, and that Lugo had testified that he could read, watch TV and perform light household chores. (Tr. 175.) In the "Findings" section, ALJ Greenberg opined that Lugo's allegations as to the level of pain he was experiencing were "not consistent with the objective medical evidence and [we]re not credible to the extent alleged." (Tr. 176.) In April 1999, Lugo requested Appeals Council review of the decision. (Tr. 168.)
*
On August 28, 2000, ALJ Greenberg presided over the hearing, in which he "merged" Lugo's December 1993, November 1997 and August 1999 SSI applications. (Tr. 551-59.) Lugo was again represented by Mr. Bowes. (Tr. 553.) In a decision dated November 17, 2000 (Tr. 157-65), ALJ Greenberg reviewed the hearing testimony and the entire body of evidence accompanying plaintiff's three SSI applications and found Lugo's "allegations about his limitations due to pain and psychiatric problems not credible, based on the medical evidence." (Tr. 163.) While acknowledging that Lugo experienced pain, ALJ Greenberg found that the record indicated that it was "manageable with medications, and is not of such severity that it prevents the claimant from working. The claimant is employable, but is not motivated: he is a malingerer." (Tr. 163.) ALJ Greenberg also found that Lugo retained "a residual functional capacity for the full range of light work . . . [with] no limita[ti]ons on mental functioning." (Id.)
In December 2000, plaintiff's counsel requested an Appeals Council review of the ALJ's decision (Tr. 153) and submitted a letter-brief, dated June 28, 2002, outlining specific objections to that decision. (Tr. 149-51.) The Appeals Council denied review in a notice dated December 6, 2003. (Tr. 147-48.)
On February 9, 2004, Lugo filed the instant action in federal court, seeking review and reversal of the Commissioner's determination denying all three of his applications for SSI benefits. On July 27, 2004, the Commissioner responded with a motion for remand, seeking reversal of the November 2000 decision and a remand of the case for further administrative proceedings. (Mem. of Law in Supp. of Def.'s Mot. for Remand 1.) Plaintiff has in turn sought an order finding him disabled and remanding solely for calculation of benefits. (Mem. of Law in Supp. of Pl.'s Cross-Mot. for J. on the Pleadings 1.)
Lugo was born on April 28, 1953 in the Dominican Republic. (Tr. 26-27.) He testified at his first hearing that he had completed one year of high school in the Dominican Republic (Tr. 28), but testified at his second hearing that he had completed only the sixth grade. (Tr. 541.) He can read and write Spanish, but speaks no English. (Tr. 28.) He arrived in the United States in 1982 and has permanent residency status. (Tr. 27, 246-246a, 541.)
*
Lugo has a history of drug and alcohol abuse. At his first hearing in 1995, he stated that he had last used cocaine three years previously (i.e., in 1992) and had then enrolled in a three-year treatment program, which he had completed. (Tr. 28-29.) At his second hearing, in January 1999, he stated that he had stopped using cocaine "[o]ver five or seven years ago" (Tr. 542) and that he had been a heavy drinker for many years. (Tr. 543.) Lugo's drug and alcohol use were not discussed at his third hearing.
With regard to his physical ailments, Lugo testified that he suffered from pain related to kidney stones and had undergone a lithotripsy
Lugo complained of lower back pain-separate from the pain he experienced from kidney stones-due to arthritis. (Tr. 30-31, 548-49, 557.) He testified that he also had arthritis in his legs, arms and neck, and that these areas would become numb and he would lose strength in his arms approximately two to three times a week. (Tr. 30.) At the third hearing, he stated that he could not move his neck, back and sometimes his hands. (Tr. 557.) At the time of the first hearing, he had been walking with a cane for ten months due to the arthritis (Tr. 30-31) and reported that, although he had taken a subway to the hearing, he experienced difficulty in traveling by public transportation, because the standing and motion caused him pain. (Tr. 27.) Also at the first hearing, he claimed that he could walk only two blocks, could stand for an hour or two, could not bend, could kneel only with difficulty, could sit for up to an hour and could carry five pounds only with difficulty. (Tr. 31-32.) At the second hearing, he asserted that he felt back pain every day and that he took medication daily to relieve the pain, but that the medication was only forty to fifty percent effective. (Tr. 548-49.)
*
Plaintiff was regularly treated by Dr. Clayton Natta, an internist and hematologist, since August 14, 1992. (Tr. 128-33.) Dr. Natta provided four reports or summaries between 1993 and 1998. (Tr. 115, 128-31, 133-39, 500.)
According to Dr. Natta, plaintiff suffered from lower back pain after falling twice in the snow in 1992. The pain persisted and required analgesics. Lugo also suffered from periodic kidney stones, which were treated by a lithotripsy at Brooklyn Hospital in 1994. (Tr. 128.) Dr. Natta diagnosed nephrolithiasis (i.e., kidney stones) in the left kidney, Type II diabetes, atopic dermatitis, osteoarthritis of the lumbar spine and respiratory allergies. (Tr. 131, 133.) To treat these conditions, Lugo underwent the 1994 lithotripsy, adopted a 1500-calorie diabetic diet, and received medication for periodic urinary tract infections and analgesics for his lower back pain. (Tr. 131.) According to Dr. Natta, Lugo's back pain persisted despite the use of increasingly powerful analgesics. (Tr. 131, 134.)
Dr. Natta opined on two occasions-September 14, 1995 (Tr. 137) and October 9, 1998 (Tr. 500)-that plaintiff was unable to work, apparently because of his low-back pain. In support of that conclusion, he provided findings of lumbar spine tenderness, 2
muscle spasm, twenty to twenty-five percent loss of motion in the lumbar spine, loss of lumbar curvature and a recurring macular rash. (Tr. 129.) He also mentioned blood in the urine, nocturia
*
Plaintiff was also treated in 1997 by Dr. Joerg Bose for a case of major depression with dysthymic disorder,
The record also includes documents from Columbia Presbyterian Hospital for the period from March 1994 to September 1997. In March 1994, Lugo was diagnosed with a kidney stone, which caused pain, fever, some bleeding (hematuria) and fever. (Tr. 310.) He passed the stone and was discharged. In June 1994, he had a similar episode and was scheduled for a lithotripsy. (Tr. 303.) Periodic reports of a similar nature are scattered throughout plaintiff's medical records from 1994 to 1996, with reference to a lithotripsy actually having been performed in 1995 at Brooklyn Hospital. (Tr. 298, 300, 393-95.) In 1997, a radiological examination yielded a finding of "sclerosis of the sacroiliac joints bilaterally," probably indicating degenerative joint disease. (Tr. 292, 398, 465.)
The record also contains a host of reports by consulting doctors. We summarize their results in chronological order.
In March 1994, Dr. Alain DelaChapelle, a psychiatrist, conducted a mental-status examination of Lugo. He reported that plaintiff was participating in an alcohol rehabilitation program and did not show any depression or psychotic symptoms. (Tr. 118.) He stated that plaintiff was hoping to "get back on his feet and return to work." The psychiatrist diagnosed alcohol dependence and suggested continuing alcohol counseling. He characterized Lugo's prognosis as "fair." (Tr. 119.)
In March 1994, Dr. A. DeLeon, an internist, examined plaintiff for the SSA. He summarized plaintiff's reported history of kidney stones ("nephrolithiasis"), arthralgia of the neck and back, alcoholism and histories of drug abuse and depression. (Tr. 120.) He then summarized his findings from the physical examination, stating that plaintiff could bend forward to 60 degrees and that no tenderness or muscle spasm was observed at L3-L4 in the lumbar spine. (Tr. 121.) A follow-up x-ray of the cervical spine was found to be normal. (Tr. 123.) Dr. DeLeon found that plaintiff could sit without limitation and was only "slightly limited" in other exertional activities. (Tr. 122.) He offered a prognosis of "fair." (Tr. 122.)
*
Based on his physical examination of Lugo, Dr. Finger stated that Lugo's straight leg raising was negative to sixty degrees. Plaintiff reported diffuse low-back pain on flexion of the lumbar spine past seventy to eighty degrees, but the range of motion in his cervical spine was normal. The doctor noted no muscle spasm, although he observed that plaintiff's gait was slow. He determined that Lugo's lower extremity strength and grip strength were reduced to 4
/5 bilaterally. (Tr. 125.) Finally, he noted that Lugo's blood tests were normal. The doctor offered a "fair" prognosis. He diagnosed a history of alcohol and cocaine abuse, a history of kidney stones, chronic low-back disorder, arthralgia of the cervical spine and a history of depression and insomnia. He noted no gross difficulties in sitting and opined that plaintiff "may be mildly limited" in other exertional activities. (Tr. 126.)
During Dr. DelaChappelle's second psychiatric evaluation, he reported Lugo's assertion that he had suffered from depression for about one year, which Lugo attributed to his medical problems. Dr. DelaChapelle observed that Lugo appeared "mildly depressed" on a mental-status exam and was unable to do "serial sevens" accurately. (Tr. 116.) Lugo reportedly told the doctor that he stayed at home, reading or watching television, that he rarely socialized and that he relied on his wife to do most household chores. The doctor diagnosed Lugo with both cocaine abuse in remission and a depressive disorder, for which he recommended psychiatric treatment. He listed Lugo's prognosis as "fair." (Tr. 117.)
On January 7, 1998, Lugo underwent another physical examination by Dr. Finger. (Tr. 319-21.) After summarizing plaintiff's history-including kidney stones, arthritis and low-back pain, diabetes, high blood pressure and a nervous condition, as well as drinking and drug use-the doctor reported his physical findings. Lugo's straight leg raising was negative to sixty degrees bilaterally. He was able to flex the spine to forty fifty degrees before encountering "moderate diffuse low back pain," with no observed muscle spasm. Dr. Finger observed that plaintiff's gait was slow and mildly to moderately stiff. (Tr. 320.) Plaintiff exhibited mild crepitus
Dr. Finger also ordered radiological studies. These revealed mild scoliosis and minimal osteoarthritis of the lumbosacral spine. (Tr. 323.) The radiological report noted "eburnative changes with both sacroiliac joints, more pronounced on the inferior aspect." (Id.)
*
In his mental-status examination, Dr. DelaChappelle found that plaintiff was alert and cooperative and showed good eye contact. Lugo's speech was coherent and relevant, and he was neither anxious nor depressed and was not hallucinating. The doctor judged his intellectual functioning to be average and his insight and judgment to be fair. Plaintiff could also recall three of three objects in three minutes. (Tr. 334.)
Dr. DelaChappelle diagnosed Lugo with dysthymic disorder. He further found that Lugo had a satisfactory ability to understand, remember and carry out instructions, to respond appropriately to supervision and to co-workers and to deal with pressures in a work setting. He characterized Lugo's prognosis as "fair." (Tr. 335.)
Three months later, in April 1998, plaintiff underwent still another psychiatric evaluation, this time by Dr. Richard King, a psychiatrist. (Tr. 344-45.) Lugo described a history of substance abuse, although he stated that he had stopped this habit several years before. He claimed to occasionally hear voices calling his name, and he reported that he was taking Prozac and Ambien. (Tr. 344.)
Dr. King reported that, on examination, Lugo established fair rapport and exhibited no acute distress. His speech was coherent and relevant. He was euthymic
Dr. King concluded that plaintiff suffered from a mild dysthymic disorder and suggested ruling out a substance-induced mood disorder. He diagnosed alcohol, cocaine and marijuana dependence, although he noted that Lugo had reported that he no longer used these substances. The doctor concluded that plaintiff had a satisfactory ability to understand, remember and carry out instructions and to respond to supervision, co-workers and workplace pressures. (Tr. 345.)
In May 1998, plaintiff underwent another physical examination by Dr. Finger. (Tr. 346-48.) The doctor reported that plaintiff's straight leg raising was negative to sixty degrees. His forward flexion of the spine reached fifty degrees with moderate diffuse mid- and low-back pain. His muscle strength in the low extremities, as well as his grip strength, was again measured at 4
/5, and his gait was slow and stiff. He was able to get on and off the examination table without assistance, however, although he did it slowly. (Tr. 347.)
*
Dr. Finger diagnosed plaintiff as suffering from non-insulin-dependent diabetes mellitus, arthralgias in the knees, hands and shoulders, chronic low-back disorder, a history of kidney stones, a history of drug and alcohol abuse and a history of depression. He evaluated plaintiff as mildly limited in the length of time he could sit, mildly to moderately limited in the length of time he could stand and the distance he could walk, and moderately limited in his ability to lift and carry. He evaluated Lugo's overall prognosis as "guarded." (Tr. 348.)
The record contains another residual functional capacity analysis, dated May 11, 1998, by a Dr. B. Reynolds, who apparently reviewed plaintiff's file but did not examine him. Dr. Reynolds concluded that Lugo could lift up to 20 pounds occasionally and up to 10 pounds frequently. He further found that Lugo could stand and walk for as many as six hours in an eight-hour workday, or, alternatively, could sit for as many as six hours in an eight-hour day and do pushing and pulling while seated, including the use of hand or foot controls. He further opined that plaintiff could occasionally climb, balance, stoop, kneel or crawl. (Tr. 382-83.)
Plaintiff underwent another psychiatric evaluation in November 1998, this time by Dr. Luigi Marcuzzo, a psychiatrist. (Tr. 480-81.) Plaintiff reported long-term depression resulting from physical problems and physical abuse by his stepmother. He also reported a history of five suicide attempts, the most recent only three weeks before. He claimed to hear voices calling his name and reported low energy, poor motivation, insomnia, paranoid ideation and poor concentration. He also mentioned a history of substance abuse and said that he had entered a treatment program the prior year, that is, in 1997. He did believe that the medications he was taking were helping his depression "somewhat." (Tr. 480.)
Based on his examination, Dr. Marcuzzo described Lugo as "rather guarded and suspicious, withdrawn[ ] [and] tearful." Lugo's speech was limited in scope and concrete. The doctor noted no delusions, but observed some instances of paranoid ideation. Plaintiff's mood was depressed and his affect constricted. His short-term memory was intact, but his remote memory was impaired. His attention and concentration were impaired, and he was easily distractible. His insight and judgment were fair, although he could not perform serial sevens. (Tr. 481.)
Dr. Marcuzzo offered a diagnostic impression of major depression. He also viewed Lugo's memory, understanding, sustained concentration, persistence, social interaction and adaptation as impaired. He concluded that his prognosis was "fair." (Tr. 481.)
Two days later, a consulting physician, Dr. E. Cadet, offered a medical assessment of plaintiff. He noted his impressions of plaintiff's ailments, namely depression, diffuse arthralgia and histories of kidney stones and hydrocele repair. On this basis, he opined that plaintiff met the SSI criteria for disability. (Tr. 479.)
*
Dr. Tapia described plaintiff's speech as relevant and coherent. He found no thought disorder or delusions. He rated Lugo's insight and judgment as fair. (Tr. 502.)
The doctor diagnosed a dysthymic disorder and suggested the need to rule out a post-traumatic stress disorder. He evaluated Lugo as having a good ability to understand, carry out and remember instructions, and a fair ability to respond appropriately to supervision and co-workers in a work setting. (Tr. 502.)
At about the same time, plaintiff underwent a physical examination by Dr. Babu Joseph. (Tr. 507-08.) He noted that the cervical spine had a full range of motion, and that scoliosis, paraspinal muscle spasm and tenderness were not indicated. He reported that plaintiff had a lumbar ventral flexion of forty degrees and a dorsal flexion of five degrees. (Tr. 507.) An x-ray taken of Lugo's lower back in connection with the examination was normal. (Tr. 505.) Dr. Joseph diagnosed joint and low-back pain, a history of kidney stones, depression and a skin disorder. He concluded also that plaintiff was mildly limited in standing, walking, lifting and carrying. (Tr. 508.)
The remaining two examinations in the record were both conducted on March 2, 2000. Dr. A. Cacciarelli (Tr. 533-35) reported that plaintiff complained of low-back pain, kidney problems, a skin disease and a nervous disorder. Lugo had stated to Dr. Cacciarelli that it was difficult for him to stand for more than fifteen to twenty minutes at a time, and that he could not lift or carry more than five to ten pounds. He reported also that he was taking Celebrex, Flexeril, Risperdal, Prozac and Ambien. (Tr. 533.)
Dr. Cacciarelli found that plaintiff complained of pain at 40 degrees on forward flexion. The doctor also observed eczema on plaintiff's lower extremities. He diagnosed a history of psychiatric disorder, chronic skin disease, a history of kidney stones and joint and back pain. He concluded, based on these findings, that plaintiff had "a limited ability to push, pull or carry heavy objects or stand around for long periods of time." (Tr. 535.)
Plaintiff's final psychiatric evaluation was conducted by Dr. King. (Tr. 531-32.) This time, plaintiff reiterated the incident that he had reported to Dr. Tapia, in which he had been shot eighteen years before, and mentioned that he had been psychiatrically hospitalized at some point in the Dominican Republic. He reported having been depressed since he was shot and said that he had used cocaine and heroin in the past but had stopped around 1993. (Tr. 531.)
*
Dr. King diagnosed plaintiff with mild to moderate dysthymic disorder and a history of a major depressive episode (apparently a reference to Lugo's condition when examined by Dr. Marcuzzo). He diagnosed alcohol, cocaine and marijuana dependence, although he noted plaintiff's statement that he had ended his abuse of those substances. He also found that Lugo had a satisfactory ability to understand, remember, carry out instructions, respond to supervision and co-workers and deal with pressures in a work setting. (Tr. 532.)
Dr. Anthony Danza provided the final assessment of plaintiff's exertional capacities found in the record, apparently without examining the plaintiff, on April 4, 2000.
As noted, ALJ Greenberg "merged" all three of Lugo's applications and considered the entire record when he issued his November 17, 2000 decision finding Lugo ineligible for SSI benefits. (Tr. 157-65.) In his decision, the ALJ applied the five-step evaluation process required by 20 C.F.R. § 416.920 (2005) to determine whether a claimant is disabled. (Tr. 158.) He first found that Lugo had not engaged in substantial gainful activity since 1991. (Tr. 158.) With regard to the severity of his impairments, ALJ Greenberg began by reviewing the May 17, 1999 decision he had authored concerning Lugo's second (November 1997) application.
As summarized by the ALJ, in his 1999 decision he had found: (1) that Lugo could perform light work, lifting and carrying up to twenty pounds and standing and walking for six hours; (2) that while he had a history of kidney stones, he had tested free of kidney stones in 1997 and 1998; (3) that Lugo had non-insulin-dependent diabetes mellitus that was diet-controlled and had no systemic complications; (4) that he had "very minimal osteoarthritis in the lumbosacral spine, could flex his spine to 50 degrees with no paravertebral muscle spasm, could perform normal side bending and extension in the lumbosacral spine, and had a normal range of motion in the cervical spine," (5) that Lugo had mild crepitus in his knees with no gross swelling; (6) that he was taking Prozac and Ambien for a dysthymic disorder but had no work-related mental limitations; and (7) that Lugo had "clear" attention and concentration, could calculate and do "serial sevens" and was "fully oriented," "had no limitations in sustained concentration" and had a "satisfactory ability to interact with supervisors and co-workers and to handle work pressures." (Tr. 159.) The ALJ also noted that while Lugo had complained of daily pain in his spine due to arthritis, "no evidence was found to support a claim that this pain was disabling" since, for example, he did not require physical therapy or need orthopedic surgery, and he had reported that he could do light household chores. (Tr. 159.)
*
ALJ Greenberg first summarized the findings of Dr. Finger, based on his January 7 and April 21, 1998 examinations. (Tr. 159-60.) He then recited the findings from the November 11, 1999 consultative examination by Dr. Joseph, the March 2, 2000 consultative examination by Dr. Cacciarelli, the consultative psychiatric examination by Dr. DelaChapelle on January 22, 1998, the consultative psychiatric examination by Dr. Tapia on November 15, 1999, the consultative psychiatric examination by Dr. Richard King on March 2, 2000 and the medical and psychiatric evaluations by Dr. Cadet and Dr. Marcuzzo that Lugo had undergone on November 6, 1998 pursuant to his application for public assistance purposes. (Tr. 160-62.)
In addressing Dr. Marcuzzo's finding of a major depression, the ALJ noted that Lugo's condition, when examined by Dr. Marcuzzo, had differed "markedly" from his condition as described in other consultative psychiatric reports both before and after Marcuzzo's examination. (Tr. 161.) Specifically, neither Drs. DelaChapelle and Tapia in 1999, nor Dr. King in 2000, had found major depression or severe impairments in functioning, but, at most, mild to moderate impairments. (Id.) The ALJ concluded that Lugo's symptoms had "worsened temporarily" at the time of his examination by Dr. Marcuzzo, but that this did not reflect "a psychiatric condition that would last 12 months or more," since his psychiatric status, as determined by a series of examinations between January 1998 and March 2000, was "dysthymic disorder imposing mild to moderate limitations." (Tr. 162.)
ALJ Greenberg then turned to the medical reports provided by Dr. Natta, Lugo's treating physician. (Id.) In the doctor's most recent communication, a brief note in October 1998, he had opined that Lugo could not work "in any capacity," citing his Type II diabetes, his 1994 procedure to remove kidney stones, a latent luetic infection, surgery to remove hydroceles in 1997 and degenerative joint disease, including sclerosis of the sacroiliac joints with persistent low-back pain. (Id.) ALJ Greenberg observed that Dr. Natta had cited no clinical or laboratory findings or any other support for such a degree of impairment, that he had provided no indication of the degree of limitation on Lugo's ranges of motion or ability to ambulate and that he had made "essentially the same unsupported statement on December 18, 1993." (Id.) ALJ Greenberg also cited Dr. Natta's September 1995 evaluation form, indicating that Lugo could not work because of "persistent pain, inability to stand for any length of time, and restriction of activities," and his reports from 1992 to 1998 indicating that Lugo was severely disabled and unable to work. (Id.) The ALJ observed that, despite the severity of the conditions described by Dr. Natta, there was no indication from the doctor that he had provided or recommended intensive treatment or monitoring, that he had referred Lugo for pain management, that Lugo had undergone any physical therapy or orthopedic surgery or that there had been any other attempts to provide the kind of pain relief that would have been warranted if Lugo's pain were so extreme as to prevent him from working for six years. (Id.) As a result, ALJ Greenberg gave "little weight" to Dr. Natta's opinion that Lugo was unable to work. (Id.)
*
The ALJ then proceeded to analyze whether Lugo retained the residual functional capacity ("RFC") to perform the requirements of his past relevant work or other work existing in significant numbers in the national economy. He considered all of Lugo's symptoms, including the extent to which they were consistent with objective medical evidence, his testimony about pain and the medical opinions, and found that Lugo's allegations about his limitations were "not credible, based on the medical evidence." (Tr. 162-63.) The ALJ concluded that there was "simply no medical support in the record" for his allegations that he has been unable to work since 1993 because of his pain and psychiatric problems, and that, based on a review of the ample evidence in the record, there was "no information concerning the claimant's physical or mental condition that differs from prior evidence of record." (Tr. 163.)
Focusing on Lugo's complaints of pain, ALJ Greenberg noted that Lugo had not been referred for physical therapy or orthopedic surgery for his condition, and that while the evidence indicated that he had some pain, it was manageable with medication and was not so severe that it prevented him from working. (Id.) He found that Lugo was "employable, but [ ] not motivated: he is a malingerer." (Id.) Based on these facts, the ALJ concluded that Lugo retained a RFC for a "full range of light work," which was "consistent with the medical opinions discussed above" indicating "mild to moderate limitations on physical functioning and no limita[ti]ons on mental functioning." (Tr. 163.)
Proceeding along the five-step disability analysis, ALJ Greenberg found that Lugo could not return to his past relevant work as a shipping clerk, where he had lifted and carried up to fifty pounds. (Id.) With the burden shifting back to the SSA to show there were other jobs that Lugo could perform in the national economy consistent with his RFC, age (forty-seven), education and work experience, ALJ Greenberg reviewed the Medical-Vocational Guidelines, which direct a conclusion of "disabled" or "not disabled" depending on the claimant's RFC and vocational profile. (Tr. 163.) Since Lugo was a "younger individual" with limited education, the ALJ noted, the Guidelines could direct a no-disability decision only if Lugo had the exertional RFC to perform the seven primary strength demands at the given level of exertion and if there were no non-exertional limitations. (Id.) He explained that jobs were classified as sedentary, light, medium, heavy and very heavy and described the exertional demands of light work: lifting no more than twenty pounds with frequent lifting or carrying of ten pounds, a "good deal" of walking, and standing or sitting most of the time with some pushing and pulling. (Tr. 164.) He concluded, "Because the evidence supports a finding that the claimant can perform the demands of the full range of light work, a finding of `not disabled' is directed by Medical-Vocational Rule 202.16." (Id.)
*
The first error concerns how the ALJ arrived at his conclusion that the plaintiff was able to perform light work. That term is defined in 20 C.F.R. § 416.967(b) as the ability (a) to lift up to ten pounds frequently and up to twenty pounds occasionally, and (b) either to stand and walk, off and on, for a substantial amount of time, or to sit for most of the time coupled with the ability to do pushing and pulling of arm or leg controls. See, e.g., Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir. 1990);
20 C.F.R. 416.9267(b).
As examples of the "varied assessments," the Commissioner cites not only the reports considered by ALJ Greenberg (including those of Drs. Natta, Finger and Cacciarelli), but also a number of reports not cited by the ALJ that directly addressed the quantifiable physical exertion requirements, including a March 1994 report by Dr. DeLeon (finding no limitation in Lugo's ability to sit, but slight limitation regarding standing, walking, lifting, carrying, pushing and pulling (Tr. 122)); a January 1998 report by Dr. Mason (finding Lugo able to handle twenty-five pounds frequently and fifty pounds occasionally and able to stand or walk for six hours in an eight-hour day (Tr. 337)); a May 1998 report by Dr. Reynolds (finding that Lugo could handle ten pounds frequently and twenty pounds occasionally and that he could stand or walk for six hours in an eight-hour day (Tr. 382)); a November 1999 report by Dr. Joseph (finding that Lugo had no sitting limitation and mild restrictions in prolonged walking, standing and handling heavy objects (Tr. 508)); and a December 1999 report by Dr. Danza (finding that Lugo was able to handle twenty-five pounds frequently and fifty pounds occasionally and that he could stand or walk for six hours (Tr. 523)). (Def.'s Mem. 4-5.) The Commissioner suggests that these reports need to be reconciled with the ALJ's findings. (Id. at 3-6.)
The Commissioner also argues that the ALJ erred with respect to Lugo's mental impairments: noting that Dr. Marcuzzo's opinion that Lugo was impaired for all types of mental functioning was inconsistent with that of the other psychiatrists, the Commissioner points out that the ALJ made "inconsistent statements about the severity of the limitations indicated by the other psychiatrists." (Id. at 7-8.) The Commissioner observes that at one point the ALJ stated that Lugo had mild to moderate limitations in his mental functioning (Tr. 161-62), but elsewhere in his decision he wrote that Lugo had "no limita[ti]ons on mental functioning" (Tr. 163), and he failed to explain or reconcile these two seemingly inconsistent findings. (Def.'s Mem. 7-8.)
*
Plaintiff in turn filed a cross-motion for judgment on the pleadings, seeking a reversal of the Commissioner's decision and a remand solely for the purpose of awarding benefits. In his brief, Lugo first argues that reversal and payment of benefits is the appropriate remedy because substantial evidence in the record supports a finding that he is disabled pursuant to the statute. (Pl.'s Mem. 17-23.) Specifically, he contends that every physician who treated or examined him concluded that he has "functional limitations" from low-back pain. (Id. at 17.) Lugo maintains that Dr. Natta's findings that he had substantial limitations were not an aberration, given Dr. DeLeon's opinion that he was "slightly limited" in his ability to walk, stand, lift, carry, push and pull; Dr. Finger's opinion that he was mildly to moderately limited; and Dr. Cacciarelli's opinion that he was "limited" in those abilities. (Id. at 18-19.) Against that backdrop, Lugo argues that his treating physician's opinion should have been accorded "controlling weight," as it was "not inconsistent" with other substantial medical evidence of record; according to plaintiff, even though Dr. Natta's conclusion was not "100% consistent" with the other evidence, it did not have to be. (Id. at 19-20.) He also infers that one reason why the consulting physicians might not have regarded Lugo's limitations as so severe is because they failed to look for lumbosacral tenderness. (Id. at 20.) If Dr. Natta's opinions had been given controlling weight, Lugo claims, he would have been found disabled. (Id. at 20.)
Lugo also argues that the ALJ failed to provide specific reasons for discrediting his testimony concerning pain and that his subjective complaints of pain should have been fully credited. If so, this would have resulted in a finding of disability. (Id. at 21-23.)
*
In his Reply Memorandum, the Commissioner responds that delay alone is never a sufficient basis for reversing a decision and awarding benefits. (Def.'s Reply Mem. 2.) In addition, the Commissioner argues that remand for calculation of benefits is appropriate only where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose" (id.) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980), and that the medical evidence here is not so clear as to warrant such a conclusion, given the "numerous conflicting assessments of the severity of the functional limitations arising from those conditions." (Id. at 4-5.) Finally, the Commissioner reiterates that even if the medical evidence clearly showed that Lugo could not perform any substantial gainful activity, it would still be necessary to determine whether his history of alcohol and drug abuse was material to the finding of disability in light of the conflicting evidence as to when he stopped abusing those substances. (Id. at 5-6.)
For purposes of SSI eligibility, a person is disabled when he is unable to "engage in any substantial gainful activity
The regulations set forth a five-step sequential process to evaluate disability claims. 20 C.F.R. §§ 404.1520, 416.920. The first step requires the ALJ to determine whether the claimant is presently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, he is not considered disabled; if not, Step Two requires the ALJ to determine whether the claimant has a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires the ALJ to determine whether the claimant's impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 404.1520(d)-(e), 416.920(d)-(e). If the claimant's impairment meets or equals a listed impairment, the claimant is presumptively disabled; if the claimant is not presumptively disabled, Step Four requires the ALJ to consider whether the claimant's residual functional capacity ("RFC")
*
42 U.S.C. § 405(g); Butts, 388 F.3d at 384. Remand is warranted where "there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.1999) (internal quotation marks omitted) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996)); cf. Butts, 388 F.3d at 384. Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117 (2d Cir.2000)).
In considering whether a remand is appropriate, the court looks to whether the ALJ complied with his affirmative duty to fully develop the record, which applies even when a claimant is represented at the hearing. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). To that end, the ALJ must seek additional evidence or clarification when the "report from [the applicant's] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §§ 404.1512(e)(1), 416.912(e) (1); see also Rosa, 168 F.3d at 79 (describing the ALJ's obligation to develop the record). In addition, the ALJ must adequately explain his analysis and reasoning in making the findings on which his ultimate decision rests and must address all pertinent evidence. See, e.g., Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir.1995); Ferraris v. Heckler, 728 F.2d 582, 586-87 (2d Cir.1984); Allen ex rel. Allen v. Barnhart, 2006 WL 2255113, at *10 (S.D.N.Y. Aug. 4, 2006).
If the ALJ failed in his duty to fully develop the record or committed other legal error, a reviewing court
*
In short, a remand solely for an award of benefits may be justified if the court finds that the Commissioner's decision was not based on substantial evidence and that further development of the record would not change that result. Id. at 604. Delay alone, however, is not a valid basis for remand solely for calculation of benefits. See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir.1996) (citation omitted).
The SSA seeks a remand to correct several identified errors of the ALJ. We address these errors and several others that warrant a remand unless there is a basis in the record to order an outright award of benefits.
The Commissioner asserts that the ALJ did not adequately explain how he weighed the medical evidence and medical opinions and arrived at his conclusion that the plaintiff was able to perform light work, particularly given the "widely varied assessments" of Lugo's ability to perform these activities. (Def.'s Mem. 4.) He argues that this error compels remand. We agree.
"It is self-evident that a determination by the [ALJ] must contain a sufficient explanation of [his] reasoning to permit the reviewing court to judge the adequacy of [his] conclusions." Pacheco v. Barnhart, 2004 WL 1345030, at *4 (E.D.N.Y. June 14, 2004) (internal quotation marks omitted) (quoting Rivera v. Sullivan, 771 F.Supp. 1339, 1354 (S.D.N.Y.1991)). Courts in this Circuit have long held that an ALJ's "failure to acknowledge relevant evidence or explain its implicit rejection is plain error." Kuleszo F/K/A Dillon v. Barnhart, 232 F.Supp.2d 44, 57 (W.D.N.Y.2002). Although "every conflict in a record [need not be] reconciled by the ALJ . . . the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence. Ferraris, 728 F.2d at 587.
While the ALJ stated that he had reviewed "the entire body of evidence" in the record, his decision cited the findings of only a small number of the consultative physicians on the question of Lugo's physical limitations. (Tr. 159.) Further, none of those cited had provided an opinion on Lugo's RFC that quantified how long Lugo could sit or walk, and how much he could lift, findings that would form the basis for a determination of whether a claimant can perform sedentary, light, medium, heavy or very heavy work. (Tr. 159-60.) The ALJ cited two assessments by Dr. Finger, who found Lugo "mildly" limited in sitting, "mildly to moderately" limited in standing and walking and "moderately" limited in lifting and carrying; an assessment by Dr. Joseph, who found that Lugo had "mild" restrictions on walking and prolonged standing, no limitation on sitting and "mild" restrictions on carrying and lifting heavy objects; and an assessment by Dr. Cacciarelli, who found that Lugo had a "limited" ability to push, pull or carry heavy objects or stand for long periods of time. (Id.) However, it is not clear from the ALJ's decision how these doctors' assessments of "mild" or "moderate" limitations corresponded with the SSA physical-exertion requirements for light work. Moreover, the three cited doctors differed among themselves as to Lugo's limitations, and it was far from clear whether the use of the word "mild" to describe Lugo's limitations by Drs. Finger and Joseph meant the same thing. While the ALJ did explain the basis for according little weight to the opinion of Dr. Natta-who claimed that plaintiff was "unable to work in any capacity" (Tr. 162)-he apparently used the general and unquantified assessments by Drs. Finger, Joseph, and Cacciarelli to conclude that plaintiff could meet the physical requirements of light work. Moreover, he did not mention, assess or reconcile the reports of other doctors in the record-including Drs. DeLeon, Mason, Reynolds and Danza-who did quantify Lugo's exertional capacities.
*
The ALJ similarly did not explain how he weighed the functional-capacity assessments that he noted and those that he did not specifically evaluate, despite the centrality of those assessments to the question of plaintiff's exertional capacity. "[W]here the administrative record contains gaps, remand to the Commissioner for further development of the evidence is appropriate." Butts, 388 F.3d at 385. Accordingly, this omission justifies a remand for further proceedings to permit the ALJ to specify how he weighed the medical evidence presented, especially the medical evaluators' quantification of Lugo's RFC, and to explain how he evaluates those varied assessments to arrive at his determination of Lugo's RFC.
The Commissioner also points out that in assessing the limitations in Lugo's mental functioning, the ALJ arrived at two inconsistent findings in the body of his decision and did not explain or reconcile them. At one point, after reviewing the reports of psychiatrists DelaChapelle, Tapia and King, the ALJ found that Lugo's "overall psychiatric status from January, 1998 to March 2000 was a dysthymic disorder imposing mild to moderate limitations." (Tr. 162 (emphasis added).) The ALJ explained that these psychiatrists had examined Lugo both before and after Dr. Marcuzzo and found, at most, "mild to moderate impairments," in contrast to the "major depression" and other serious mental impairments found by Dr. Marcuzzo. The ALJ explained this variance by characterizing Lugo's condition as having "worsened temporarily" when he saw Marcuzzo. (Tr. 161-62.)
The ALJ went on to evaluate Lugo's assertions concerning his psychiatric problems, and found that there was "simply no medical support in the record for these allegations." (Tr. 163.) In doing so, the ALJ did not explain how he arrived at the conclusion in the next paragraph that Lugo retained a RFC for the full range of light work based on his having mild to moderate limitations on physical functioning and "no limita[ti]ons on mental functioning." (Id. (emphasis added).)
This inconsistency is potentially critical in terms of the disability analysis. Mental limitations are considered "nonexertional" for purposes of the fifth step in the disability analysis, see 20 C.F.R. § 416.969a(c)(1)(i)-(ii),
*
"In the ordinary case, the Commissioner meets his burden at the fifth step by resorting to the applicable medical vocational guidelines (the grids)." Rosa, 168 F.3d at 78 (internal quotation marks omitted) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)). However, exclusive reliance on the grids is inappropriate where
Id. (internal quotation marks omitted) (quoting Bapp, 802 F.2d at 603).
By seemingly concluding that Lugo's limitations were solely exertional in nature, the ALJ dispensed with the requirement that he consult a vocational expert or look for equivalent evidence. Instead, he made his "not disabled" determination solely by consulting "the Social Security Act's table of medical-vocational guidelines, . . . to conclude that [Lugo] was capable of performing other jobs existing in significant numbers in the national economy and therefore did not meet the requirements for disability status." Butts, 388 F.3d at 382; (Tr. 165). By not reconciling his contradictory statements concerning Lugo's limitations on his mental functioning, the ALJ made it impossible for the court to evaluate the role that Lugo's non-exertional limitations (or lack thereof) played or should have played in the ALJ's conclusion that Lugo was not disabled. See, e.g., Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir.1983) ("[I]t is an elementary rule that the propriety of agency action must be evaluated on the basis of stated reasons.").
Furthermore, even the ALJ's alternative finding of "mild to moderate" mental impairments-which arguably reflect an impairment that is not "significant," Rosa, 168 F.3d at 78-cannot stand without further explanation. As noted, Dr. Marcuzzo found that plaintiff was suffering from a "major depression." Although the ALJ opined that the psychiatrist was observing only a transient phenomenon-thus implicitly crediting Dr. Marcuzzo's findings-that determination of transience in a major depression appears to be a medical assessment calling for medical expertise and hence could not be invoked by the ALJ based solely on his lay inference. See, e.g., Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998) ("[I]t is well-settled that the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion . . . . [W]hile an [ALJ] is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who" submitted an opinion to or testified before him.) (internal quotation marks omitted) (quoting McBrayer v. Sec'y of Health and Human Servs., 712 F.2d 795, 799 (2d Cir.1983)); Filocomo v. Chater, 944 F.Supp. 165, 170 (E.D.N.Y.1996) (stating that by re-evaluating a doctor's conclusions, the ALJ improperly "engaged in his own evaluations of the medical findings").
*
The Commissioner also notes that the ALJ never addressed the role that alcoholism and drug abuse played in Lugo's disability determination. As he points out, even if the ALJ found plaintiff to be disabled, he could not award benefits without first addressing the impact of such substance abuse, and for this reason a remand rather than an award of benefits is appropriate. (Def.'s Mem. 8-9, Def.'s Reply Mem. 5-6.)
"[A] person found to be disabled after employment of the five-step sequential evaluation will not be considered disabled within the meaning of the Act `if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to' a finding of disability." Orr v. Barnhart, 375 F.Supp.2d 193, 200 (W.D.N.Y.2005) (quoting 42 U.S.C. § 423(d)(2)(C)). The regulations make clear that the "key factor" in this analysis is whether the Commissioner would still find the claimant disabled if he stopped using alcohol or drugs. See 20 C.F.R. §§ 404.1535(b) (1)-(2); 416. 935(b)(1)-(2). "When the record contains medical evidence of substance abuse, the Commissioner should evaluate which of the claimant's `current physical and mental limitations . . . would remain if [he] stopped using drugs or alcohol and then determine whether any or all of [these] remaining limitations would be disabling.'" Eltayyeb v. Barnhart, 2003 WL 22888801, at *4 (S.D.N.Y. Dec. 8, 2003) (alterations in original) (quoting 20 C.F.R. § 404.1535(b)(2) (2003)).
Id.
The ALJ found that Lugo's mental impairments were not sufficiently severe to prevent him from working, warranting a finding that Lugo was not disabled. Hence, he never addressed the question of the effect of alcoholism or drug addiction on Lugo's condition. If, however, the ALJ determined on remand that Lugo became disabled at any relevant time, he would be required to consider the effects of Lugo's alcoholism and drug use on his impairments and limitations. Lugo consistently indicated that his abuse of these substances had been longstanding, which would underscore the need for the ALJ to elicit evidence concerning their effect on Lugo's mental status. (See Tr. 118 (heavy drinker since the age of 15); 120 (admitted to snorting cocaine for 10 years); 124 (history of alcohol abuse since his adolescence; used cocaine in the past also); 319 (admitted he was a heavy drinker and cocaine abuser for many years); 334 ("prior history of cocaine abuse for several years"); 480 (admitted to drinking heavily and using cocaine and marijuana for 10 years); 502 (cocaine and marijuana use for 15 years); 531 (alcohol and marijuana dependence since adolescence; cocaine use since age 30).)
*
Apart from the issues that defendant flags as justifying a remand, we note an additional problem with the findings of the ALJ. In making a disability determination, the ALJ must take into account the claimant's assertions of disabling pain, even if the claim is premised on subjective symptoms, so long as the evidence establishes that the claimant has a medical impairment that could "reasonably be expected to produce pain." See, e.g., Snell v. Apfel, 177 F.3d 128, 135 (2d Cir.1999). The ALJ is of course free to discount such testimony if he finds it not to be credible, but in assessing that credibility question he must consider a variety of factors specified in the SSA regulations, and consistent with the general requirement for a clear explanation of his analysis, he must sufficiently articulate his reasoning to demonstrate his compliance with the regulation. See, e.g., Bush, 94 F.3d at 46 n. 4. In assessing claims of pain, the ALJ must consider the claimant's daily activities; the location, duration, frequency and intensity of the pain; any precipitating and aggravating factors; the claimant's medications (including type, dosage, effectiveness and side effects); treatments other than medication that claimant uses to relieve pain; any other measures used to relieve pain; and any other factors concerning functional limitations and restrictions due to pain. See 20 C.F.R. § 404.1529(c)(3).
In this case, the ALJ, when addressing pain, mentioned but did not evaluate Lugo's medication regime, referred to Lugo's attempts to do light housework and cited the lack of physical therapy or surgery. He erred in failing to discuss most of the regulatory factors and in failing concretely to address evidence supportive of plaintiff's claim. Thus, he did not directly assess plaintiff's detailed descriptions of the pain and the limitations it imposed on his activities-although he concluded that Lugo was not credible-and he failed to address the seeming consistency of the symptoms described by Lugo with the conceded diagnoses of both treating and consulting physicians that he suffers from low-back sclerosis. Furthermore, his reference to the absence of alternative treatment measures-specifically, physical therapy and surgery-appears to have usurped the role of doctors in proffering expert opinions, since the record does not demonstrate (as the ALJ assumed) that plaintiff's diagnosed sclerosis condition could be alleviated by either therapy or surgery.
*
In plaintiff's cross-motion, he argues that reversal and remand for payment of benefits is appropriate because substantial evidence in the record supports a finding that he is disabled. (Pl.'s Mem. 17-23.) He suggests that every doctor who examined him concluded that he had some functional limitations due to low-back pain, and he focuses on the reports from his treating physician, Dr. Natta, who found that his pain placed serious limitations on his activities. (Id. at 17-18.) He argues that Dr. Natta's findings "were not an aberration," were "well-supported" by his clinical observations and later X-rays and, though not "100% consistent" with the reports of other consulting physicians, did not have to be. (Id. at 18-19.) Finally, he claims that if Dr. Natta's opinions were given the "controlling weight" they deserved, a finding of disability would be mandatory. (Id. at 20.)
In a proceeding to review a final decision of the Commissioner, the plaintiff bears the burden of establishing the existence of a disability. See, e.g., Curry, 209 F.3d at 122. Necessarily, then, in seeking a remand solely to calculate benefits, Lugo must demonstrate that the record so clearly supports his claim of disability that a remand for further consideration of that question would serve no purpose. See, e.g., Butts, 388 F.3d at 385-86 (quoting Rosa, 168 F.3d at 83). Plaintiff fails to make that case.
Lugo bases his argument primarily on the contention that the ALJ erred in not according the reports of his treating physician, Dr. Natta, controlling weight pursuant to the treating physician's rule. The "treating physician rule" is embodied in a series of provisions found in 20 C.F.R. § 404.1527, which details the weight to be accorded a treating physician's opinion and the opinions of non-treating consulting doctors. The treating doctor's opinions are entitled to "controlling weight" in certain specified circumstances:
*
The ALJ found that Dr. Natta's opinions were not "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and were "inconsistent with the other substantial evidence" in the record. We find that the ALJ's conclusions in this respect-although not mandated by the record-are supported by substantial evidence.
The most recent submission of Dr. Natta consisted of a one-page letter dated October 9, 1998 in which he asserted that Lugo was "being treated at this facility" for "degenerative joint disease-sclerosis of the sacroiliac joints" with persistent low-back pain; that Lugo had a latent luetic infection and type II diabetes; and that he had undergone surgery to remove kidney stones in 1994 and surgery to remove hydroceles in 1997. He also reported that Lugo's medications included Tylenol # 3 and Flexeril. He concluded that Lugo "is unable to work in any capacity" (Tr. 500), but provided no "medically acceptable clinical and laboratory diagnostic techniques" to support that statement.
The other records from Dr. Natta date from 1993 and 1995. (Tr. 128-39.) They consist principally of doctor's notes indicating that Lugo had "tenderness" in his lumbar spine (Tr. 129), which was apparently diagnosed as "lumbago. R/O [rule out] osteoarthritis of lumbar spine." (Tr. 131.) He also provided a medical report in 1995 in which he indicated that he was then treating Lugo every three months (Tr. 133), and he offered a "poor" prognosis due to back pain that had persisted and was not controlled by analgesics. (Tr. 134.)
The ALJ's analysis, at least in general terms, followed the contours mandated by the "treating physician" regulation. He observed that Dr. Natta had "report[ed] no clinical or laboratory findings or any other support for such a degree of impairment" (Tr. 162), and that finding is clearly supported by substantial evidence. Although the ALJ did not make a specific finding that Dr. Natta's conclusions were "inconsistent with the other substantial evidence" in the record, he specifically referred to a series of findings by a number of other doctors who found, contrary to Dr. Natta's reports, only mild or moderate limitations. He apparently concluded, based on this discrepancy, that Lugo was capable of substantially greater exertional activity than Dr. Natta had suggested. (Tr. 159-60.)
*
As noted, a remand for calculation of benefits is required when the court finds that there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision." Butts, 388 F.3d at 385-86 (quoting Rosa, 168 F.3d at 83); see also Parker, 626 F.2d at 235 (remand for the calculation of benefits is appropriate where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose"). Because the administrative record and the findings of the ALJ contain significant gaps and further findings will "plainly help to assure the proper disposition of [the] claim," Rosa, 168 F.3d at 83, and because it is entirely possible that a complete record would justify the SSA's current conclusion that plaintiff was not disabled at the relevant time, remand for calculation of benefits is not appropriate here. A more complete record, explicit discussion of the weight accorded by the ALJ to the varying assessments of Lugo's functional limitations, clarification of his findings concerning Lugo's mental limitations, more specific findings as to pain and exploration of the relationship between Lugo's substance abuse and his mental limitations are necessary to-once and for all-make a final determination in this case.
Plaintiff also asserts that the "extensive delay in the adjudication of Mr. Lugo's claim is extraordinary and would, if standing alone, seriously test [ ] the Second Circuit's pronouncement in Bush v. Shalala, that delay alone is not grounds for reversal and payment [of] benefits." (Pl.'s Mem. 1.) In Bush, the Second Circuit held that "absent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits." 94 F.3d at 46. It is uncontroverted that Lugo's three applications have been denied at every level of the administrative process. Moreover, the District Court's remand in 1998 and the recommended remand in this instance do not reflect on the merits of Lugo's applications, but rather are directed principally to the failings of the ALJ in not explaining the basis of his findings. We recommend that the court decline Lugo's invitation to extend the holding of Bush to rule that even if the ALJ finds a claimant not disabled and there is substantial evidence to support that finding, the delay in resolution is a sufficient basis to remand for benefits.
*
The Second Circuit has noted the authority of the court to require, in appropriate circumstances, that the agency adhere to a timetable on remand. The Court noted that 42 U.S.C. § 405(b) provides that
Butts v. Barnhart, 416 F.3d 101, 105 (2d Cir.2004) (internal quotation marks omitted) (quoting Barnett v. Bowen, 794 F.2d 17, 22 (2d Cir. 1988)).
In Butts, the Second Circuit observed that it was mindful of the "often painfully slow process by which disability determinations are made, and that a remand for further evidentiary proceedings (and the possibility of further appeal) could result in a substantial, additional delay." 388 F.3d at 387 (internal quotation marks and citations omitted) (quoting Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983)). In remanding Butts's application, the circuit court instructed the district court "to direct that further proceedings before an ALJ be completed within 60 days of the issuance of the district court's order and, if that decision is a denial of benefits, a final decision of the Commissioner be rendered within 60 days of Butts' appeal from the ALJ's decision. The district court's order should provide that, if these deadlines are not observed, a calculation of benefits owed Butts must be made immediately." Butts, 388 F.3d at 387. The Commissioner sought a rehearing, asserting, inter alia, that the 60-day time limit was not sufficient time for the SSA to render a decision while complying with its own rules and regulations, and the Court extended the time limit to 120 days. Butts, 416 F.3d at 102.
In light of the fact that more than ten years elapsed between the plaintiff's filing of his initial application and the full briefing of the current motions, we recommend that the District Court require that the proceedings before an ALJ must be completed within 120 days of the issuance of the District Court's remand order.
Based on the foregoing, we recommend that the Commissioner's motion be granted, that plaintiff's cross-motion be denied, and that the case be remanded for further proceedings consistent with this opinion. In addition, we recommend that the remand order require that proceedings before an ALJ be completed within 120 days of the issuance of the order.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Jed S. Rakoff, Room 1340, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York, 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Not Reported in F.Supp.2d, 2008 WL 515927
JED S. RAKOFF, District Judge.
*
Neither party has filed any objection to any part of Judge Dolinger's Report and, for that reason alone, the parties have waived any right to review by this Court. See Thomas v. Arn, 474 U.S. 140, 147-48 (1985); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir.2002). Accordingly, the Court hereby adopts the Report and Recommendation in full, reversing the Commissioner's determination, granting the Commissioner's motion for a remand, denying plaintiff's cross-motion for a remand, and ordering that any further proceedings in this matter be completed within 120 days of the issuance of this order.
Clerk to enter judgment.
SO ORDERED.
Not Reported in F.Supp.2d, 2008 WL 516796
Christopher James Bowes, Center for Disability Advocacy Rights, Inc., Shoreham, NY, for Plaintiff.
Amanda Frances Parsels, Office of the United States Attorney, New York, NY, for Defendant.
KEVIN NATHANIEL FOX, UNITED STATES MAGISTRATE JUDGE
*
Sara Booker ("Booker") commenced this action against the acting Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated July 10, 2014, finding her ineligible for disability insurance benefits, pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Before the Court are the parties' respective motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Booker alleged disability beginning December 1, 2012. An administrative hearing was held, on May 27, 2014, at which Booker, unrepresented, and a vocational expert testified. The issue before the ALJ was whether Booker is disabled. The ALJ determined that Booker: (1) meets the insured status requirements of the Social Security Act through June 30, 2016; (2) has not engaged in substantial gainful activity since December 1, 2012; (3) has severe impairments: angina, bilateral knee osteoarthritis, lumbar spine spondylolisthesis, hypertension, obesity, and depressive disorder with anxiety; (4) 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; (5) has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that she can climb ramps and stairs occasionally, never climb ladders, ropes, or scaffolds, stoop, crouch and kneel occasionally, never crawl, have no exposure to moving machinery, unprotected heights, or driving vehicles, must avoid concentrated exposure to extreme heat and cold, wetness, humidity, irritants such as fumes, odors, dust and gases, poorly ventilated areas and chemicals, work in low stress job, defined as having only occasional decision making and only occasional changes in the work setting, work off task five percent of the day in addition to regularly scheduled breaks and is limited only to occasional interaction with the public; (6) is unable to perform any past relevant work; (7) was 56 years old at the time of the hearing; and (8) has at least a high school education and is able to communicate in English. The ALJ found that transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Booker is not disabled regardless of transferable job skills, and considering Booker's age, education, work experience and residual functional capacity. Jobs exist in significant numbers in the national economy that Booker can perform, including representative occupations such as a hand packager, a produce packer and a dishwasher. The ALJ concluded that Booker has not been under disability from December 1, 2012, through the date of the decision.
Booker contends that the ALJ violated his enhanced duty to develop the record by failing to obtain records and opinions from her primary care physician, Dr. Danil Rafailov ("Dr. Rafailov"), and orthopedist, Dr. Sanjeev Agarwal ("Dr. Agarwal"), both of whom she identified at the hearing as her treating sources and provided their contact information. According to Booker, the May 20, 2013 x-ray of Booker's knees, addressed to Dr. Rafailov, revealed "severe" osteoarthritis supporting her complaints that she cannot stand or walk without knee pain, which would limit her capacity to perform medium work. At minimum, the ALJ should have explained to Booker, proceeding
*
The defendant contends that substantial evidence shows that the residual functional capacity determination accommodated the plaintiff's physical impairments, including her credible complaints of knee, hip, leg and back pain. According to the defendant, clinical findings, including Dr. Thukral's findings, showed that these impairments did not significantly restrict Booker's physical abilities. Moreover, objective diagnostic imaging supported the ALJ's finding that the residual functional capacity accommodated the plaintiff's back impairment, and a lumbar spine x-ray from March 2013 "showed only the mildest grade of spondylolisthesis," and the subsequent lumbar spine x-ray was normal. Although the March 2013 right knee x-ray showed degenerative joint disease and the May 2013 knee x-ray showed severe osteoarthritis, normal clinical findings from the consultative examination performed "around the same time period" showed that her osteoarthritis did not have a debilitating impact on Booker's physical functioning. The defendant asserts that Booker was independent in a wide range of activities of daily living, and although Booker testified that she could not sit for long periods of time due to back pain, she reported that she spent her days sitting around, watching television, reading and doing crossword puzzles and she was able to travel long distances. The defendant maintains that Booker "received only conservative treatment for her back, leg, hip, and medication," as well as home exercise with no reports of any knee injections or surgeries. According to the defendant, the ALJ was not required to disregard Dr. Thukral's opinion, which was not invalid because he did not order an x-ray of Booker's left knee, since Dr. Thukral supported his opinion with findings from examining both of Booker's knees and he reviewed an x-ray of her right knee. Although Dr. Thukral did not opine expressly about Booker's ability to walk, his examination found she had no difficulty walking, "and he clearly opined she had `no limitations' for sitting, standing, carrying, or `any such related activities.'" The defendant contends that the May 2013 knee x-ray showing severe arthritis did not undermine Dr. Thukral's opinion which was based on his examination of Booker's physical restrictions in her knees and the knee x-ray just two months earlier.
The defendant asserts that the ALJ developed the record properly which allowed him to assess adequately Booker's residual functional capacity. The ALJ obtained medical records from Booker's multiple medical care providers as well as opinions from a consultative psychologist, an internal medicine consultative examiner and Booker's psychiatrist and therapist. Although Booker proceeded
*
"After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
"Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations."
To qualify for disability benefits, an individual must be 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 Social Security Administration's regulations establish a five-step process for determining a disability claim.
*
Proceeding
For the foregoing reasons, I recommend that: (1) the plaintiff's motion, Docket Entry No. 16, be granted, and the matter be remanded to the Commissioner for farther proceedings, pursuant to sentence four of 42 U.S.C. § 405(g); and (2) the defendant's motion, Docket Entry No. 18, be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections.
Slip Copy, 2017 WL 633782
Christopher James Bowes, Center for Disability Advocacy Rights, Inc., Shoreham, NY, for Plaintiff.
Amanda Frances Parsels, Office of the United States Attorney, New York, NY, for Defendant.
JESSE M. FURMAN, United States 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). A district court "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, however, a district court need only satisfy itself that there is no clear error on the face of the record. See, e.g., Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). This clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. See, e.g., Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008).
In the present case, the Report and Recommendation advised the parties that they had 14 days from service of the Report and Recommendation to file any objections, and warned that failure to timely file such objections would result in waiver of any right to object. In addition, it expressly called the parties' attention to Rule 72 of the Federal Rules of Civil Procedure and Title 28, United States Code, Section 636(b)(1). Nevertheless, as of the date of this Order, no objections have been filed and no request for an extension of time to object has been made. Accordingly, the parties have waived the right to object to the Report and Recommendation or to obtain further appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); see also Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008).
Despite the waiver, the Court has reviewed the Report and Recommendation, unguided by objections, and finds it to be well reasoned and grounded in fact and law. Specifically, the Court finds no clear error in Magistrate Judge Fox's conclusions that the Administrative Law Judge failed to give controlling weight to the opinion of Plaintiff's treating physician or to make reasonable efforts to fill the clear gaps in the administrative record. (Report and Recommendation at 8). Accordingly, the Report and Recommendation is adopted in its entirety. Plaintiff's motion for judgment on the pleadings is GRANTED, the Commissioner's motion for judgment on the pleadings is DENIED, and the case is REMANDED for further proceedings.
*
SO ORDERED.
Slip Copy, 2017 WL 627457
BRICCETTI, District Judge.
*
The Court presumes familiarity with the factual and procedural background of this case.
For the following reasons, the Court (i) adopts the R & R as the opinion of the Court, (ii) denies defendant's motion, and (iii) remands this case for further administrative proceedings consistent with the R & R, pursuant to 42 U.S.C. § 405(g), sentence four.
A district court reviewing a magistrate judge's report and recommendation "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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific[,] written," and submitted within 14 days after being served with a copy of the recommended disposition. Fed.R.Civ.P. 72(b) (2); 28 U.S.C. § 636(b)(1).
Insofar as a report and recommendation deals with a dispositive motion, a district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y.2008); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008).
Neither party objected to Judge Smith's thorough and well-reasoned R & R.
The Court has reviewed the R & R and finds no error, clear or otherwise.
Accordingly, the R & R is adopted in its entirety as the opinion of the Court.
Defendant's motion for judgment on the pleadings is DENIED.
The case is REMANDED for further administrative proceedings consistent with the R & R, pursuant to 42 U.S.C. § 405(g), sentence four.
The Clerk is instructed to enter Judgment accordingly and close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
LISA MARGARET SMITH, United States Magistrate Judge.
*
42 U.S.C. § 405(g).
On October 7, 2010, Plaintiff filed an application for disability insurance benefits under the Act, claiming that her disability began on August 9, 2010. Administrative Record ("AR") 59, 120-27. Plaintiff's claimed disabilities included pain in her left shoulder, a collapsed lung, a gunshot wound to the right leg, and numbness in her right leg. AR 136. Plaintiff's application was denied on December 9, 2010, AR 60-64, and she thereafter requested a hearing before an Administrative Law Judge ("ALJ"), which was held on November 7, 2011. AR 35-58. The ALJ denied Plaintiffs claims. AR 19-32. Plaintiff filed a request for review of the ALJ's decision with the Appeals Council, and on January 23, 2013, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's Decision the final decision of the Commissioner. AR 1-6.
On February 28, 2013, Plaintiff commenced the instant action in this Court, alleging that the ALJ wrongly denied her claim for disability insurance benefits. Complaint, Docket # 2. Defendant answered on July 16, 2013. Docket # 12. I then issued an Order on July 17, 2013, setting a schedule for motions for judgment on the pleadings. Docket # 14. On November 19, 2013, Defendant filed her amended motion for judgment on the pleadings. Docket # 23; see footnote 1, supra. By my Order dated February 20, 2014, Plaintiff was notified that opposition to Defendant's motion was due by March 19, 2014, and that if Plaintiff failed to serve and file her opposition by that date, she risked a recommendation that the motion should be granted by default. Docket # 28. To date, Plaintiff has not filed any opposition to the motion, despite being advised of the potential consequences of failing to do so, and has made no requests for extensions of time.
The scope of review in an appeal from a social security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to determine whether the Commissioner applied the correct legal standard when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Failure to apply the correct legal standard is grounds for reversal of the ruling. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.2003). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 106 (internal quotation marks and citations omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court "carefully consider [ ] the whole record, examining evidence from both sides." Tejada, 167 F.3d at 774 (citing Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997)). "It is not the function of a reviewing court to decide de novo, whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999) (citation omitted). If the "decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002). Moreover, the ALJ "has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings, regardless of whether the claimant is represented by counsel." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000) (citations omitted).
*
First, the Commissioner will consider whether the claimant is working in "substantial gainful activity." Id. at § 404.1520(a)(4)(i),(b). If the claimant is engaged in "substantial gainful activity," then the Commissioner will find that the claimant was not disabled. Id. Second, the Commissioner considers the medical severity of the claimant's impairments. Id. at § 404.1520(a)(4)(h). The claimant's impairment will not be deemed severe "[i]f [he or she] do[es] not have any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities." Id. at § 404.1520(c). Third, if it is found that the claimant's impairments are severe, the Commissioner will determine if the claimant has an impairment that meets or equals one of the impairments presumed severe enough to render one disabled, listed in Appendix 1 to Part 404, Subpart P of the Social Security Regulations. See id. at § 404.1520(a) (4)(iii),(d). If the claimant's impairments are not on the list, the Commissioner considers all the relevant medical and other evidence and decides the claimant's residual functional capacity. See id. at § 404.1520(e). Then, the Commissioner proceeds to the fourth step to determine whether the claimant can do his or her past relevant work. See id. at § 404.1520(a)(4)(iv),(e)-(f). Finally, if it is found that the claimant cannot do his or her past relevant work, the Commissioner will consider the claimant's residual functional capacity, age, education, and work experience to see if he or she can make an adjustment to other work. See id. at § 404.1520(a) (4)(v),(g).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir.1998) (citations omitted). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir.2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of other work. DeChirico, 134 F.3d at 1180 (citation omitted).
Plaintiff's Complaint alleges that the ALJ's decision was erroneous, not supported by substantial evidence, and/or contrary to law. Compl. ¶ 9. Defendant seeks the entry of judgment on the pleadings on the ground that the ALJ's decision is supported by substantial evidence. Mem. of Law in Supp. (Docket # 24). The administrative record is summarized at length in Defendant's memorandum of law. Id. at 2-14. As previously noted, Plaintiff has failed to file any opposition to Defendant's motion for judgment on the pleadings, despite being informed of the briefing schedule and of the consequences of failing to oppose the motion, nor has Plaintiff made any requests for an extension of time in which to file an opposition. Nonetheless, for the reasons stated below, the Court is compelled to recommend remand of this case for further administrative proceedings based on deficiencies in the ALJ's determination of Plaintiff's residual functional capacity.
*
The ALJ's decision cannot stand, however, because the ALJ erred in making his determination of Plaintiff's RFC. Although the ALJ stated that in making his RFC finding, he "has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p," AR 25,
The only medical evidence in the record cited by the ALJ in support of his RFC determination is Plaintiff's treatment records. See AR 26-27 (citing Exhibits 2F, 6F, 7F,
*
The ALJ's duty to develop the record was recently explained, as follows:
Armstrong. 2013 WL 6246491, at *13.
*
In sum, "[b]ecause there is legal error requiring remand, it is unnecessary to determine whether the ALJ's decision was supported by substantial evidence." Armstrong, 2013 WL 6246491, at *19.
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, that Defendant's motion for judgment on the pleadings, Docket # 23, should be denied, and the Commissioner's determination should be reversed and remanded for further administrative proceedings consistent with this Report and Recommendation pursuant to 42 U.S.C. § 405(g), sentence four.
The Clerk of the Court is directed to terminate Docket # 20.
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed.R.Civ.P. 6(d), or a total of seventeen (17) days, see Fed.R.Civ.P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Vincent L. Briccetti at the United States Courthouse, 300 Quarropas Street, While Plains, New York, 10601, and to the chambers of the undersigned at the same address.
*
Requests for extensions of time to file objections must be made to Judge Briccetti.
Dated: August 13, 2014.
Not Reported in F.Supp.3d, 2014 WL 4494753
