Summary
remanding and holding that the ALJ failed to adequately probe claimant's understanding of her right to counsel
Summary of this case from Pereira v. Commissioner of Social SecurityOpinion
02 Civ. 8955 (HB)
March 9, 2004
OPINION ORDER
Plaintiff Francisca Valoy (hereinafter "plaintiff' or "Valoy") brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C § 205(g), challenging the final determination of the Commissioner of Social Security ("Commissioner" or "defendant"), denying Valoy Supplemental Security Income ("SSI"). Valoy and the Commissioner cross-' move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Fed, R. Civ. P.") 12(c). For the foregoing reasons, plaintiff's motion to remand for further proceedings is granted and defendant's cross-motion for judgment on the pleadings, affirming the Commissioner's decision, is consequently denied.
I. BACKGROUND
A. Factual Background and Medical Evidence/Testimony
1. Plaintiff's Background and Subjective Testimony
Valoy was born in the Dominican Republic on December 31, 1958. While in the Dominican Republic, Valoy was educated through the Seventh grade. In 1992, she moved from the Dominican Republic to the United States. She "once started to go to school to learn English, but had to leave it because [she] couldn't learn anything." Transcript ("Tr.") at 45 (11/7/00 Hearing). While her education in the Dominican Republic has enabled her to read and write Spanish "a little bit", she only knows "certain little things, but not very much" with respect to English. Tr. at 35, 37, 67.
Valoy has four children — the eldest two reside in the Dominican Republic and the younger two (ages nine and six) live with her in New York. Tr. at 36. Valoy receives assistance from her neighbor in caring for her children and performing household chores, but does some chores herself, such as the laundry. Tr. at 44. Valoy's neighbor traveled with her to the hearing on the subway. Valoy testified that she did not socialize very much, and even when she did, only spent time with her neighbors. Valoy explained that she is "[a]lmost always" "feeling [so] bad [that she doesn't] want anything, nothing nothing." Tr. at 46.
Valoy's last occupation was as a hair stylist at a beauty parlor in the Dominican Republic. She stopped working because of skin complications (exzema) and arthritis in her hands. Tr. at 38. Valoy also complains of lost strength, cramps, and rigidity in her hands, which sometimes causes her to drop objects. Tr. at 41. Valoy had medication for her hand conditions. Valoy also experienced stomach pain, which physicians diagnosed as related to menopause. Despite these physical conditions, Valoy "emphasized that her main reasons for not working were psychological, including forgetfulness, nervousness, and Mots of anxiety." Plaintiff's Memorandum ("Pl. Mem.") at 7, citing Tr. at 38. Valoy testified that she was often "very sad" and cried frequently. Tr. at 39. Because her appetite has suffered, she has lost seven pounds in the past year. Tr. at 35-36. Valoy also complained of difficulty sleeping and hallucinations of people calling her. Tr. at 40.
Valoy testified that she could walk approximately twenty-five blocks "more or less but very slowly . . . I stop and get tired, I can stop and continue." Tr. at 43. She also testified that she could only stand for half an hour, after which time her legs would swell. She estimated that she could lift or carry less than ten pounds. Tr. at 44. Sitting, however, she testified was not a problem for her. Tr. at 44.
2. Evidence From Treating Physicians
a. Dr. Bernado Martinez
Valoy has been receiving treatment from Dr. Bernado Martinez ("Martinez") at the Upper Manhattan Mental Health Center since February 23, 1998, on which day she presented with complaints of depression, nervousness, anxiety, insomnia, irritability, and anhedonia. Tr. at 175. After examining Valoy, Martinez reported that she was tearful, had constricted affect, depressed mood, anxiety, "simple" auditory hallucinations, poor concentration, and limited insight and judgment. Tr. at 175-77. Martinez diagnosed Valoy as having an adjustment disorder with mixed emotion, a generalized anxiety disorder, and a Global Assessment of Functioning ("GAP") score in the range of 60-70. Martinez suggested psychotherapy and prescribe1d Serzone for her depression and Vistaril for her anxiety. Tr. at 177.
The GAF score depicts an individual's psychological fitness and ranges from 0-100. A score of 60-70 indicates mild symptoms or some level of difficulty functioning in social activities, work, or school, but represents generally sufficient fitness. See Pl. Mem. at 2, note 2.
Over a year later, while Valoy was in psychotherapy, Martinez diagnosed her with general anxiety disorder due to her anxiety, mild depression, auditory hallucinations, and limited insight and judgment Tr. at 178-79. When Martinez examined Valoy in September 1999, he noted her continued depression, and renewed her medications. Tr. at 190. Throughout the fall and winter of 1999, Valoy reported depression, lack of appetite, constant worrying, anxiety, hallucinations, and poor sleep. Tr. at 190-93. In January 2000, Martinez again renewed Valoy's medication, and at some time thereafter, also prescribed Paxil, a drug indicated for the treatment of major depression, obsessive-compulsive disorder, panic disorder, social anxiety disorder, generalized anxiety disorder, and post-traumatic stress disorder. Pl. Mem. at 4.
b. M. Perez, C.S.W.
As per Martinez' suggestion, Valoy began psychotherapy with M. Perez, C.S.W. ("Perez") on December 15, 1998. On December 22, 1998, Perez noted that Valoy was "unstable, apprehensive and [in] low sprits and was "constantly crying." Tr. at 180. When Valoy complained of pain and auditory hallucinations on January 26, 1999, Perez reported that she "appeared nervous and somewhat depressed." Tr. at 181. On March 16, 1999, Valoy complained of poor sleep and a reduced appetite, which resulted in her losing ten pounds. Tr. at 182. Perez noted on March 30, 1999 that Valoy continued to be apprehensive and had diminished self-esteem due to hair loss. Tr. at 183. Valoy continued to complain of sleep and appetite problems on April 13, 1999, and Perez noted depression on April 27, 1999. Tr. at 184.
In May 1999, Perez found Valoy to be "very nervous and apprehensive." Tr. at 185. While Valoy seemed better in the beginning of June, by the end of the month, she reported feeling "overwhelmed and depressed." Tr. at 186. For the remainder of June and July, Valoy reported depression, cessation of energy, and frequent crying. Tr. at 187. At this time, Perez treated Valoy for an adjustment disorder with mixed emotions. Her treatment consisted of continued psychotherapy with regular doses of Serzone and Zyprexa, a medication utilized for the treatment of schizophrenia. Throughout August 1999, while Valoy reported improvement, she complained of persistent headaches, disturbed sleep, and memory lapses. Tr. at 188-89.
In the winter of 2000, Perez noted that Valoy remained apprehensive and in low spirits. In the spring, Valoy's condition was complicated by her mother's illness and her son's suicidal thoughts. Tr. at 194-95. Throughout the season, Valoy remained fearful, worried, nervous, and apprehensive. Tr. at 196-97.
c. Hospitalizations for Physical Ailments
On October 13, 1998, Valoy visited the emergency room at New York Presbyterian Hospital because of prolonged weakness and abdominal pain. At the time, she was already taking Rocephin, a medication utilized for the treatment of infection. The hospital physician proscribed Antivert, a medication utilized to treat nausea, vomiting, dizziness, and vertigo. Pl. Mem. at 4. In December of the same year, Valoy visited the emergency room at Harlem Hospital with headaches arid chest pains. She returned to the hospital the next day because of abdominal pain, dizziness, and weakness. Tr. at 97-98, 104, 213. In June, she again reported to Harlem Hospital with stomach pain and was proscribed Pepcid, a medication used for heartburn. Tr. at 109; Pl. Mem. at 4. That same summer, she was diagnosed as post-menopausal. In November 1999, her stomach pain was found to be caused by uterine fibroids. Tr. at 114-15.
3. Evidence From Consulting and Non-Consulting Physicians and Experts
a. Richard King, M.D.
Dr. King ("King"), who was consulted in May 1999, noted that Valoy had been psychiatrically hospitalized for several days in 1996 and again in 1998 due to anxiety attacks. King, after examining Valoy, noted euthymic mood, without severe depression or anxiety, and with well-modulated affect and no abnormal thought processes. Tr. at 129. King reported that Valoy had a "satisfactory" ability to comprehend and follow instructions and to function appropriately with supervision and the pressures of a work environment. He diagnosed her with a mild to moderate generalized anxiety disorder and found that she "might benefit" from psychiatric treatment. Tr. at 130.
b. Antonio DeLeon, M.D.
Valoy was also examined by consultative internist Antonio DeLeon, M.D. ("DeLeon") in May 1999. DeLeon noted hyperpigmentation of both of Valoy's hands, slight difficulty squatting, and 4/5 grip strength. Tr. at 125-26. He also noted that Valoy was anxious and cried. Tr. at 126. DeLeon diagnosed Valoy as having a history of anxiety, nervousness, depression, hypertension, exzema of the hands, and possibly Raynaud's, a condition causing finger numbness. Tr. at 127; Pl. Mem. at 6.
c. Non-Examining Consultants
Two non-examining physical consultants reviewed the medical evidence and concluded that Valoy could lift twenty pounds occasionally, stand arid walk for a total of six hours, and sit for six hours during a workday. Dr. P. Mason ("Mason"), a non-examining medical consultant, after reviewing the record, "opined that plaintiff could perform simple work." Def. Mem. at 6, citing Tr. at 161-63. Another non-examining psychiatric consultant determined that Valoy was "moderately limited for understanding, remembering, and carrying out detailed instructions, maintaining attention and concentration for extended periods, accepting instructions and responding appropriately to criticism from supervisors." Pl. Mem. at 6, citing Tr. at 1 39-40. The consultant also found that she "often" suffered from problems with concentration, persistence, or pace. Tr. at 150.
d. Dr. Jaseno
Dr. Jaseno ("Jaseno"), a medical expert, testified at the hearing that Valoy suffered from a dysthymic disorder with anxiety not-otherwise specified. Tr. at 47. He noted that her response to drug treatment had been "good." Tr. at 47-48. He explained that her GAF score revealed a high level of functioning, but cautioned reliance on the number because "a lot of people don't know how to do a GAF, so they just write a number and they don't have an idea how to rate them." Tr. at 48. Jaseno advised that Valoy did not `have a listing-level impairment, suffered "moderate" limitations, and would be able to perform simple, low-stress jobs. Tr. at 48.
e. Ms. Faas
Ms. Faas, a vocational expert, testified at the hearing that in lieu of Valoy's history, her perform the following jobs: (1) small product assembly (1,830 jobs locally and 324,000 nationally), (2) carder (5,300 jobs locally and 329,000 nationally), and (3) auto packer (1,500 jobs locally and 90,000 nationally).
B. Procedural Posture
Valoy applied for SSI on March 30, 1999. On June 8, 1999, her application was denied. Valoy's request for reconsideration was also denied on August 9, 1999. Valoy then requested an administrative hearing on August 31, 1999. She appeared pro se for her hearing before Administrative Law Judge Kenneth G. Levin ("ALJ" or "Levin") on November 7, 2000. On November 15, 2000, the ALJ found that Valoy was not disabled within the meaning of the Act and therefore denied her SSI benefits. Valoy requested a review of the ALJ's decision on December 18, 2000. The Appeals Council denied her request on July 19, 2002. Valoy now requests that this Court remand the case back to the Commissioner for further proceedings and the Commissioner cross-moves for an affirmance of the ALJ's decision.
I must say that this delay of over a year and a half between the findings of the ALJ and the decision by the Appeals Council strike me as inexcusable, especially in light of the fact that I have never had a case where the Council comes to any other conclusion. If there is a reason for this delay or indeed any reason for an Appeals Council altogether, I would like to know and direct a response by the Commissioner on or before March 31, 2004.
II. DISCUSSION
A. Standard of Review
A district court may reverse the Commissioner's denial of benefits only if the denial "is based upon legal error or is not supported by substantial evidence." Luna de Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937, at *3 (S.D.N.Y. July 12, 2000) quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "[T]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). See also Richardson v. Perales, 402 U.S. 389, 401 (1971); Donate v. Sec'y of Health and Human Servs., 721 F.2d 414, 418 — 419 (2d Cir. 1983). A fact is supported by substantial evidence when the supporting evidence is such that "a reasonable mind might accept [it] as adequate to support a conclusion." Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997) citing Richardson, 402 U.S. at 401. Inferences and conclusions made by the ALJ are afforded similar weight when supported by substantial evidence. See Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977). Therefore, this Court's role is solely to determine whether the ALJ's decision is supported by substantial evidence and based on the correct legal standards. It is not a District Court's role to determine whether it would have reached a different result if reviewing the case de novo. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (citations omitted). B. Heightened Burden With Pro Se Applicant
1. Notice of Right to Counsel
Plaintiff asserts that the Commissioner is required to provide disability claimants with written notice of their right to retain counsel, and then argues that Commissioner failed to comply with this requirement. Notably, the Commissioner must:
notify each claimant in writing, together with the notice to such claimant of an adverse determination, of the options for obtaining attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying claimants of legal service organizations which provide legal services free of charge.42 U.S.C. § 406(c), 1383(d)(2)(b); see also 20 C.F.R. § 404.1706, 416.1506 (requiring the dissemination of information explaining the existence of free legal services). In the instant case, the Commissioner complied with the above provisions by sending Valoy literature that discussed her right to counsel. This letter explained, among other things, that:
You may choose to be represented by a lawyer or other person. A representative can help you get evidence, prepare for the hearing, and present your case at the hearing. If you decide to have a representative, you should find one immediately so that he or she can start preparing your case.
* * * *
Some private lawyers charge a fee only if you receive benefits. Some organizations may be able to represent you free of charge. Your representative may not charge or receive any fee unless we approve it.
The letter even "enclosed [both] the leaflet "Social Security and Your Right to Representation5 and a list of groups that can help you find a representative." Tr. at 29-30 (2/3/00 Letter on Hearing Process). Closer to the date of her hearing, Valoy received a Notice of Hearing, which included this additional learning on the topic of representation:
If you want to have a representative, please get one right away. You should show this notice to anyone you may appoint. You or that person should also call this office to give us his or her name, address, and telephone number.Id. at 25 (10/3/00 Notice of Hearing).
Despite this written notification, Valoy asserts that defendant's notice was insufficient, and therefore that her waiver of her right to counsel was not voluntary and knowing because (1) the above literature was not in Spanish, and (2) the ALJ failed adequately to explain the right to counsel on the record at the hearing. While I agree that it would have been easier for Valoy to comprehend the materials had they been in Spanish, and certainly valuable to the thousands of Spanish speaking men and women that come in contact with the system, the Act fails to require bilingual dissemination.
However, as Valoy testified at her administrative hearing that she only read and wrote Spanish "[a] little bit," it is questionable whether Valoy would have been able to comprehend the literature even if it had been in Spanish.
However, plaintiff's assertion that the ALJ failed to probe into Valoy's understanding of her right to counsel and of the role that counsel could play in the proceedings warrants discussion. At the outset of the hearing, the ALJ began to elicit whether Valoy's waiver of counsel was knowing and voluntary by stating the "preliminary things that we all say all the time." These "preliminary things" included the following brief colloquy:
ALJ: When you asked for this hearing, we sent you [a] letter which told you that if you wanted to bring a lawyer or a non-lawyer representative, you could [do] so. Did you receive that?
VALOY: Yes.
ALJ: And I believe you don't have a representative, is that correct?
VALOY: No, it's very difficult to get one.
ALJ: So I assume you will be representing yourself today then?
Before making this statement, the ALJ began to provide a similar explanation and the interpreter interrupted, explaining that "you have to make your sentences shorter, sir, please." While it is impossible in retrospect to glean whether the interpreter's request stemmed from his difficulty interpreting longer sentences or instead from Valoy's difficulty comprehending compound sentences, because the latter is a real possibility, there is an even greater likelihood that Valoy did not folly comprehend her right to counsel.
While Valoy's answers suggest that she understood that she was permitted to retain counsel and even that she may have attempted to do so, her answers also reveal that her failure to do so was unlikely the result of her lack of interest. Rather, it appears that Valoy either did not comprehend the literature about how and where to retain free or contingent representation, or else was not able, in the time allotted, to secure representation from such sources. Therefore, in order to discharge his duty, the ALJ should have inquired as to whether Valoy understood the material and whether she desired additional time to secure representation. See Losco v. Heckler, 604 F. Supp. 1014, 1020 (S.D.N.Y. 1985) ("Nor did the ALJ adequately ensure that plaintiff fully and knowingly waived his right to counsel or appreciated the role that legal representation would play at that stage of the proceedings."); Alvarez v. Bowen, 704 F. Supp. 49, 52 (S.D.N.Y. 1989) ("A more thorough inquiry by the ALJ could have revealed [plaintiff's] desire to proceed with counsel, and allowed the ALJ to inform [plaintiff] of the possibility of adjourning the hearing until he obtained counsel.").
While I find the ALJ's behavior less than adequate, I may remand only when the absence of counsel prejudiced the plaintiff. See Infante v. Apfel 97 Civ. 7689, 2001 WL 536930, at *10 (S.D.N.Y. May 21, 2001). Therefore, if the ALJ fully developed the record and based his final determination on substantial evidence, any. deficiency in plaintiff's waiver would be immaterial for purposes of remand. See Santiago v. Apfel 98 Civ. 9042, 2000 WL 488467, at *5 (S.D.N.Y. April 25, 2000). Let's then turn to the record.
2. Fully Developed Record
Even when a plaintiff validly waives the right to counsel, because benefit proceedings are non-adversarial in nature, the ALJ must affirmatively develop the record. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citations omitted). And, the ALJ has an even greater responsibility to develop the record where claimants proceed pro se. See e.g. Lopez v. Sec'y of Dept. of Health and Human Servs., 728 F.2d 148, 149-150 (2d Cir. 1984). In such cases, and particularly when the pro se plaintiff is also handicapped by poor health and limited language skills, the ALJ must "make a searching investigation of the record" ( Cruz v. Sullivan, 912 F.2d 8, 10 (2d Cir. 1990) in order "to fill any clear gaps in the administrative record" ( Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (internal citations omitted)). In such cases, "the ALJ is under a heightened duty Ho scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Losco, 604 F. Supp. at 1020, citing Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (citations omitted). If the clinical records are "inadequate," the ALJ has a duty to seek additional information. Losco, 604 F. Supp. at 1020.
While the ALJ must supplement the record through his own initiatives when the record is incomplete or inadequate, this burden does not attach when the record is ample. It is undisputed that the ALJ at least partly discharged this duty by subpoenaing Valoy's medical records from (1) Harlem Hospital Center, "including Emergency Room and inpatient and (if any) outpatient [records], November 1998 to present. . . . and ALL PSYCHIATRIC RECORDS." Tr. at 94 (7/3/00 Harlem Hospital Center Subpoena); (2) Upper Manhattan Mental Health Center, including "copies of ALL treatment/therapy notes, test results, treatment plans/updates, and ALL other mental health/psychiatric records of above claimant whatsoever, September 1998 to present." Id. at 174 (7/3/00 Upper Manhattan Mental Health Center Subpoena); and (3) New York Presbyterian Hospital Center, including "copies of all treatment notes, test results and other medical records, INCLUDING FROM MAIN FACILITY AND AUDUBON A.C.N.C., November 1998 to present." (7/3/00 New York Presbyterian Hospital Center Subpoena). Whether these subpoenas folly discharged the ALJ's duty is a subject of dispute between the parties. Valoy contends both that the ALJ failed to subpoena records from additional facilities at which Valoy had sought care during the relevant time-period and also that the ALJ failed to request opinion reports from Valoy's treating physicians as to Valoy's fitness and capacity. I will address each of these contentions seriatim.
The ALJ's responsibility to assist a claimant has particular import in light of the well-established treating physician rule, which requires an ALJ to grant significant weight to the opinions of the treating physicians. "The duty to develop a full record and to assist a pro se plaintiff compels the ALJ . . . to obtain from a treating source expert opinions as to the nature and severity of the claimed disability" and to "make every reasonable effort to obtain pot merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability . . ." Jimenez v. Massanari, 00 Civ. 8957, 2001 U.S. Dist. LEXIS 11952, at *36 (S.D.N.Y. Aug. 16, 2001). See also Connor v. Barnhart, 02 Civ. 2156, 2003 U.S. Dist. LEXIS 14291, at * 17 (S.D.N.Y. Aug. 14, 2003) ("the ALJ must obtain the treating physician's opinion regarding the claimant's alleged disability; `raw data' or even complete medical records are insufficient by themselves to fulfill the ALJ's duty."); Encarnacion v. Barnhart, 00 Civ. 6597, 2003 U.S. Dist. LEXIS 3884, at * 11 (March 18, 2003) ("the ALJ did not have [the treating physician's] opinion, but formed a medical judgment on the basis of [the treating physician's] treatment notes alone. The ALJ's interpretation of [the treating physician's] opinion evidences a[n] Q improper medical determination."); Vaughn v. Apfel, 98 Civ. 0025, 1998 U.S. Dist. LEXIS 19156, at *20 (S.D.N.Y. Dec. 10.1998) ("a remand is appropriate since the ALJ did not specifically request [the treating physician's] opinion as to the plaintiff's claimed disabilities."); Mejias v. Apfel, 96 Civ. 9680, 1998 U.S. Dist. LEXIS 14886, at *6 (S.D.N.Y. Sept. 23, 1998) (ALJ should have instructed the claimant to request additional detailed opinions from the treating physicians); Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990) (remanding because the ALJ "fail[ed] to advise [the plaintiff], a pro se claimant, that he should obtain a more detailed statement from [his treating physician]"). In the medical subpoenas, the ALJ failed to request that the treating physicians submit reports on Valoy's asserted disability and in particular, their perspective as to her fitness for employment. As a result, the treating physicians did not include such information. Rather, consultative physicians and medical experts, who had no prior history with Valoy, reviewed the medical records and speculated as to what the treating physicians would have concluded about Valoy's fitness (had they been requested to present their opinions). However, the consultative physicians' deductions may not replace the true opinions of the treating physicians.
The Act's treating physician rule mandates "deference to the views of the physician who has engaged in the primary treatment of the claimant." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). While "[a] treating physician's statement that the claimant is disabled cannot itself be determinative" ( Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)), the Act's regulations provide that `"a treating source's opinion on the issues) of the nature and severity of your impairment(s)' will be given `controlling weight1 if the opinion is `well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.'" Green-Younger. 335 F.3d at 106, citing 20 C.F.R. § 404.1527(d)(2).
The ALJ intimates that he was more generous than Valoy's treating physicians would have been (had they submitted their opinions as to Valoy's capacity to perform work) because he, on his own initiative, determined that Valoy should not perform her prior work as a beautician, as she could come into contact with chemicals and irritants that could exacerbate her skin conditions. However, the ALJ misses the mark in three respects. First, Valoy's physical ailments are less relevant to her alleged inability to work than they are to her psychological impairments. Second, the ALJ is not in a position to surmise from medical records and notes, which said nothing about Valoy's ability to work, what Valoy's treating physicians -would have concluded about her occupational fitness had they been asked to render their opinion. And, third, it is not within his purview to make such determinations.
Defendant argues that because the ALJ subpoenaed all available medical records from most of Valoy's treating physicians, the record was "complete", and therefore no further duty to supplement the record attached. However, in light of the importance of the treating physician's opinion about the claimant's functional capacity, as demonstrated by the above cases, defendant's definition of "complete" is misguided. The ALJ could simply have added to the language of the subpoena, a request that the physicians either comment on the claimant's asserted disability and in particular her functional capacity, or else demand that the physician complete an attached questionnaire (functional or psychiatric capacity assessment), similar or better yet, identical to the one completed by the consulting physicians.
Defendant relies on Hanlon v. Barnhart, a District of Maine case, for the proposition that the ALJ need not acquire a "retrospective diagnosis" from the treating physician. Defendant's Memorandum In Opposition and Cross-Motion For Judgment on the Pleadings ("Def. Mem.") at 20; Hanlon v. Barnhart, 2003 WL 1114276, at * 1 (D. Me. Mar. 13, 2003), adopted at, 2003 WL 1900877 (D. Me. April 7, 2003). Not only is defendant's interpretation of Hanlon's holding contrary to the law of this district (see supra), but the meaning defendant attempts to attribute to Hanlon is inaccurate. The plaintiff in Hanlon did not (as Valoy does here) argue that the ALJ should have requested capacity assessments from the treating physician, but instead argued that the ALJ should have obtained a consultative mental examination from an independent practitioner. See Hanlon, 2003 WL 1114276, at *2. While the AIJ in this case ordered such a consultative examination, the ALJ in Hanlon had not done so. And, the Court held that the ALJ did not have the duty to order a retrospective consultative examination by an independent physician. Id The Hanlon Court never discusses the critical issue here — whether an ALJ should request that a treating physician complete a functional or mental capacity assessment.
As to plaintiff's second argument, that the ALJ failed to subpoena all of Valoy's medical records, I find that because the missing records involve physical ailments, which are less critical in this case, and are from providers that were not brought to the ALJ's attention in a timely fashion, their absence would not likely warrant a remand. However, because remand is already warranted from the absence of the treating physicians' opinions, if Valoy provides necessary information as to the whereabouts of these additional facilities, the records should be obtained.
C. ALJ's Decision Was Supported By Substantial Evidence
A plaintiff seeking benefits must prove that he suffers from a disability by showing that "his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful-work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A) (emphasis added). This inability to engage in gainful work, not just the debilitating medical condition, must continue for at least twelve months. See Barnhart v. Walton, 122 S.Ct. 1265, 1268 (2002). The Second Circuit has adopted a five-step test for assessing such claims:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substaintial gainful activity. 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 Secretary then determines whether there is other work which the claimant could perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The claimant has the burden of proof at the first four steps, and assuming success, the burden shifts to the Secretary at step five. See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), quoting Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
As explained supra, the Commissioner's Regulations inform courts to assign great strength to treating physicians' opinions, noting in particular that:
Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairments) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.20 C.F.R. § 416.927(d)(2); see also Shaw v. Chater, 221 F.3d 126, 131-134 (2d Cir. 2000). While the ALJ logically explains how he concluded at step five that Valoy was not disabled, since the ALJ failed to elicit the opinions of any of Valoy's treating physicians as to her functional capacity, it is impossible to determine whether the ALJ's final determination was supported by substantial evidence. Therefore, I remand the case for further proceedings consistent with this Opinion.
When the second determination is made, the examiner should make explicit on which evidence he bases his decision and what credit or discredit he assigns to Valoy's testimony.