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remanding for further development of the record when "the extent of the plaintiff's limitations was not clear, and the ALJ failed to develop the record sufficiently to make an appropriate determination in either direction"
Summary of this case from Dambrowski v. AstrueOpinion
No. 03 Civ. 9021 (JGK).
December 31, 2004
OPINION AND ORDER
The plaintiff, Barbara Villanueva brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3) seeking reversal of a final determination of the Commissioner of Social Security ("Commissioner") that she was not entitled to Supplemental Security Income ("SSI") disability benefits.
On June 4, 2004, the Commissioner moved to remand the case for further administrative proceedings pursuant to sentence four of § 405(g). The Commissioner acknowledged that the Administrative Law Judge ("ALJ") erred in denying the plaintiff's claim without providing a sufficient explanation of his reasoning, particularly with respect to the plaintiff's physical capabilities. Accordingly, the Commissioner requested that the ALJ's decision be reversed and remanded for further administrative proceedings.
In response, the plaintiff filed a cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) seeking to reverse the Commissioner's determination and remanding solely for a calculation of SSI disability benefits. The plaintiff asserts that there is no question that SSI disability benefits are warranted; the only question left to be resolved is the amount of benefits to which Villanueva is entitled. The plaintiff's motion is based on her contention that the evidence clearly established that the plaintiff was disabled because of her mental disability.
The plaintiff filed an application for SSI disability benefits on December 27, 2001, in which she alleged physical and mental disabilities. The plaintiff alleged that the disability began on July 1, 2001. (R. at 58-61, 63.) Her application was denied on an initial review on March 25, 2002. (R. at 40.) The application was again denied on reconsideration on April 8, 2002. (R. at 41-43.)
At the plaintiff's request, a hearing was held on March 5, 2003. (R. at 21-38.) The plaintiff appeared before ALJ Bernard A. Trembly with her attorney. (R. at 23.) The ALJ noted that the plaintiff alleged that she was disabled due to "depression, anxiety, a history of cervical cancer, asthma, and fibroid tumors." (R. at 14.) The plaintiff's attorney noted that "her primary problem[s]. . . . [are] her psychiatric issues and emotional issues." (R. at 24.) Villanueva testified that at that time, she was taking prescription Celexa, Seroquel, and BuSpar to relieve anxiety and symptoms of depression. (R. at 31.)
The ALJ considered the case de novo, and, on May 22, 2003, found that the plaintiff was not disabled under the Social Security Act (the "Act"). (R. at 12-19.) The ALJ's decision became the final decision of the Commissioner on September 16, 2003, when the Appeals Council denied the plaintiff's request for review. (R. at 6-8.) This appeal followed.
I.
The administrative record contains the following facts. The plaintiff was born on July 10, 1966. (R. at 26, 66.) The plaintiff has a seventh-grade education. (R. at 26, 191.) She was raped multiple times in the past (R. at 29, 228-29) and was hospitalized at age 15 following a suicide attempt. (R. at 189.) The plaintiff also has a history of drug use. On July 10, 2001, Villanueva began attending a methadone clinic five days per week. (R. at 241.) The plaintiff had no work experience at the time of the ALJ's decision. (R. at 26.) The plaintiff has not engaged in substantial gainful activity since at least December 27, 2001. (Id.) Villanueva had worked as a cashier for three weeks in 2001. (Id.)
A review of the plaintiff's medical records reveals that prior to the alleged onset of disability, the plaintiff received gynecological treatment at Beth Israel Hospital. (R. at 105-81.) In 1998, a cervical pap smear revealed abnormal or atypical squamous growth cells. (R. at 140, 163, 165, 167-68.) The plaintiff was treated throughout 1999 and 2000 for fibroid tumors that caused pelvic pain. (R. at 168-73.)
Following Villanueva's alleged onset of disability on July 1, 2001, the plaintiff visited Dr. Susan Whitley, her treating psychiatrist, at the Albert Einstein Medical Center. Dr. Whitley first conducted a psychiatric evaluation on September 14, 2001. (R. at 228-29.) Dr. Whitley diagnosed the plaintiff with Axis I post-traumatic stress disorder ("PTSD"); heroin and cocaine dependence in recent remission; and Axis II-borderline traits. She also recommended weekly therapy. (R. at 229.)
A gynecologist next examined the plaintiff on January 17, 2002 for complaints of abdominal pain and swelling. (R. at 185-86.) The examining physician's handwritten assessment included dysmenorrhea and a fibroid uterus with increased abdominal girth. (R. at 186.) The plaintiff was instructed to undergo an abdominal and pelvic CT-scan. (Id.)
On February 15, 2002, Dr. A. Delachapelle examined the plaintiff in a consultative psychiatric interview requested by the Social Security Administration ("SSA"). Dr. Delachapelle noted that the plaintiff reported suffering from depression since her teens. Dr. Delachapelle noted that Villanueva had been in psychiatric treatment at Albert Einstein Medical Center for two years at the time of this visit. "She is treated with trazadone 100 mg at night, Zoloft 200 grams per day, BuSpar 15 mg twice per day, Seroquel 25 mg twice per day, and Paxil 20 mg per day." (R. at 189.) He also reported that the plaintiff had a history of heroin abuse and was currently in a methadone treatment program. (Id.) Dr. Delachapelle's notes indicated that the plaintiff was:
[A]lert and cooperative, appropriately dressed, established fair eye contact and rapport. Speech was coherent and relevant without a thinking disorder. Her abdomen was extremely swollen. She seemed anxious, depressed and irritable. The claimant was not hallucinated, delusional, paranoid, referential or suicidal. Intellectual functioning appeared to be in the average range . . . Attention and concentration were adequate. Insight and judgment were considered fair . . . Memory was intact for recent and remote events. Fund of information was within normal limits.
(R. at 189-90.)
Dr. Delachapelle added, "In my opinion, the claimant has a satisfactory ability to understand and remember instructions, but the ability to carry out instructions, respond appropriately to supervision, coworkers and work pressures, in a workplace is diminished." (R. at 190.) Dr. Delachapelle's diagnosis was Axis I major depressive disorder-recurrent episode and heroin dependence in remission. (Id.) There was no Axis II diagnosis and the plaintiff's prognosis was "fair." (Id.)
On February 19, 2002, a physical examination of the plaintiff's revealed acne, diffuse abdominal tenderness, and increased abdominal girth. (R. at 230.) This examination report, which also noted anxiety and depression, was completed and signed by Dr. Whitley.
On the same day, Dr. Peter Graham, a consultative internist, examined the plaintiff as part of her referral by the State Office of Disability Determinations. Dr. Graham surveyed the plaintiff's medical background, noting a history of cervical cancer, a recent cone biopsy performed at Beth Israel Hospital, and the plaintiff's upcoming CT-scan for tumors in the uterus. (R. at 191.) The plaintiff discussed her 16-year history of psychiatric disorder, which Dr. Graham noted "describe[d] anxiety-depression disorder." (Id.) Upon physical examination, the plaintiff's behavior was considered appropriate, and her mood and affect were normal. (R. at 192.) Dr. Graham diagnosed the plaintiff as having a history of cervical cancer, a history of drug abuse for which the plaintiff was on methadone, a history of psychiatric disorder, and mild bipedal edema. (R. at 193.) With respect to the plaintiff's "capabilities", Dr. Graham stated, "This patient is able to sit, stand, walk, travel, lift, carry, handle objects, hear and speak." (Id.)
On February 22, 2002, Dr. Whitley again examined the plaintiff and found her CT scan to be normal. The plaintiff appeared angry and worried, and she complained of sleeping problems. (R. at 230.) Dr. Whitley's diagnosis remained unchanged, and she prescribed the medications Paxil and BuSpar. (R. at 231.) Two weeks later, the plaintiff told Dr. Whitley that she continued to suffer from abdominal pain and anxiety, although she was sleeping better. (R. at 232.) Dr. Whitley noted that the plaintiff's condition was improving but was unstable due to increased anxiety. (Id.)
On February 26, 2002, Dr. Whitley completed a form from the State Office of Disability Determinations that assessed the plaintiff's condition. (R. at 234-40.) She indicated that the plaintiff was suffering from PTSD, major depression-recurrent, panic disorder, and opioid dependence. (R. at 234.) At that time, she noted that the plaintiff's symptoms included a depressed mood, insomnia, low energy, reduced concentration, and panic attacks two to three times a week. (Id.) Dr. Whitley reported that Villanueva had shown mild improvement since beginning treatment in September 2001. (R. at 236.) She noted that Villanueva's current concerns about health had led to severe symptom relapse and increased anxiety and panic. (Id.) The plaintiff's mood and affect were also reported: "Depressed and anxious. Frequently tearful." (Id.) Dr. Whitley wrote that the plaintiff had no limitations of understanding or memory. (R. at 238.) However, Dr. Whitley stated that the plaintiff's concentration was limited by fatigue and anxiety, and that the plaintiff's social functioning was limited by an impaired ability to accept feedback and anxiety symptoms. (Id.) Dr. Whitley also believed that the plaintiff's ability to travel was limited by panic attacks. (R. at 239.)
On March 4, 2002, Dr. Whitley wrote that the plaintiff was unable to fill her Paxil prescription due to problems with Medicaid. (R. at 233.) Dr. Whitley gave the plaintiff samples of the medication Zoloft until her Paxil prescription could be filled. (Id.) On April 12, 2002, Dr. Whitley wrote a note that the plaintiff's PTSD depression and panic disorder were "stable" on medication. (R. at 222.) The note was a request for assistance because of the plaintiff's inactive Medicaid. (Id.)
On March 5, 2002, Dr. C. Richard Nobel, a nonexamining State agency psychiatrist, completed a Mental Residual Functional Capacity ("MRFC") assessment. (R. at 196-98.) He noted that the plaintiff's ability to remember work procedures, carry out simple instructions, make simple work-related decisions, and get along with co-workers was not significantly limited. (R. at 196-97.) He also indicated that the plaintiff's ability to remember and carry out detailed instructions, conform to a regular work schedule, concentrate for longer periods, interact with the general public, accept instruction and criticism from supervisors, and to respond appropriately to changes in the work setting were all "moderately limited". (Id.) Dr. Nobel noted that Villanueva had the ability to carry out simple instructions and worklike procedures; she would have difficulty in a large work setting but would be able to function in a small office atmosphere, and that she would be able to make simple decisions with adequate supervision. (R. at 197.) In addition, Dr. Nobel completed a Psychiatric Review Technique form in which he noted that the plaintiff suffered from "affective disorders". "anxiety-related disorders", and "substance addiction disorders". (R. at 199.)
On March 25, 2002, an analyst for the SSA reviewed the plaintiff's administrative file and made a Physical RFC assessment regarding Villanueva's physical limitations based on evidence of abdominal swelling, "1+" edema, and occasional swelling of the feet. (R. at 215-21.) The report noted that Villanueva alleged a disability due to stomach swelling and pain. (R. at 216.) The Physical RFC listed the plaintiff's exertional limitations: Villanueva' could frequently lift less than 10 pounds and occasionally lift and carry 20 pounds. (Id.) Moreover, the Physical RFC assessment noted that plaintiff could stand for 2 hours in an 8-hour workday and sit for about 6 hours. (Id.) Aside from these exertional limits, the plaintiff was said to suffer from "occasional" postural limitations. No manipulative, visual, communicative, or environmental limitations were established. (R. at 218-19.) Under the heading "Symptoms", it was noted that, "[Villaneuva]'s allegations are partially credible but not to the extent alleged." (R. at 220.)
Finally, the administrative record contains an unsigned and undated MRFC assessment, apparently completed by Dr. Whitley. (R. at 251-53.) In this MRFC determination, the plaintiff was noted to be "markedly limited" with respect to several work-related abilities. For purposes of this assessment, "markedly limited" was defined as "[e]ffectively precludes the individual from performing the activity in a meaningful manner." Villanueva was also found to be "moderately limited" in several areas, which meant that she would be significantly affected but not totally precluded from being able to perform a given task. (Id.)
The MRFC assessment contains Dr. Whitley's initials at various points. At the hearing before the ALJ, the plaintiff's lawyer referred to presenting a MRFC assessment by Dr. Whitley. (R. at 30.) The ALJ, who was familiar with the document, identified it as being completed by Dr. Whitley. (R. at 16.)
Areas where the plaintiff was found to be "markedly limited" included: the ability to understand and remember detailed instructions; the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; the ability to sustain ordinary routine without supervision; the ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of rest periods; the ability to accept instructions and respond appropriately to criticism from supervisors; the ability to respond appropriately to changes in the work setting; the ability to travel to unfamiliar places or use public transportation; the ability to set realistic goals or make plans independently. (R. at 251-53.)
Areas where the plaintiff was found to be "moderately-limited" included: the ability to remember locations and work-like procedures; the ability to understand and remember one- or two-step instructions; the ability to carry out simply, one- or two-step instructions; the ability to work in coordination with or proximity to others without being distracted by them; the ability to make simple work related decisions; the ability to ask simple questions or request assistance; the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and the ability to be aware of normal hazards and take appropriate precautions. (R. at 251-53.)
I.
On May 22, 2003, the ALJ denied Villanueva's claim for disability benefits. After describing Villanueva's medical history and the evidence before him, the ALJ made the following findings and conclusions with respect to Villanueva's condition:
2. The medical evidence establishes that [Villanueva] has a severe history of fibroid tumors; a depressive disorder, not otherwise specified; a post-traumatic stress disorder; and a panic disorder, but that she does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
3. . . . at a medium level of exertion, with the limitation to simple, repetitive tasks in a nonpublic work setting, [Villanueva] would not experience severe or disabling pain or any other disabling symptoms, including depression and anxiety. . . .
4. [Villanueva] has the residual functional capacity to perform nonexertional requirements of work except for lifting and carrying more than 25 pounds frequently or 50 pounds occasionally, which are exertional limitations. Nonexertionally, [Villanueva] is limited to simple, repetitive tasks in a nonpublic work setting. ( 20 C.F.R. § 416.945).
5. [Villanueva] has no past relevant work experience.
6. [Villanueva's] residual functional capacity for the full range of medium work is reduced by a limitation to simple, repetitive tasks in a nonpublic work setting. . . .
10. Based on exertional capacity for medium work, and [Villanueva's] age, education, and work experience, section 416.969 of Regulations No. 16 and Rule 203.25, Table No. 3, Appendix 2, Subpart P, Regulations No. 4 ("Section 416.969"), would direct a conclusion of "not disabled."
11. [Villanueva's] capacity for medium work has not been compromised by her exertional limitations. Accordingly, using [Section 416.969] as a framework for decisionmaking, the claimant is not disabled.
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work . . . she can also do sedentary and light work." 20 C.F.R. § 416.967(c).
(ALJ's Decision dated May 22, 2003, at R. 18-19.)
A court may set aside a determination by the Commissioner only if it is based on legal error or is not supported by substantial evidence in the record. See 42 U.S.C. §§ 405(g), 1383(c)(3);Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is "more than a mere scintilla;" it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).
A claimant seeking SSI benefits is considered disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). In assessing a claim of disability, the Commissioner must consider: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) the claimant's subjective evidence of pain and physical incapacity as testified to by herself and others who observed her; and (4) the claimant's age, educational background, and work history. See Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Ramos v. Apfel, No. 97 Civ. 6435, 1999 WL 13043, at *5 (S.D.N.Y. Jan. 12, 1999); Gray v. Chater, 903 F. Supp. 293, 297 (N.D.N.Y. 1995).
The definition of disability for the purposes of disability insurance benefits under Title II of the Act is similar. See 42 U.S.C. § 423(d)(1)(A). The determination of disability under Title II is also similar to the determination of disability for purposes of SSI disability benefits under Title XVI of the Act.Ramos v. Apfel, No 97 Civ. 6435, 1999 WL 13043, at *4, n. 1 (S.D.N.Y. Jan. 12, 1999). Cases under 42 U.S.C. § 423 are cited interchangeably with cases under 42 U.S.C. § 1382c(a)(3). See Hankerson v. Harris, 636 F.2d 893, 895 n. 2 (2d Cir. 1980);DeJesus v. Chater, 899 F. Supp. 1171, 1173 n. 3 (S.D.N.Y. 1995).
The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner, which set forth a five-step inquiry. See 20 C.F.R. § 416.920. The Court of Appeals for the Second Circuit has described this five-step process as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work that the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citation omitted); see also Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); Garvin v. Barnhart, 254 F. Supp. 2d 404, 409 (S.D.N.Y. 2003); Ramos, 1999 WL 13043, at *4.
The claimant bears the initial burden of proving that she is disabled within the meaning of the Act. See 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i); see also Rodriguez v. Apfel, No. 96 Civ. 8330, 1998 WL 150981, at *7 (S.D.N.Y. Mar. 31, 1998). This burden encompasses the first four steps described above. See Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). If the claimant satisfies the burden of proof through the fourth step, she has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step. See id. at 722-23; see also Infante v. Apfel, No. 97 Civ. 7689, 2001 WL 536930, at *4 (S.D.N.Y. May 21, 2001) (citingBerry, 675 F.2d at 467). In meeting her burden of proof on the fifth step, the Commissioner, under appropriate circumstances, may rely on the medical vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the grids." The grids may be used in disability determinations for SSI benefits as well as for disability insurance benefits. See 20 C.F.R. § 416.969. 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 factors, the grids indicate whether the claimant can engage in any other substantial gainful work that exists in the national economy. Generally, the result listed in the grids is dispositive on the issue of disability. However, the grids are not dispositive where they do not accurately represent a claimant's limitations because the claimant suffers from non-exertional limitations that significantly limit her capacity to work. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996); Garvin, 254 F. Supp. 2d at 409.
The grids classify work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling.
Residual functional capacity is an assessment of an individual's ability, despite her impairment, to meet physical, mental, sensory, and other demands of jobs based on all relevant evidence. 20 C.F.R. § 416.945; Ramos, 1999 WL 13043, at *5 n. 3.
With respect to the plaintiff's claims of mental impairment, Social Security Regulations require the ALJ to use a "special technique" to evaluate the claimed mental impairment. See 20 C.F.R. § 416.920a(a). At step two of the five-step procedure for evaluating disability, the ALJ must rate the degree of functional limitation resulting from the plaintiff's mental impairment(s) to determine whether they are "severe." See id. at § 416.920a(c); Rosado v. Barnhart, 290 F. Supp. 2d 431, 437 (S.D.N.Y. 2003). For this purpose, the Commissioner has identified four "broad functional areas" in which to rate the claimant's degree of functional limitation: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. See id. § 416.920a(c)(3). The plaintiff's limitations in the first three areas (activities of daily living; social functioning; and concentration, persistence, or pace) are rated along a five-point scale ranging from none, mild, moderate, marked, to extreme.See id. § 416.920a(c)(4). The degree of limitation in the fourth functional area (episodes of decompensation), is rated according to a four-point scale ranging from none, one or two, three, to four or more. The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity. Id. § 416.920a(c)(4). If the plaintiff's mental impairment is severe, then the ALJ must determine whether the impairment meets or is equivalent in severity to a listed mental disorder. See id. § 416.920a(d) (2). If the plaintiff is found to have a severe impairment not listed in the Appendix, then the ALJ must assess the plaintiff's residual functional capacity to determine whether the plaintiff can meet the mental demands of past relevant work in spite of the limiting effects of her impairment and, if not, whether the plaintiff can do other work, considering her remaining mental capacities reflected in terms of her occupational base, age, education, and work experience. See id. § 416.920a(d)(3); SSR 85-15 (PPS-119), 1985 WL 56857, at *4 (S.S.A. 1985). Where, as here, the question at step five is whether the plaintiff can be expected to perform unskilled work, Program Policy Statement No. 119 to Social Security Ruling 85-15 provides:
[t]he basic mental demands of . . . unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base.
SSR 85-15 (PPS-119), 1985 WL 56857, at *4.
In this case, the ALJ made some reference to the sequential disability inquiry but he did not make specific note of each step as he undertook the evaluation. The ALJ determined that step one was inapplicable given that the plaintiff had no work experience. (R. at 15.) At step two, the ALJ concluded that the plaintiff had a combination of severe physical and mental impairments, which imposed significant work-related limitations. The ALJ then determined, as required in step three, that the record did not contain the specific documentation of any impairments that met or equaled the criteria contained in the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4. (Id.) Because the plaintiff's impairments did not match any listed impairment in the Appendix, a residual functional capacity assessment was therefore necessary. See 20 C.F.R. § 416.920a(d)(3); Rosado, 290 F. Supp. 2d at 437.
In this case, the ALJ cited the February 20, 2002 report by Dr. Graham in which the doctor concluded that the plaintiff was able to sit, stand, walk, travel, lift, carry, handle objects, hear and speak, and imposed no work-related limitations. (R. at 15, 193.) The ALJ then referred to a February 1, 2002 report prepared by Dr. Whitley. The ALJ characterized this report as "render[ing] no opinion of total permanent disability . . . [or] any specifics with respect to the claimant's residual functional capacity, despite the claimant's history of fibroid tumors." (R. at 16.) At that point, the ALJ turned to the conclusions of the consulting psychiatrist, Dr. A. Delachapelle. The ALJ noted that, according to Dr. Delachapelle, "the plaintiff has a satisfactory ability to understand and remember instructions, but . . . her ability to carry out instructions, respond appropriately to supervisors, coworkers; and withstand work-related pressures is diminished." (R. at 16.) The ALJ also referred to the undated MRFC completed by Dr. Whitley, in which the ALJ noted:
. . . the claimant is described as markedly limited in terms of her ability to maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; sustain an ordinary routine without supervision; complete a normal workweek without interruptions from psychologically based symptoms; perform at a consistent pace and accept instructions and respond appropriately to criticism from supervisors [citing Ex. 11F, R. at 222-47]. Dr. Whitley described the claimant as moderately limited in terms of her ability to understand, remember, and carry out simple job instructions and get along with coworkers and peers [citing Ex. 13F, R. at 251-53].
(R. at 16.)
The ALJ stated that Dr. Whitley's opinion was "controverted by substantial evidence in the record; that is, the findings of Dr. Delachapelle . . ." (R. at 16.) Moreover, the ALJ found that the limitations identified by Dr. Whitley were not consistent with her own treatment records: "Indeed, in her report of April 12, 2002, Dr. Whitley described the claimant's mental status as stable on medications." (R. at 16-17.) The ALJ then concluded that the medical evidence established that the plaintiff had the residual functional capacity to perform "at least simple, repetitive tasks in a nonpublic work setting . . . [and that] the claimant would [not] experience severe or disabling pain or any other disabling symptoms at a medium level of exertion." (R. at 17.) The ALJ specifically noted the conclusions of Dr. Nobel. In accordance with step four of the sequential disability evaluation, the ALJ noted that the plaintiff had no past relevant work experience to measure against her residual functional capacity, therefore the burden shifted to the Commissioner to demonstrate other jobs existed in significant numbers in the national economy that the plaintiff could perform. (Id.) In accordance with the fifth and final step of the sequential evaluation, the ALJ determined that the plaintiff's residual functional capacity, when combined with the plaintiff's age, education, language skills, and work history required a determination pursuant to the grids that the plaintiff was not disabled at any time through the date of the ALJ's decision. (R. at 17, Appendix 2, Table No. 3, Rule 203.25). The ALJ noted that the plaintiff's nonexertional limitations to "simple, repetitive tasks in a nonpublic setting do not allow her to perform all of the occupations anticipated by Rule 203.25. However, the [plaintiff's] additional nonexertional limitations did not significantly reduce the number of unskilled medium jobs otherwise available to her, in light of her age." (R. at 17) Accordingly, the ALJ concluded that the plaintiff was not under "disability" as that term is defined in the Act at any time through May 22, 2003, the date of the ALJ's decision. (R. at 15, 19.)
II.
The Commissioner concedes that there was legal error in the ALJ's decision and that the error requires a remand. Both the Commissioner and the plaintiff agree that the ALJ committed legal error in the fifth step of the sequential analysis of disability, in which the Commissioner bore the burden of proof, because the ALJ failed to provide adequate explanation of the plaintiff's physical abilities. See Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) (finding error for ALJ to rely on vague or conclusory medical opinion describing claimant's functional capacity when satisfying Commissioner's burden of demonstrating that claimant could perform certain exertional requirements). In this case, the ALJ relied on the February 20, 2002 report by Dr. Graham. That report simply recited that, "This patient is able to sit, stand, walk, travel, lift, carry, handle objects, hear and speak." (R. at 193.) Accordingly, the plaintiff and the Commissioner agree that Dr. Graham's opinion is silent with respect to specific limitations on the plaintiff's ability to work and the details from which the ALJ could have assessed the plaintiff's residual capacity based on any physical limitation. The extent to which the plaintiff can perform or is limited in performing each of these stated work functions is not evident on the face of Dr. Graham's report.Upon a finding that an administrative record is incomplete or that an ALJ has applied an improper legal standard, the Court of Appeals for the Second Circuit has generally instructed the district court to remand the matter to the Commissioner for further consideration. See Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) ("Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence.") (internal quotation marks omitted).
In this case, however, the plaintiff argues that a remand solely for the calculation of benefits is required because the evidence of her mental impairments requires a finding of disability. In Curry, the Court of Appeals remanded for the sole purpose of calculating an award of benefits because the Commissioner failed to meet the standard at the fifth step.Curry, 209 F.3d at 124. The Court of Appeals stated that a remand solely for a calculation of benefits is appropriate where "no purpose would be served" by a remand for a rehearing.Curry, 209 F.3d at 124 (citing Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998)).
Moreover, in Rosa, the Court of Appeals noted that a remand solely for the calculation of benefits is appropriate "where the Court has no apparent basis to conclude that a more complete record might support the Commissioner's decision. . . ." Rosa, 168 F.3d at 83. The Court of Appeals remanded for a rehearing inRosa because the error included the ALJ's failure to develop the record sufficiently to make an appropriate determination of disability. Id.; see Schaal, 134 F.3d at 504-05.
In this case, the plaintiff does not argue that the cursory opinion of Dr. Graham, and the ALJ's reliance on it, would justify a remand solely for a calculation of benefits. Indeed, the plaintiff does not argue that the evidence of her physical impairments is such that the Commissioner would be required to find her disabled based on those physical impairments. Rather, she contends that the evidence in the record requires a finding of disability based on her mental impairments. Therefore, based solely on the ALJ's failure to explain the plaintiff's physical abilities and his reliance on the conclusory opinion of Dr. Graham, a remand for rehearing is required, rather than a remand solely for the calculation of benefits.
III.
There was also legal error in the ALJ's evaluation of the plaintiff's mental impairments. As explained below, these errors also require a remand for a rehearing rather than, as the plaintiff argues, a remand solely for the calculation of benefits.
A.
Before making a final determination according to the five-step process outlined above, the ALJ had an affirmative duty to develop adequately the medical record. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); 20 C.F.R. § 416.912(d). The duty to assist a claimant in obtaining her medical records "carries particular importance" in light of the well-established "treating physician rule," which requires the ALJ to grant controlling weight to the opinion of the plaintiff's treating physician if the opinion is well supported by medical findings and not inconsistent with other substantial evidence. Jones v. Apfel, 66 F. Supp. 2d 518, 538 (S.D.N.Y. 1999) (report of Magistrate Judge adopted by district court); see also 20 C.F.R. § 416.927(d); Rosa, 168 F.3d at 78-79; Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). As one court has explained:
[T]hese two principles — the duty to develop a full record and the treating physician rule — do not operate independently of each other. . . . [T]he duty to develop a full record . . . compels the ALJ . . . to obtain from the treating source expert opinions as to the nature and severity of the claimed disability.Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991);see also § 416.912(e) ("When the evidence we receive from your treating physician or psychologist . . . is inadequate for us to determine whether you are disabled, . . . [w]e will first recontact your treating physician or psychologist . . . to determine whether the additional information we need is readily available.")
In this case, the ALJ failed to develop fully the record in accordance with his affirmative duty to seek complete medical information. See Schaal, 134 F.3d at 505 ("[e]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from . . . [the treating physician] sua sponte.") (internal quotations and citations omitted). There were gaps in the administrative record that should have caused the ALJ to pursue additional information regarding the plaintiff's medical history. It is unclear, for example, when the undated MRFC by Dr. Whitley was written. It would be more significant if written late in her treatment of the plaintiff, although it should still be reconciled with Dr. Whitley's April 2002 statement that the plaintiff's conditions were "stable" on medication. (R. at 222.)
More significantly, there are gaps in the medical records which should have substantiated Dr. Whitley's opinions. There are only six different dated progress notes covering the period from September 14, 2001 to March 8, 2002 in the administrative record even though the plaintiff allegedly visited Dr. Whitley every week beginning in September 2001. (R. at 30, 228-33.) As the Court of Appeals noted in Rosa, an ALJ committed legal error where she "had before her only [the treating physician's] sparse notes which reflected nine visits between [the treating physician] and [the plaintiff], considerably fewer visits than the two likely had based upon [the plaintiff's] testimony suggesting monthly treatment over a period of years." Rosa, 168 F.3d at 79-80; see also Devora v. Barnhart, 205 F. Supp. 2d 164, 172-73 (S.D.N.Y. 2002) ("The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant's treating physician.") Here, it is entirely possible that Dr. Whitley, "[i]f asked," could have provided a sufficient explanation for any seeming lack of support for her findings. See Rosa, 168 F.3d at 80 (quoting Clark, 143 F.3d at 118).
B.
A treating physician's opinion is given controlling weight when that opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 416.927(d)(2); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The Commissioner's regulations require that greater weight be given to the opinion of a treating than a non-treating physician, especially where the examination by a non-treating physician is for the purposes of the disability proceeding itself. See Schisler, 3 F.3d at 567-68. These regulations state, in pertinent part:
Treatment relationship. 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 impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone, or from reports of individual examinations, such as consultative examinations. If we find that a treating source's opinion on the . . . nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence . . . 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 to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.20 C.F.R. § 416.927(d)(2).
The factors used to determine the weight of a treating source's opinion when it is not given controlling weight include:
(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion, i.e. "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight" that opinion is given; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; if it is, it will be accorded greater weight; and (v) other relevant but unspecified factors. Schisler, 3 F.3d at 567 (surveying 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6)); Reyes v. Barnhart, No. 01 Civ. 1724, 2002 WL 31385825, at *6 (S.D.N.Y. Oct. 21, 2002).
Even if the conclusions of the treating physician are not given controlling weight, the ALJ is required to articulate the weight given to the treating physician's conclusions and to give "good reasons" for that weight. Schisler, 3 F.3d at 567. As the Court of Appeals for the Second Circuit has noted:
We do not hesitate to remand when the Commissioner has not provided "good reasons" for the weight given to a treating physician['s] opinion and we will continue remanding when we encounter opinions that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion.Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
In this case, the ALJ did not give controlling weight to the treating physician's opinion. The ALJ concluded that:
Ordinarily, a treating physician's opinion is entitled to considerable weight. However, an Administrative Law Judge is not bound by a treating physician's opinion if that opinion is controverted by substantial evidence in the record and is not supported by the physician's treatment records or any objective, clinical findings identified by him or her.
In the instant case, Dr. Whitley's opinion is controverted by substantial evidence in the record; that is, the findings of Dr. Delachapelle . . . Nor are the limitations identified by Dr. Whitley consistent with her own treatment records. Indeed, in her report of April 12, 2002, Dr. Whitley described the claimant's mental status as stable on medications.
Certainly, there is no credible evidence that, in the absence of substance abuse, the claimant could not perform at least simple, repetitive tasks in a nonpublic work setting. Nor would the claimant experience severe or disabling pain or any other disabling symptoms at a medium level of exertion.
(R. at 16-17.)
Although the ALJ found that Dr. Whitley's conclusions were inconsistent with those of Dr. Delachapelle, such inconsistencies would not provide sound reasons for disregarding Dr. Whitley's conclusions entirely. Dr. Whitley evaluated Villanueva from September 2001 forward, allegedly on a weekly basis, although, as explained above, there is no explanation in the record for the absence of numerous treatment notes. Dr. Whitley prescribed medications for Villanueva and monitored her progress. In various letters, Dr. Whitley opined that Villanueva was unable to participate in a work program and should apply for disability benefits. (R. at 224-27.) Given the length and extent of the plaintiff's treatment by Dr. Whitley, and in light of the medical reports submitted in this case, Dr. Whitley's conclusions were to be accorded some weight by the ALJ.
Because the ALJ failed to develop the record properly, it is not clear to what extent Dr. Whitley's opinions are inconsistent with the reports submitted by the consulting physicians. The ALJ cited selectively to various reports from Dr. Whitley. He did note the findings of marked and moderate limitations found by Dr. Whitley in her undated MRFC assessment. (R. at 16, 251-53.) In contrast, the ALJ cited a report dated February 15, 2002, in which Dr. Delachapelle stated that, "In my opinion, the claimant has a satisfactory ability to understand and remember instructions, but the ability to carry out instructions, respond appropriately to supervision, coworkers and work pressures, in a workplace is diminished." (R. at 190.) As the Commissioner points out, it is not clear what Dr. Delachapelle meant by "diminished", and it is unclear if Dr. Delachapelle would find that the diminished ability is a "substantial loss" as required in Social Security Regulation 85-15. Yet, the ALJ merely repeated Dr. Delachapelle's report without further analysis. The ALJ then concluded that the non-treating physician's opinion was entitled to greater weight than the opinion of the treating physician without any indication of why Dr. Delachapelle's report was more credible than the reports completed by Dr. Whitley.
Similarly, in determining that the functional limitations resulting from the plaintiff's mental impairment were not severe, the ALJ relied, in part, on the report by the State agency psychiatrist, Dr. Nobel. According to Social Security Regulations, the opinions of a State agency psychological consultant can be given weight only insofar as they are supported by evidence in the case record. See SSR 96-6p, 1996 WL 374180, at *2 (S.S.A. July 2, 1996). After reviewing the records in this case, but without a physical examination of the plaintiff, Dr. Nobel opined that Villanueva experienced only mild restrictions of her activity of daily living; mild difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (R. at 209.) Dr. Nobel's conclusions that the plaintiff suffered from no areas of marked limitation are plainly inconsistent with Dr. Whitley's conclusions in the undated MRFC assessment that the plaintiff showed "marked limitations" in several areas. (R. at 251-53.) However, the ALJ failed to acknowledge that a conflict between the findings of Dr. Nobel and Dr. Whitley existed, and he did not give any reasons why Dr. Nobel's conclusions were entitled to greater weight than the conclusions of the plaintiff's treating physician.
By failing to develop adequately the plaintiff's medical record, to note the relative weight given to the consulting and treating physicians' opinions, and to provide "good reasons" for the weight that he accorded the treating physician's opinions, the ALJ committed legal error. Schisler, 3 F.3d at 567. Remand is appropriate where, as here, "further findings or a clearer explanation for the decision" would help to assure the proper disposition of Villanueva's claim. Pratts, 94 F.3d at 39 (citing Berry, 675 F.2d at 469). Although the plaintiff argues that a remand solely for the calculation of benefits is merited as the Court of Appeals found in Balsamo and Curry, this case is more similar to the situation in Rosa, where the extent of the plaintiff's limitations was not clear, and the ALJ failed to develop the record sufficiently to make an appropriate determination in either direction. See Rosa, 168 F.3d at 83. A remand solely for the calculation of benefits would not be appropriate on the current incomplete record, and further findings may support the Commissioner's decision. Because the ALJ's denial of benefits was based upon legal error, the Commissioner's determination is reversed and the case is remanded to the Commissioner for reconsideration of Villanueva's mental and physical disability.
CONCLUSION
For the reasons stated above, the plaintiff's motion for judgment on the pleadings is denied. The Commissioner's cross-motion for an order reversing the Commissioner's decision and remanding the case is granted. The Commissioner's determination is reversed and the case is remanded pursuant to sentence four of 42 U.S.C. § 405(g). The case is remanded to the Commissioner for further administrative proceedings consistent with this Opinion and Order. The Clerk is directed to enter Judgment and to close this case.
SO ORDERED.