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reversing and remanding case where ALJ failed to consider the factors set forth in the regulations for evaluating treating physicians' opinions and did not take affirmative steps to supplement deficient treating physician records
Summary of this case from Guzman v. AstrueOpinion
00 Civ. No. 3847 (GEL)
July 16, 2001
Charles E. Binder, Binder and Binder, New York, New York, for Plaintiff Maria Santiago.
Susan D. Baird, Assistant United States Attorney, Southern District of New York (Mary Jo White. United States Attorney. of Counsel), for Defendant Larry G. Massanari.
OPINION AND ORDER
Plaintiff, Maria Santiago, brings this action pursuant to 42 U.S.C. § 405(g)(2001) of the Social Security Act ("Act"), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. Plaintiff has moved, and the Commissioner has cross-moved, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff seeks reversal of the Commissioner's decision with remand solely for the calculation of benefits. The Commissioner seeks affirmance of his decision. For the reasons set forth below, the case is remanded to the Commissioner for further proceedings.
Plaintiff's complaint names as defendant Kenneth S. Apfel, who was the Commissioner of Social Security when the complaint was filed. Larry G. Massanari, the current Acting Commissioner, is automatically substituted as the defendant pursuant to Fed.R.Civ.P. 25(d)(1).
BACKGROUND
I. Procedural History
Plaintiff filed an application for SSDI and SSI benefits on March 10, 1994. (See Tr. 54.) This Application was denied on August 11, 1994. (Tr. 31-34.) Plaintiff reapplied for benefits on May 9, 1996, alleging an onset of disability on October 30, 1992. (Tr. 55-58.) This application was also denied, initially on July 15, 1996 (Tr. 35-38), and again upon reconsideration, on October 16, 1996 (Tr. 41-44). Thereafter. plaintiff requested a hearing before an administrative law judge ("ALJ") (Tr. 45.) A hearing was held on August 11, 1998, before ALJ Walter J. Brudzinski. (Tr. 204-218.) In a decision dated September 24, 1996. the ALJ determined that plaintiff was not entitled to benefits under the Act. (Tr. 13-24.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on April 6, 2000. (Tr. 4-5.) See 42 U.S.C. § 405(h)(2001). This action followed.
"Tr." refers to pages of the administrative record filed by the commissioner as part of his answer. See 42 U.S.C. § 405(g)(2001).
Although there is some ambiguity in the record as to the nature and effect of plaintiff's reapplication, the ALJ treated all of plaintiff's various applications as a single set of applications for SSDI and SSI benefits originating in March 1994, and neither party takes issue with the correctness of his doing so. For purposes of this review, therefore, this Court will assume this is the proper interpretation of the record.
II. Plaintiff's Personal and Vocational History
Santiago was born on August 28, 1970, in Puerto Rico, and moved to the mainland United States in May 1989 (Tr. 208.) While in Puerto Rico, she graduated high school and completed approximately a semester of college (Tr. 209.) She worked as a "floor girl" and supervisor's assistant at a hat factory from 1989 to 1992. (Tr. 67, 209.) Given this history, Santiago met the criteria for insured status under the Act between October 20, 1992 and June 30, 1994
In order to have insured status under the Act, a claimant must have worked for at least 20 of the 40 calendar quarters preceding the onset of disability. If the claimant is under 31 years of age, she need only have worked in half of the calendar quarters — to a minimum of six quarters since attaining the age of 21. See 42 U.S.C. § 423(c)(1)(2001).
III. Plaintiff's Testimony
At the Social Security hearing, Santiago testified that she originally stopped working in November 1992 due to pulmonary problems (pneumonia). (Tr. 210.) She has a history of asthma (Tr. 206.) At the hearing, however, her primary complaint was arthritis in her feet, knees, and wrist. (Tr. 210.) She described her symptoms as constant pain in her joints, and testified that she rarely walks long distances, cannot sit for longer than two hours or stand for longer than one hour, and walks with a cane. (Tr. 211-12, 215.) On some days, she reported, she cannot write due to the pain in her wrists. (Tr. 212.) She can walk to the nearby grocery to shop, but has groceries delivered because she can't carry even a gallon of milk. (Tr. 212-13.) Santiago further testified that the medication she was taking — the steroid prednisone — was affecting her eyesight, as well as damaging her kidneys and causing anemia. (Tr. 211.)
IV. Medical Evidence
Plaintiff submitted extensive outpatient medical records and treatment notes from the Montefiore Medical Center ("Montefiore"), as well as letters from three of plaintiff's treating physicians there. These reports and letters span the time period from March 1995 until July 1998. The record also includes a consultive examination, review of the medical records by two state agency medical consultants, and a final examination performed by an additional physician after the ALJ's decision. The record contains no medical evidence for the period prior to the date plaintiff last met insured status requirements of the Act on June 30, 1994
A. Treatment Records
The record contains extensive medical records from Montetiore, reflecting a regular course of treatment from March 1995 through September 1996. The persistent diagnosis was rheumatoid arthritis with interstitial lung disease (See, e.g., Tr. 105.) The treating physicians' notes regularly report that the arthritic symptoms were improving with treatment.
The earliest evidence of medical treatment in the record reflect a visit to the Montefiore emergency room in March 1995. (Tr. 89, 162.) Santiago reported that she had injured her left leg in a motor vehicle accident in March 1994, but that the leg had improved significantly within two weeks. She stated that pain had returned in February 1995. (Tr. 89.) The orthopedic clinic physician observed diffuse swelling and tenderness, and a somewhat restricted range of motion. X-rays revealed diffuse patchy osteoporosis (Tr. 89). A July 1995 note indicated that Santiago used a cane to walk. (Tr. 90, 163).
Santiago was treated for arthritis at the Montefiore outpatient clinic from June 1995 through September 1996. (Tr. 88-121, 159-94.) In June 1995, Dr. Nabeela Mian observed that plaintiff's joint pain had improved, and prescribed prednisone for rheumatoid arthritis and iron pills for anemia (Tr. 170.) In July, Dr Mian also observed bilateral scattered wheezing on examination. (Tr. 91, 171.) Santiago's symptoms were reportedly "much better with prednisone" in August 1995 (Tr. 173.) She had mild tenderness and edema in the left leg and knee. X-rays showed severe osteopenia. (Tr. 173.). Although Santiago again reported feeling much better in October 1995, the treating physician noted severe erosive rheumatoid arthritis, along with mild joint swelling and tenderness on wrist motion. (Tr. 174.)
Santiago had a history of asthma since childhood, but had never been hospitalized for this condition (see Tr. 176) In December 1995, plaintiff underwent a fiberoptic bronchoscopy. Dr. Andrew Berman at Montefiore found the bronchoscopy results not specific for rheumatoid arthritis involvement in the lungs (Tr. 178.) Pulmonary function studies showed moderate restriction with minimal obstruction (Tr. 178.)
On examination in January 1996, the lungs exhibited few wheezes, and Dr Mian observed no synovitis in the joints. (Tr. 94.) In February 1996, at the pulmonary clinic, Dr. Berman prescribed cyclosporine-A and began tapering plaintiff off prednisone. (Tr. 93.) Plaintiff reported that she had been "feeling fine" since her last visit, and was tolerating the medication well. There were crackles in the lungs. Bactrim was prescribed for a possible upper respiratory infection. (Tr. 93.)
At the arthritis clinic in February and March 1996, Dr. Mian reported that plaintiff was currently "doing well" Joint pains had significantly decreased, with minimal to no morning stillness. On examination, there were no inflammatory signs, with minimal tenderness in the hand joints. There were few wheezes and only minimal crackling in the lungs. (Tr. 96-97). Pulmonary function studies revealed a "mixed obstructive restrictive process" (Tr. 115-18). In May 1996. Santiago again reported "feeling well," with only mild joint pains. On examination, there was mild swelling in the left wrist, but range of motion was good (Tr. 103.)
In April 1996, however, Dr. Mian noted that plaintiffs had proteinuria on testing, and ordered follow-up blood work to monitor the condition. (Tr. 102). In June 1996, Dr. Berman observed a slight improvement in plaintiff's total lung capacity, and concluded that Santiago had developed proteinuria secondary to a prescribed arthritis medication, which was discontinued. Plaintiff was described as "improved physiologically on exam." Dr. Berman prescribed bactrim for an upper respiratory infection. (Tr. 105.) Also in June 1996. Dr. Mian reported that plaintiff was "doing well" on prednisone and cyclosporine-A, with no morning stiffness and intermittent, mild joint pain, and prescribed iron pills for anemia. (Tr. 106.)
On examination in July 1996. plaintiff had some edema in her feet and diffuse wheezing. (Tr. 107.) In September 1996, Dr. Berman observed lung crackles with a slightly prolonged expiratory phase. His impression was an upper respiratory infection and a mild asthma exacerbation. Plaintiff's rheumatoid arthritis with interstitial lung involvement was recorded as stable. There was no evidence of fluid overload due to proteinuria. (Tr. 111.)
Later in September 1996, however, an examination at the Montefiore arthritis clinic revealed swelling and tenderness of the hands, wrists, knees, elbows, left ankle and leg. Santiago reported intermittent pains in the wrists, elbows, shoulders, knees and feet. Examination of the lungs revealed bilateral wheezing and rhonchi. Dr. Yelena Chuzhin diagnosed active rheumatoid arthritis, new-onset proteinuria, kidney problems, upper respiratory infection, and an asthma exacerbation. (Tr. 113.) Despite this apparently more troubling picture, the record contains no evidence that Santiago received any medical treatment during the period October 1996 through June 1998
B. Treating Physicians' Opinions
The record does, however, contain a note from each of the treating physicians mentioned above. Dr Mian stated. in an undated note, that Santiago had "severe erosive rheumatoid arthritis" with involvement in the lungs, and "[t]herefore she cannot hold an employment [sic] at this time." (Tr. 121.) In January 1998, Dr. Chuzhin opined that Santiago's function was "significantly limited" due to intermittent pain and swelling in multiple joints resulting from "seropositive rheumatoid arthritis" and chronic cough and dyspnea related to her pulmonary condition. (Tr. 155-56.) And in July 1998, Dr. Berman stated that he had last examined Santiago on July 17, 1998, and that she suffered from rheumatoid arthritis, interstitial lung disease, and chronic obstructive asthma Dr. Berman expressed the view that Santiago could not return to her former occupation. that she was unable to perform other full-time work due to dyspnea on minimal exertion, and that she had been "disabled" since 1995. (Tr. 195.)
C. Consultative Examination
Dr. Joseph A. Grossman performed a consultative examination on June 19, 1996. (Tr. 122-32.) Santiago related weekly asthma attacks and daily cough, and stated that she could not walk more than four blocks without dyspnea, but that she did all household chores by herself Dr. Grossman noted that Santiago did not use a cane. She related no problems dressing and did not require transfusions for her anemia. (Tr. 122.) Plaintiff's Lungs were resonant to percussion, and breath sounds were clear, with no rales or rhonchi. The expiratory phase of respiration was prolonged, and there was diffuse bilateral wheezing. (Tr. 123.)
At the hearing before the ALJ in August 1998, Santiago testified that she did certain chores such as washing dishes, but could not vacuum, mop or take out the trash. (Tr. 213-14.)
Santiago exhibited a full range of wrist motion, with pain and an enlarged left wrist. She also related some pain in producing full range of motion in the knees, although she could perform a full squat. Her gait and station were normal. and she had no problems dressing or getting on and off the examination table Dr. Grossman found adequate muscle strength, which was symmetrical and commensurate with plaintiff's body build. Santiago was able to stand on her toes normally. (Tr. 123-24.) X-rays of the left knee revealed osteoporosis with a narrowing of the knee joint medially and laterally. There was periarticular osteoporosis and narrowed joint spaces in the left hand, with no erosive lesions. (Tr. 132.)
Dr. Grossman diagnosed (1) a history of joint pains, including arthralgias of the left wrist and both knees, (2) anemia, clinically correlated with ecchymosis, and (3) asthma, clinically correlated with wheezing and pulmonary function abnormalities. He found that Santiago had no impairment on seeing, sitting, standing, walking, climbing, operating hand and foot controls, and traveling, but that she was restricted from (1) exposure to noxious inhalants; (2) prolonged, repeated, vigorous bending, stooping, crouching, (3) prolonged, repeated, vigorous, heavy pushing and pulling; and (4) lifting and carrying over thirty pounds with the left upper extremity (Tr. 125.)
D. Consultative Review
In July 1996, Dr. H. Porter, a state agency medical consultant, reviewed Santiago's medical records. Dr. Porter noted her diagnosis as asthma, rhematoid arthritis, and anemia. Beyond that, Dr. Porter simply commented that the nature and severity of plaintiff's impairments before she was last insured for disability insurance benefits could not be documented as the earliest records available dated from January 1996 (Tr. 140-47.)
It is unclear whether Dr. Porter had a complete record before him in making this determination, as the earliest documentation of Santiago's impairments dates back to March 1995, not January 1996. In any case, the thoroughness of Dr. Porter's review is questionable. Instead of elaborating on the nature of Santiago's impairments, Dr. Porter simply checked off the minimum number of boxes and focused his comments on the date of onset of any impairment.
Dr. L. Marasigan, another state agency medical consultant, reviewed the entire record in October 1996 and reported that Santiago had proteinuria, asthma, rheumatoid arthritis and anemia (Tr. 148-54). Dr. Marasigan found a variety of exertional limitations, concluding that Santiago was able to (1) occasionally lift and carry up to twenty pounds, (2) frequently lift and carry ten pounds, (3) stand and/or walk at least two hours in an eight-hour day, and (4) sit for about six hours in an eight hour day (Tr. 149.) The doctor noted that plaintiff's arthritis "has been well control[l]ed" and that her impairments were "moderate" and "at a level commensurate with sedentary exertion." (Tr. 149-50.) No manipulative limitations were observed, and the only environmental limitation noted was to "avoid even moderate exposure to fumes, odors, dusts, gases. poor ventilation, etc." (Tr. 151-52.)
E. Post-Hearing Examination
In January 1999, four months after the ALJ had issued his decision denying plaintiff's claim, Santiago was examined by Dr. Theodore Fields, Director of the Rheumatology Faculty Practice Plan at The Hospital for Special Surgery and Associate Professor of Clinical Medicine at Cornell University Medical College. (Tr. 196-200). Dr. Fields diagnosed Santiago as suffering from rheumatoid arthritis, beginning in March 1995, affecting her hands, wrists, elbows, shoulders, hips, knees, ankles and feet, and also noted proteinuria and other kidney problems, interstitial lung disease and severe anemia related to the arthritis, and severe asthma. (Tr. 196, 198.) In terms of job functioning, Dr. Fields concluded that Santiago could sit, stand or walk for up to two hours during an eight-hour day, but could not lift or carry weights even of 0-5 pounds, nor use her hands to grasp, push. pull, or do time manipulation. He further stated that she was restricted from exposure to dust, fumes and gases. (Tr. 199.)
DISCUSSION
Reviewing disability determinations is one of the stranger tasks confronting a district judge. The claimant, as in this case, has typically been examined by a number of doctors, who offer varying assessments of her condition, and presents extensive medical records, often indecipherable to lay readers. These records have been analyzed by physicians employed by state agencies as experts in assessing disability, and the entire package has again been reviewed through several layers of administrative review by non-medical officials who presumably have achieved much greater familiarity than a generalist district judge with the medical concepts and detailed regulatory requirements involved in this specialized field of law. It is little wonder that the law that has grown up around the judicial review of these determinations focuses more on procedural niceties — the stock in trade of courts and lawyers — than on the substance of the claimant's condition, about which the Court is poorly qualified to opine. Nevertheless, Congress in its wisdom has confided this task to the courts, and we must do our best to perform it.
I. The Applicable Law
A. Determining Disability
In order for a claimant to be deemed "disabled" under the Act, she must demonstrate 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. § 423(d)(1)(A)(2001). Moreover, the 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A)(2001).
As promulgated in 20 C.F.R. § 404.1520 and 416.920(2001), the Commissioner is required to apply a five-step procedure in evaluating disability claims. This procedure was recently articulated by the Second Circuit as follows:
Regulations regarding SSDI and SSI benefits have been promulgated by the Commissioner under two distinct Parts of Title 20 of the Code of Federal Regulations. SSDI benefits are dealt with in 20 C.F.R. Part 404(2001), and SSI benefits are dealt with in 20 C.F.R. Part 416(2001). These two Parts are extremely similar. Both parties to this action, as well as Second Circuit Social Security case law, regularly treat the two sets of regulations as interchangeable. For purposes of this opinion, this Court will also treat 20 C.F.R. Parts 404 and 416(2001) as functionally identical, with occasional differences indicated as they arise.
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) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curium)); see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).
Although the reference to Appendix 1 appears in both 20 C.F.R. § 404.1520(2001) and 20 C.F.R. § 416.920(2001), only Part 404 actually contains an "Appendix 1," i.e., 20 C.F.R. Part 404, Subpart P, Appendix 1(2001). However, that Appendix is incorporated by reference into Part 416 in 20 C.F.R. § 416.925.
In this case, the ALJ evaluated plaintiff's claim pursuant to the procedure set forth in 20 C.F.R. § 404.1520 and 416.920(2001). He found that plaintiff was not currently engaged in substantial gainful activity and had a history of asthma and rheumatoid arthritis, along with proteinuria and anemia commencing after June 30, 1994. (Tr. 22.) However, the ALJ determined that plaintiff did not have an impairment which was equal in severity to one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1(2001) (Tr. 22.) The ALJ further found that plaintiff had the residual capacity to perform light work, without exposure to respiratory irritants or excessive heat or cold. (Tr. 23.) The ALJ found that due to these limitations, plaintiff could no longer perform her past relevant work as an assistant supervisor at a hat manufacturer. (Tr. 21.) However, considering her age, education, work experience, and residual functional capacity, the ALJ concluded that plaintiff could perform other work that existed in the national economy and, thus, was not disabled as defined by the Act (Tr. 21-24.)
B. Burden of Proof
The disability claimant bears the burden of proving the first four steps laid out above. Once claimant's burden has been satisfied, the burden shifts to the Commissioner to establish the fifth step, that work exists in the national economy that the claimant can perform. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working").
In most cases, the Commissioner attempts to satisfy his burden in the final step by reference to the medical vocational guidelines ("the grids") laid out in 20 C.F.R. Part 404, Subpart P, Appendix 2(2001). See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); see also Rosa, 168 F.3d at 78 (2d Cir. 1999) (quoting Bapp). "The grids take into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy." Rosa, 168 F.3d at 78 (internal citation and quotation marks omitted). Generally, when the grid analysis adequately describes a particular claimant's profile, grid determinations are dispositive on the issue of disability. However. "exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant's physical limitations." Id. For instance, "sole reliance on the [grids] may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform." Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996). When the grids do not adequately describe a particular claimant's profile the Commissioner must "introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp, 802 F.2d at 603. Thus, "application of the grid guidelines and the necessity for expert testimony must be determined on a case-by-case basis." Id. at 605.
Exertional limitations are defined as those that "affect only [claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404. 1569a(b) and 416.969a(b)(2001). A nonexertional limitation is one that affects the claimant's "ability to meet the demands of jobs other than the strength demands" 20 C.F.R. § 404.1569a(c) and 416.969a(c)(2001).
C. Standard of Review
Under the Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405(g)(2001). Thus, a district court may remand, modify, or reverse an ALJ's decision only if the ALJ has misapplied the appropriate legal standard, or if his finding is not supported by substantial evidence. 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.").
The statutory standard of substantial evidence in the Social Security benefits context has been 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(1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229(1938)). The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to his inferences and conclusions. See Figueroa v. Apfel, 99 Civ. 3185, 2000 U.S. Dist. LEXIS 5759 at 16-17 (S.D.N.Y. Apr 28, 2000) (LAP) (KNF). Moreover, such inferences and conclusions must be affirmed even where the Court's own analysis may differ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) ("[T]he court may 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") (quoting Valente v. Secretary of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
D. Procedural Requirements
Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. 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. 20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2)(2001). These regulations will be enforced by courts. See Rosa, 168 F.3d at 78-79; Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Moreover, ALJs are not ordinarily permitted to rely on their own evaluation of test results or medical histories to reject a treating physician's opinion, for a "circumstantial critique by [a] non-physician, however thorough or responsible, must be overwhelmingly compelling" to justify a denial of benefits. Wagner v. Secretary of Health and Human Servs., 906 F.2d 856, 862 (2d Cir. 1990).
Nor may an ALJ rely, as factfinders in adversarial proceedings customarily do, on the absence of probative evidence supporting the opinions of a claimant's expert, without making an affirmative effort to fill any gaps in the record before him. 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"). "In fact, where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history `even when the claimant is represented by counsel.'"Rosa, 168 F.3d at 79 (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
Moreover, the Second Circuit has provided very specific instructions as to the type of evidence on which an ALJ can rely, in particular circumstances, in considering whether a claimant retains a capacity for productive employment "When a claimant's nonexertional impairments significantly diminish his ability to work — over and above any incapacity caused solely from exertional limitations — so that he is unable to perform the full range of employemnt indicated by the medical vocational guidelines, then the [Commissioner] must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp, 802 F.2d at 603.
ALJs, unlike most factfinders, may even be precluded from relying uncritically on their subjective assessment of a claimant's credibility Because "the subjective element of pain is an important factor to be considered in determining disability," Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984), the Commissioner is required to evaluate the credibility of subjective evidence against objective medical evidence as well as demeanor and other indicia of credibility. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir 1979). District courts have rejected ALJ findings that summarily reject claimants' assertions of subjective symptoms as not "fully credible" in light of objective evidence, Lewis v. Apfel, 62 F. Supp.2d 648, 651 (N.D.N.Y. 1999), or even as inconsistent with negative diagnostic tests, McLay v. Apfel, 99 Civ. 3505, 2001 WL 197879 at *3 (S.D.N.Y. Feb. 20, 2001) (KMW).
Finally, the ALJ may turn out to be wrong even when he was right at the time the decision was rendered, the administrative proceeding is not quite over even when it's over. Medical reports sent to the Appeals Council, so long as they concern the time period in question, become pan of the record for judicial review, even when the Council has denied review. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
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 all the relevant regulations were fully complied with.
II. Application to this Case
If the question before the Court were simply, "is the ALJ's finding supported by substantial evidence?", the matter would be an easy one. A thorough consultative examination, performed by a qualified physician, noted certain exertional limitations, and recommended avoidance of noxious inhalants. but seemed to find rather limited disabilities that on their face would not appear to preclude fitness for some work. Two consultative physicians, reviewing the full record, found Santiago able to perform a variety of functions Dr. Marasignan, whose report was the more thorough of the two, as well as the more favorable to plaintiff, identified exertional limitations, as well as a need for plaintiff to avoid certain environmental pollutants, but found plaintiff capable of exerting force to lift up to 20 pounds occasionally and up to ten pounds frequently. (Tr. 149, 152.) The ALJ could certainly rely on these assessments, which appear to be a supportable interpretation of the medical history in the Montefiore charts, which in turn appear to reflect a course of fairly successful treatment of plaintiff's arthritis symptoms. Noting that Santiago is young, has a high school education, and has an exertional capacity for light work, the ALJ resorted to the grids to find Santiago "not disabled." (Tr. 23-24.) As discussed above, however, the issue is not quite so simple.
A. Per se Disability
Plaintiff argues that the medical evidence entered in to the record is so strongly supportive of rheumatoid arthritis as to establish a per se disabling condition under 20 C.F.R. Part 404, Subpart P, Appendix 1(2001). Plaintiff thus requests modification of the ALJ's decision to reflect a finding of a per se disability, and a remand simply for calculation of benefits. While the record does not compel such a finding, the recognition by the regulations of a per se disability that may well be present in this case, and the failure of the ALJ specifically to address the criteria for determining the question, provide a reason for remand.
If a claimant satisfies the criteria for a listed impairment under Appendix 1, the Commissioner must consider that claimant disabled without considering vocational factors such as age, education, and work experience. Rosa, 168 F.3d at 77. The plaintiff has the burden of a proving a per se disability in this context. Perez, 77 F.3d at 46. Active rheumatoid arthritis and other inflammatory arthritis are addressed in Appendix 1, § 1.02. In order to meet the criteria for a per se disability under this section, plaintiff must establish the presence of both of the following conditions:
A. History of persistent joint pain, swelling, and tenderness involving multiple major joints . . . and with signs of joint inflammation (swelling and tenderness) on current physical examination despite prescribed therapy for at least 3 months, resulting in significant restriction of function of the affected joints, and clinical activity expected to last at least 12 months; and
B. Corroboration of diagnosis at some point in time by either. 1. Positive serologic test for rheumatoid factor; or 2. Antinuclear antibodies; or 3. Elevated sedimentation rate; or 4. Characteristic histologic changes in biopsy of synovial membrane or subcutaneous nodule (obtained independent of Social Security disability evaluation).20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.02 (2001).
As used in this regulation, "major joints" refers to hip, knee, shoulder, elbow, or wrist and hand. The wrist and hand are considered together as one major joint. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00(D)(2001).
Plaintiff contends that reports from Montefiore establish her long history of persistent joint pain, swelling and tenderness involving multiple joints, which have resulted in impaired functioning of the hands, fingers, wrists, elbows, ankles and feet. In addition, she points to Dr. Fields' description of her as having active rheumatoid arthritis since March, 1995 ("strongly seropositive") with numerous clinical observations of positive rheumatoid arthritis involving multiple major joints. Finally, plaintiff contends that the ALJ did not adequately address the rationale for his denial of benefits under § 1.02.
Santiago is correct that the ALJ did not provide a detailed rationale for his determination that no per se disabling condition existed. The ALJ held that "review of the medical evidence does not disclose medical findings which either singly or in combination, meet or equal the level of severity of the clinical criteria of any impairment listed in Appendix 1, Subpart P to Regulations No. 4." (Tr. 17.) Although the ALJ made specific reference to Subpart P, Appendix 1, § 3.03 in concluding that Santiago did not meet the clinical criteria for a per se disability based on asthma, he made no specific reference to § 1.02 at all, and certainly made no attempt to analyze the medical records in light of the criteria of that section. This failing is understandable, because counsel at the hearing invoked only § 1.03 (relating to a different kind of arthritic condition), and that only briefly. (Tr. 217.) But the failure of counsel to press for a particular finding does not, in these non-adversarial administrative proceedings, justify ignoring regulations that may well be applicable. See Perez, 77 F.3d at 47 (duty of ALJ to develop the record exists even when claimant is represented by counsel).
Because the ALJ did not address the criteria, it is unclear whether the record establishes both requirements of § 1.02, and it is not for this Court to address the question in the first instance. With respect to subsection B, the government concedes that plaintiff "presented corroborative laboratory test results required to satisfy subsection B." (G. Br. 15; see also laboratory reports for 6/23/95, summarized at Tr. 198.) With respect to subsection A, the government argues that "the medical evidence . . . did not demonstrate persistent joint pain, swelling and tenderness involving multiple major joints, with signs of joint inflammation on current physical examination despite prescribed therapy for at least three months" (G. Br. 16), and supports this conclusion by noting that the Montefiore records document consistent improvement in Santiago's symptoms while undergoing the prescribed regime of medication. While the government is correct that to a lay reader, the records suggest a fairly successful course of treatment, this is not an adequate basis for this Court to make a finding, as a matter of law, in the absence of consideration by the ALJ, that the indications of pain, swelling and tenderness that do indeed appear regularly in the Montefiore records for over a year were insufficient to satisfy the standard set by § 1.02(A). The medical records show a persistent diagnosis of rheumatoid arthritis in numerous joints. Dr. Fields opines that this condition was persistent, despite a wide range of medication, from 1995 to 1999, and the Montefiore records show that various symptoms were regularly present through 1995 and 1996. So far as appears from the record, no doctor who examined either Santiago or her medical records ever specifically addressed the criteria listed in § 1.02(A). and the ALJ made no specific findings addressing those criteria. On such a record, it is not possible for a district judge to draw conclusions about what a doctor would regard as "persistent" or would classify as "signs of joint inflammation."
Given the possibility that plaintiff may satisfy the criteria for a per se disability, and the ALJ's failure to adequately discuss these criteria, a remand is necessary to permit further development of the record and a full analysis of the applicability of § 1.02. That conclusion is buttressed by two additional considerations.
B. Treating Physician Rule
Plaintiff also argues that the ALJ violated the "treating physician rule" by failing to give proper weight to the medical opinions of her treating physicians. Santiago offered opinions from not one but three treating physicians at Montefiore: Dr. Mian, Dr. Chuzhin, and Dr. Berman. She claims that the reports provided by these physicians establish her disability, and that the ALJ gave this evidence too little weight, instead relying on reports provided by consultative physicians and the ALJ's own medical conclusions. Additionally, plaintiff contends that the ALJ did not adequately explain his rationale for the weights he assigned the various medical evidence, thus violating the Commissioner's regulations and Second Circuit directives in this regard. The Court agrees.
In 1991, the Commissioner promulgated a new set of regulations establishing the weight to be accorded a treating physician's opinion. Specifically, the regulations provide:
Prior to 1991, no such regulation existed. Instead, Second Circuit case law had established a treating physician rule, "giving substantial weight to the opinions of treating physicians in disability benefit cases." Schisler v. Sullivan, 3 F.3d 563, 565 (2d Cir. 1993). See also Schaal, 134 F.3d at 503. Under this rule, once a treating physician was identified, his opinion was given controlling weight unless contradicted by substantial evidence, and even if contradicted was entitled to "extra weight." Schaal, 134 F.3d at 504 (quoting Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir. 1986). The 1991 regulations differ from the Second Circuit's prior rule in several respects. Most importantly, the regulation grants the treating physician's opinion controlling weight only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence."
20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2)(2001). Thus, the 1991 regulations grant less deference to unsupported treating physicians' testimony than the Second Circuit rule had given. Nevertheless, the Second Circuit upheld the validity of these new regulations in Schisler v. Sullivan: "[The regulations] continue to give deference to the opinions of treating physicians based on the view that opinions based on a patient-physician relationship are more reliable than opinions based, say, solely on an examination for purposes of the disability proceedings themselves. The requirement that such opinions be `well-supported' by clinical or laboratory diagnostic techniques to receive `controlling weight' departs from our rule but is not unreasonable." 3 F.3d at 568.
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining the weight given the opinion.20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2)(2001); See also Schaal, 134 F.3d at 503
When controlling weight is not given to the treating physician's opinion, the regulations provide that the following "various factors" must be considered in assessing the weight to be given it (i) the frequency of examination and the length, nature and extent of the treatment relationship, (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (iv) other factors brought to the Social Security Administration's attention which tend to support or contradict the opinion. See 20 C.F.R. § 404.1527(d)(2)-(6) and 416.927(d)(2)-(6)(2001).
The 1991 regulations also provide that the Commissioner "will always give good reasons in our notice of determination or decision for the weight we give [claimant's] treating source opinion." 20 C.F.R. § 416.927(d)(2)(2001). In addition, the ALJ must defer questions requiring medical expertise to physicians instead of substituting his own medical conclusions for those already present in the record. See Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) ("Neither the trial judge nor the ALJ is permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion.").
This phrase is present in 20 C.F.R. § 416.927(d)(2)(2001), which discusses weighting of treating opinions in the SSI context, but not in 20 C.F.R. § 404.1527(d)(2)(2001), which discusses weighting of treating opinions in the SSDI context. As the two section are almost completely identical otherwise, this discrepancy must be considered intentional. However, as mentioned below. Santiago's SSDI claim seems to stand on very shaking ground. Thus, this discrepancy does not change the appropriate analysis to any material degree. Furthermore, as other, more substantial, grounds for remand are present, this issue can be more fully addressed by the ALJ upon reconsideration, if necessary.
Ultimately, however, the determination of a disability is reserved for the Commissioner. 20 C.F.R. § 404.1527(e)(1) and 416.927(e)(1)(2001) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine you are disabled") This regulation has been interpreted by the Second Circuit as meaning "that the [Commissioner] considers the data that physicians provide but draws [his] own conclusions as to whether those data indicate disability. A treating physician's statement that [plaintiff] is disabled cannot itself be determinative." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
Here, the reports from plaintiff's three treating physicians, Dr. Mian, Dr. Berman, and Dr. Chuzhin each state that the plaintiff is disabled and unable to work, and each was disregarded by the ALJ. The ALJ was not required, on this record, to accept the findings of the treating physicians, and he was not required to defer to their ultimate conclusion of disability, which is a legal, and not a medical, judgment. In light of the record as a whole, however, the ALJ failed to assess the treating physicians' views in accordance with the factors set forth in the regulations, and failed to take affirmative steps to supplement any deficits in the record by seeking further information from the treating physicians. These failures present additional grounds for reversal, and a remand to the Commissioner for further proceedings.
The ALJ's opinion "recognize[s]" the opinions of the three treating physicians (Tr. 20, 21), and disregards each for a variety of reasons. These reasons, however, are insufficient in light of the regulations cited above. For example, Dr. Mian's letter states that plaintiff "cannot hold an employment [sic] at this time." (Tr. 121). As the ALJ points out, this letter is undated and makes no claims about the duration or specifics of plaintiff's disability. The ALJ accordingly disregarded her "sweeping and unsupported . . . statements." (Tr. 20.) In an adversarial proceeding, in which the burden of proof lay with the plaintiff, this would be a reasonable conclusion; plaintiff had the opportunity to produce more detailed evidence and failed to do so. But in this instance, after the ALJ has agreed that plaintiff cannot do her former work because of a significant impairment of her functioning, the burden is on the Commissioner to establish that "there is other work which the claimant can perform." Rosa, 168 F.3d at 77. Moreover, to the extent that the conclusory "clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte."Schaal, 134 F.3d at 505.
Here, moreover, although Dr. Mian's opinion letter is brief her "sweeping" conclusion cannot fairly be characterized as "unsupported." Dr. Mian had seen Santiago frequently over an extended period, and the record contains substantial contemporaneous notes made by Dr. Mian during her treatment. The diagnostic evaluation contained in Dr. Mian's letter is consistent with her contemporaneous conclusions during treatment. Since the diagnosis is one that, depending largely on its severity, is certainly capable of imposing a crippling disability, the issue in the case was essentially how severe Santiago's condition was. Dr. Mian evidently regarded it as disabling. While Dr. Mian failed to provide the kind of intermediate data about the specific exertional and nonexertional limitations Santiago's conditions would place on her, this lack is not surprising from a treating physician who is not experienced in the kind of specific vocational evaluations made by the consulting physicians, and Dr. Mian's views on such specific issues could easily have been sought. Instead of seeking those views, the ALJ apparently considered the data that she provided, but drew his own conclusion that the data did not indicate a sufficiently severe case to find disability. The Commissioner's regulations and the Second Circuit case law demand greater respect for a treating physician's conclusions.
The ALJ evidently found these reports reliable, and considered them extensively in his opinion. (Tr 17-18.)
If Dr. Mian's letter stood alone, the case would be close, for that letter is indeed brief and vague, proceeding directly from diagnosis to a conclusion of disability. But it does not stand alone. Dr. Chuzhin's letter is considerably more detailed, specifically diagnosing Santiago as suffering from "seropositive rheumatoid arthritis" in a variety of locations, reciting her other medical problems, and opining that her functioning "is significantly limited by intermittent pain and swelling in multiple joints, as well as chronic cough and dyspnea related to her pulmonary condition." (Tr. 155-56.) Anticipating the regulations' requirement of supplementing the record, Dr. Chuzhin invites the authorities to "contact me if you need further assistance," but no such contact was made. The ALJ acknowledged the diagnoses of rheumatoid arthritis and asthma, and Dr. Chuzhin's opinion that these ailments constitute a disability is not binding on the ALJ. Snell, 177 F.3d at 133. It is insufficient, however, for the ALJ simply to dismiss a treating physician's opinion as "vague," as the ALJ did here, without taking any steps to develop more specific information, particularly where the physician's diagnosis invokes categories that could qualify for treatment as per se disabilities.
The ALJ did point out that Dr. Chuzhin referred to Santiago's proteinuria as "recent," noting that Dr. Marasignan had been aware of that symptom two years earlier. (Tr. 20-21.) It is unclear whether this argument should be taken as casting doubt on the extent of Dr. Chuzhin's treatment relationship with Santiago — a factor relevant under 20 C.F.R. § 404.1527(d) and 416.927(d)(2001) — or simply as a quibble over the meaning of "recent." At any rate, the ALJ made no explicit reference to the extent of Dr. Chuzhin's relationship with Santiago.
Finally, Dr. Berman opined that plaintiff had been disabled since 1995, was unable to return to her former occupation and was further unable to perform other full-time work due to dyspnea on minimal exertion. Dr. Berman specifically stated that this condition could be expected to last for Santiago's entire life. (Tr. 195.) The ALJ, however, disregarded this testimony, stating that it was inconsistent with "the objective pulmonary testing of the claimant which revealed no wheezing, auscultation [sic] or respiratory distress during testing. Moreover, it appears to contradict the claimant's own statements that she is capable of performing all household chores and is able to walk four blocks without dyspnea." (Tr. 21) Perhaps the ALJ is right, and Dr. Berman wrong, about the extent of Santiago's pulmonary limitations. But it is not for the ALJ, a lay person, to draw his own medical conclusions from various pulmonary tests performed on Santiago and set them above those of qualified treating physicians. As the Second Circuit held, a "circumstantial critique by [a] non-physician, however thorough or responsible, must be overwhelmingly compelling" to justify a denial of benefits. Wagner, 906 F.2d at 862. The ALJ's rebuttal of Dr. Berman, which is in significant particulars erroneous, see note 15 above, is hardly "compelling."
According to the OED, "ausculation," in medical usage, means "[t]he action of listening, with ear or stethoscope, to the sound of the movement of heart, lungs, or other organs, in order to judge their condition of health or disease." Thus, objective testing would not reveal "auscultation." Perhaps the ALJ meant that no wheezing was detectedduring ausculation, although this in fact is inaccurate, since wheezing was detected on several pulmonary examinations. (See, e.g., Tr. 91, 94, 97, 123.) Nor is it accurate that Santiago testified she could perform "all household chores." She actually testified that she could not perform such simple tasks as mopping and taking out the trash. (Tr. 214.)
Plaintiff submitted letters attesting her disability from three treating physicians. These doctors had seen her, individually and collectively through the Montefiore arthritis clinic, for an extended period, and had conducted repeated, detailed examinations and tests. They were specialists in arthritis and in pulmonary medicine, and were fully familiar with her condition and with her treatment and its various side effects. These are factors that under the regulations are specifically relevant to assessing the weight to be assigned to treating physicians' opinions under the relevant regulations, 20 C.F.R. § 404.1527(d)(2)-(6) and 416.927(d)(2)-(6)(2001), and yet the ALJ did not address them in any way in his opinion. To the extent that some of the doctors' letters were vague or general, it would have been a simple matter to make further inquiries to elicit answers to more specific questions, particularly since any vagueness related not to the medical diagnosis but to the vocational impact of the condition, a subject on which a treating physician might be expected to be "vague." If treating physicians' opinions are to be given deference, despite their expected lack of specialization in vocational medicine, such follow-up necessarily must be conducted before their opinions are dismissed as biased or insufficiently familiar with the criteria for "disability."
The ALJ's failure properly to weigh the testimony of the treating physicians, and/or to give adequate reasons for his rejection of their testimony, thus presents an additional reason to remand Santiago's application to the Commissioner for further consideration.
C. The Report of Dr. Fields
Finally, plaintiff argues that evidence entered after her hearing before the ALJ was not properly evaluated by the Appeals Council. Specifically, she points to the report of Dr. Fields, which states that she has been "strongly seropositive" for rheumatoid arthritis in multiple joints of the body since March 1995. The report also discusses plaintiff's asthma, anemia, proteinuria, and other symptoms. Dr. Fields explicitly states that Santiago is limited to an extremely low level of exertion and that her condition is expected to last longer than 12 months. Plaintiff argues that this report alone establishes a per se disability under 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.02(2001), and, if nothing else, the Commissioner's failure to do more than merely acknowledge the report suggests that the Appeals Council did not adequately review the additional medical evidence.
Reports sent to the Appeals Council must be considered by the Commissioner, so long as they relate back to the time period in question. Furthermore, such evidence is considered part of the record for purposes of judicial review, even when, as here, the Appeals Council denies a claimant's request for review. Perez, 77 F.3d at 45 ("[W]e hold that the new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision."). However, a court may only order the Commission to consider additional evidence "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)(2001). See also Schaal, 134 F.3d at 506.
While Dr. Fields' examination occurred in 1999, he specifically states that the disabilities he identified have been present since March 1995, and would be expected to persist over 12 months. (Tr. 196, 198.)
Dr. Fields' report, like those of the treating physicians, cannot be treated as conclusive. It is based on an examination conducted in 1999, more than four years after plaintiff's insured status expired with respect to her claim for SSDI benefits, and four months after the ALJ's decision, the last relevant date for purposes of her SSI claim. And Dr. Fields' is simply one among several physicians' opinions that the Commissioner will have available on remand to make a determination. Furthermore, there is some question as to whether plaintiff has shown "good cause" for her failure to incorporate this evidence in to the record prior to the ALJ's decision.
Nevertheless, on this record Dr. Fields' opinion seems particularly helpful. First, although the record is sparse on the qualifications and expertise of the various other doctors who treated, examined, or reviewed Santiago, Dr. Fields, a distinguished academic specialist in the most relevant field of rheumatology, seems by far the most qualified of all. Second, his particularly thorough report supplies precisely the elements understandably lacking in the reports of the treating physicians, providing the missing intermediate link in their reports between the medical diagnostic categories and the conclusory assertion of disability Dr. Fields provides the kind of detailed assessment of Santiago's job capabilities that were otherwise provided only by the consultative reviewers. Third, his opinion directly contradicts the conclusions of the consultative physicians relied on by the ALJ with respect to the extent of Santiago's exertional limitations, stating that she can only sit for as much as two hours in a work day, cannot lift weights even under five pounds, and lacks fine manipulation ability that would presumably be highly relevant to the kinds of work that might otherwise be available to someone who lacks physical strength. (Tr. 199.) For the Commissioner to rely on the ALJ's disregard of the treating physicians because their conclusions did not provide this kind of information, and then to decline to consider testimony proffered by the plaintiff that directly addresses these issues, is unfair and risks reaching an erroneous result.
The ALJ had held that Santiago was capable of standing or walking for up to six hours in an eight-hour day. (Tr. 17, 23.) This finding is clearly erroneous, and appears to be based on a misreading of record evidence. Dr. Marasignan stated that Santiago could sit for six hours in an eight-hour workday, and could stand or walk for two hours. (Tr. 149.) The same conclusion appears in an undated, unsigned evaluation that also appears, unexplained, in the record. (Tr. 134.) The Court has found no evidence supporting the specific finding in the ALJ's opinion.
The presence of this report, part of the record available to the Court on review, confirms the conclusion that a remand is required to permit a fuller development of the record.
D. Disability Insurance Benefits
Finally, a distinction must be drawn between plaintiff's application for SSI benefits and for SSDI benefits. For purposes of SSI benefits, plaintiff should receive benefits for any period of disability she can establish between her application date of March 10, 1994, and the date of the ALJ's decision, September 24, 1998. In contrast, SSDI benefits depend on insured status, so that to recover under this program, plaintiff must establish disability between her alleged onset date of October 30, 1992, through June 30, 1994, the date plaintiff was last insured for benefits.
SSI benefits are not payable for any month before the month in which the application is filed, 20 C.F.R. § 416.335(2001), and an SSI claim remains in effect only through the decision of the ALJ. 20 C.F.R. § 416.330(2001).
See 20 C.F.R. § 404.130, 404.315(2001).
As discussed above, the record may support a claim that Santiago was disabled at some time between March 1995 and September 1998. However, there is absolutely no evidence in the record supporting any disability before March 1995. There are no records of medical treatment of any kind before that month, and no doctor purports to opine as to Santiago's condition before that date. The record thus contains no evidence that supports any disability during the period for which Santiago was insured. On that basis, the Court would ordinarily grant the government's motion with respect to SSDI benefits.
However, in view of the necessity for a remand to permit the development of additional evidence with respect to SSI benefits, it seems appropriate to leave the matter open, in case any new evidence comes to light that changes the situation with respect to SSDI benefits. Unless such new evidence is forthcoming, however, there is no reason to disturb the ALJ's prior finding with respect to SSDI.
CONCLUSION
The plaintiff's motion for judgment on the pleadings is granted to the extent that the case is remanded to the Commissioner for further proceedings consistent with this opinion. The defendant's motion for judgment on the pleadings is denied.
SO ORDERED