Opinion
00 Civ. 2477 (VM) (JCF).
April 9, 2001.
REPORT AND RECOMMENDATION
The plaintiff, Marilu Gallart, brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of a determination of the Commissioner of the Social Security Administration (the "Commissioner") denying her application for Disability Insurance benefits ("disability benefits") and Supplemental Security Income ("SSI") benefits. Ms. Gallart contends that she is disabled because she suffers from chronic fatigue syndrome, fibromyalgia, and major depression. She alleges that the finding of the Administrative Law Judge ("ALJ") that she was not disabled until January 1, 1998, is contrary to the law and not supported by substantial evidence in the record. The Commissioner has moved to remand for further proceedings including additional factual development of the record of the plaintiff's medical treatment. The plaintiff has cross-moved for an order reversing the Commissioner's decision or, in the alternative, remanding the case for further proceedings. For the reasons that follow, I recommend that the Commissioner's motion for a remand be denied and the case be remanded solely for a calculation of benefits.
Background
A. Procedural History
Ms. Gallart was born in Cuba on February 18, 1947. (Tr. at 194, 49). She finished high school and has a few college credits. (Tr. at 172). Ms. Gallart was a clerical worker from 1969 until 1976, and a home attendant from 1976 until 1990. (Tr. at 58). In June of 1990 she was hospitalized because of a psychiatric episode. (Tr. at 162-163). She went back to being an administrative assistant, but was discharged after three months due to her inability to do the work. (Tr. at 50, 58, 227). Since then Ms. Gallart has been unemployed and living alone on the Upper West Side of Manhattan. (Tr. at 50, 77).
"Tr." refers to the administrative record, filed by the Commissioner with his motion for a remand.
Ms. Gallart met the disability insured status requirements of the Social Security Act from January 1, 1991 until December 31, 1995. (Tr. at 19). On July 3, 1997, Ms. Gallart applied for disability benefits and SSI benefits, alleging that she had been disabled since January 1, 1991. (Tr. at 74). Her claim was denied initially and on reconsideration. (Tr. at 62, 67-68).
Ms. Gallart then sought review by an ALJ, alleging that she felt very sick and was unable to work. (Tr. at 72). A hearing was held before ALJ Jonathan Jacobs on November 16, 1998. (Tr. at 46-59). Ms. Gallart was represented by Gregory Cunningham, a paralegal. (Tr. at 48). Apparently feeling nervous and upset, Ms. Gallart started crying at the beginning of the hearing. (Tr. at 48-49). After she had regained her composure, Ms. Gallart was asked why she was unemployed, and explained that she had pains in many areas of her body and also suffered from emotional problems. (Tr. at 50). She further testified that she seldom washed her dishes and no longer cooked, buying prepared foods and staples like bread and cheese. (Tr. at 53-54). She said that on the days when her condition worsened she stayed at home, lying in her bed. (Tr. at 55). On January 25, 1999, the ALJ issued his decision, finding that Ms. Gallart was disabled as of January 1, 1998, but not at any earlier time. (Tr. at 20-21). This became the Commissioner's final determination on February 8, 2000, when the Appeals Council denied Ms. Gallart's request for review. (Tr. at 5-6).
B. Medical History
Ms. Gallart has a long history of emotional problems stemming back to early childhood. (Tr. at 15, 225). Her life has been "fraught with complaints of depression, . . . an inability to function at work, . . . and a sense of despair and frustration." (Tr. at 236). In 1990, her condition worsened after the death of her girlfriend, with whom she lived for sixteen years. (Tr. at 15, 149, 162) In June of that year, Ms. Gallart went to the emergency room at St. Luke's/Roosevelt Hospital, complaining of depression, anxiety, and confusion. (Tr. at 162-3). The admitting doctor diagnosed her with appropriate bereavement, inappropriate bereavement, and major depression. (Tr. at 163). In October 1990, Ms. Gallart was fired from her job because she was no longer capable of doing the work. (Tr. at 57, 58, 227).
In 1993 and 1994, Ms. Gallart was treated for depression with individual psychotherapy and anti-depressant medication at St. Luke's/Roosevelt Hospital Center. (Tr. at 149-61). An intake plan from October 1994 indicated that she has been treated with various anti-depressants, including Sinequan, Paxel, and Wellbutrin. (Tr. at 149). Psychiatric treatment notes made by a Dr. Anna Richter during this period report that Ms. Gallart stayed at home, where she lived in continued isolation. (Tr. at 151, 234). According to these notes, she lacked self-esteem, cried easily, often felt helpless and suicidal, and sometimes could not even move. (Tr. at 152-54).
In October of 1995, Ms. Gallart began seeing Dr. Joseph S. Rabatin, a psychiatrist at Bellevue Hospital, on a regular basis. (Tr. at 202). Dr. Rabatin diagnosed her as suffering from chronic fatigue syndrome, fibromyalgia, and major depression. (Tr. at 202). He also reported chronic muscoskeletal pain, severe cognitive dysfunction, and sleep disturbances. (Tr. at 202). In his opinion, Ms. Gallart has been incapable of working due to her "pain and unpredictable symptoms of cognitive defecits" during the time that he has treated her. (Tr. at 232).
Fibromyalgia is a rheumatic disorder of unknown origin characterized by pain, tenderness, and stiffness of muscles as well as easy fatigability. See Meriam Webster Medical Dictionary, maintained by Harvard Medical School at http://www.intelihealth.com (last visited March 28, 2001).
After Ms. Gallart applied for disability benefits, the Social Security Administration referred her to New York Diagnostic Centers, Inc. for consultative physical and psychological evaluations. (Tr. at 16). On July 21, 1997, Dr. Antonio DeLeon conducted a physical examination. (Tr. 164-66). He found she had a history of fibromyalgia, chronic fatigue syndrome, and generalized ache. (Tr. at 166). Despite these various disorders, he felt that Ms. Gallart's ability to sit was not affected while her capacity to walk, stand, carry, lift, push, and pull was only slightly limited due to generalized fatigue, aches, and chest pains. (Tr. at 166).
Ms. Gallart was given a psychiatric evaluation on the same day by Dr. Alain DelaChapelle. (Tr. at. 171-72). In his opinion, Ms. Gallart was mildly anxious and depressed, but was not delusional, paranoid, or suicidal. (Tr. at 171-72). Dr. DelaChapelle also noted that the claimant demonstrated intellectual functioning in the average range and possessed "a satisfactory ability to understand, remember, and carry out instructions" as well as "to respond appropriately to supervision, co-workers, and work pressures in a work setting." (Tr. at 172).
In early 1998, Ms. Gallart was referred to HS Systems, Inc. for further consultative evaluations. (Tr. at 16). On January 8, 1998, Dr. Peter Graham performed another physical examination. (Tr. at 194-97). In his final assessment, he found only a minimal functional deficit in the left hip. (Tr. at 196). Dr. Graham concluded that the claimant was able to sit, stand, walk, lift, carry, handle objects, hear, speak, and travel. (Tr. at 196). He also noted that Ms. Gallart had a psychiatric disorder and chronic fatigue syndrome and had been referred for psychiatric evaluation. (Tr. at 196). Dr. Flavia Robotti conducted a psychiatric exam, also on January 8. (Tr. at 198). While she found that Ms. Gallart had no delusions or hallucinations, and no suicidal or homicidal ideation, Dr. Robotti noted that the claimant did have some problems with concentration and persistence. (Tr. at 198-99). She diagnosed Ms. Gallart as having major depression, fibromyalgia, and chronic fatigue syndrome. (Tr. at 199).
In January of 1998, Ms. Gallart complained of increased symptoms and was referred for extensive psychological testing. (Tr. at 16). From January 6 to September 19, 1998, she met with Dr. Anne Noran, Ph.D., director of Winthrop Psychological Services, a total of twenty-two times. (Tr. at 236). During this period, she took a series of cognitive and psychological tests. (Tr. at 236). Ms. Gallart was easily distracted and was unable to complete many of the tests, and performed poorly on the ones she did finish. (Tr. at 236). In general, her prognosis was very poor. (Tr. at 236). She was diagnosed with major depression, attention deficit disorder, mixed personality disorder, chronic fatigue syndrome, and general stress related to physical illness and multiple losses. (Tr. at 238). In Dr. Noran's opinion, Ms. Gallart could not and should not work due to a combination of physiological and psychological factors which rendered the claimant incapable of getting to her place of employment or withstanding any work-related stress. (Tr. at 249). In her October 1, 1998 report, Dr. Noran wrote "it is clear that [Ms. Gallart] has been impaired for several years, perhaps at least eight." (Tr. at 238).
The tests administered were WAIS-R/WAIS III, Recognition Memory Test, Trails A and B, Wechsler Memory Test, Control Oral Word test, California Verbal Learning Test, Hamilton Depression Inventory, Beck Depression Inventory, Beck Anxiety Scale, and various mental status tests including serial sevens and number reversals. (Tr. at 236).
In January of 1998, Ms. Gallart also began individual psychotherapy at the Karen Horney Clinic. (Tr. at 257). She started by attending two sessions per week with Aimee Trotter, a social worker at the clinic. (Tr. at 257). In April of that year, her therapy was increased to three sessions per week, due to recurrent suicidal ideation. (Tr. at 257). On July 18, 1998, Dr. Henry Paul, the clinic's executive director, completed a Psychiatric Medical Report for the Social Security Administration. (Tr. at 250-56). He reported that during the interview Ms. Gallart felt helpless and depressed, ranging from tearful to enraged. (Tr. at 250). According to Dr. Paul, the claimant was also easily provoked and displayed suspicion and mistrust of others. (Tr. at 251). He noted that Ms. Gallart often did not leave her apartment and had no living relatives and few friends. (Tr. at 251). In his current functional assessment, Dr. Henry concluded that the plaintiff suffered from chronic depression, anxiety, and post-traumatic stress syndrome. (Tr. at 251). He speculated that these disorders stretched back to her early childhood and young adulthood. (Tr. at 252).
Discussion
A. Standard of Review
The scope of review of a social security disability determination involves two levels of inquiry. First, the court reviews the Commissioner's decision to determine whether the Commissioner applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Lugo v. Chater, 932 F. Supp. 497, 500 (S.D.N Y 1996). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. See 42 U.S.C. § 405(g) (providing that "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive[.]"); See also Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Torres v. Shalala, 938 F. Supp. 211, 215 (S.D.N.Y. 1996); Lugo, 932 F. Supp. at 500-01. Substantial evidence is "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) (quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938)). "[T]o determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence[.]" Brown, 174 F.3d at 62 (quotation and citation omitted).
B. Analytical Framework
To qualify as disabled under the Social Security Act, an individual must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ follows a five-step process to determine whether a claimant is disabled. Balsamo, 142 F.3d at 79-81; Diaz v. Shalala, 59 F.3d 307, 311 n. 2 (2d Cir. 1995). First, the ALJ determines if the claimant has been gainfully employed at any point since the onset of her claimed disability. See 20 C.F.R. § 404.1520(b). If she has not, the ALJ must decide if the claimant has a severe impairment, one which "significantly limits [her] physical or mental ability to do basic work activities." See 20 C.F.R. § 404.1520(c). If the claimant's impairment is severe and is either listed in 20 C.F.R. Part 404, Subpt. P, Appendix 1 ("Appendix 1"), or is equivalent to a listed impairment, the claimant must automatically be found "disabled." See 20 C.F.R. § 404.1520(d). If the claimant's impairment is severe but not listed or equal to a listed impairment, a finding of "not disabled" is directed if her residual functional capacity permits the claimant to do the work she did in the past. See 20 C.F.R. § 404.1520(e). If the claimant is unable to perform her past work, the Commissioner must decide if there is other work that the claimant is able to perform. See 20 C.F.R. § 404.1520(f); see also Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The claimant bears the burden of proof with respect to the first four steps in the analysis. If the claimant demonstrates her inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant can perform. See Rivera v. Schweiker, 717 F.2d 719, 722-23 (2d Cir. 1983); Berry, 675 F.2d at 467. In evaluating a disability claim, "the Commissioner must consider four factors: `(1) objective medical facts, (2) diagnoses or medical opinions based on these facts, (3) subjective evidence of pain and disability, and (4) the claimant's educational background, age, and work experience.'" Brown, 174 F.3d at 62 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
C. Analysis
Applying the five step framework in this case, the ALJ determined that Ms. Gallart has not engaged in gainful activity since January 1, 1991. (Tr. at 19). He next concluded that Ms. Gallart had "severe" medically determinable impairments that limited her ability to lift. (Tr. at 14). The ALJ did not, however, find that Ms. Gallart's condition was listed, or equal to an impairment listed, in Appendix 1. (Tr. at 14). He then determined that Ms. Gallart did not have the residual functional capacity to perform her past relevant work as an administrative assistant. (Tr. at 20). The ALJ concluded, however, that until January 1, 1998, she retained the ability to perform the full range of light, unskilled work. (Tr. at 20). He found that as of that date she could no longer perform even unskilled work on a sustained basis and was disabled. (Tr. at 20).
1. Listed Impairment Determination
In step three of his analysis, the ALJ determined that Ms. Gallart's condition failed to meet the requirements of any impairment listed in Appendix 1. (Tr. at 14). Her condition, he explained, "is not accompanied by significant loss of function as required under any of the reference sections in 1.00 or 11.00." (Tr. at 14). Sections 1.00 and 11.00 describe muscoskeletal and neurological disorders, respectively. Despite his express finding that Ms. Gallart has major depression, the ALJ did not consider whether she had a mental disorder listed in Appendix 1, § 12.00. In fact, there is substantial evidence in the record to support a finding that Ms. Gallart suffered from an Affective Disorder as of December 31, 1995, or even earlier.
An Affective Disorder is an impairment "characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome." Appendix 1, § 12.04. The Social Security regulations delineate an extensive framework for determining whether a claimant has such a disorder. First, the claimant must have a "medically documented persistence, either continuous or intermittent," of one of three types of listed syndromes. Appendix 1, § 12.04(A). The record supports a finding that Ms. Gallart suuffered from a "Depressive Syndrome." A claimant will be found to have a depressive syndrome if there is evidence of four out of the following nine symptoms:
(a) Anhedonia or pervasive loss of interest in almost all activities; or
(b) Appetite disturbance with change in weight; or
(c) Sleep disturbance; or
(d) Psychomotor agitation or retardation; or
(e) Decreased energy; or
(f) Feelings of guilt or worthlessness; or
(g) Difficulty concentrating or thinking; or
(h) Thoughts of suicide; or
(i) Hallucinations, delusions, or paranoid thinking.
Appendix 1, § 12.04(A)(1).
As of December 31, 1995, Ms. Gallart met at least four of the listed criteria. At that time, she had: loss of interest in most activities (Tr. at 151, 152, 162), loss of appetite with a change in weight (Tr. at 152, 160, 162), sleep disturbances (Tr. at 151, 152, 153, 154, 160, 162, 202, 217), decreased energy and extreme exhaustion (Tr. at 151, 154, 162, 209, 211, 216, 224), feelings of worthlessness (Tr. at 151, 160, 161, 162, 205), and difficulty concentrating and thinking (Tr. 155, 160, 162, 205, 223, 236). All but one of the many physicians and psychiatrists who have examined Ms. Gallart since 1990 diagnosed her with "major depression." (Tr. at 152, 163, 199, 238, 251) Some of them inferred that she has had severe emotional problems stemming as far back as early childhood. (Tr. at 225, 252). There is no evidence in the record indicating that any of these diagnoses were erroneous; nor is there any evidence that Ms. Gallart's depression waned during the two year period in question, from December 31, 1995 until January 1, 1998.
After one visit, Dr. DelaChappelle diagnosed Ms. Gallart with Dysthymic Disorder. (Tr. at 172). This disorder is characterized by chronic mildly depressed or irritable mood often accompanied by other symptoms such as eating and sleeping disturbances, fatigue, and poor self-esteem. See Meriam Webster Medical Dictionary, at http://www.intelihealth.com (last visited March 28, 2000).
This does end the analysis. A claimant's syndrome must also result in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like setting which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
Appendix 1, § 12.04(B).
Substantial evidence in the record indicates that Ms. Gallart's condition satisfied at least two of these criteria on or before December 31, 1995. There is uncontradicted evidence that during that time Ms. Gallart's daily life activities were greatly restricted. She has not been employed since 1990, when she was discharged because she could no longer do the work. (Tr. at 57). In October 1994, a treating physician noted that she was vegetative, was confined to her bed throughout the day, and had low functional behavior. (Tr. at 151-52). During the period at issue here, Ms. Gallart also had marked difficulty maintaining basic social functioning. She lacked self-esteem (Tr. at 151), showed little or no interest in doing anything, (Tr. at 151, 203), lived in complete isolation (Tr. at 154, 226), and had a fear of being lost. (Tr. at 157).
The record is replete with evidence that Ms. Gallart met all of the requirements of an impairment listed in Appendix 1 during the period at issue here. Thus, the ALJ plainly erred by failing even to consider whether the claimant had an affective disorder, despite his express finding that she suffered from major depression.
2. Residual Functional Capacity
Even if Ms. Gallart had failed to meet the burden of proving that her condition was a listed impairment, as the ALJ concluded, this would not end the five-step analysis.
A claimant with a severe but unlisted impairment who is not gainfully employed may still be disabled under the Social Security Act. Such claimants will be found "disabled" if they lack the residual functional capacity to do their past work or some other work available in the national economy. It is undisputed that Ms. Gallart is unable to perform her past work as an administrative assistant. (Tr. at 20). The ALJ found, however, that from January 1, 1991 until December 31, 1997, she retained the capacity to perform a full range of light, unskilled work. (Tr. at 20). He reached this conclusion notwithstanding the opinion of Dr. Joseph S. Rabatin, Ms Gallart's treating physician at Bellevue Hospital, who repeatedly indicated that the claimant has been unable to work since 1991. "The opinion of a treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the administrative record." Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); see also 20 C.F.R. § 404.1527(d)(2); Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998). "In analyzing a treating physician's report, `the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.'" Rosa, 168 F.3d at 79 (quoting McBrayer v. Secretary of Health and Human Services, 712 F.2d 795, 799 (2d Cir. 1983)); see also Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 861 (2d Cir. 1990). That is exactly what the ALJ did in this case.
The ALJ cited four reasons for rejecting the opinion of Dr. Rabatin. None of them satisfy the requirements of the treating physician rule. The first reason is that Dr. Rabatin "did not even start treating the claimant until October 1995." (Tr. at 17). The ALJ, however, failed to explain why this fact is at all relevant. Dr. Rabatin treated the claimant during the entire period at issue here. His diagnoses were thus contemporaneous, not retrospective, and therefore entitled to controlling weight if they are well supported by medical findings and not inconsistent with other substantial evidence in the record. The second reason the ALJ did not give controlling weight to Dr. Rabatin's opinion is that it was "quite conclusory." (Tr. at 17). This explanation is also inadequate under the treating physician rule. "[A] circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion." Wagner, 906 F.2d at 862. Here, the ALJ states only that Dr. Rabatin provided "little explanation of the evidence relied on in forming his opinion" that Ms. Gallart could not work. (Tr. at 17). This is far from compelling. The administrative record contains twenty-four pages of hand written evaluation forms filled out by Dr. Rabatin during Ms. Gallart's many visits to Bellevue Hospital. (Tr. at 201-224). These notes are replete with Dr. Rabatin's psychiatric observations, and provide substantial evidence for his diagnoses.
The third reason the ALJ declined to give controlling weight to Dr. Rabatin's opinion was that it "contrasts sharply with the other evidence of record which obviously renders it less persuasive." (Tr. at 17). In the ALJ's opinion, the claimant's medical treatment prior to 1998 was not of the type "one would expect for a totally disabled individual." (Tr. at 17). There is no evidence in the record that makes this conclusion "obvious." In fact, Dr. Rabatin, the only doctor who was treating Ms. Gallart on December 31, 1995, came to the very opposite conclusion. To support his decision, the ALJ cited the opinions of various non-examining, consultative physicians employed by the State Disability Determination Services. (Tr. at 17-18). None of these doctors saw Ms. Gallart more than once; nor did any of them see her prior to late 1997. Dr. Rabatin, in contrast, had seen Ms. Gallart approximately sixty times since October 1995. (Tr. at 232). The ALJ should have taken into account the frequency with which each doctor saw Ms. Gallart. See Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (finding that the ALJ should have given controlling weight to a treating physician who made "medical observations far more extensive than those of any other consulting physician").
Dr. Noran, who saw Ms. Gallart twenty-two times, also concluded that she "cannot and should not work." (Tr. at 249). Though this assessment was based on visits in 1998, Dr. Noran believed that Ms. Gallart's impairment could have dated as far back as eight years. (Tr. at 238).
Finally, the ALJ cited Social Security Ruling 96-6p to further support his decision not to give Dr. Rabatin's opinion controlling weight. (Tr. at 18). This ruling, however, does not and could not narrow the treating physician rule. It continues to be the case that "the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations for the opinions, than are required of treating sources." SSR 96-6p, 1996 WL 374180, at *2 (S.S.A. 1996). It is true that
the state agency medical or psychological consultant's opinion [may be given greater weight when it] is based on a review of a complete case record that includes a medical report from a specialist in the individual's impairment which provides more detailed and comprehensive information than that which was available to the individual's treating source.
Id. at *3. But that was simply not the case here. The information available to Dr. Rabatin, after three score visits stretching over a five year period, was far more comprehensive than that which was available to any of the consultative physicians.
In conclusion, the ALJ failed to provide an adequate explanation for giving less deference to Ms. Gallart's treating physician than to the consultative doctors and psychiatrists.
D. Disposition
There remains the question of whether the Court should direct that the case be remanded for further development of the evidentiary record or for calculation of benefits. The Social Security Act empowers the federal courts "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). "Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence." Rosa, 168 F.3d at 82-83 (quotations and citations omitted). "In other situations, where [the] court has had no apparent basis to conclude that a more complete record might support the Commissioner's decision, we have opted simply to remand for a calculation of benefits." Id. (citation omitted), See also Balsamo, 142 F.3d. at 82. (finding that ALJ reached erroneous conclusion based on otherwise complete record). Finally, a district court may itself determine disability instead of remanding if "application of the correct legal standard could lead to only one conclusion." Schaal v. Apfel, 134 F.3d at 504 (citation omitted), see also Johnson v. Bowen, 817 F.3d 983, 986 (2d. Cir. 1987).
In this case, there is no need to develop the record any further. Such a remedy would only delay the payment of benefits to which the claimant appears to be entitled. See Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 644 (2d Cir. 1983). As discussed above, the ALJ committed legal error by failing to consider whether Ms. Gallart's impairments met the requirements of a "mental disorder" listed in Appendix 1, § 12.6 Ms. Gallart did not fail to meet her burden of proving that she had a listed impairment; rather, the ALJ applied an incorrect legal standard. There is substantial evidence in the record to support a finding that Ms. Gallart had a listed impairment as of December 31, 1995. Further development of the record is unwarranted because a correct application of the relevant statutes and regulations would have led only to this conclusion.
The ALJ's error was not limited to step three of the five-step analysis. An unemployed claimant with a severe but unlisted impairment must have the residual functional capacity to perform past work or some other work in order to be found "not disabled." For the reasons discussed above, the Commissioner failed to meet his burden of proving that Ms. Gallart had the residual functional capacity to work during the relevant time period.
This is different from the situation in Murphy v. Secretary of Health and Human Services, 872 F. Supp. 1153, 1157 (S.D.N.Y. 1994), where the court held that an ALJ has no duty to specify why a claimant's alleged disability fails to meet the requirements of a listed impairment. Here, the ALJ did not fail to disclose his rationale, he simply had none that would withstand scrutiny. The record reveals that he failed even to consider whether Ms. Gallart had a listed mental disorder.
The Commissioner argues that a remand is necessary to obtain treatment records from the Karen Horney Clinic for the period prior to January 23, 1998 as well as evidence from Dr. Rabatin explaining the basis for his opinion that the plaintiff has been unable to work since 1990. (Defendant's Memorandum of Law in Support of his Motion for a Remand, dated October 16, 2000, at 5). A court may remand for further development of the administrative record, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405 (g); see also Balsamo, 142 F.3d at 82. The Commissioner has failed to show any cause, let alone good cause, for failing to introduce such evidence during the administrative proceedings below. In this situation, a remand solely for calculation of benefits is especially warranted. See Balsamo, 142 F.3d at 82 (where reversal was based on the Commissioner's failure to sustain his burden of adducing evidence of the claimant's ability to work, "no purpose would be served . . . by remanding for rehearing unless the [Commissioner] could offer new evidence") (quoting Carroll, 705 F.2d at 644).
Conclusion
For the reasons set forth above, I recommend that the Commissioner's motion for a remand be denied and the case be remanded exclusively for a calculation of benefits. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Victor Marrero, Room 414, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.