Summary
remanding the case to the Commissioner for several reasons including the need "to introduce the testimony of a vocational expert or receive other evidence, apart from the Medical-Vocational Guidelines, regarding the existence of jobs in the national economy for a person with Plaintiff's non-exertional impairments"
Summary of this case from Jackson v. AstrueOpinion
01 Civ. 10032 (RCC) (DF)
August 20, 2003
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, U.S.D.J:
INTRODUCTION
Defendant, Joanne Barnhart, Commissioner of Social Security ("Commissioner" or "Defendant"), has filed a motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment affirming the decision of the Commissioner that plaintiff Awilda Burgos ("Plaintiff") is not entitled to disability insurance benefits or Supplemental Security Income under the Social Security Act. Plaintiff has neither responded to Defendant's motion nor cross-moved.For the reasons set forth below, and so as to permit full review, I recommend that the case be remanded for further proceedings, with a direction that the Administrative Law Judge ("ALJ"): (1) determine if additional medical records are available to support or clarify the opinion of Dr. Max Montalvo, Plaintiff's treating physician; (2) take into account Plaintiff's work history in making specific findings as to her credibility; (3) set forth specific findings as to the credibility of Gladys O'Terro's testimony regarding her observations of Plaintiff's condition; and (4) hear the testimony of a vocational expert regarding the existence of jobs in the national economy for a person with Plaintiff's non-exertional limitations on her ability to work, given the apparent inapplicability of the Medical-Vocational Guidelines (the "grids") to this case.
FACTUAL BACKGROUND
Plaintiff was born on February 14, 1951, in Puerto Rico. (R. at 43.) Although there is some confusion in her testimony, it appears that Plaintiff either earned her high school equivalency degree or completed much of high school, in Puerto Rico. ( Id. at 26, 44.) Plaintiff received some vocational training when she worked as a stenographer in Puerto Rico, in 1970 or 1971. ( Id. at 26.) She has not worked since moving to the continental United States over 20 years ago. ( Id. at 28, 43.)
"R." refers to the transcript of the administrative proceedings.
Plaintiff had two administrative hearings in this matter. ( See infra at 17-18.) At her initial hearing in December 1997, Plaintiff testified that she earned a high school equivalency diploma. ( Id. at 26.) At the second hearing in August 2000, Plaintiff testified that she thought the highest level of education she had completed was the 11th grade, and that she did not remember receiving a high school equivalency diploma. ( Id. at 44.) In a written report, completed at the time she applied for benefits in October 1996, Plaintiff reported that she had completed the 12th grade. ( Id. at 122.) Plaintiff also reported to her treating psychologist that she had completed the 12th grade in Puerto Rico, and read and wrote commensurate with her education level. ( Id. at 187.)
A. Medical Evidence
The medical records that were before the ALJ covered a period from October 1996 through October 2000, and indicated that Plaintiff had been evaluated and/or treated during that time for various ailments described in her complaint. ( See Compl. at 1.) The medical evidence was as follows: 1. Psychiatric Evaluations and Treatment
According to Plaintiff's medical records, on September 6, 1996, Plaintiff saw Dr. R. Bonillarodriguez, a psychologist at the Lincoln Medical and Mental Health Center outpatient psychiatry department. (R. at 183.) Plaintiff complained that she had asthma, that she had experienced a choking sensation for the prior 10 years, and that she had experienced a problem with her "nerves" since childhood. ( Id.) She also disclosed a "long/chronic" history of heroin use, and stated that she had been taking methadone for the past eight and a half years. ( Id.)
Dr. Bonillarodriguez next evaluated Plaintiff on September 24 and October 25, 1996. ( Id. at 184.) The notes from those evaluations indicate that Plaintiff still complained of a choking sensation, as well as anxiety. ( Id.) Dr. Bonillarodriguez noted that Plaintiff was still taking methadone, and that, although Plaintiff "denie[d] drug use when asked directly," Plaintiff continued to submit "dirty" urine for testing. ( Id.) Dr. Bonillarodriguez further found that Plaintiff had very rapid, but goal-oriented, speech, and that her thoughts were also rapid "and not logical at times." ( Id.) Plaintiff's mood was anxious, and her affect was anxious and constricted. ( Id.) Plaintiff denied any suicidal or homicidal ideation. ( Id.)
Plaintiff next saw Dr. Bonillarodriguez on November 11, 1996. ( Id. at 189.) Plaintiff complained of anxiety, difficulty sleeping and "various body aches and pains." ( Id.) She said that her anxiety had worsened and that she was going to "die soon." ( Id.) Plaintiff's speech was rapid, but goal-directed. ( Id.) Her mood was anxious, and her affect was congruent. ( Id.) Plaintiff reported that she had episodic auditory and visual hallucinations at night, and that she "th[ought] she hear[d] people knocking on her door and fear[ed] darkness because she 'might see something like spiders.'" ( Id.)
On December 5, 1996, Dr. Luis Zeiguer conducted a consultative psychiatric evaluation of Plaintiff. ( Id. at 174-76.) At the time of the interview, Plaintiff reported that she was not currently using drugs or alcohol and that she had abstained from heroin use for the prior eight years. ( Id.) She further reported that she took methadone daily and participated in a methadone program five times a week. ( Id.) Plaintiff reported three instances of slashing and overdose, each of which had occurred prior to age 20. ( Id.) Dr. Zeiguer stated that he did not "detect a suicide plan in the sense of lethal intent" and that there was no history of psychosis. ( Id.) Plaintiff reported that she was anxious and "tend[ed] to feel tense, f[ound] it hard to relax." Plaintiff also described trouble sleeping. ( Id. at 175.) According to Dr. Zeiguer, Plaintiff described "fears that something bad might happen and get[ting] the sensation of tension over her chest and at times feel[ing] lightheaded. She did not describe, however, clear cut panic attacks." ( Id. at 174.)
Dr. Zeiguer observed that Plaintiff was clean, tidy and well groomed. ( Id. at 175.) She did not show abnormal posture or movement. ( Id.) Plaintiff had good eye contact, established good rapport and related well during the interview. ( Id.) Plaintiff remembered three items after a few minutes, solved analogies and was able to do serial subtraction mentally. ( Id.) Plaintiff was also logical and reality oriented. ( Id.) Dr. Zeiguer described her mood as mildly depressed, but stable. ( Id.) Dr. Zeiguer noted that Plaintiff's affect was appropriate and responsive. The doctor concluded that Plaintiff's concentration, orientation and memory appeared adequate. ( Id.) Her judgment was described as adequate, and her insight was fair. Her fund of information was considered to be consistent with her background, and she was found to be of normal intelligence. ( Id.) Dr. Zeiguer noted the following in his diagnosis: (1) anxiety disorder, not otherwise specified; (2) rule out generalized anxiety; and (3) rule out personality disorder. ( Id.) He recommended psychotherapy, "possible antidepressants" and behavior modification; and noted that Plaintiff "seemed able to perform simple repetitive chores." ( Id.)
A consultative psychiatric review, performed by Dr. C. Anderson, on December 17, 1996, ( id. at 138-46) found that Plaintiff had anxiety-related disorders, not otherwise specified, but was "able to persist with simple, repetitive tasks" ( id. at 139). Dr. Anderson found that Plaintiff had slight limitations in her activities of daily living and in her social functioning, but seldom experienced deficiencies in concentration, persistence or pace, which could lead to a failure to complete tasks in a work setting. ( Id. at 145.) Although Dr. Anderson found that Plaintiff had experienced one or two episodes of deterioration and/or decompensation in work-like settings, he indicated that Plaintiff's degree of limitation did not satisfy the requirements listed in Appendix 1 of the Social Security regulations. ( Id.; see also discussion infra at 23 regarding Appendix 1.)
Plaintiff was seen by Dr. Bonillarodriguez, at the Lincoln Medical and Mental Health Center, on December 18, 1996. ( Id. at 190.) Plaintiff complained of anxiety and trouble sleeping. ( Id.) At that time, Plaintiff was described as oriented, with goal-directed, rapid speech. ( Id.)
On January 21, 1997, Plaintiff was again seen by Dr. Bonillarodriguez. ( Id. at 191.) Plaintiff again complained of anxiety and trouble sleeping. ( Id.) Her mood and affect were considered to be anxious and expansive. ( Id.) Her thoughts were clear and logical. ( Id.) Plaintiff denied hallucinations or paranoia, although the doctor noted that Plaintiff claimed to have heard a woman scream at 3:00 a.m. for the prior three nights. ( Id.) Dr. Bonillarodriguez described Plaintiff as "relatively stable" and reported that Plaintiff was continuing to take methadone. ( Id.) Plaintiff requested medication for anxiety and was given a further appointment. ( Id.)
On February 28, 1997, Dr. Bonillarodriguez reported that Plaintiff had experienced no anxiety with the medication that was being prescribed, but continued to have somatic complaints. ( Id. at 192.) She was oriented, her speech was goal-directed and rapid, and her thoughts were clear and logical. Her mood was described as anxious, and her affect was constricted. ( Id.) Dr. Bonillarodriguez described Plaintiff as "stable." ( Id.)
On June 27, 1997, Plaintiff was seen by a resident in the Lincoln Hospital psychiatry department. ( Id.) Plaintiff reported that she was doing well, felt well and had experienced no side effects from her medication. ( Id.) The resident found that Plaintiff's cognition, impulse control, judgment and insight were good, and that Plaintiff was experiencing no audio/visual hallucinations. ( Id. at 193.) The resident concluded that Plaintiff was stable. ( Id.)
Plaintiff was next seen at Lincoln Hospital on August 26, 1997. ( Id.) On examination, she was described as slightly agitated. ( Id.) She reportedly spoke loudly and quickly. ( Id.) Plaintiff described personal and financial difficulties, and concerns about housing and Medicaid. ( Id.) The examiner did not agree with the prior diagnosis of anxiety, and suggested a new assessment. ( Id.)
When Plaintiff visited Lincoln Hospital for renewal of her medication on September 26, 1997, she had no specific complaints. ( Id. at 193-94.) Her mood was neutral, and her affect was consistent with her mood. ( Id.) Her thinking was clear, and she had good cognitive function. ( Id.)
On October 3, 1997, Plaintiff was again examined at Lincoln Hospital. ( Id.) Plaintiff again complained of anxiety and sleeplessness. ( Id. at 194.) The examiner noted that Plaintiff's condition had previously been diagnosed as bipolar disorder, but that there was no evidence of manic episodes. ( Id.) When Plaintiff returned on November 10, 1997, she reported that she felt calmer and had no complaints. ( Id.) Her mood was pleasant, and her affect was appropriate. ( Id.) Her thinking was clear, and she had good cognitive function. ( Id.)
On December 10, 1997, Dr. Loubeau M. Cheline, a psychiatrist at Lincoln Hospital, prepared a note stating that Plaintiff was being treated with medication and psychotherapy for an anxiety disorder which "impairs her occupational functioning." ( Id. at 180.)
Plaintiff was again seen at Lincoln Hospital on February 10, 1998. ( Id.) Her mood was described as anxious, and her affect was appropriate. ( Id.) She was described as "speaking rapidly and preoccupied with her symptoms." ( Id.) Her thinking was clear, and she had good cognitive function. ( Id.)
On April 8, 1998, a psychiatrist at the Lincoln Mental Health Center noted that Plaintiff's speech was rapid and pressured. ( Id. at 195.) Her insight and judgment were described as fair. ( Id.) Plaintiff stated that she heard voices. ( Id.) The doctor noted that Plaintiff had been taking 250 mg. of Depakote, as well as Zyprexa, and diagnosed her with bipolar disorder with borderline traits. ( Id.)
Plaintiff did not attend a scheduled appointment on May 8, 1998. ( Id.) When Plaintiff returned on May 26, 1998, she reported that she had not taken her medication for 18 days. ( Id. at 195-96.) Plaintiff's speech was rapid and overproductive, but coherent. ( Id.) Plaintiff had "low tolerance to heat." ( Id.) Her mood was expansive, and her affect was appropriate. ( Id.) Plaintiff reported "having difficulty staying alone or behind closed doors" and that she "felt she [was] going to asphyxiate." ( Id. at 196.) Despite the prior record, the doctor noted that there was no history of drugs. ( Id.) He further noted that Plaintiff's mood was labile and that she cried easily. ( Id.) Plaintiff reported that she had had previous head trauma, and that she was told that she was susceptible to seizures. ( Id.) The diagnosis was mental disorder secondary to head trauma, and Plaintiff was prescribed Depakote, Prozac and Zyprexa. ( Id. at 196.)
On February 9, 2000, between Plaintiff's first and second hearings ( see infra at 17-18), Dr. Flavia Robotti, a psychiatrist with H.S. Systems, Inc., performed a consultative psychiatric examination. ( Id. at 225-26.) Dr. Robotti reported that Plaintiff attended the examination accompanied by a friend, as she "cannot go out by herself" and "tends to get lost." ( Id. at 225.) Plaintiff reported that she was depressed and forgetful. ( Id.) She also stated that she "hear[d] the voice of a boy that died in April," reporting, "I'm getting scared. I think he came back." ( Id.) She also reported that she sometimes felt that she was choking or suffocating, and felt the need to tear off her clothes. ( Id.) Plaintiff reported that that feeling occurred about three times a month, as well as when she was around other people. ( Id.) Plaintiff had been taking Zyprexa and Paxil once a day. ( Id.) Plaintiff stated that she was hospitalized in her 20s for attempting to cut her wrist and for drinking poison. ( Id.)
On clinical examination, Plaintiff was well dressed and well groomed. ( Id. at 226.) Her speech was relevant and coherent, and Dr. Robotti noted that Plaintiff demonstrated no delusions, hallucinations, suicidal or homicidal ideation. ( Id.) Plaintiff's insight and judgment were limited, and her mood and affect were depressed. ( Id.) Plaintiff was oriented to person, time and place. ( Id.) Her recent and remote memory were normal. ( Id.) Dr. Robotti diagnosed psychotic disorder, not otherwise specified, and multiple phobias. ( Id.) She opined that Plaintiff had no limitations in understanding or memory. ( Id.) Additionally, Dr. Robotti assessed no limitations in sustained concentration, persistence, social interaction and adaptation. ( Id.) Dr. Robotti's diagnosis was "somewhat guarded," and she recommended a continuation of psychiatric treatment, psychotherapy and pharmacology. ( Id.)
On October 6, 2000, Dr. Jay Tempkin, a psychiatrist at Lincoln Hospital, submitted a report describing his treatment of Plaintiff's bipolar disorder. ( Id. at 233, 276-83.) He reported that Plaintiff was treated at Lincoln Hospital on a monthly basis, and received medication and supportive psychotherapy. ( Id. at 276-78.) Dr. Temkin listed Plaintiff's diagnoses as bipolar disorder, history of polysubstance abuse and borderline personality disorder. ( Id. at 277.) He described Plaintiff's symptoms to include racing thoughts, "auditory as well as visual hallucinations" and "pressured, rapid and loud volume speech." ( Id. at 276.) Dr. Tempkin reported that Plaintiff's insight, judgment and impulse control were fair, and that she had no side effects from her medication. ( Id. at 277-78.) He further noted that Plaintiff's mental conditions "lasted or can be expected to last for at least 12 months." ( Id. at 277.) He concluded that Plaintiff was capable of doing "light physical work in a low stress environment with supervision." ( Id. at 282.) 2. Physical Evaluations and Treatment
It appears from the record that, in October and November, 1996, Plaintiff was evaluated for physical ailments at the Lincoln Medical and Mental Health Center. (R. at 161-64.)
Dr. E. B. Balinburg then performed a consultative examination of Plaintiff on December 5, 1996, shortly after Plaintiff filed her application for disability benefits. ( Id. at 165-66; see also infra at 17.) Plaintiff reported that she had been on methadone for eight years, but had no history of alcohol abuse and only smoked occasionally. ( Id. at 165.) Plaintiff indicated that she could not work because of a nervous disorder, high blood pressure, and asthma. ( Id.) She stated that her asthma was year-round, but "worse in the winter," and that she had never been hospitalized for her asthma. ( Id.) She further stated that she had a "machine at home" and used Proventil for the nebulizer. ( Id.) She reported that, one year prior to the exam, she was found to have hypertension. ( Id.)
Plaintiff's blood pressure during the exam was 190/105 in a seated position, and 185/105 in an upright position. ( Id. at 165.) Her pulse was 80/mm. ( Id.) Her respiration rate was initially 16/min., but after dressing, undressing and walking a few steps into the room, it accelerated to 20/min., and Plaintiff started to exhibit a cough with a wet character. ( Id.) At five feet, two inches tall, Plaintiff weighed 182 pounds. ( Id.) An examination of Plaintiff's lungs revealed normal percussion. ( Id.) There was wheezing on ausculation. ( Id. at 165, 169.) Chest x-rays revealed no discrete infiltrate or effusion. ( Id. at 167.) Pulmonary function testing suggested obstructive airway dysfunction with "fair correlation" on physical examination. ( Id. at 166.)
Dr. Balinberg diagnosed asthmatic bronchitis and hypertension. ( Id.) He recommended that Plaintiff lose weight and stop smoking. ( Id.) Dr. Balinberg opined that Plaintiff had a restricted ability to run, walk fast, climb many stairs and lift, carry, push and pull heavy loads. ( Id.) He also advised that Plaintiff should avoid respiratory irritants, such as dust, chemicals and fumes. ( Id.)
On February 3, 1997, Dr. Peter H. Kudler produced a "physical residual functional capacity assessment" of Plaintiff. ( Id. at 147-154.) Dr. Kudler determined that Plaintiff could occasionally lift and/or carry 50 pounds, and could frequently lift and/or carry 25 pounds. ( Id. at 148.) He further found that, although Plaintiff could stand, walk or sit for about six hours in an eight hour work day, she was limited in her upper and lower extremities in her abilities to push and/or pull. ( Id.) Dr. Kudler found that Plaintiff had no postural limitations ( id. at 149), no manipulative or visual limitations ( id. at 150), and no communicative or environmental limitations ( id. at 151). Dr. Kudler did note that there were no statements from Plaintiff's treating physician in the file. ( Id. at 153.)
Plaintiff was treated at the outpatient clinic of Lincoln Hospital during the period from November 1998 through August 2000. ( Id. at 200-18, 250-70.) When examined on November 23, 1998, Plaintiff reported a history of asthma since childhood, and stated that her chest tightened and that she coughed and wheezed, particularly at night. ( Id. at 217, 270.) She reported that she had never been intubated and was not steroid dependant. ( Id.) On examination, Plaintiff's blood pressure was 118/70, and she had bilateral wheezes. ( Id.) The diagnosis was asthmatic bronchitis. ( Id.) On examination on November 28, 1998, Plaintiff reported that she had no complaints and did not have wheezing. ( Id. at 215, 269.) Her blood pressure at that time was 140/90. The examination revealed decreased air entry bilaterally and occasional wheezes. ( Id. at 215-16.) Additionally, a mass was discovered in her left breast, and she was scheduled for mammography. ( Id.)
Plaintiff was next seen at the Lincoln Hospital clinic on May 24, 1999. ( Id. at 213-14, 267-68.) Her blood pressure was 128/170. ( Id. at 214.) She was in no respiratory distress. ( Id.) An examination revealed mild bilateral wheezes. ( Id.) When examined on June 9, 1999, her blood pressure was 133/74, and she had minimal wheezes. ( Id. at 212, 266.) A note in the chart states that Plaintiff still had the mass in her breast and "need[ed] urgent mammogram." ( Id.)
Plaintiff was treated at the Lincoln Hospital clinic again on July 9, 1999. ( Id. at 208-09, 264-65.) She reported that she used to smoke two packs of cigarettes a day, but that, at the time of the examination, she only smoked five to eight cigarettes per day. ( Id. at 209, 265.) Her blood pressure was 140/82. ( Id.) Very mild wheezes were reported. ( Id.) Plaintiff also reported an emergency room visit on July 4, 1999. ( Id.) At a follow-up examination on August 13, 1999, Plaintiff had no shortness of breath and was still smoking. ( Id. at 207, 263.) Plaintiff's blood pressure was 158/76. ( Id.) She had rhonchi in both lungs. ( Id.) An examination on September 10, 1999, revealed that Plaintiff's blood pressure was 130/80. ( Id. at 203-04, 259-60.) Plaintiff reportedly had a 35-year history of smoking and continued to smoke eight to nine cigarettes a day. ( Id. at 203.) Plaintiff's chest had good air entry with only very mild wheezing. ( Id. at 203-04.) Plaintiff next sought treatment at the Lincoln Hospital clinic on December 9, 1999. ( Id. at 254.) She reported that she felt well and could walk three to four blocks. ( Id.) Examination revealed small wheezes. ( Id.)
Dr. Max Montalvo, Plaintiff's treating physician, prepared a note dated December 15, 1999. ( Id. at 179.) He reported that he first saw Plaintiff on September 14, 1994, and described her as a "chronic asthma patient, also hypertensive." ( Id.) According to Dr. Montalvo, Plaintiff had a "pulmonary condition" for many years that was a "disabling condition" and that forced her to go to Lincoln Hospital for emergency treatment. ( Id.) He reported that Plaintiff's condition was made worse by smoking and that she was a moderate smoker. ( Id.) He also stated that Plaintiff had received frequent emergency treatment at Lincoln Hospital for this condition. ( Id.) Dr. Montalvo noted that Plaintiff had a solitary left kidney stone and that she had also been treated for chronic anxiety and depression. ( Id.) Dr. Mantalvo opined that his "medical diagnosis with her psychiatric condition make [Plaintiff] a disabled patient." ( Id.)
On examination at the Lincoln Hospital clinic on January 27, 2000, Plaintiff's blood pressure was 135/97. ( Id. at 201-02, 257-58.) Plaintiff was alert and oriented, communicative and in no distress. ( Id.) Air entry was equal bilaterally. ( Id. at 201, 257.) There were mild expiratory wheezes with prolonged expiration. ( Id. at 201-02, 257-58.)
Also on January 27, 2000, Dr. Peter Graham performed a consultative physical examination of Plaintiff. ( Id. at 219-21.) Dr. Graham reported that Plaintiff had stopped smoking 10 years before the examination, did not drink or use drugs, and participated in a drug rehabilitation program at Beth Israel hospital. ( Id. at 219.) He further reported that Plaintiff suffered from asthma, for which she used a home nebulizer and inhalers, and that she had not required emergency-room or in-patient care for this condition in the prior year. ( Id.) Plaintiff also reported a five-year history of hypertension. ( Id.)
Dr. Graham reported that Plaintiff's behavior was appropriate and that she was oriented and alert. ( Id. at 220-21.) Her affect appeared normal, and her memory was intact. ( Id. at 220.) Plaintiff's blood pressure was 180/110. ( Id.) Fundoscopic examination was normal, and there was no jugular venous distension. ( Id.) Plaintiff's breath sounds were clear with no rales. ( Id.) There were scattered wheezes, but no rhonchi. ( Id.) The expiratory phase on respiration was not prolonged. ( Id.) Plaintiff's breasts were not examined. ( Id.) A chest x-ray revealed no acute lung pathology. ( Id. at 221-22.) Dr. Graham diagnosed: (1) asthma by history, with mild bronchospasm; (2) poorly controlled hypertension; and (3) psychiatric disorder by history. ( Id. at 221.) He concluded that Plaintiff's prognosis was stable and that she was able to sit, stand, walk, lift, carry and handle objects, hear, speak and travel. ( Id.) He opined, however, that "moderate activities [were] limited by poorly controlled hypertension." ( Id.)
On March 1, 2000, St. Barnabus Hospital provided a note "to whom it may concern," stating that Plaintiff "suffers from high blood pressure and asthma." ( Id. at 242.)
Plaintiff was subsequently seen at the Lincoln Hospital clinic on August 2, 2000. ( Id. at 250-51.) Her blood pressure was 126/80. ( Id. at 251.) No recent emergency room visits were reported. ( Id. at 250.) The attending physician found diffuse bilateral wheezing, although the nurse reported none. ( Id. at 250-51.) On that same day, Dr. Riyad Basir, an attending physician at Lincoln Hospital, stated that Plaintiff had hypertension, asthma, and anxiety. ( Id. at 240.) The doctor reported that Plaintiff had severe asthma "with frequent acute attacks." ( Id.) A "Statement of Treatment" from the Lincoln Medical and Mental Health Center, dated August 21, 2000, indicated that Plaintiff had attended the Center's clinic on August 21, 2000, in addition to the asthma clinic on August 2, 2000. ( Id. at 239.)
Also in the record is a letter from Plaintiff written on March 14, 2001, after Plaintiff received an unfavorable decision from the Social Security Administration. ( Id. at 284-85.) In her letter, Plaintiff asks for reconsideration of her claim and mentions her asthma, anxiety disorder, psychotic disorder and bipolar disorder. ( Id. at 284.) She states that these conditions make it hard for her to be around people, "much less hold a job," and, further, that "sometimes I become so depressed that I end up hurting myself. For instance, I have taken a razor and cut my arms. I don't even realize what I am doing. My mind goes blank and I don't realize that I'm hurting myself. I have to be escorted everywhere because of my erratic behavior. I have gone to the store and forgotten my way back." ( Id.)
B. Testimony at the Two Hearings
At both hearings, Plaintiff testified that she lived alone and was able to take care of her apartment and perform household chores. ( Id. at 32, 121.) She cooked for herself, read, watched television, cleaned and walked her dog. ( Id. at 32, 47.) Plaintiff testified that her sister visited her twice a week, called her daily and left notes on her refrigerator to remind her of things. ( Id. at 31-32.) Plaintiff further testified that her friend, Gladys O'Terro ("O'Terro") also helped her cook or brought her food. ( Id. at 47.) Plaintiff testified that she smoked a few times a day, though some days not at all, and that she did not drink. ( Id. at 27.) She also testified that she had a heroine addiction in the past, but had not used drugs for the past ten years and would "never use it again, ever." ( Id.) She testified that she used public transportation to attend a drug program daily. ( Id. at 47, 121.) Her only source of income was welfare. ( Id. at 28.)
Plaintiff testified that she could not work because she had shortness of breath and anxiety. ( Id. at 28, 31, 33.) She stated that when she ran out of psychiatric medicine, she talked loudly and quickly because she was nervous. ( Id.) She claimed that she had difficulty concentrating and that she was forgetful. ( Id. at 31.) She also claimed that she was very nervous and that her anxiety brought on asthma. ( Id. at 28.) In response to ALJ O'Sullivan's question as to what prevented her from working, Plaintiff testified that:
The worst, the worst thing that I have is the phobia, aside from asthma. But now, the only thing, is that I, I can't stand still. I have to walk and go out. I can't be inside. I can't go into the bus, I can't go into the train. And there was once I got stuck in the train, and I got very desperate. I ripped off my clothes, I couldn't have [them] on. That's why I cannot stay in the hospital, because I can't be locked in. So I only want to go out and walk and go outside and be out in the streets. When I get home, I start crying. I get very nervous. I haven't — I get anxiety. And when I feel like that, I also get asthma. I have to use the machine.
( Id. at 45.) Plaintiff further claimed that her condition had worsened with time and that it was affecting her mind. ( Id.) Plaintiff testified that she saw a psychiatrist and a therapist once or twice a month ( id. at 46), and that she took medicine, which caused no side effects ( id.). She also had been treated with acupuncture. ( Id. at 31.)
Plaintiff also testified that she was under treatment for her asthma and had medication and a "machine," which she used at home. ( Id. at 29, 45.) She believed that she had been admitted to the emergency room at Lincoln Hospital in 1996 and 1997. ( Id.)
In addition to Plaintiff, O'Terro also testified at the August 2000 hearing. ( Id. at 48-50.) O'Terro testified that Plaintiff cut her arms and "really needs help." ( Id. at 48.) She testified that Plaintiff talked to herself, ripped off her clothes, walked for long periods and stood by the window in the nude. ( Id. at 49.) She further stated of Plaintiff that:
She's got her asthma. She's got so many other things wrong with her. She's got some lump in her breast . . . She has, she has other things she didn't even say. She doesn't sleep. She calls me [at] 2:00, 3:00 in the morning. She's always crying. I have to come to her house. I clean her house. I help her cook. I do her laundry. It's got bleeding all the time. She just was cutting her arms.
( Id.)
PROCEDURAL BACKGROUND
Plaintiff filed her first application for disability benefits on October 17, 1996, asserting that she had been disabled since October 1, 1992. ( See R. at 115-18.) The Social Security Administration ("SSA") denied Plaintiff's application on December 19, 1996, determining that Plaintiff's condition was not severe enough to keep her from working. ( Id. at 67-70.) Specifically, the SSA indicated that, based on her age of 45 years, education of 12 years, and her experience, Plaintiff was able to perform "medium work." ( Id. at 69.) On January 22, 1997, Plaintiff filed for reconsideration ( id. at 71-72), which was also denied ( id. at 73-75).
On March 17, 1997, Plaintiff requested a hearing before an Administrative Law Judge. ( Id. at 77.) A hearing was then held before ALJ Gordon Mahley on December 17, 1997. ( Id. at 22-38.) Plaintiff was not represented by counsel and testified on her own behalf at the hearing. ( Id.) On September 24, 1998, ALJ Mahley issued a decision denying Plaintiff's application for benefits. ( Id. at 54-66.) The Appeals Council granted Plaintiff's request for a review of the hearing decision, vacated the decision and remanded the matter to another ALJ. ( Id. at 93-95.)
A second hearing was held on August 22, 2000. That hearing was held before ALJ Allan T. O'Sullivan. ( Id. at 39-51.) Plaintiff was again not represented by counsel and testified on her own behalf at the hearing. ( Id.) Plaintiff's friend, Gladys O'Terro, also testified. ( Id. at 48-50.) On January 19, 2001, ALJ O'Sullivan issued a decision denying Plaintiff's application for benefits. ( Id. at 10-21.) The ALJ found:
The medical evidence supports a finding that the [Plaintiff] has asthma, hypertension, anxiety disorder and depression, impairments that are severe within the meaning of the regulations. The [Plaintiff] has no impairment which meets the criteria of any listed impairments described in Appendix 1, Subpart P, Regulations No. 4. No treating or examining physician has documented findings equivalent in severity to the criteria of any listed impairment.
( Id. at 14.)
With regard to Plaintiff's asthma, the ALJ concluded that "the [Plaintiff's] asthma appears to be well controlled with medication. Although the [Plaintiff's] treating physician has reported that the [Plaintiff] has a history of frequent emergency room treatment of asthma, there is no record of any hospitalization because of asthma and only one emergency room treatment for asthma. . . . Further, there is no documentation in the record of frequent exacerbations in the claimant's asthma." ( Id. at 14-15.) The ALJ also determined that, although Plaintiff's treating physician, Dr. Montalvo, opined that Plaintiff was disabled due to her asthma and her psychiatric condition, "he has not provided laboratory or clinical findings or treatment notes to support his assessment." ( Id. at 15.)
The ALJ next considered Plaintiff's impairment of hypertension. He found that Plaintiff had "hypertension with a history of elevated blood pressure levels," but that there was no evidence of any "organ damage secondary to hypertension" or any hypertension related hospitalizations. ( Id.)
Lastly, the ALJ considered Plaintiff's mental disorders. ( Id.) After an evaluation of the medical evidence, the ALJ concluded that:
The medical evidence outlined above indicates that the [Plaintiff's] mental impairments cause moderate functional limitation. However, they do not, either singularly or in combination, meet the requirements of either Listing 12.04 or 12.06, or any other listed mental impairment. Her restrictions of daily living, her difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence or pace are mild and there is no evidence of repeated episodes of decompensation.
( Id. at 17.)
The ALJ then considered whether Plaintiff retained the functional capacity to perform either any past relevant work or "work existing in significant numbers in the national economy." ( Id. at 18.) The ALJ concluded that Plaintiff retained the residual functional capacity to perform light work, but that she had "significant non-exertional limitations which require[d] that she not be exposed to respiratory irritants[,] and perform work which consists of simple, repetitive tasks." ( Id.)
The ALJ found that Plaintiff had no past relevant work experience ( id. at 19) and, as defined in the regulations, was a "younger" individual with limited education and no transferable skills ( id.). He also found that Plaintiff could communicate in English. ( Id.) Taking into account Plaintiff's age, education, and work experience, the ALJ concluded that, because Plaintiff had the "exertional capacity to perform substantially all of the requirements of light work," she did not have a "disability," as defined in the Act, at any time through the date of his decision. ( Id.)
There was some question throughout both hearings as to the extent to which Plaintiff was able to communicate in English. ( Id. at 26, 41, 43-44, 94.) Despite Plaintiff's contention that she could not read, write or speak English ( id. at 43-44), and although Plaintiff had interpreters at both hearings, it appears that she was able to answer questions without the interpreters' assistance ( id. at 26). Further, ALJ O'Sullivan noted that, in at least two of Plaintiff's examinations (in December 1996, and February 2000), Plaintiff appeared without an interpreter, and there were no indications that she had difficulty communicating. ( Id. at 19.)
The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on September 7, 2001. ( Id. at 5-7.) On November 13, 2001, Plaintiff commenced a civil action in this Court.
DISCUSSION
Defendant has moved for judgment on the pleadings on the ground that the Commissioner's decision that Plaintiff was not disabled, and therefore not entitled to benefits, was supported by substantial evidence. ( See Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, dated June 22, 2002, at 1, 10-19.) Plaintiff has neither responded to the motion, nor cross-moved. Under the circumstances, this Court could recommend that Defendant's motion be granted on default pursuant to Local Civil Rule 7.1. Nonetheless, as Plaintiff is proceeding pro se, the Court has reviewed the administrative record, and is making this recommendation on the merits. See Penña v. Barnhart, No. 01 Civ. 502 (BSJ) (DF), 2002 WL 31487903, at *7 (S.D.N.Y. Oct. 29, 2002) (Report and Recommendation adopted); Hufana v. Apfel, No. 99 Civ. 3345 (FB), 2000 U.S. District Lexis 12208 at *2 n. 1 (E.D.N.Y Aug. 18, 2000); Cortez v. Apfel, No. 96 Civ. 7214 (AGS), 1998 U.S. District Lexis 14179 at *1 n. 2 (S.D.N.Y. Sept. 10, 1998). I. STANDARD OF REVIEW
Pursuant to the Social Security Act ("the Act"), the findings of the Commissioner as to any fact, "if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations and citation omitted). Thus, where the Court finds that substantial evidence exists to support the ALJ's determination, the decision will be upheld, even if contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (decision affirmed where there was substantial evidence for both sides). This standard applies to findings of fact as well as to inferences and conclusions drawn from such facts. See Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966); D'Amato v. Apfel, No. 00 Civ. 3048 (JSM), 2001 WL 776945, at *3 (S.D.N.Y. July 10, 2001).
The Court, however, must also review the ALJ's decision to determine whether the ALJ applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "'Where an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.'" Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (quoting Wiggins v. Schweiker, 679 F.2d 1387, 1389 n. 3 (11th Cir. 1982)). Thus, the Court reviews de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See id.; see also Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
In situations where the ALJ has failed to report his or her findings with specificity, the Court may remand for further clarification. See, e.g., Pratts v. Chater, 94 F.3d 34 at *39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225 at 235 (2d Cir. 1980)) ("When there are gaps in the administrative record . . . we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence.").
II. THE FIVE-STEP PROCEDURE PRESCRIBED BY THE SOCIAL SECURITY REGULATIONS
In order to establish entitlement to benefits under the Act, a plaintiff must establish that he or she has a "disability." See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). The term "disability" is defined as 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). Moreover, under 42 U.S.C. § 423(d)(2)(A):
[a]n individual shall be determined to be under a disability only if h[er] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] 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 [s]he lives, or whether a specific job vacancy exists for h[er], or whether [s]he would be hired if [s]he applied for work.
In evaluating a disability claim, the ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 404.1520; Diaz v. Shalala, 59 F.3d 307, 311 n. 2 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). First, the ALJ must determine whether the claimant is engaged in substantial gainful activity. See 20 C.F.R. § 404.1520. If not, the second step requires the ALJ to consider whether the claimant has a "severe impairment" that significantly limits his or her physical or mental ability to do basic work activities. Id. If the claimant does suffer such an impairment, then the third step requires the ALJ to determine whether this impairment "meets or equals a listed impairment in Appendix 1" of the regulations. Id. If the claimant's impairment meets or equals one of those listed, the claimant is presumed to be disabled "without considering the [claimant's] age, education, and work experience. Id. If the presumption does not apply, then the fourth step requires the ALJ to determine whether the claimant is able to perform his or her "past relevant work." Id.
In making a determination by this process, the ALJ must consider four sources of evidence: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (internal quotations and citation omitted).
Under the procedure set out in the governing regulations, "[t]he claimant bears the initial burden of showing that h[er] impairment prevents h[er] from returning to h[er] prior type of employment." Berry v. Schweiker, 675 F.2d at 467 (2d Cir. 1982) (citations omitted); see also 20 C.F.R. § 404.1520. Once it has been determined that the claimant cannot perform her past relevant employment, the Commissioner then has "the burden of proving that the claimant still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)); see also Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) ("The burden of proving disability is on the claimant. However, once the claimant has established a prima facie case by proving that his impairment prevents his return to his prior employment, it then becomes incumbent upon the Secretary to show that there exists alternative substantial gainful work in the national economy which the claimant could perform, considering his physical capability, age, education, experience and training") (citations omitted); 20 C.F.R. § 404.1520.
III. THE ALJ'S DETERMINATION
In this case, the ALJ, after proceeding through each of the steps listed above, determined that Plaintiff was not disabled.
First, the ALJ found, and it is undisputed, that Plaintiff had not engaged in substantial gainful work activity since the alleged onset date of her claimed disability, October 1, 1992. (R. at 14, 20.)
Second, the ALJ concluded that Plaintiff had a history of the following medical conditions: (1) asthma; (2) hypertension; (3) anxiety disorder; and (4) depression, all conditions considered "severe" under the Social Security Regulations. ( Id. at 14-17, 20.)
Third, after thoroughly reviewing the medical evidence of record (including the brief assessment of Plaintiff's treating physician, which the ALJ discredited), the ALJ found that, despite her medical conditions, Plaintiff did not have impairments that met or equaled in severity the clinical criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( Id.)
As this meant that Plaintiff was not presumed to be disabled, the ALJ was required to continue to the fourth and fifth steps of the analysis.
Fourth, the ALJ determined, and it is again undisputed, that Plaintiff had no past relevant work. ( Id. at 18.)
Fifth, because Plaintiff had no past relevant work, the burden shifted to the Commissioner to demonstrate that Plaintiff retained a residual functional capacity to perform substantial gainful work existing in the national economy. In deciding whether this had been adequately demonstrated, the ALJ took into consideration Plaintiff's testimony and statements of record, but concluded that Plaintiff's "subjective complaints [we]re not adequately supported by objective findings in the record and [we]re inconsistent with her activities." ( Id. at 18, 20.) The ALJ further found that, although Plaintiff's residual functional capacity was "more limited than that concluded by the consultants," Plaintiff was nonetheless capable of performing light or sedentary work, with "significant non-exertional limitations which require[d both] that she not be exposed to respiratory irritants and [that she only] perform work which consist[ed] of simple, repetitive tasks." ( Id. at 18, 20.) Finally, although he heard no testimony from a vocational expert, the ALJ concluded that "there are jobs, existing in significant numbers in the national economy," which Plaintiff was able to perform, and that Plaintiff was therefore "not disabled" at any time through the date of the decision. ( Id. at 19.) The ALJ used the Medical-Vocational Guidelines, commonly known as the "grids," as a "framework" to support his decision that Plaintiff could perform work existing in the national economy and was therefore not disabled. ( Id. at 18-20.)
The functional capacity to perform light work activity includes the functional capacity to perform sedentary work activity. 20 C.F.R. § 404.1567(b), 416.967(b).
The ALJ noted in his decision that a vocational expert appeared at Plaintiff's second hearing, but did not testify. ( Id. at 13.)
As the ALJ followed the five-step procedure set forth in the Social Security Regulations, this Court's review is limited to determining whether, in the course of following that procedure, the ALJ correctly applied the relevant legal principles, and whether his decision is supported by substantial evidence. In addition, the Court must determine whether the ALJ's findings are sufficiently complete and specific to allow full review of his determination.
A. The ALJ's Rejection of the Opinion of Plaintiff's Treating Physician
The ALJ must give "controlling weight" to a treating physician's opinion, as long as the treating physician's "opinion on the issue(s) of the nature and severity of [the] impairment(s) 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. § 404.1527(d)(2). Even where the treating physician's opinion is not entitled to "controlling weight," the ALJ is required to give "good reasons" for not granting it such weight. Id. "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal, 134 F.3d at 505). This "requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases even — and perhaps especially — when those dispositions are unfavorable." Snell, 177 F.3d at 134.
Further, when the evidence from the claimant's treating physician is inadequate for the ALJ to determine whether the claimant is disabled, the ALJ is required to "recontact" the claimant's physician "to determine whether the additional information [the ALJ] need[s] is readily available." 20 C.F.R. § 404.1512(e)(1). The ALJ is also required to "seek additional evidence or clarification" from the claimant's treating physician when the report from the treating physician "contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." Id.
Here, Plaintiff's treating physician, Dr. Max Montalvo, stated that Plaintiff's "pulmonary condition goes back to many years ago and is made worse when she smokes. . . . This is a disabling condition that forces the patient to go to Lincoln Hospital for emergency treatment frequently." (R. at 179; supra at 13.) He further stated that his medical diagnosis combined with Plaintiff's psychiatric conditions, made her "a disabled patient." ( Id.) In rejecting this conclusion, the ALJ stated:
Although Dr. Montalvo has treated the claimant for many years, he has not provided laboratory or clinical findings or treatment notes to support his assessment. Further, his assessment is inconsistent with the pulmonary function test [performed by the consultative examiner,] and the limitations due to her mental condition, which will be described in a later part of this decision. Thus, while the Administrative Law Judge has considered Dr. Montalvo's opinion, the undersigned is persuaded by other medical evidence of record. The undersigned further notes that the opinion that the claimant is "disabled" is a finding of fact reserved to the Commissioner.
( Id. at 15.)
Given the paucity of information from Dr. Montalvo himself (one page out of the entire record), however, the ALJ should have made efforts to recontact Dr. Montalvo to determine whether additional information to support his assessment was "readily available." 20 C.F.R. § 404.1512(e)(1). As it is not clear from the record that the ALJ attempted to obtain any further information from Dr. Montalvo (such as his laboratory or clinical findings or treatment notes), I recommend that this matter be remanded so that the ALJ may determine if additional information is available from Dr. Montalvo which may amplify his opinion and assist in resolving any conflict between his statements and the other evidence of record.
B. The ALJ's Finding That Plaintiff's Testimony Lacked Credibility
In assessing whether, for any relevant period, Plaintiff was disabled as a result of her medical and psychological conditions, it was necessary for the ALJ to consider Plaintiff's subjective testimony regarding her limitations. At both hearings, Plaintiff testified that she could not work because of her anxiety, her difficulty concentrating and her asthma. (R. at 28, 31, 33, 45, 47.) At Plaintiff's second hearing, she also testified to phobias that made it hard for her to stand still or to be in enclosed spaces, such as the subway or bus. ( Id. at 45, 48.) After the second hearing, the ALJ found that "[u]pon considering the claimant's testimony and her statements of record . . . the claimant's subjective complaints are not adequately supported by objective findings in the record and are inconsistent with her activities." ( Id. at 18.)
It is true that, in satisfying her burden of demonstrating that she was disabled, Plaintiff was required to "furnish such medical and other evidence of the existence thereof as the Commissioner of Social Security may require." 42 U.S.C. § 423(d)(5)(A). The statute further states that:
An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.
( Id.)
Where, however, a claimant's subjective testimony as to disability is not fully supported by the available medical evidence, the ALJ may not simply reject the claimant's testimony without first making specific findings as to the claimant's credibility. See Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418-19 (2d Cir. 1983). In making such findings, the ALJ should consider a number of factors, including the claimant's work history. See Montes-Ruiz v. Chater, 129 F.3d 114 (Table), at **2 (2d Cir. 1997). The Second Circuit has held, moreover, that a consideration of a claimant's work history should be conducted with great care, so as to correctly determine the reasons behind either a good or poor history of work. Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998). An ALJ's failure to take into account a claimant's work record "when making specific findings as to his [or her] credibility" is "contrary" to the law in this circuit and the SSA's rulings. Montes-Ruiz v. Chater, 129 F.3d at **3.
See also id. at 502:
Just as a good work history may be deemed probative of credibility, poor work history may prove probative as well. Logically, poor work history could support one of two conclusions. On the one hand, just as a good work history may be deemed probative of credibility, a poor work history can reasonably be deemed to have the opposite significance. However, a poor work history might also support an inference that a claimant's testimony of disability is truthful. A claimant's failure to work might stem from her inability to work as easily as her unwillingness to work. Therefore, a consideration of work history must be undertaken with great care. An ALJ should explore a claimant's poor work history to determine whether her absence from the workplace cannot be explained adequately (making appropriate a negative inference), or whether her absence is consistent with her claim of disability. In any event, it bears emphasizing that work history is just one of many factors that the ALJ is instructed to consider in weighing the credibility of claimant testimony.
Here, Plaintiff had a limited work history, which ended when she moved to the continental United States, over 20 years ago. (R. at 28, 43.) Yet it does not appear that the ALJ considered this fact in making his credibility determination. I therefore recommend that this matter be remanded so that the ALJ may make specific findings as to Plaintiff's credibility that take into account her negligible work history. C. The ALJ's Disregard of the Testimony of Gladys O'Terro
Further, should the administrative record be expanded to include additional information from Dr. Montalvo in support of his conclusions about Plaintiff's abilities, the ALJ should also reassess Plaintiff's credibility in light of that information.
At Plaintiff's second hearing, her friend Gladys O'Terro testified to her observations of Plaintiff's incapacity. In his opinion, ALJ O'Sullivan made no mention of this testimony. Yet, the Second Circuit has held that an ALJ must consider evidence of pain and physical incapacity from those who have observed the claimant. Carroll v. Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); accord Pagan on Behalf of Pagan v. Chater, 923 F. Supp. 547, 556 (S.D.N.Y. 1996) ("The ALJ's failure to acknowledge relevant evidence or to explain its implicit rejection is plain error."). Similarly, an ALJ must consider lay witness testimony on issues of a claimant's mental incapacity. See Maisch v. Heckler, 606 F. Supp. 982, 991 (S.D.N.Y. 1985) (it is an "error of law" for the ALJ not to consider lay testimony regarding the onset of mental disability); Muller v. Celebrezze, 220 F. Supp. 862, 870 (S.D.N.Y. 1963) ("Instead of disregarding their meaningful statements, much more credence and weight should have been accorded these lay witnesses. Their statements [about Plaintiff's mental illness] comprise pertinent observations made at first hand and have a direct bearing on the crucial problem presented for solution."). Further, when an ALJ discredits hearing testimony, he or she must articulate the reasons for doing so "with sufficient specificity to permit intelligible plenary review of the record." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988).
I therefore recommend that this matter be remanded so that the ALJ may consider O'Terro's testimony. If the ALJ then discredits that testimony, he should articulate with specificity his reasons for doing so.
D. The ALJ's Use of the Medical Vocational Guidelines, in Lieu of Hearing Testimony from a Vocational Expert
Under the procedure set out in the Commissioner's regulations, once it has been determined that the claimant does not have, or cannot perform, his or her past relevant employment, the burden shifts to the Commissioner to demonstrate whether the claimant is capable of performing any other work. See 20 C.F.R. § 404.1520; see also Mimms, 750 F.2d at 185 ("once the claimant has established a prima facie case [of disability] by proving that his impairment prevents his return to his prior employment, it then becomes incumbent upon the Secretary to show that there exists alternative substantial gainful work in the national economy which the claimant could perform, considering his physical capability, age, education, experience and training") (citing Parker, 626 F.2d at 231).
In meeting this 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, Appendix 2, commonly referred to as the "grids." See Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996). 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 which exists in the national economy." Id. As a general matter, the result listed in the grids is "dispositive on the issue of disability." Id. (citation omitted).
The grids, however, which are designed to assume that the claimant has a certain "exertional" capacity (to perform either heavy, medium, light or sedentary work), are not designed to take account of significant "non-exertional" impairments. See Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986). Non-exertional impairments are those that "affect plaintiff's ability to perform any activity, strength-related or not. They do not manifest themselves only when the plaintiff exerts h[er]self physically, but are present at all times." Graham v. Heckler, 580 F. Supp. 1238, 1241 (S.D.N.Y. 1984) (citation omitted). Non-exertional limitations include nervousness, anxiety, depression, difficulty maintaining attention or concentrating, and difficulty tolerating dust or fumes. 20 C.F.R. § 416.969a(c)(i)(ii)(v).
"Non-exertional" impairments are defined as "certain mental, sensory, or skin impairments" or "impairments [which] result solely in postural and manipulative limitations or environmental restrictions." 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(e).
The Second Circuit has held that, "if a claimant's non-exertional impairments 'significantly limit the range of work permitted by h[er] exertional limitations' then the grids obviously will not accurately determine disability status because they fail to take into account claimant's non-exertional impairments," and "application of the grids is inappropriate." Bapp, 802 F.2d at 605 ("in a case where both exertional and non-exertional limitations are present, the guidelines cannot provide the exclusive framework for making a disability determination") (citation omitted); accord Rosa, 168 F.3d at 81 ("where significant non-exertional impairments are present at the fifth step in the disability analysis . . . application of the grids is inappropriate") (internal citation and quotations omitted); see also Samuels v. Barnhart, No. 01 Civ. 3661, 2003 WL 21108321, at *13 (S.D.N.Y. May 14, 2003) (prior to reliance on the grids, ALJ should have considered whether claimant's mental disabilities "significantly limited the range of work permitted by her exertional limitations") (citations omitted). The phrase "significantly limit" means "the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive h[er] of a meaningful employment opportunity." Bapp, 802 F.2d at 606.
Where the claimant's ability to work is "significantly diminished" by non-exertional impairments, "the Commissioner must present the testimony of a vocational expert regarding the existence of jobs in the national economy for a person with the plaintiff's limitations." Rodriguez v. Apfel, No. 96 Civ. 8330, 1998 WL 150981, at *10 (S.D.N.Y. Mar. 31, 1998) (citing Pratts, 94 F.3d at 39); see also Gallivan v. Apfel, 88 F. Supp.2d 92, 99 (W.D.N.Y. 2000) (where record showed that claimant had mental limitations that would "significantly compromise her ability to perform a full range of light or sedentary work," . . . "the ALJ should have introduced testimony from a vocational expert or received other evidence to ascertain whether jobs existed in the national economy that plaintiff could perform.").
In this case, the ALJ determined that Plaintiff had "significant non-exertional limitations," apparently resulting from both her asthma and her mental health conditions. Because of these non-exertional impairments, the ALJ determined that Plaintiff could not be exposed to respiratory irritants, and could only perform work consisting of "simple, repetitive tasks." (R. at 18.) Yet even though he made these findings, the ALJ did not hear any testimony from a vocational expert as to whether, in fact, the national economy provided substantial gainful work that Plaintiff was capable of performing with those particular non-exertional limitations. ( See supra n. 5.) Rather, although he did not state that he was relying exclusively on the grids to answer that question, the ALJ seems to have simply applied the grids to ascertain that such work existed in the economy, and that Plaintiff was thus "not disabled" under the law. ( See R. at 19.)
Given that the ALJ found Plaintiff's non-exertional impairments to be significant, I recommend that the matter be remanded, so that the ALJ may introduce testimony from a vocational expert or to receive other evidence — from the grids — regarding the existence of jobs in the national economy for a person with Plaintiff's non-exertional limitations.
CONCLUSION
For all of the foregoing reasons, I recommend that this matter be remanded to the Commissioner, with a direction to the ALJ:
(1) to determine if additional medical records are available to support or clarify the opinion of Dr. Max Montalvo, Plaintiff's treating physician;
(2) to take into account Plaintiff's work history (as well as any additional medical information from Dr. Montalvo) in making specific findings as to Plaintiff's credibility;
(3) to set forth specific findings as to the credibility of Gladys O'Terro's testimony regarding her observations of Plaintiff's condition; and
(4) to introduce the testimony of a vocational expert or receive other evidence, apart from the Medical-Vocational Guidelines, regarding the existence of jobs in the national economy for a person with Plaintiff's non-exertional impairments.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, United States Courthouse, 201 Centre Street, Room 1950, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).