Opinion
01 Civ. 2744 (DAB)(FM).
May 6, 2004.
REPORT AND RECOMMENDATION TO THE HONORABLE DEBORAH A. BATTS
I. Introduction
In this action, plaintiff Jean Miller seeks review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance and Supplemental Security Income ("SSI") benefits under the Social Security Act ("Act"). The parties have filed cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, I recommend that the Commissioner's motion be denied and that the plaintiff's cross-motion be granted insofar as it seeks remand of this case to the Commissioner for further proceedings.
II. Background
A. Procedural History
On February 27, 1997, Miller filed an application for disability insurance and SSI benefits in which she alleged that she has been disabled since August 1, 1996. (Tr. 114-16). Her application was denied initially on April 29, (id. at 83, 85-87, 245-49), and upon reconsideration on July 22, 1997 (id. at 84, 89, 91-93, 250-54).
"Tr." refers to the certified copy of the administrative record filed by the Commissioner as part of the Answer. (Docket No. 4).
Miller subsequently requested a de novo hearing before an administrative law judge ("ALJ"), which was held before ALJ Dennis G. Katz on June 30, 1998. (Id. at 49-82, 94). Following that hearing, on February 18, 1999, the ALJ found Miller ineligible for benefits. (Id. at 26-47). The ALJ's decision became final after the Appeals Council denied further review on February 9, 2001. (Id. at 5-6, 12-14, 25).
On or about March 30, 2001, Miller's counsel filed a complaint with this Court seeking review of the Commissioner's decision. (Docket No. 1). Thereafter, the parties filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos. 8, 11).
B. Relevant Facts
1. Non-Medical Evidence
Miller was born in 1946 and was fifty-two years old at the time of the ALJ's decision. (Tr. 114). She is a high school graduate. (Id. at 60). Miller worked as an office assistant from August 1984 to November 1995, when she was laid off. (Id. at 57-60, 63-64). She returned temporarily to clerical work with a different employer in 1997, but claims that she was terminated because of her physical problems and because she had difficulty with accounting tasks. (Id. at 73-74, 76).
Miller testified that she suffers from asthma, high blood pressure, and pain in her knees, feet, left hand, and lower back. (Id. at 62-67). She stated that in 1996 she began to suffer from asthma, which causes her to become short of breath when doing any exertional activity. (Id. at 62-63). Miller also testified that she experiences headaches and dizziness as a result of her hypertension. (Id. at 64). Miller stated that the pain in her back prevents her from sitting for more than three hours per day, and that the pain in her feet and knees limits her ability to stand to about two hours per day. (Id. at 67-68).
Miller also testified that she had been diagnosed with depression for which her doctors prescribed medication. (Id. at 69-70). She reported that her symptoms include crying, hearing voices, and insomnia. (Id. at 71). At the time of the hearing, Miller was taking anti-depressant medication, but was no longer seeing a psychiatrist because she could not afford it. (Id. at 70). She at first claimed that the medication does not make her feel better, but, when pressed by the ALJ, conceded that some of her symptoms improve when she is medicated. (Id. at 79).
Miller testified that she lives alone. (Id. at 78). She reported that she is able to perform light housework, including dusting and vacuuming, with the help of two friends. (Id.). Her friends also assist her with her shopping. (Id. at 78-79).
2. Medical Evidence
a. Physical Impairments
On March 27, 1997, Dr. Geoffrey Ridgestone examined Miller. (Id. 171-76). He diagnosed her with high blood pressure, asthma, low back syndrome, and depression. (Id. at 171). Dr. Ridgestone also indicated that Miller's capacity to lift and carry, stand and/or walk, and push and/or pull was limited, although he did not indicate the extent of these limitations. (Id. at 175-76). He reported no limitations on Miller's ability to sit. (Id. at 175).
On May 6, 1997, Dr. Tatiana Mamaeva, another doctor in Dr. Ridgestone's office, wrote a "to whom it may concern" letter regarding Miller's medical condition. (Id. at 214-15). In that letter, Dr. Mamaeva stated that Miller sufferred from bronchial asthma and had been treated for severe asthma attacks which were precipitated by viral infections, pneumonia, and allergies. (Id. at 214). The doctor also diagnosed Miller with hypertension, hypercholesterolemia, and depression. (Id. at 215). In a subsequent report, dated October 7, 1997, Dr. Mamaeva stated that Miller's hypertension was uncontrolled, and that she suffered from asthma, depression, and severe hyperlipidemia. (Id. at 211). She also indicated that Miller could not lift weight, but did not specify whether there was any amount that Miller could lift. (Id.)
"Hypercholesterolemia" is an excess of cholesterol in the blood. Sloane-Dorland Annotated Medical-Legal Dictionary ("Dorland's") 353 (1987).
"Hyperlipidemia" refers to an elevation of fats in the blood. Dorland's at 354.
On July 20, 1998, Dr. Ridgestone completed a Pulmonary Residual Functional Capacity Questionnaire in which he indicated that Miller suffered shortness of breath, orthopnea, chest tightness, wheezing, rhonci, episodic acute asthma, episodic acute bronchitis, fatigue, and coughing. (Id. at 219). He stated that these symptoms frequently interfered with Miller's attention and concentration and that she was markedly limited in her ability to deal with work stress. (Id. at 220). Dr. Ridgestone also indicated that Miller could only stand/walk for less than two hours and sit for about two hours during the course of an eight-hour work day. (Id. at 221).
"Orthopnea" is difficulty breathing when in positions other than upright. Dorland's at 514.
A "rhoncus" is a rattling sound in the throat or a dry rale in the bronchial tubes. Dorland's Illustrated Medical Dictionary ("Dorland's Illustrated") 1463 (27th ed. 1988).
At the request of the Commissioner, Dr. Michael Polak, a specialist in internal medicine affiliated with Diagnostic Health Services, Inc. ("DHS"), also examined Miller. (See id. at 177-86). On April 15, 1997, he reported that Miller had no difficulty walking or getting on and off the examination table during his examination. (Id. at 178). He also observed that Miller experienced some wheezing, but no had rales or rhonci, and that her pulmonary function test was within normal limits. (Id. at 178-79). Dr. Polak diagnosed Miller with asthma, hypertension, and depression and he stated that she was not functionally impaired, although she should avoid exposure to "dusts, chemicals, smoke and noxious inhalants and extremes of cold and heat." (Id. at 179). Dr. Polak also suggested that Miller be evaluated by a psychiatrist. (Id.). In a subsequent report, dated October 27, 1998, Dr. Polak added obesity to his diagnosis and found that the results of Miller's pulmonary function test suggested "moderate obstructive airway disease." (Id. at 234). He also noted a degenerative change in Miller's spine and found that she is "mildly impaired" for carrying/lifting, pushing/pulling, walking or standing. (Id.).
b. Mental Impairment
Miller sought outpatient psychiatric treatment at the Bronx-Lebanon Hospital Center ("Bronx-Lebanon") beginning in June 1996, when she was diagnosed with dysthymia. (See id. at 188-90). In a report dated June 16, 1997, Dr. W. Normand noted that Miller was dysthymic and had "suicidal ideation," but he did not prescribe any medication. (Id. 195-96). He reported that Miller's appearance, general behavior, speech, orientation, thought process, perception, intelligence, memory, concentration, insight, judgment, and impulse control were all within a normal range. (Id. at 193-96). The notes of a case review conference on June 19, 1997, indicate that Miller was prescribed anti-depressant medication and expected to undergo "short-term" treatment. (Id. at 197).
"Dysthymia" refers to a mood disorder involving "depressed feeling . . . and loss of interest or pleasure in one's usual activities," but which is not severe enough to constitute a major depression. Dorland's Illustrated at 521.
On June 30, 1997, Dr. Alexis reported that Miller was depressed, and that a major source of that depression was her inability to find employment. (Id. at 200-01). The doctor also noted that Miller admitted to some marijuana use, but denied having any homicidal or suicidal ideation. (Id. at 200). Miller also denied hearing voices. (Id.).
On July 10, 1997, Miller was examined by Dr. Harneja, another psychiatrist at Bronx-Lebanon, who noted that Miller was depressed and claimed that the anti-depressant mediation prescribed by Dr. Alexis was not working. (Id. at 203) Dr. Harneja diagnosed Miller with depression and dependence on marijuana and prescribed a different anti-depressant medication. (Id. at 204). He saw Miller again on August 6, 2002, at which point he noted a "much brighter affect" and no side effects from the medication. (Id. at 206).
When Dr. Harneja examined Miller on September 19, 1997, he described her mood as euthymic, or normal, and renewed her medication. (Id. at 207). He also noted that Miller was attempting to reduce her marijuana use. (Id.). On October 20, 1997, Dr. Harneja reported that Miller felt that she had not improved since her last visit and had resorted to marijuana use. (Id. at 208). Miller discontinued her treatment on November 3, 1997, "to attend work." (Id. at 210).
Miller apparently resumed her psychiatric treatment in December 2000, at which time she was diagnosed with a major depressive disorder. (Pl.'s Mem. Ex. A at 5). However, as discussed further below, since the reports reflecting this disorder are the result of treatment that occurred after the ALJ's decision, they are not part of the administrative record and, as such, cannot be considered.
At the direction of the Commissioner, psychiatrist Dr. Robert Cicarell, a consulting psychiatrist at DHS, also examined Miller. (See id. 242-44). Dr. Cicarell observed that Miller's mood and affect were depressed, but that her speech, thought process, memory, and attention all were within normal limits. (Id.). He also noted that Miller was not suicidal or homicidal; he diagnosed her as having dysthymic disorder. (Id. at 244).
3. ALJ's Findings
After hearing Miller's testimony and reviewing the medical evidence, the ALJ found that Miller was not engaged in any substantial gainful activity at the time of the hearing and that her asthma and her back impairment were severe. (Id. at 42). He concluded, however, that Miller's impairments did not meet the criteria for any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. (Id.). The ALJ also found that Miller
is able to sit for a total of up to and including 8 hours and stand/walk a total of up to and including 7 hours during the course of an 8-hour work day. She has the ability frequently and occasionally to lift and carry objects weighing up to and including 50 pounds. Due to [her] asthma condition and hypertension, she cannot perform aerobic activities that require rapid movements; and she cannot be exposed to extremes of heat/cold, toxic chemicals, fumes, noxious odors, dust or atmospheric irritants.
(Id. at 43). Based on these findings, the ALJ determined that Miller was able to perform her past work as an office assistant, and, as such, was not disabled. (Id.).
III. Applicable Law
A. Disability Determination
"Disability" is defined by the Act 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), 1382c(3)(A). In making a determination as to a claimant's disability, the Commissioner is required to apply the familiar five-step sequential process set forth in 20 C.F.R. § 404.1520, 416.920. The Second Circuit has described that process as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotingBerry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). See also Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000).
The claimant bears the burden of proof with respect to the first four steps of this process. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998) (quoting Berry, 675 F.2d at 467). If the Commissioner finds that a claimant is disabled or not disabled at an early step in the process, she is not required to proceed with any further analysis. Williams, 204 F.3d at 49. However, if the analysis reaches the fifth step of the process, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
B. Judgment on the Pleadings
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment on the pleadings if it establishes that no material facts are in dispute and that it is entitled to judgment as a matter of law. Sellers v. M.C. Floor Crafters, 842 F.2d 639, 642 (2d Cir. 1988); Caraballo v. Apfel, 34 F. Supp.2d 208, 213 (S.D.N.Y. 1999) .
The Act, in turn, provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see Richardson v. Perales, 402 U.S. 389, 401 (1971); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The term "substantial" does not require that the evidence be overwhelming, but it must be "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999); Rosa, 168 F.3d at 77.
A reviewing court is not permitted to review the Commissioner's decision de novo. Shaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991);Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, where the Commissioner's determination is supported by substantial evidence, the decision must be upheld. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Ortiz v. Barnhart, No. 00 Civ. 9171 (RWS), 2002 WL 449858, at *4 (S.D.N.Y. Mar. 22, 2002).
Although one would expect the deferential "substantial evidence" standard to result in frequent judicial affirmances of the Commissioner's decisions, disability determinations have in fact proved to be "surprisingly vulnerable to judicial reversal."Thomas v. Barnhart, No. 01 Civ. 0518 (GEL), 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002). As Judge Lynch explained inThomas:
This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. For example, the substantial evidence standard might lead one to expect that a district court must affirm the decision of an ALJ who accepts the medical judgment of a consultative physician who unequivocally finds a claimant fit for work. Yet, the Commissioner has adopted regulations that give greater, and under some circumstances controlling, weight to the opinion of a claimant's treating physician, and set forth a particular methodology that must be followed in deciding whether to accept or reject such an opinion. . . .
In light of rules such as these, a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully evaluated to determine whether the Commissioner fully complied with all the relevant regulations.Id.
IV. Discussion
A. Weight Given to the Opinions of Miller's Treating Physicians
Miller claims that she is entitled to judgment on the pleadings for several reasons, including the ALJ's failure to give controlling weight to the opinions of her treating physicians and psychiatrist in determining her residual functional capacity ("RFC"). (Pl.'s Mem. at 16-19).
An ALJ is required to give a treating physician's medical opinion controlling weight if it is "well-supported by medically acceptable techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). See also Rosa, 168 F.3d at 78-79; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If the ALJ does not give the treating physician's medical opinion controlling weight, the ALJ must provide "good reasons" and explain the factors that were applied to determine the amount of weight given to the opinion. 20 C.F.R. § 404. 1527(d)(2), 416.927(d)(2). However, an ALJ is not required to give controlling weight to a treating physician's opinions as to whether the claimant is disabled or unable to work. Id. §§ 404.1527(e)(1) and (3), 416.927(e)(1) and (3). See also Snell, 177 F.3d at 133 (quoting 20 C.F.R. § 404.1527(e)(1)).
In this case, the ALJ did not accord controlling weight to the medical opinions of Miller's treating physicians, concluding that "[d]ue to the paucity of medically acceptable clinical data provided by Dr. Richstone [sic], one cannot regard Dr. Richstone's [sic] opinions as well-supported." (Tr. 39). The ALJ noted that, although he requested further documentation, Dr. Ridgestone did not provide any treatment notes or otherwise support his conclusions regarding his treatment of Miller for any ailment "other than . . . asthma and hypertension." (Id.).
An ALJ has the responsibility to "affirmatively develop" the record before rendering his decision. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria v. Sec'y of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). See also Rosa, 168 F.3d at 79 (quoting Perez, 77 F.3d at 47); 20 C.F.R. § 404.1512(d)-(f), 416.912(d)-(f). Before rejecting a treating physician's medical opinion, an ALJ must attempt "to fill any clear gaps in the administrative record." Rosa, 168 F.3d at 79. "[I]f the clinical findings [are] inadequate, it [is] the ALJ's duty to seek additional information from [the treating physician] sua sponte." Schaal, 134 F.3d at 505.
Here, Miller's counsel contacted the ALJ on or about July 13, 1998, requesting the issuance of a subpoena for Dr. Ridgestone's records. (Id. at 104). On or about July 17, 1998, the ALJ granted that request, and on or about July 24, 1998, Miller's counsel sent a copy of the subpoena to the ALJ for his signature. (Id. at 106, 110). Despite these measures, however, the subpoena never was issued. A "Report of Contact," dated August 4, 1998, indicates that someone in the ALJ's office spoke to Miller's counsel, who was going to send a new subpoena "with name and address to be served." (Id. at 109). A second entry on that report states that "[Miller's counsel] called to say that she received medical records and she is sending them to us. There is no need now for a subpoena." (Id.).
As noted above, the ALJ never received Dr. Ridgestone's additional records. (Id. at 39). While Miller's counsel evidently assumed the laboring oar in the effort to secure the records, it was the ALJ's obligation to make further attempts to obtain those records before rendering his decision. See Rosa, 168 F.3d at 79; Shaal, 134 F.3d at 505; Perez, 77 F.3d 41 at 47; 20 C.F.R. § 404.1512(d)-(e), 416.912(d)-(e). Because the ALJ failed to do so, his decision denying benefits to Miller was based on an incomplete record and, as such, is not supported by substantial evidence. For this reason, the case should be remanded to the Commissioner for further consideration. On remand, the Commissioner should make further attempts to obtain from Miller's treating physicians any additional medical records which would explain the bases for their medical opinions.
B. ALJ's RFC Determination
Miller also claims that the ALJ erred in determining her RFC because he failed to "explain which doctors he relied upon and why." (Pl.'s Mem. at 19). If an ALJ fails to provide the basis for his RFC determination, a reviewing court may vacate that decision. See White v. Sec'y of Health Human Servs., 910 F.2d 64, 65 (2d Cir. 1990).
In his decision, the ALJ stated that his RFC determination was "[b]ased on a longitudinal consideration of the entire record." (Tr. 41). Although this broad statement, standing alone, is plainly an insufficient basis for the ALJ's decision, it is preceded by a discussion of the medical reports of Drs. Polak, Ridgestone, and Mamaeva. (Id. at 38-39, 177-86, 211-15, 219-29, 232-41). The ALJ's decision also considered Miller's testimony as to the pain she experiences, as well as the credibility of that testimony. (Id. at 36-37, 40). The ALJ's RFC determination consequently was not without explanation or foundation. Nevertheless, as discussed above, the ALJ's determination regarding Miller's RFC must be vacated because he did not develop the record fully before deciding not to assign controlling weight to the opinions of Miller's treating physicians.
C. ALJ's Analysis of the Severity of Miller's Mental Condition
Miller also contends that the ALJ improperly analyzed her claims of mental impairment. Specifically, she argues that, rather than considering whether she met the minimal requirements for a severe mental impairment, the ALJ examined whether her alleged impairment was a per se disabling listed impairment. (Pl.'s Mem. at 19-20).
An ALJ must use a "special technique" to determine the severity of a claimant's mental impairment. 20 C.F.R. § 404.1520a(a), 416.920a(a). First, the ALJ must evaluate the claimant's symptoms, as well as other signs and laboratory findings, and determine whether the claimant has a "medically determinable impairment." Id. §§ 404.1520a(b)(1), 416.920a(b)(1). If a medically determinable impairment exists, the ALJ must "rate the degree of functional limitation resulting from the impairment."Id. §§ 404.1520a(b)(2), 416.920a(b)(2). This process requires the ALJ to examine all relevant clinical and laboratory findings, as well as the effects of the symptoms on the claimant, the impact of medication and its side effects, and other evidence relevant to the impairment and its treatment. Id. §§ 404.1520a(c)(1), 416.920a(c)(1).
The ALJ must rate the degree of the claimant's functional limitation in four specific areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). These four areas are referred to as "Paragraph B" criteria. See id. pt. 404, subpt. P, app. 1, § 12.00C. The ALJ rates the first three areas on a five-point scale of "none," "mild," "moderate," "marked," and "extreme," and the fourth area on a four-point scale of "none," "one or two," "three," and "four or more." Id. §§ 404.1520a(c)(4), 416.920a(c)(4). If the first three areas are rated as "none" or "mild," and the fourth as "none," the ALJ will conclude that the mental impairment is not severe "unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities." Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant's impairment is found to be severe, the ALJ will then consider whether it meets the criteria of a listed impairment.
In his opinion, ALJ Katz set forth Miller's mental impairment treatment history, as well as the symptoms about which she had complained during her visits to Bronx-Lebanon. (See Tr. 32-33). However, the ALJ never made an explicit finding that Miller's alleged mental impairment was medically determinable. On remand, the Commissioner should make such a finding explicit and be certain that the "symptoms, signs, and laboratory findings that substantiate the presence of the impairment" are specified. 20 C.F.R. § 404.1520a(b)(1), 416.920a(b)(1).
After setting forth Miller's symptoms and treatment history, the ALJ rated the degree of functional limitation attributable to her mental impairment in each of the four functional areas. (See Tr. 33-34). He found that Miller's ability to function in daily living was not impaired by her mental condition because she was "still capable of selfcare and has reported little difficulty in accomplishing the routine tasks of daily living." (Id. at 33). The ALJ also determined that Miller's condition did not impair her social functioning, based on his own observations of her at the hearing and the absence of any references to limitations in this area by Miller's treating psychiatrist. (Id. 33-34). As to Miller's concentration, persistence and pace, based on her ability to do housework and express herself well at the hearing, the ALJ found that her mental condition did not have any adverse impact. (Id. at 34). He also found no evidence to suggest that Miller ever experienced an episode of decompensation. (Id.). Finally, the ALJ noted that Miller was no longer treated by a therapist and that her condition was "adequately managed on psychopharmacological medication." (Id.).
Immediately before engaging in this analysis, the ALJ stated that "the claimant's mental impairments should be evaluated under Listings 12.04 (affective disorders), 12.06 (anxiety-related disorders) and 12.09 (substance abuse disorders)." (Id. at 33). It therefore is unclear whether the ALJ made a threshold determination of the severity of Miller's mental impairment before applying the more rigorous analysis necessary to determine whether the medical evidence and symptoms met the requirements of a listed impairment. On remand, the Commissioner should be certain to use the four criteria in the threshold analysis first to determine whether Miller's mental impairment is "severe." If, and only if, the Commissioner decides that the impairment is severe should she consider whether Miller's impairment meets the criteria of a listed mental impairment.
Miller also contends that the Commissioner's evaluation of her mental impairment was based on an incomplete record. She claims that the Appeals Council was obliged to consider the additional evidence of her mental disorder submitted on April 20, 2000, in support of her request for review of the ALJ's decision. (See Pl.'s Mem. Ex. A). Since that evidence involved treatment that began after the date of the ALJ's decision, however, the Appeals Council properly returned it to Miller with the instruction that she could file a new application. See 20 C.F.R. § 404.976(b)(1), 416.1476(b)(1) ("If you submit evidence which does not relate to the period on or before the date of the administrative law judge hearing decision, the Appeals Council will return the additional evidence to you with an explanation as to why it did not accept the additional evidence and will advise you of your right to file a new application."). Accordingly, the Commissioner should not be required to consider this new evidence on remand
D. Credibility Determination
Finally, Miller contends that because the ALJ allegedly made an improper determination with respect to the severity of her mental impairment, he misjudged the credibility of her testimony about her pain and other symptoms. (Pl.'s Mem. at 21).
An ALJ's evaluation of a claimant's credibility is entitled to great deference, provided that it is supported by substantial evidence. Bischof v. Apfel, 65 F. Supp.2d 140, 147 (E.D.N.Y. 1999); Rivera v. Apfel, No. 94 Civ. 5222 (MBM), 1999 WL 138920, at *8 (S.D.N.Y. Mar. 15, 1999). However, if a claimant alleges pain or other symptoms that are not substantiated by the medical or laboratory evidence, the ALJ is required to "develop evidence regarding the possibility of a medically determinable mental impairment," when there is information to suggest that such an impairment exists. 20 C.F.R. § 404.1529(b), 416.929(b).
In his decision, the ALJ stated that Miller "tends to exaggerate the extent of her medical problems." (Tr. 40). As indicated above, it is unclear whether the ALJ properly assessed the severity of Miller's mental impairment. If the ALJ did in fact err in his analysis, the Commissioner should also address on remand whether a revised analysis of the severity of Miller's mental impairment would alter the determination with respect to Miller's credibility.
V. Conclusion
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings should be denied, and the plaintiff's cross-motion should be granted insofar as it seeks remand to the Commissioner for further proceedings in accordance with this Report and Recommendation.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Deborah A. Batts and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Batts. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).