Opinion
04 Civ. 9129 (BSJ) (KNF).
December 28, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Marisol Acevedo ("Acevedo") brings this action, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's application for Supplemental Security Income ("SSI") benefits. The plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. She seeks an order reversing the final decision of the Commissioner or, alternatively, an order directing that her case be remanded to the Commissioner for additional administrative proceedings, pursuant to 42 U.S.C. § 405(g) and awarding the plaintiff costs and reasonable attorney's fees, pursuant to 28 U.S.C. § 2412(d). The Commissioner has filed a cross-motion for judgment on the pleadings. The parties' respective motions are addressed below.
II. BACKGROUND
On January 21, 2003, the plaintiff filed an application for SSI benefits in which she alleged that she became disabled on February 1, 1992, due to knee and back pain. (Tr. 72, 80). Prior to an administrative hearing on her claim, she added a claim that she was also disabled due to depression. (Tr. 108, 172-177). The application was denied initially on May 12, 2003, (Tr. 21-31) and on reconsideration. (Tr. 34). The plaintiff then requested a de novo hearing before an Administrative Law Judge ("ALJ") (Tr. 16-17), and appeared with counsel before Administrative Law Judge O. Price Dodson (the "ALJ") on February 12, 2004 (Tr. 39). On March 24, 2004, the ALJ issued a decision finding that the plaintiff was not entitled to disability benefits under the Social Security Act. (Tr. 21-31). The plaintiff appealed the ALJ's decision to the Social Security Administration Office of Hearings and Appeals ("Appeals Council") on May 8, 2004. (Tr. 18-20). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the plaintiff's request for review on September 24, 2004. (Tr. 5-7). See 42 U.S.C. § 405(h).On November 18, 2004, the plaintiff filed the instant complaint seeking review of the Commissioner's decision. Thereafter, as noted above, the plaintiff moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking an order reversing the Commissioner's decision or, alternatively, remanding her case to the Commissioner for further administrative proceedings. In response, as noted above, the defendant filed a cross-motion for judgment on the pleadings. Factual Background 1. Non-Medical Evidence
Acevedo, a United States citizen, was born on July 9, 1965. She has two children. In her application for SSI benefits, Acevedo identified her disabling conditions as pain, resulting from surgery on both her knees, and deterioration of her lower back discs. (Tr. 80).
The plaintiff claims that she began suffering with pain in her lower back in 1992. (Tr. 105, 134). Thereafter, in 1994, she was in a car accident, which exacerbated her back condition and injured her knees. (Tr. 134, 137). As a result of her back and knee pain, Acevedo became depressed.
At the hearing before the ALJ, Acevedo testified that she had obtained a high school equivalency diploma and had completed some college level course-work. (Tr. 41). She testified that she was last employed in 2001. (Tr. 80). However, that employment, along with all previous employment she had, lasted less than six months. (Tr. 42).
In connection with her back pain, the plaintiff testified that her doctor reported she had "herniation [and] deteriation of the discs." (Tr. 47). She also testified that she was taking medication for her back pain. As for her knees, the plaintiff reported she had undergone two surgeries on her right knee and one surgery on her left knee. She also testified that her doctor(s) recommended another surgery in the future.
In connection with her depression, Acevedo testified that she cried often, had trouble sleeping, felt guilty and felt as if she wanted to be alone. (Tr. 48). She also stated that "[s]ometimes I have — like I want to kill somebody." (Tr. 48). Acevedo testified that she was receiving counseling and taking medication, both of which were "helping [her] a lot." (Tr. 48). The plaintiff also testified that she had been hospitalized for her depression, but she could not remember the circumstances of her hospitalization.
In describing her daily activities, Acevedo stated that she prepares meals for her daughter, walks her daughter to and from school and spends time reading with her daughter. Acevedo explained that, after she walks her daughter to school each day, which takes about twenty minutes, round trip, she lays down for about an hour to rest her back and knees. She also reported doing laundry, shopping for groceries and attending weekly religious services.
On January 8, 2004, Isadora Evora, M.S.W. ("Evora"), who is employed at the Bronx Mental Health Clinic, completed a mental health impairment questionnaire for the plaintiff's SSI application. (Tr. 172-177). Evora reported that, since July 2003, the plaintiff had been attending weekly treatment and group therapy sessions. Evora opined that the plaintiff had: (1) "marked" restrictions on the activities of daily living she can perform; and (2) "marked" difficulties in maintaining social functioning. Evora also noted that ofttimes, Acevedo experienced deficiencies maintaining concentration, persistence or pace, and that she also experienced episodes of deterioration in work or work-like settings, once or twice. According to Evora, the plaintiff reported experiencing loss of interest, tiredness, isolation and having concerns about dying. Evora did not relate that Acevedo experienced significant side effects as a consequence of the medications she was taking. However, Evora opined that the plaintiff's depression made it impossible for her to perform sustained work activity.
2. Medical Evidence A. Physical
In 1994, the plaintiff sustained injuries from an automobile accident. (Tr. 114). As result of her injuries, the plaintiff had surgery on both knees. (Tr. 114-121).
From 2000 through 2003, Acevedo was treated, on multiple occasions, at an outpatient clinic of the North Central Bronx Hospital. On January 27, 2000, x-rays of the plaintiff's left wrist revealed degenerative changes in the radiocarpol joint, but no evidence of fracture, and dislocation or bone destruction was uncovered. (Tr. 167). On November 9, 2001, the plaintiff complained of back pain. (Tr. 132). However, no abnormalities were discovered on physical examination. On June 11, 2002, Acevedo complained of pain in her left scapula. A diagnosis of musculoskeltal pain was made. (Tr. 130). On July 9, 2002, Acevedo reported pain in her knees. (Tr. 129). However, her left knee exhibited a full range of motion with no acute signs of synovitis. (Tr. 129). In October 2002, the plaintiff complained of chronic pain in her left knee. (Tr. 128). However, x-rays showed the plaintiff's knee was normal. She was instructed to take Tylenol. On January 14, 2003, the plaintiff was evaluated for, inter alia, vague complaints of experiencing pain in her knees and feelings of anger. (Tr. 127). The diagnoses reported were emotional lability, arthritis and backache. A physical examination of Acevedo revealed positive straight leg raising and good motor strength and reflexes.
In a March 5, 2003 Physical Residual Functional Capacity Assessment, completed by a Disability Determination Services ("DDS") consultant, the following findings were made based on the plaintiff's medical history: Acevedo could lift ten pounds, occasionally; she could stand and/or walk at least 2 hours, in an eight-hour workday, and sit for about 6 hours, in an eight-hour workday; and she could push and pull without limitations. Acevedo had one postural limitation, crouching, no manipulative limitations and no communicative or environmental limitations. (Tr. 140-145).
On March 10, 2003, Dr. Antero Sarreal ("Dr. Sarreal"), a consultative orthopedist, examined the plaintiff. (Tr. 137-139). At that time, Acevedo complained of bilateral knee pain in her left knee and, to a lesser extent, pain in her right knee and back, with numbness in the left lower extremity. Acevedo also reported a history of depression. Dr. Sarreal reported that the plaintiff was independent in dressing, undressing and bathing. He also observed that Acevedo used a cane to walk, but was able to walk slowly without it. He also noted that squatting caused the plaintiff back and knee pain.
After completing his examination, Dr. Sarreal concluded that the plaintiff had "moderate" limitation in lifting and carrying heavy objects, pushing and pulling, prolonged standing and long distance ambulation. (Tr. 138). He reported no limitation in the plaintiff's use of her hand and fingers. Dr. Sarreal also concluded that Acevedo had frequent limitations in crouching, squatting, bending and climbing, occasional limitation in prolonged sitting, and minimal limitation in stopping and balancing. He reported that Acevedo had a "fair prognosis with trunk and extremity conditioning and strengthening exercises to prevent muscle atrophy and joint contracture deformity." (Tr. 139).
On March 12, 2003, the plaintiff was seen as an outpatient at North Central Bronx Hospital. (Tr. 124). An orthopedic examination revealed limited range of motion of the plaintiff's spine. No knee instability was found during the examination.
A March 20, 2003 MRI of the plaintiff's left knee revealed a "probable" tear in the anterior horn of the lateral meniscus; unremarkable soft tissues, and a "small, horizontal area of high signal in the anterior horn of the lateral meniscus." The MRI showed that the remainder of the internal and external structures were within normal limits. (Tr. 166).
A September 15, 2003 MRI of the planitiff's lumbar spine showed, inter alia, "significant disc dessication and degeneration . . . [causing] moderate bilateral neural foraminal narrowing." (Tr. 165). The MRI revealed degenerative changes at L4-5 and small disc herniation.
B. Mental
On October 14, 2002, the plaintiff had a psychiatric evaluation at the North Central Bronx Hospital. Upon arriving at the facility's emergency room, Acevedo indicated that she wanted to hurt her daughter. (Tr. 122). According to Acevedo, she was annoyed with her daughter, who was then three years old, and felt like slapping her. The plaintiff was not admitted to the hospital.
On October 22, 2003, the plaintiff again sought treatment at North Central Bronx Hospital. (Tr. 133). The relevant medical report indicates the plaintiff was "hostile."
In April 2003, Dr. Robert Cicarell ("Dr. Cicarell"), a psychiatrist, performed a consultative examination of the plaintiff. (Tr. 134-136). The plaintiff informed Dr. Cicarell that she suffered from depression manifested by sleep disturbance, appetite disturbance, fatigue, loss of interest in activities, suicidal ideation and crying spells. She reported no history of psychiatric treatment or hospitalization. During the psychiatric examination, the plaintiff's speech was normal and no unusual mannerisms were displayed by her. Her thought process was logical and coherent, but her mood and affect were moderately depressed. It was determined that Acevedo's overall intellectual functioning was within normal limits. Dr. Cicarell found that the plaintiff had a fair ability to understand, carry out and remember instructions in a work setting. Dr. Cicarell made a diagnosis of dysthymic disorder.
Dysthymic disorder is a mood disorder characterized by chronic mildly depressed or irritable mood often accompanied by other symptoms (as eating and sleeping disturbances, fatigue, and poor self-esteem). See Medline Plus Medical Dictionary (last visited on November 29, 2006), http://www.nlm.nih.gov/medlineplus/mplusdictionary.html (enter term "dysthymia").
On May 9, 2003, Dr. M. Apacible ("Dr. Apacible"), a state medical consultant, reviewed the plaintiff's medical history and assessed her psychiatric condition. (Tr. 156). Dr. Apacible found that the plaintiff had mild restrictions of daily living activities. He also concluded that Acevedo had moderate limitations in her ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; and (3) maintain attention, concentration, persistence or pace. According to Dr. Apacible, Acevedo's mental impairments caused a mild limitation in her daily living and social functioning.
3. ALJ's Decision
The ALJ considered whether Acevedo was disabled within the meaning of the Social Security Act. The ALJ found that Acevedo had not engaged in substantial gainful activity since the alleged onset of her impairments. The ALJ noted that Acevedo's degenerative disc disease, knee surgeries and depression were "severe," based on the requirements in the pertinent regulation, 20 CFR § 416.920(b). The ALJ concluded that Acevedo's medically determinable impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ also concluded that Acevedo's allegations regarding her limitations were only partially credible. The ALJ determined that Acevedo had the residual functional capacity to lift and carry ten pounds, perform tasks not requiring prolonged standing or walking and to perform work not involving complex or detailed tasks. In addition, the ALJ found that Acevedo had no past relevant work experience, had been educated beyond high school and was "a younger individual between the ages of 18 and 44." Furthermore, the ALJ found that Acevedo possessed the residual capacity to perform a significant range of sedentary work, although Acevedo's exertional limitations did not allow her to perform the full range of sedentary work. The ALJ concluded that a significant number of jobs existed in the national economy that Acevedo could perform, and that she was not under a "disability," as that term is defined in the Social Security Act, at any time through the date of the decision. (Tr. 30-31).
III. DISCUSSION
Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides, in pertinent part, that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." The standard for granting a motion for judgment on the pleadings under Rule 12(c) is identical to that of a Rule 12(b)(6) motion for failure to state a claim. See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). In both instances, a court is required to accept as true all factual allegations in the complaint and to view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. See id.;District Council No. 9 v. APC Painting, Inc., 272 F. Supp. 2d 229, 235 (S.D.N.Y. 2003). Dismissal of a complaint is not warranted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ad-Hoc Comm. of the Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02). Additionally, on a motion to dismiss, a court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995).
The Social Security Act provides, in pertinent part, that "[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The court may remand the case for good cause shown, either upon the motion of a party or sua sponte. Clark v. Callahan, No. 96 Civ. 3020, 1998 WL 512956, at *1-2 (S.D.N.Y. Aug. 17, 1998) (citing Igonia v. Califano, 568 F.2d 1383 [D.C. Cir. 1977]).
Standard of Review
Under the Social Security Act, the findings of the Commissioner as to any fact are conclusive, if they are supported by substantial evidence. See 42 U.S.C. § 405(g). When a district court reviews a decision by the Commissioner denying a claim for disability benefits, it must assess whether the Commissioner applied the appropriate legal standard and whether her decision is supported by substantial evidence. See Toribio v. Barnhart, No. 02 Civ. 4929, 2003 WL 21415329, at *2 (S.D.N.Y. June 18, 2003) (citing Balsamo v. Chater, 142 F.3d 75, 79 [2d Cir. 1998]). "Substantial evidence" within the meaning of the Social Security Act is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427) (internal quotation marks omitted). Thus, a reviewing court is limited to considering whether the Commissioner's determination is supported by substantial evidence in the record and is free from legal error.See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). Determination of Disability
An individual is disabled within the meaning of the Social Security Act if he or she can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment suffered must be such that the individual:
. . . 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).
Pursuant to 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner must apply a five-step sequential procedure for evaluating a disability claim. The Second Circuit has summarized that procedure as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if he is not, the Commissioner considers whether the claimant has a "severe impairment" which significantly limits his or her physical or mental ability to do basic work activities; (3) if the claimant suffers from a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has one of these impairments, the Commissioner will consider him disabled without considering vocational factors such as age, education, and work experience; (4) if the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. See Rosa, 168 F.3d at 77 (citing Berry v. Schweiker, 675 F.2d 464, 467 [2d Cir. 1982]).
The disability claimant has the burden of proving the first four steps. Thereafter, at the fifth step, the burden shifts to the Commissioner who must prove that the claimant is capable of performing other work. See Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000); Toribio, 2003 WL 21415329 at *3.
Application of the Legal Standard
In this case, the ALJ followed the five-step sequential evaluation process set forth at 20 C.F.R. §§ 404.1520 and 416.920. At the first step of the analysis, the ALJ found that the plaintiff had not engaged in substantial gainful activity since the onset of her impairments. At the second step, the ALJ determined that the plaintiff had an impairment that was considered "severe" within the meaning of the Social Security Act. At the third step, the ALJ found that the plaintiff's impairments did not meet or medically equal one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P. Appendix 1. Therefore, in the fourth step of the analysis, the ALJ considered whether the plaintiff, despite her "severe" impairment had the residual functional capacity to perform her past work; however, since the ALJ found that the plaintiff had no past employment experience, he proceeded to the fifth step in the sequence and found that there was sedentary work that the plaintiff could perform in her current physical and mental state. Accordingly, the ALJ found that the plaintiff was not "disabled," as that term is defined in the Social Security Act.
The plaintiff contends the ALJ's decision was not supported by substantial evidence and was based on legal errors. Specifically, the plaintiff contends the ALJ gave greater weight, incorrectly, to Dr. Cicarell's opinion than he gave to Evora's opinion. Furthermore, Acevedo maintains the ALJ failed to consider all the evidence available to him and/or did not develop the record, relating to: (a) the plaintiff's use of prescription medications, including Risperdal and Vioxx; (b) MRIs taken of the plaintiff's knee and back after Dr. Sarreal's examination of her; and (c) the plaintiff's visit to the North Central Bronx Hospital's emergency room with complaints that she wanted to hurt her daughter and her administrative hearing testimony, that she felt as if she wanted to "kill somebody."
1. Social Worker's Opinion
The plaintiff maintains that Evora's opinion concerning her mental health should have been given greater weight than the opinion rendered by Dr. Cicarell because Evora had treated her for 26 weeks, while Dr. Cicarell examined her once. However, the plaintiff does not contend Evora's opinion should have been considered the opinion of a "treating source."
A treating source's medical opinion is given controlling weight when it 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). Medical opinions are "statements from physicians and psychologists or other acceptable medical sources. . . ." 20 C.F.R. 416.927(a)(2). A social worker's opinion is not a medical opinion and, therefore, it may not be deemed "controlling," pursuant to 20 C.F.R. § 416.927(d)(2).
In reviewing an individual's application for SSI benefits, an ALJ may rely on evidence from "medical sources" and "other sources." See 20 C.F.R. § 416.913. The pertinent regulation defines "acceptable medical sources" as: (1) licensed physicians; (2) licensed osteopaths; (3) licensed or certified psychologists; (4) licensed optometrists; and (5) qualified speech-language pathologists. 20 C.F.R. § 404.913(a). An ALJ may also rely on "other sources," including the opinions of therapists, to show the severity of an applicant's impairments. 20 C.F.R. § 416.913(d).
In evaluating the plaintiff's mental impairments the ALJ gave significant weight to the opinion of Dr. Cicarell. Although Dr. Cicarell was not a "treating physician," the ALJ attached significant weight to his opinion based on his expertise as a specialist, and because his findings were consistent with Dr. Apacible's findings, that the plaintiff's mental impairment caused mild limitations in her daily activities and social functioning, moderate limitations with respect to understanding and remembering detailed instructions, carrying out detailed instructions, and maintaining attention, and moderate limitations in her ability to maintain concentration, persistence or pace.
The ALJ gave minimal weight to Evora's opinion because she: (1) was not an acceptable medical source, see 20 C.F.R. § 416.913(a); (2) had treated the plaintiff for less than one year; (3) found "marked" limitation in the plaintiff's daily activities and social functioning, but her finding was not supported by the "conservative treatment" the plaintiff was receiving; and (4) found "marked" limitation in the plaintiff's daily activities and social functioning, but her finding was inconsistent with the findings of Dr. Cicarell and Dr. Apacible. In addition, the ALJ found Evora's findings were inconsistent with the plaintiff's testimony regarding her activities.
The ALJ explained sufficiently the inconsistencies that led him to give greater weight to the opinion of Dr. Cicarell than was given to Evora's opinion. See Tindell v. Barnhart, 444 F.3d 1002, 1005-1006 (8th Cir. 2006). Therefore, the Court finds that the ALJ did not err in according greater weight to Dr. Cicarell's opinion than that of Evora. 2. Failure to Address Specific Evidence and/or Failure to Develop Medical History (a) Prescription Medication
The plaintiff contends the ALJ failed to accord any significance to her use of Risperdal, an anti-psychotic medication, and Vioxx, an anti-inflammatory medication.
When determining an applicant's credibility, the ALJ is required to consider all medical evidence, including "the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms." Social Security Ruling ("SSR") 96-7, 1996 WL 374186 (July 2, 1996.); see also Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) (finding ALJ's decision suspect because, inter alia, it was not clear that the ALJ had accounted for the plaintiff's use of prescription medicine for pain and depression).
In the instant case, it is unclear whether the plaintiff's use of prescription medications, such as Risperdal and Vioxx, was considered by the ALJ in evaluating the plaintiff's impairments and her ability to work. Since the plaintiff's use of medication could substantiate her subjective complaints of disabling pain and depression, the case should be remanded to the Commissioner for clarification on the extent, if any, to which these medications factored into the analysis of the plaintiff's entitlement to SSI benefits. See Molina v. Barnhart, No. 04 Civ. 3201, 2005 WL 2035959, at *9 (S.D.N.Y. Aug. 17, 2005).
The only indication that the ALJ considered Acevedo's use of prescription medications, appears in his decision's reference to Evora's finding that the plaintiff had experienced no significant side effects from her medications. (Tr. 26). The ALJ never addressed the type or dosage of the plaintiff's medication.
Moreover, the Court notes that it does not appear that the ALJ made any effort to obtain medical reports from, or the opinions of the physicians who prescribed the medication for Acevedo, or to have the examining and consulting physicians reevaluate her after she began taking Risperdal and Vioxx. See 20 C.F.R. § 416.912(d). The ALJ has "an affirmative duty to develop the administrative record." See Molina v. Barnhart, 2005 WL 2035959, at *6 (citation omitted). "This duty exists even when the claimant is represented by counsel. . . ." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
The Secretary's regulations describe this duty by stating that, "[b]efore we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports." 20 C.F.R. § 404.1512(d). The regulations also state that, "[w]hen the evidence we receive from your treating physician . . . or other medical source is inadequate for us to determine whether you are disabled, . . . [w]e will first recontact your treating physician . . . or other medical source to determine whether the additional information we need is readily available." 20 C.F.R. § 404.1512(e).Id.
In the case at bar, the ALJ had a responsibility to make a reasonable effort to obtain the opinions of the physicians who prescribed the plaintiff's medications. The ALJ had the names of these physicians. (Tr. 170). If the ALJ attempted to obtain the information then, on remand, the Commissioner should make clear why the ALJ's effort failed. If no effort was made to obtain the information, then a reasonable effort should be made to obtain medical reports from, and/or the opinions of the physicians who prescribed medication for Acevedo. Moreover, in the absence of medical reports from, or the opinions of Acevedo's prescribing physicians, the ALJ should make a reasonable effort to have the examining and consulting physicians reevaluate the plaintiff's physical and mental health, in light of her use of prescription medications including, but not limited to, Risperdal and Vioxx.See Rosa v. Callahan, 168 F.3d at 82-83 (Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence is appropriate). (b) March and September 2003 MRIs and January 2000 X-Ray
The plaintiff alleges "the ALJ erroneously gave little or no weight to objective medical evidence documenting her physical impairments." Specifically, the plaintiff contends the ALJ failed, erroneously, to address: (1) a September 15, 2003 MRI of the plaintiff's lumbar spine; (2) a March 20, 2003 MRI of the plaintiff's left knee; and (3) a January 27, 2000 x-ray of the plaintiff's left wrist.
The ALJ identified the above-noted evidence in his decision. However, since Dr. Sarreal's examination and the Residual Functional Capacity Evaluation, produced by a DDS consultant, were completed prior to the March 20, 2003 MRI and the September 15, 2003 MRI, and, furthermore, since the wrist x-ray was not available to either physician, it appears that the medical opinions relied upon by the ALJ were based on incomplete information. Inasmuch as these medical opinions were the only medical opinions relied upon by the ALJ in interpreting the plaintiff's medical records, it is unclear how the ALJ, a lay person, could evaluate this evidence properly. Therefore, on remand, the Commissioner should make reasonable efforts to have the March and September 2003 MRIs and the January 2000 x-ray, reviewed by the examining and consulting physicians who evaluated the plaintiff's physical impairments previously.
(c) Evidence of Serious Mental Illness
According to the plaintiff, the ALJ did not address her October 14, 2002 psychiatric evaluation, made at the North Central Bronx Hospital, and did not explain why he disregarded the plaintiff's testimony, that she sometimes felt the desire to kill somebody.
An ALJ must review all of the evidence relevant to a claim under 20 C.F.R. § 404.1527(c), but he does not err by failing to mention each piece of that evidence. See also Pena v. Chater, 968 F. Supp. 930, 938 (S.D.N.Y. 1997). "[I]f the ALJ fails to consider evidence in the record, the Court must be 'able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.'" Molina v. Barnhart, 2005 WL 2035959, at *8 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 [2d Cir. 1983]).
The ALJ's failure to mention the plaintiff's psychiatric examination and her testimony at the administrative hearing, is not in itself error. However, since the Court has determined that the plaintiff's medical history concerning her use of anti-psychotic medication was not fully developed, it would be appropriate for the Commissioner, on remand, to reevaluate the record evidence, in light of any new medical report or opinion(s) that exists.
Attorney's Fees and Costs
The plaintiff requests attorney's fees and costs be awarded to her, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). However, since she would not be a "prevailing party" simply by obtaining a remand for further proceedings before the Commissioner, she is not entitled to an award of attorney's fees and costs, pursuant to that statute. See Sullivan v. Hudson, 490 U.S. 877, 887, 109 S. Ct. 2248, 2255 (1989). Therefore, the plaintiff's request for attorney's fees and costs should be denied.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, made pursuant to Fed.R.Civ.P. 12(c), be granted by remanding this matter to the Commissioner for further proceedings, as discussed above; and (2) the defendant's cross-motion for judgment on the pleadings be denied.