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finding that the ALJ erred in giving controlling weight to the consultative physician's opinion that the claimant only had mild depression where the treating physician diagnosed bipolar disorder
Summary of this case from Blizzard v. BarnhartOpinion
02 Civ. 9208 (SHS)
September 5, 2003
OPINION AND ORDER
Gloria Providence brings this action pro se pursuant to 42 U.S.C. § 405(g), to challenge a final determination by Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner"), denying plaintiff Supplemental Security Insurance disability benefits ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) to affirm the decision of the Commissioner. For the reasons set forth below, the Commissioner's motion is denied and the case is remanded for further proceedings consistent with this Opinion.
I. BACKGROUND
A. Administrative Proceedings
On June 20, 2001, Providence filed an application for SSI benefits. (R. 11.) The Social Security Administration (the "SSA") subsequently denied Providence's claim for SSI benefits, finding that Providence's condition was "not severe enough to keep [her] from working." (R. 36.) At Providence's request, the ALJ reviewed that determination de novo at a hearing and determined that Providence was not disabled and thus not entitled to the benefits she sought. (R. 11.) On September 3, 2002, the Appeals Council denied Providence's request for review of the ALJ's decision, which thereby became the final decision of the Commissioner. (R. 4-5.)
References to "R.___" are to the relevant pages of the record of proceedings filed by the Commissioner.
1. Providence's Testimony
At the administrative hearing, Providence testified that she was 41 years old and had two years of college education. (R. 18-19.) At the time of the hearing, Providence was separated from her husband and had three children, ages 13 years, 9 years, and 19 months, (R. 19.) She lived alone with and provided consistent care for the 19-month-old child, but the other two children visited on weekends. (R. 20.) Providence claimed that she felt "heaviness in [her] chest" when lifting her youngest daughter, who weighed 23 pounds at the time of the hearing, she used public transportation, and attended church "once a week." (R. 27-29.)
She further testified that her last job was for the census bureau as an "assistant crew leader" from April through July 2000, where she performed such tasks as sorting papers. (R. 20-21.) During the ten years prior to that, she primarily stayed "home taking care of [her] children," although she had held several "little temporary jobs." (R. 21.)
According to Providence, she was unable to work due to fatigue and swelling of the feet after she went on medication for bipolar disorder. (R. 23-24.) Providence testified that she had been under psychiatric care since May of 2001 and was, at the time of the hearing, seeing her psychiatrist, Dr. Joe Brewster, "once every two weeks." (R. 26.) She further stated that she "had been involved in a bipolar group at one point" and that the individual and group therapy had been helpful to her. Id. At the time of the hearing, Providence acknowledged that she had never been hospitalized as an inpatient. (R. 25.) When asked why she was unable to do "general work" such as sitting jobs, answering phones, etc, Providence testified that her psychiatrist had told her that she "should avoid rush hour traffic." Id.
B. Medical Evidence
1. Relevant Medical History
The evidence of the earliest medical treatment of Providence in the record is a reference by Dr. Brewster to a 1998 evaluation. (R. 129.) In one of Dr. Brewster's reports, he wrote that "[i]n 1998 [Providence] was evaluated by Dr. Kaplan at the Jewish Board for Family Services and apparently diagnosed with a personality disorder then subsequently treated with Zyprexa." Id. On January 20, 1999, Providence went to the psychiatric emergency room at the Metropolitan Hospital Center after an alleged dispute at her children's school. (R. 85.) The psychiatrist who interviewed Providence found "no specific symptoms or signs" of mental illness and that she was "not a danger to herself or others." Id. On June 14, 1999, in an effort to have her children returned to her from foster care, plaintiff sought a psychiatric evaluation at Metropolitan Hospital's mental health clinic. (R. 82-84, 86.) The attending doctor indicated that the "evaluation did not uncover a psychiatric disorder requiring treatment" but that he could not comment on the issue of custody. (R. 83-84.)
2. Treating Physician's Reports
On May 2, 2001, Providence was referred by the New York City Administration for Children's Services ("ACS") to Harlem Hospital for a psychiatric evaluation. (R. 129-149.) The examining psychiatrist, Dr. Brewster, reported that plaintiff was "guarded . . . hostile and at times insulting," subject to "wide and dramatic changes" in affect, and was "evasive," "suspicious" and "irritable." Providence's thoughts "focused on life long persecution by others," she showed evidence of hyper-religiosity and was "impulsive." (R. 137-38.) Plaintiff demonstrated "average to low average" intelligence, her attention and memory were "intact," but her insight was "poor" and her judgment only "fair". (R. 138-39.) Dr. Brewster's diagnosis was that Providence had "bipolar disorder, hypomanic type" in addition to a "personality disorder." (R. 139.) He recommended that plaintiff's custody of her infant daughter be terminated unless she consented to "long-term psychotherapy including a trial on a mood stabilizer." (R. 140.)
In a May 30 treatment plan, Dr. Brewster reported that Providence was "not interested in psychiatric treatment" and believed "there was a conspiracy aimed at her family." (R. 174.) He listed as treatment goals that Providence would "not talk about conspiracies," "engage others without angry accusations," and "not experience paranoid delusions for one week." (R. 176.) Because Providence had refused treatment to that point, Brewster could not project a timetable for these goals, but estimated the length of Providence's inpatient stay as 6-12 months.
On June 11, Providence finally consented to take medication, and was started on Depakote and Risperdal. (R. 184.) In a report dated July 19, 2001 Dr. Brewster wrote that Providence's hypomania was much improved. (R. 185.) Within one month, Providence had discontinued Risperdal because it caused nausea, but continued to take Depakote and began attending group therapy. (R. 191.) In the treatment plan review of the same date, Dr. Brewster once again did not suggest a target date to reach treatment goals. (R. 179.) On December 5, he noted that Providence's hypomania was "stable." However, Brewster still found it necessary to focus the session on Providence's denial and resistance to treatment, and that she still had "poor insight." (R. 189.)
In a subsequent undated "Physician's Employability Report," Dr. Brewster wrote that Providence had been diagnosed with bipolar disorder, hypomanic type, and was receiving 1000 mg. of Depakote daily for "treatment of signs of mania including rapid speech, increased motor activity and fright of ideas." (R. 195.) Dr. Brewster concluded that he encouraged Providence "to avoid work until stabilized clinically," and that he expected that "stabilization will occur in 4-6 months." (Id.)
In a March 11, 2002 letter to a family court judge, Dr. Brewster reported that Providence has "complied with all treatment recommendations and has shown considerable improvement and growth" (R. 171.) Brewster noted that Providence had completed her group therapy, and was recently changed from weekly to monthly sessions for medication management and supportive therapy. Id. While he recommended that Providence continue her therapy for the foreseeable future, he concluded that Providence was now prepared to take on responsibility for the care of her daughter. Id.
In Dr. Brewster's June 5, 2002 assessment of Providence's ability to work, he indicated that most of her functioning in a work type capacity was slightly to moderately impaired. (R. 218-19.) Slight limitations were indicated in respect to her understanding, remembering and carrying out instructions, making judgments on simple work-related decisions and responding appropriately to changes in a work setting. Id. Moderate limitations were indicated in respect to her getting along with the public, supervisors and co-workers. (R. 219.) Dr. Brewster indicated that his assessment was based on plaintiff's "bipolar illness with slight impairment of insight and expansiveness." Id.
Slight is defined as "mild limitation[s] but the individual can generally function well" and moderate is defined as "moderate limitation[s] but the individual is still able to function satisfactorily." (R. 218.)
3. Consultative Physician's Reports
a. Dr. King's Report
Dr. Richard King, a consultative psychiatrist with Diagnostic Health Services, Inc., examined Providence on July 24, 2001. (R. 144.) Providence told King that she had been in outpatient treatment in Harlem Hospital since May 2001, upon the recommendation of ACS. Providence informed King that ACS said she had "mood swings" and that she had been charged with neglect of her children. Id. Providence informed King that she had been receiving 200mg of Depakote a day, and that the medication helped. Id. Providence stated that she had been anxious and depressed since her separation from her husband and temporary loss of custody of two of her children. Id.
King described Providence's speech patterns as "coherent and relevant, her affect as "friendly and appropriate," and saw no evidence of hallucinations, delusions or paranoid trends. Id. According to King, Providence's intellectual functioning was "average", her insight and judgment "fair," her attention, concentration and fund of information as "adequate," her memory as "grossly intact" and her "[s]ensorium was clear." Id. He opined that she had "a satisfactory ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (R. 145.) King diagnosed Providence with "adjustment disorder of adult life," mild anxiety and mild depression, and indicated that Providence might benefit from psychiatric treatment. Id.
b. Dr. Peters' Report
On December 18, 2001, Dr. G. Peters, a consulting psychiatrist, completed a "Mental Residual Functional Capacity Assessment." (R. 146-164.) Dr. Peters noted that Providence had bipolar disorder and a personality disorder, (R. 154, 158), and indicated that Providence could understand, remember, and carry out instructions (R. 150). He determined that Providence's concentration was adequate, she was able to relate appropriately to co-workers and supervisors, and could adapt to changes in a work setting. Id. Dr. Peters concluded that Providence had the ability to perform work-related mental activities. Id.
c. HS Systems' Report
In an April 5, 2002 report, HS Systems, Inc. recommended that Providence limit travel distance and avoid rush hour travel. (R. 220.) The report also provided a list of suitable jobs, such as answering phones, keeping simple records, dusting and polishing, emptying wastebaskets and processing routine papers. Id.
C. The ALJ's Decision
The ALJ denied Providence's application to receive SSI benefits in a written decision dated June 19, 2002. (R. 13.) The ALJ wrote that "based on an exertional capacity for light work, and [Providence's] age, education, and work experience, section 416.969 of Regulations No. 16 and Rule 202.20, Table No. 2, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of not disabled." (R. 14.) The ALJ's findings also describe Providence as not being under a "disability" at any time prior to the ALJ's decision. (R. 14.)
The ALJ found that Providence had not engaged in substantial gainful activity since at least June 20, 2001. (R. 13.) Although the medical evidence established that Providence had hypertension, depression and anxieties, the ALJ found that Providence's complaints of pain were not disabling based upon the type of treatment being given, the mild medication prescribed and her extensive daily activities. Id. The ALJ found that Providence did not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1, Subpart P, Regulations No. 4. Id. He found claimant's complaints of pain as "not disabling" based upon "the medical evidence in the record, the type of treatment being given, the mild medication prescribed and the claimant's extensive daily activities." Id.
The ALJ found that Providence was "able to lift, carry, push and pull twenty pounds, sit for six hours in an eight-hour workday, walk about six blocks at one time and stand for forty minutes every hour." (R. 12.) Providence was "a relevant, coherent and lucid individual who had no thought disorder" and found her "ability to concentrate, recall past events and attention span . . . adequate." Id. He determined that "the claimant's depression and anxieties will not interfere with all forms of light unskilled exertional labor." Id. He concluded that Providence "has the residual functional capacity to perform the physical exertional and nonexertional requirements of work except for heavy, medium exertional labor and work that is complex." (R. 13.)
II. DISCUSSION
A. Standard of Review
When reviewing a denial of social security benefits, courts undertake their own plenary review of the administrative record, but it is not the function of the courts to determine de novo whether the applicant is disabled. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Rather, this court's review of the denial of social security benefits is limited to a determination whether there is "substantial evidence" to support the Commissioner's decision or whether the decision is based on an erroneous legal standard. 42 U.S.C. § 405(g) ("The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . ."; accord Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); see also Curry, 209 F.3d 122. Substantial evidence is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 842 (1971) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. If the court finds that there is substantial evidence to support the Commissioner's decision, that decision must be upheld, even if there also is substantial evidence for the plaintiff's position. See DeCherico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998).
B. The Definition of Disability Pursuant to the Act
An individual is "disabled for the purposes of SSI benefits claims when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques," 42 U.S.C. § 423(d)(3), and it must be "of such severity that [the claimant] is 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." Id. § 423(d)(3); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77.
1. The SSA's Five Step Evaluation Process for Disability
The Commissioner's regulations set forth a five step sequence to be used in evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987); 20 C.F.R. § 404.1520, 416.920. The U.S. Court of Appeals for the Second Circuit articulated this sequence as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work that the claimant could perform.Shaw, 221 F.3d at 132 (citing DeChirico 134 F.3d at 1179-80.
Once the claimant has satisfied the burden of proof on the first four steps, the burden shifts to the Commissioner on the fifth step — to show that there is alternative substantial gainful employment in the national economy that the claimant can perform. Id. In determining whether the claimant is disabled, the Commissioner "must consider four factors: (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." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).
2. Residual Functional Capacity
For the purposes of step four, residual functional capacity ("RFC") assesses what a claimant is capable of doing despite functional limitations and environmental restrictions caused by one or more impairments. 20 C.F.R. § 416.945(a). Determination of the claimant's RFC depends on a consideration of all relevant evidence, including physical abilities; symptoms such as pain; descriptions, including those by the claimant, of limitations that go beyond symptoms or objectively proven impairments; and environmental restrictions imposed by impairments. 20 C.F.R. § 416.945. Specifically, the ALJ must ascertain the claimant's strength limitations, or exertional capacity — including the ability to sit, stand, walk, lift, carry, push, and pull. 20 C.F.R. § 416.945(b). Similarly, the ALJ must ascertain the claimant's mental limitations — including the ability to understand, remember, and carry out instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting. 20 C.F.R. § 416.945a(c).
In evaluating RFC, the "ALJ's findings must specify the functions plaintiff is capable of performing; conclusory statements regarding plaintiffs capacities are not sufficient." Melchior v. Apfel, 15 F. Supp.2d 215, 218 (N.D.N.Y. 1998); see Lecler v. Barnhart, 2002 WL 31548600, at *5 ("In making any determination as to a claimant's disability, the Commissioner must explain what physical functions the claimant is capable of performing"); Ferraris v. Heckler, 728 F.2d 582, 586-588 (2d Cir. 1984) ("the ALJ should make specific findings of exactly what [the claimant] can do"); see also 20 C.F.R. § 416.946. The Second Circuit has found that "failure to specify the basis for a conclusion as to residual functional capacity is reason enough to vacate a decision of the Commissioner." Lecler, 2002 WL 31548600, at *6; see White v. Secretary of Health and Human Services, 910 F.2d 64, 65 (2d Cir. 1990); see also Ferraris, 728 F.2d at 586-88.
The SSA applies a medical-vocational grid to determine disability status when (1) the claimant's impairment and related symptoms, such as pain, only impose exertional limitations in "meeting the strength requirements of a job"; and (2) the claimant's vocational profile is listed in an Appendix 2 Rule. § 416.969a(b). However, if combined exertional and non-exertional limitations exist, the Appendix 2 Rules provide only a framework for disability determination unless a rule directs a conclusion of disability. § 416.969a(d). Thus, when the claimant is incapable of the full range of a certain category of work, such as sedentary work, he "must be evaluated on an individualized basis since the medical-vocational grid used by the ALJ does not apply to claimants who cannot do sedentary work." Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989). Where an individualized evaluation is warranted, "the Secretary's burden can be met only by calling a vocational expert to testify as to the plaintiffs ability to perform some particular job." Id.
C. The ALJ's Decision
In evaluating whether the Commissioner's findings are supported by substantial evidence, the district court must engage in a preliminary review ensuring that the "claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Echevarria v. Sec'y of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of Health, Education Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). Specifically, "it is the rule in [the Second 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. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria, 685 F.2d at 755); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
If the ALJ has not adequately developed the record, it is "appropriate for the district court to remand the matter to the Social Security Administration for further development of the evidence." Selmo v. Barnhart, No. 01 Civ. 7374, 2002 WL 31445020, at *7 (S.D.N.Y. Oct. 31, 2002); see also Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (authorizing remand to the Secretary where there are "gaps in the administrative record" or the application of "improper legal standards").
Where, as is the case with Providence, the claimant appears without legal representation, the ALJ bears a "duty `to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (quoting Gold, 463 F.2d at 43). In such cases, the ALJ must "adequately protect a pro se claimant's rights `by ensuring that all of the relevant facts [are] sufficiently developed and considered.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. l990) (quoting Hankerson, 636 F.2d at 895)).
In Providence's case, the ALJ failed to develop an evidentiary record in accordance with requisite standards for findings of fact at step four — where the ALJ found that Providence was able to perform a full range of sedentary work throughout the relevant time period and was thus not disabled. Specifically, the ALJ (1) failed to provide sufficient reasons for the weight given the opinions of Providence's treating physicians and (2) failed to obtain more complete medical records from Dr. Brewster with respect to his diagnosis and treatment of Providence's bipolar disorder.
1. The ALJ Failed to Apply the Treating Physician Rule
In evaluating the record evidence, the ALJ must give controlling weight to a treating physician's opinion if the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)). When a treating physician's opinion is not given controlling weight, the following factors should be considered in determining the weight it should be given: (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 factors which may be significant. Daniels v. Barnhart, No. 01 Civ. 4331, 2002 WL 1905957, at *7 (S.D.N.Y. Aug 16, 2002) (citing 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). The ALJ is required to provide "good reasons" for the weight given to the treating physician's opinion. See Schaal, 134 F.3d 496 at 503-04 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)). Particularly where the claimant appears pro se, the ALJ is "not entitled to ignore the undisputed opinion of claimant's treating physician" simply because it is unaccompanied by "objective test results." Hankerson, 636 F.2d at 896.
In Providence's case, the ALJ did not give Providence's treating physician's opinion controlling weight in determining the nature, scope, and length of Providence's impairment. First, the ALJ rejected the opinion of Dr. Brewster that Providence suffered from a serious bipolar disorder, hypomanic type, and instead adopted the conclusion of the Dr. King, a consultative physician, that Providence had merely mild "depression and anxieties." (R. 13.) The preference for King's diagnosis is reinforced by the ALJ's decision not to cite to any of Dr. Brewster's clinical descriptions of Providence's condition prior to Dr. Brewster's March 11, 2002 report signaling that Providence had made "significant progress" in her treatment. (R. 12.) Ordinarily, "a consulting physician's opinion or report should be given limited weight." Cruz, 912 F.2d at 13. In contrast to the sustained treatment record of a treating physician, consultative exams "at best, only give a glimpse of the claimant on a single day." Id. The ALJ, however, leaves unexplained his decision to rely on Dr. King's "glimpse" of a medicated Providence rather than Dr. Brewster's more extensive analysis in determining the scope of Providence's illness.
Second, and more glaringly, the ALJ failed to address Dr. Brewster's opinion, in the undated "Physician's Employability Report" that Providence's condition required 4 to 6 months for stabilization and that Providence was encouraged to "avoid work until stabilized clinically." (R. 195.) While an ALJ does not have to adopt opinions that are unsupported, Dr. Brewster provided the clinical basis for his conclusion, noting that Providence's condition was severe enough to cause her to experience "rapid speech, increased motor activity, and fright of ideas." Id. Additionally, the contemporaneous Harlem Hospital records of Providence's treatment may also provide clinical support for Dr. Brewster's conclusion. Accordingly, the ALJ failed to apply the treating physician rule by not giving Dr. Brewster's opinions as to the severity and duration of Providence's condition controlling weight without articulating a reason for limiting the weight of those opinions.
2. The ALJ Was Obligated to Obtain More Detailed Medical Records From Dr. Brewster
Even if Dr. Brewster's opinion that Providence could not work for 4-6 months was conclusory, the ALJ failed to obtain more detailed medical records that supported or undermined that opinion. Before an "ALJ can reject an opinion of a pro se claimant's treating physician because it is conclusory, basic principles of fairness require that he inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement." Hankerson, 636 F.2d at 896.; see Cruz, 912 F.2d at 12 (The Second Circuit has "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."): see also Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1981) ("[b]efore denying [claimant's] application, the ALJ was obligated, at the very least, to advise [the pro se claimant] that he considered his case unpersuasive, and to suggest that he produce additional medical evidence or call [his treating physician] as a witness.").
The ALJ's "responsibility to assist a [pro se] claimant in obtaining [his medical records carries particular importance in light of the well-established treating physician rule" Mejias v. Apfel, 57 Soc.Sec.Rep.Serv. 914, 1998 WL 651052, at *6 (S.D.N.Y. Sept. 23, 1999). Specifically, the "combined force of the treating physician rule and of the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion as to the existence, the nature, and the severity of the claimed disability. . . . Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties to the pro se claimant under the treating physician rule." Jones, 66 F. Supp.2d 518, 538-39 (quoting Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991)); see Rodriguez v. Apfel, 1997 WL 691428, at *5 (remanding where ALJ failed to assist claimant in "obtaining comprehensible records" in order to present a "cogent overview of his medical history.")
To satisfy this duty, an ALJ is authorized to issue subpoenas requiring the production of any evidence relating to a matter under his or her consideration. See 42 U.S.C. § 405(d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner"); Treadwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983); Mejias, 1998 WL 651052, at *6; Carroll v. Secretary of Health Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995).
In Providence's case, the ALJ neglected to obtain more complete information from Dr. Brewster with respect to the undated "Physician's Employability Report." The most obvious omission is the date itself, without which it is impossible to assess whether Dr. Brewster's conclusion that Providence should "avoid work" for the next 4 to 6 months was supported by contemporaneous clinical data. While the Court sympathizes with the ALJ's task in sorting through the somewhat jumbled medical records from Harlem Hospital, at a minimum the ALJ should have ascertained the date of a potentially critical document. The ALJ's duties to Providence as a pro se litigant, however, go beyond merely filling in the obvious gaps in the record, but require seeking more information from Dr. Brewster before rejecting his opinion of plaintiff's employability during the period she was being treated for bipolar disorder.
3. The ALJ's Error Was Not Harmless
The Commissioner argues that the ALJ's failure to address the opinion of Dr. Brewster as to the duration of Providence's impairment is harmless because even accepting Dr. Brewster's opinion as true, there was substantial evidence to support a finding that Providence's inability to engage in substantial gainful activity did not last for a full 12 month period, and therefore she was not "disabled" according to SSA regulations.
The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determined physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(I)(A). Agency regulations interpret the statute to mean that the claimant is not "disabled" if "within 12 months after the onset of an impairment . . . the impairment no longer prevents substantial gainful activity." Barnhart v. Walton, 122 S.Ct. 1265, 1268 (2002) (citing 65 Fed. Reg. 42774 (2000) (upholding validity of agency interpretation of statute). Where a claimant regains the ability to engage in substantial gainful activity, the agency will look to whether the period of inability actually lasted 12 months from the onset of impairment, not whether the inability was expected to last 12 months. See Barnhardt v. Walton, 122 S.Ct. at 1268.
In Providence's case, there is substantial evidence, based on Dr. Brewster's report, that as of June 5, 2002, plaintiff no longer had an inability to engage in substantial gainful activity. Therefore, the commissioner is correct and the ALJ's error was harmless if there were substantial evidence showing that (1) Providence's onset date was less than 12 months before June 5, 2002, or (2) Providence's condition had stabilized to permit her to engage in substantial gainful activity before June 5, 2002, and that date is less than 12 months from the onset date.
In setting the onset date, the ALJ should consider "the applicant's allegations, work history, if any, and the medical and other evidence concerning impairment severity.'" See Martinez v. Barnhart, 2003 WL 21196489 at *45 citing (Social Security Ruling 83-20); See also Arroyo v. Callahan, 973 F. Supp. 397, 399 (S.D.N.Y. 1997). "The onset date should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in [substantial gainful activity] (or gainful activity) for a continuous period of at least 12 months or result in death." Id., 2003 WL 21196489 at *46 (W.D.N.Y. May 21, 2003). An ALJ is "not entitled to assume" that claimant "suddenly became [disabled] on the day of her hearing, absent some evidence to support such a view." See Bell v. Secretary of Health and Human Services, 732 F.2d 308, 311 (2d Cir. 1984).
The ALJ does not make a specific finding of the onset date of Providence's impairment, but rather finds that Providence "has not engaged in substantial gainful activity since at least June 20, 2001." According to the ALJ, that date comes from the claimant's testimony. (R. 11). However, the transcript of the hearing shows that the claimant testified that she had not worked since July 2000. (R. 20-21). Additionally, the medical evidence shows that Providence was being treated for mental illness at Harlem as early as May 2, 2001. (R. 186, 200). Therefore, without further explanation, there is not substantial evidence to support a finding of an onset date later than May 2, 2001. Accordingly, there exists a potential twelve-month period between May 2, 2001 and June 5, 2002 during which Providence may have had an inability to engage in substantial gainful activity. The undated report of Dr. Brewster could have potentially addressed the final 4-to-6 months of such a 12-month period.
The Commissioner contends however, that the medical evidence shows that Providence's inability to engage in substantial gainful activity could not have lasted a full 12 months because of the improvement of Providence's condition after treatment. In support of this position, the Commissioner cites Dr. Brewster's December 5, 2001 report, which indicates Providence's hypomania as "stable." (R. 189). However, it is uncertain whether this report details Providence's condition before or after the undated Brewster employability report. In the latter event, the earlier stabilization may only have been a remission and not a recovery from Providence's condition. Substantial gainful activity requires that services be performed "with reasonable regularity in some competitive employment." Mazella v. Secretary of Health and Human Services, 588 F. Supp. 603, 608 n. 4 (S.D.N.Y. 1984). Therefore, whether or not Providence's improvement prior to June 5, 2002 was only a temporary remission of her mental impairment has to be evaluated in light of Dr. Brewster's subsequent reports. See Allan v. Secretary of Health and Human Services, No. Civ-87-1322C, 1989 WL 280263 at *4-5 (W.D.N.Y. Sept. 15, 1989) (holding that although the medical evidence indicated remissions of symptoms during the relevant time period, the ALJ's failure to consider the treating physician's determination that the claimant was "not gainfully employable" constituted legal error).
Because it is not clear from the record that Providence's inability to engage in substantial gainful activity did not last twelve months, the ALJ's failure to obtain the additional information necessary to evaluate the significance of the undated Brewster report cannot be considered a harmless error. Accordingly, this case should be remanded for further development of the record to provide substantial evidence of when Providence was able to engage in substantial gainful activity during the period between May 2001 and June 5, 2002.
D. Consideration of New Evidence Not Contained in Administrative Record
Providence seeks to introduce two documents not contained in the administrative record for consideration on remand: (1) a document from St. Luke's Roosevelt Hospital dated March 18, 2003, stating that Providence requires a foot procedure to treat her chronic foot problem and (2) a letter by Dr. Peter H. Schween of the Harlem Hospital dated June 27, 2003, stating that Providence's functioning is impaired due to bipolar disorder and hypertension.
Ordinarily, evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner. See, e.g., 42 U.S.C. § 405(g) ("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. . . ."); Castro v. Acting Commissioner of Social Security, 1998 WL 846749, at *10 n.l 1 (S.D.N.Y. Dec. 2, 1998) (new evidence not considered because "this court is limited in its review to the record before the Commissioner"); Grubb v. Chater, 992 F. Supp. 634, 637 n. 3 (S.D.N.Y. 1998) (new evidence not considered because "[a] court's review of the Commissioner's decision is to be based upon the administrative record"); Madrigal v. Callahan, 96 Civ. 7558, 1997 WL 441903, at *7 (S.D.N.Y. Aug. 6, 1997) ("in reviewing decisions of the Commissioner, this Court cannot consider new evidence not made part of the administrative record").
This Court may remand to the Commissioner to consider new evidence "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Second Circuit has summarized the three-part showing required by this provision as follows:
[A]n appellant must show that the proffered evidence is (1) `new' and not merely cumulative of what is already in the record, and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. Finally, claimant must show (3) good cause for [his] failure to present the evidence earlier.Jones, 949 F.2d at 60 (citations omitted) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)); accord, e.g., Lisa v. Secretary Dep't of Health Human Servs., 940 F.2d 40, 43 (2d Cir. 1991); Rosado v. Sullivan, 805 F. Supp. 147, 157 (S.D.N.Y. 1992); Timmons v. Sullivan, 88 Civ. 6612, 1989 WL 156300, at *8-9 (S.D.N.Y. Dec. 19, 1989). We now turn to a consideration of each of the documents.
To satisfy the materiality standard, additional evidence "must also relate back to the time period for which benefits were denied, that is, before the ALJ's decision; specifically, between May 2, 2001 and June 12, 2002. Wiggins v. Barnhart, 82 Soc.Sec.Rep.Serv. 395, 2002 WL 1941467, at *8 (S.D.N.Y. Aug. 21, 2002); Grubb, 992 F. Supp. at 637 n. 3 (denying review of new evidence containing medical findings unrelated to the relevant period of disability); see also 20 C.F.R. § 416.330 (a claimant's "application will remain in effect from the date it is filed until we make a final determination on [his] application, unless there is a hearing decision on [his] application," in which case it stays in effect until the hearing date).
Neither of the submitted documents relate to the relevant time period. The St. Luke's document addresses a chronic foot problem that Providence had as of March 18, 2003. The June 27, 2003 document by Dr. Schween similarly addresses Providence's condition well after the relevant time period. Accordingly, neither document is properly considered on remand.
III. CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied and this case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) in order for the ALJ to further develop the record.