Grubb v. Apfel

Full title: CHARISSE GRUBB, Plaintiff, -against- KENNETH S. APFEL, Commissioner of…

Court: United States District Court, S.D. New York

Date published: Dec 22, 2003

98 Civ. 9032 (RPP) (S.D.N.Y. Dec. 22, 2003)

Opinion

98 Civ. 9032 (RPP)

December 22, 2003

Christopher James Bowes, Esq., Center for Disability Advocacy Rights, Inc., New York, New York, for Plaintiff

James B. Comey, John E. Gura, Esq., United States Attorney for the Southern District of New York, New York, NY, for Defendant

OPINION AND ORDER

ROBERT PATTERSON, Senior District Judge

Plaintiff, Charisse Grubb ("plaintiff), moves for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, praying this court enter an order and judgment in her favor pursuant to 42 U.S.C. § 405(a) reversing the determination of the defendant, the Commissioner of Social Security ("defendant" or "Commissioner"), and remanding plaintiffs claim solely for calculation of benefits. The defendant cross-moves for a judgment reversing the final decision of the Commissioner and remanding for further administrative proceedings pursuant to 42 U.S.C. § 405(g).

I. BACKGROUND

Charisse Grubb filed an application for Supplemental Security Income ("SSI") benefits in September 9, 1993, with a protective filing date of August 4, 1993.¹ (Rec. at 31-33.)² This application was originally heard by ALJ Louis V. Zamora on December 6, 1994 and denied in an opinion issued April 26, 1995. (Id. at 12-15.) By order dated July 14, 1995, the SSA Appeals Council denied any further review. (Id. at 2-3.) Plaintiff appealed to this court. On January 27, 1998, Judge Baer found the "ALJ's determination that the plaintiff had the residual functional capacity to perform sedentary work was not supported by substantial evidence" and remanded for calculation of benefits. Grubb v. Chater, 992 F. Supp. 634, 640 (S.D.N.Y. 1998). The Commissioner moved for reconsideration based on a finding that the report of Fredrick Newsome, M.D., (plaintiffs treating physician from 1993-1995), relied on in Grubb v. Chater had been altered.Grubb v. Apfel 1998 U.S. Dist. LEXIS 2770, at *2-3 (S.D.N.Y. March 10, 1998). Judge Baer then remanded for further proceedings with the proviso that all tasks and findings "must be accomplished within 30 days or less" with any cause for delay being communicated to the court.Id. at 4.

1 Plaintiffs current application also reopened a prior application protectively filed on April 26, 1991 and initially denied August 21, 1991. (Rec. at 139.)

2 Citations to the record on appeal will be designated as "Rec." Citations to the arguments on appeal, heard on October 30, 2002, will be designated as "Tr."

On April 7, 1998, ALJ Robin J. Arzt held a second hearing. (Rec. at 153-226.) At this time, the ALJ heard testimony by Dr. Newsome.³ (Id. at 159-95.) Considering the case de novo, the ALJ determined "the evidence of record is adequate to reach a conclusion regarding the claimant's disability and . . . no further evidence is required in this case" and denied the application in an opinion dated April 9, 1998. (Id. at 138-149.) Plaintiff filed a timely request for review of the ALJ's decision. By order dated August I, 1998, the Appeals Council determined that the exceptions filed by plaintiff did not provide a basis for overturning the ALJ's decision. (Id. at 128-29.) On September 22, 1998, plaintiff appealed the decision to this court. By stipulation of the parties, ordered on June 22, 1999, the case was remanded to the SSA for the purpose of reconstructing plaintiffs claim file. By letter dated March 5, 2002, the defendant proposed to plaintiff that the action be remanded to the SSA for further administrative proceeding. Plaintiff rejected this proposal. After briefing, argument was heard on October 30, 2003.

3 The document in question was a photocopy of an original report by Dr. Newsome on which the plaintiff had entered her disagreements or comments into Dr. Newsome's responses in different colored ink. (Tr. at 23.) She disclaimed any knowledge of how it had become part of the SSA record.
When the discrepancies were discovered, the claimant was forthcoming on the issue. (Rec. at 205-13.) In her testimony, plaintiff explained how she filled in alternative responses on the form to keep as part of her own records where she had disagreed with Dr. Newsome's assessment. (Id. at 206.) Plaintiff wrote in her answers in blue ink, while Dr. Newsome wrote his in black ink. Once photocopied into record, these two were indistinguishable (though some noticeable difference in handwriting remained for those remarks written out). (Id. at 98-104.) Although the ALJ's opinion suggested otherwise, (Id. at 146), at oral arguments, it was undisputed that that evidence showed plaintiff did not have an intent to deceive (Tr. at 23-24, 27).

II. STANDARD OF REVIEW

Plaintiff moves for an order reversing ALJ Arzt's determination pursuant to 42 U.S.C. § 405(g), which provides in pertinent part:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision. . . . The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . .

42 U.S.C. § 405(g); see also Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez v. Chater, 77 F.3d 41, 44-46 (2d Cir. 1996).

In its review of the record, the court "must determine whether the Commissioner's conclusions `are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard.'"Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (citations omitted). "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.'" Id. (citing Perales, 402 U.S. at 401). Moreover, substantial evidence "does not mean evidence that will support a finding only if farfetched, unreasonable inferences are made. Any other view would make `substantial evidence' a hollow phrase and turn judicial review into a mere rubber stamp for agency action." Jacques v. United States R.R. Retirement Bd., 736 F.2d 34, 42 (2d Cir. 1984).

III. DISCUSSION

A. Five step evaluation process required by the SSA

Under the Social Security Act, disability constitutes 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). As delineated in 20 C.F.R. § 416.920(a)(4), determining whether a claimant is disabled involves a five-step sequential evaluation process:

1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.

2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities.

3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations . . .

4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.

5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.

Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000). "The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps." (Id.)

The ALJ clearly delineated her process and findings for steps one to three. (Rec. at 140, 148.) In the first step, the ALJ found that plaintiff has not been involved in any substantial gainful activity since she first filed her application in 1991. (Id.) At step two, the ALJ found that plaintiffs diabetes mellitus did constitute a severe impairment, while her claimed mental illness did not as there was no objective medical evidence that it had lasted or would last for a continuous twelve month period. (Id.) In step three, the ALJ found that plaintiff did not have an impairment that met or equaled an impairment listed in appendix 1 of 20 C.F.R. § 440.⁴ (Id.)

4 Diabetes mellitus is included as a listed impartment in the statute, but requires that it be combined with either (a) "[n]europathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station," (b) acidosis (an accumulation of acid in the body fluids), or (c) retinitis proliferans. 20 C.F.R. Part 404, app. 1 § 9.08. There is no evidence presented on the record that claimant has any of these three complications.

In step four, "the claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally." Jasinski v. Barnhart 341 F.3d 182, 185 (2d Cir. 2003). At this juncture, the ALJ found "[t]he claimant has no past relevant work to consider."⁵ (Rec. at 141.) The ALJ then held that plaintiffs "statements of disabling symptoms and limitations are not supported by the objective medical evidence to the degree alleged." (Id.)

5 Plaintiff worked as a receptionist for a telemarketing firm for approximately two months in 1993, until she lost her job due to fatigue and inconsistent attendance. (Rec. at 201-02.) She has been unemployed since then. (Id.)
If the claimant does not have any past relevant work, the ALJ must "consider the same residual functional capacity assessment [made at the fourth step], together with [the claimant's] vocational factors ([her] age, education, and work experience) to determine if [she] can make an adjustment to other work." 20 C.F.R. § 416.920(g); see, e.g., Zwick v. Apfel 1998 U.S. Dist. LEXIS 11515 (S.D.N.Y. July 27, 1998);Ortiz v. Shalala, 1994 U.S. Dist. LEXIS 12507 (S.D.N.Y. Sept. 2, 1994). A claimant is disabled only if she cannot make an adjustment to other work. 20 C.F.R. § 416.920(g).

After hearing the testimony of Dr. Newsome about the alterations made by plaintiff on the copy of Dr. Newsome's report as well as further testimony from Dr. Newsome regarding plaintiffs medical condition and treatment, the ALJ determined "the claimant has a residual functional capacity for exertionally sedentary work in an environment free of known hazards."⁶ (Id. at 148.) Given plaintiffs residual functional capacity and vocational factors (particularly her young age), the ALJ found that "she can do other jobs that exist in significant numbers in the national and regional economies" and thus was not disabled as defined in the Social Security Act. (Id. at 147-48.)

6

According to the Social Security rulings, residual functional capacity ("RFC"): is what an individual can still do despite his or her functional limitations and restrictions caused by his or her medically determinable physical or mental impairments. It is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to perform work-related physical and mental activities.

Determining Capability to Do Other Work: Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work, SSR 96-9p.

B. The role of the ALJ

Due to the nature of administrative hearings, the ALJ is held to different standards and obligations than an ordinary trial judge. As the Supreme Court has explained, u[t]he differences between courts and agencies are nowhere more pronounced than in Social Security proceedings. Although `many agency systems of adjudication are based to a significant extent on the judicial model of decisionmaking,' the SSA is `perhaps the best example of an agency' that is not." Sims v. Apfel 530 U.S. 103, 110 (2000) (citations omitted). At essence, the process is inquisitorial instead of adversarial. Id. at 111. By regulation, the SSA is required to "conduct the administrative review process in an informal, nonadversary manner." 20 C.F.R. § 416.1400(b). "It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims, 530 U.S. at 111.

The ALJ does not bear the sole responsibility for developing the case. The claimant still retains the responsibility to provide evidence relevant to her claim. See 20 C.F.R. § 416.912(c). Nonetheless, because of its institutional design, the "ALJ has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings." Shaw, 221 F.3d at 131. This obligation exists regardless of whether the claimant is represented by legal counsel. Id.; Schaal, 134 F.3d at 505;Perez, 77 F.3d at 47. This responsibility includes duty to seek additional information "sua sponte" when necessary. DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998); Schaal, 134 F.3d at 505.

C. The ALJ improperly failed to fully develop the record

Both parties agree that the case should be remanded. The defendant argues that pursuant to the fourth sentence of 42 U.S.C. § 405(g), made applicable to SSI claims by 42 U.S.C. § 1383(c)(3), the court should remand the case to the Commissioner for further proceedings because the commission failed to correctly apply the law and regulations, citing Shalala v. Schaefer, 509 U.S. 292, 297 (1993); Melkonyan v. Sullivan, 501 U.S. 89, 101 (1991); Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) ("Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the Commissioner for further development of the evidence.")

"[T]he Commissioner acknowledges that in adjudicating the case, the ALJ did not adequately develop the record to clarify the treating source evidence and opinions." (Defendant's Memorandum of Law in Support of the Commissioner's Cross-Motion for Remand, ("Def. Mem.") dated February 10, 2003, at 12.) In her decision, the ALJ stated that she accorded the opinions of Dr. Edwards, Dr. Kiyici, and the Soundview Mental Health Clinic (who treated plaintiff from 1997 and thereafter) "no weight because they are not supported by any objective clinical findings or laboratory tests reports."⁷ (Rec. at 146.) The defendant acknowledges that the ALJ did not request seek "additional information from these treating sources" as she should have. (Def. Mem. at 12.) D. The ALJ improperly considered non-compliance without fulfilling her obligations under SSR 82-59

7 At the trial (which took place twenty-eight days after the filing of Judge Baer's opinion), the ALJ told the plaintiff, "I must issue a decision immediately after this hearing." (Rec. at 157-58.) She noted that Dr. Newsome's records only went up to 1996, concluding, "It's kind of unfortunate since there might be more recent information which may or may not change the condition but Fm not going to be able to address that." (Id.)
While Judge Baer's opinion urged alacrity in light of the preceding delay, he clearly allowed for the possibility that additional time might be required to gather additional evidence. The court's order directed that "any happenstance that might suggest a delay is possible should be communicated to Chambers." Grubb v. Apfel 1998 U.S. Dist. LEXIS at *4. The court also ordered that if the ALJ determined more evidence was needed to evaluate plaintiffs claim, she should obtain the opinion of a medical adviser. Id. The ALJ did neither of these things.

1. The pertinent regulations

Plaintiff argues that the ALJ's decision violated Social Security regulations in deciding plaintiff had not complied with prescribed treatments by not giving plaintiff notice and proper opportunity to comply. Under SSA regulations, a claimant may be denied disability benefits if the Secretary finds that she unjustifiably failed to follow prescribed treatment and that if she had followed the treatment, she would not be disabled under the Act.⁸ McFadden v. Barnhart 2003 U.S. Dist. LEXIS 4300, at *23 (S.D.N.Y. 2003); 20 C.F.R. § 416.930(a); SSR 82-59.

8 "A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling." Dawkins v. Bowen, 848 F.2d 1211, 1213(11th Cir. 1998) (citations omitted).

Before a finding of noncompliance can be made, however, SSR 82-59 delineates a set of procedural safeguards that must be followed. SSR 82-59. Among other things, these safeguards include:

The claimant . . . should be given an opportunity to fully express the specific reason(s) for not following the prescribed treatment. . . .

The record must reflect as clearly and accurately as possible the claimant's . . . reason(s) for failing to follow the prescribed treatment.

Individuals should be asked to describe whether they understand the nature of the treatment and the probable course of the medical condition (prognosis) with and without the treatment prescribed.

Id. The statute stresses that, "appropriate development must be made to resolve whether the claimant . . . is justifiably failing to undergo the treatment prescribed." Id.

As a policy matter, the regulations emphasize that the ALJ must provide claimant with (i) notice of the effect of noncompliance on his or her application for benefits, (ii) occasion to explain any seeming noncompliance, and (iii) opportunity to undergo the prescribed treatment. SSR 82-59 mandates that before making a determination of noncompliance, the individual must be "informed of this fact and of its effect on eligibility for benefits. The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so." Id. As a procedural matter, if the commissioner fails to provide the claimant with an opportunity to address the issue, he loses the ability to assert it as a reason for denying disability benefits. SSR 82-59 directs that "[i]f the issue of `failure' arises at the hearing or [Appeals Council] levels, if not fully developed through testimony and/or evidence submitted, and it has been 12 months after onset, a favorable decision will be issued, and the case will be referred for development of failure to follow prescribed treatment." Id.

Plaintiff argues that the ALJ failed to follow SSR 52-89 as her decision improperly considered noncompliance without providing plaintiff an opportunity to remedy prior to denial of benefits. (Tr. at 7-8.) The defense argues that SSR 82-59 ruling on non-compliance only applies when the ALJ makes a determination that the claimant is disabled and that a treating physician has issued a plan of treatment, but the claimant has not followed this plan of treatment. (Id. at 9.) In this case, the defense asserts "the ALJ only relied on plaintiffs failure to follow her prescribed treatment with respect to her credibility and not as the basis for her determination to find the plaintiff was not disabled," and therefore SSR 82-59 does not apply. (Id. at 10.)

Defendant is correct that SSR 82-59 normally applies to a claimant's eligibility for benefits after a finding of disability has been made. Essentially, disability is found at step four, then non-compliance is used to deny at step five. As other courts have noted, however, "the regulatory scheme promulgated by the Secretary does not expressly dictate how the noncompliance inquiry under 20 C.F.R. § 404.1530 meshes with the [five-step] sequential analysis of disability under 20 C.F.R. § 404.1520."⁹ Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985).

9 20 C.F.R. § 404.1520, 404.1530 are equivalents of 20 C.F.R. § 416.920, 404.930, setting forth the same procedures in the same language. Part 404 applies for "an application for a period of disability or disability insurance benefits," 20 C.F.R. § 404.1520(a)(2), while Part 416 applies for "an application for Supplemental Security Income disability benefits, which is the case here," 20 C.F.R. § 404.1520(a)(2).

Here, however, the ALJ did not make it explicitly clear whether she determined claimant was able to work at step four or at step five. After several readings of the ALJ's opinion, the court concludes that the ALJ considered the issue of noncompliance as part of her process of finding plaintiff was not disabled and not in determining that plaintiffs claims of disability were not credible.

2. The case law

In analogous cases before other courts, where an ALJ did not expressly deny claimant benefits on the grounds that she failed to follow prescribed treatment, the reviewing courts have inferred from the ALJ's reasoning that the ALJ based a finding of disability on the lack of compliance. McFadden, 2003 U.S. Dist. LEXIS at *22, n. 8 (citing cases). In Ibarra v. Commissioner, for example, "[t]he ALJ did not expressly purport to deny claimant benefits on the ground that she failed to follow prescribed treatment," but the court found that his comments and ultimate denial of disability status "rest[ed], in significant part, on his expressed perception that her failure to follow a prescribed treatment caused her condition to be worse than it might otherwise be." 92 F. Supp.2d 1084, 1087 (D.Or. 2000); see also Sharp v. Bowen, 705 F. Supp. 1111, 1123-25 (W.D. Pa. 1989) ("[I]t is clear that the ALJ's decision to deny benefits was colored by his express finding that the plaintiff repeatedly refused prescribed medical treatment."). As a result, the court applied the standards of SSR 82-59 in the same way as if the ALJ had made an express finding on noncompliance. Ibarra, 92 F. Supp.2d at 1087.

In a similar case, the Eleventh Circuit found it "unclear from the ALJ's opinion whether or not he based his determination that appellant was not entitled to benefits on appellant's failure to follow prescribed medical treatment." Dawkins, 848 F.2d at 1214. Like plaintiff, the claimant in Dawkins also suffered from diabetes mellitus, which her doctors stated were controllable with medication and proper diet. Id. at 1212. There, the ALJ did not openly go through the five-step process imposed by SSA regulation by first finding Dawkins severely impaired and then holding she did not qualify for disability based on her non-compliance. Instead, the ALJ blended these steps together: He analyzed Dawkins's impairments, then wrote that the claimant's diabetes mellitus and high blood pressure were "amenable to adequate control on a chemotherapeutic regimen and dietary restrictions as prescribed by her treating physician." Id. at 1214. Given this blended analysis, the district court found that "the ALJ's conclusion that appellant retains the residual capacity to return to work is inextricably tied to the finding of noncompliance." Id. at 1214. While in Dawkins the ALJ did not make an explicit finding denying disabled status based on noncompliance, in essence her opinion amounted to the same thing. As a result, the ALJ was still bound to the procedural safeguards in place for dealing with issue of noncompliance; in this case, the court required precise findings of noncompliance and whether such noncompliance was then excused based on inability to pay. Id.

3. The ALJ's opinion

Likewise, in plaintiffs case, the ALJ Arzt found that plaintiff was not disabled in part based on her noncompliance. As in Ibarra, Sharp, or Dawkins, a finding of noncompliance, while not always spoken, remained the constant subtext. ALJ Arzt indicated that plaintiff might be fully functioning if she followed Dr. Newsome's recommendations. (Rec. at 145-47.) Diabetes is considered an impairment that can be controlled or uncontrolled. Dr. Newsome testified that while he treated plaintiff, her diabetes was uncontrolled and thus disabling, though treatable. (Id. at 160-65.) According to the ALJ, "in the absence of adherence to all aspects of her course of treatment for an extended period of time, it is not known whether her diabetes would be controlled and her subjective symptoms reduced by compliance with the prescribed course of treatment." (Id. at 146.) In essence, ALJ did not consider plaintiff disabled because she could have addressed her problem and returned to full functioning, but choose not to. Ultimately, she held that there was not sufficient evidence to find plaintiff disabled. (Id. at 148-49.)

As there was no fact-finding with regards to Dr. Kiyici's and Dr. Edwards's treatment of the claimant, the ALJ's opinion relied entirely on Dr. Newsome's testimony. Evert Dr. Newsome, however, did not dispute that plaintiff had severe physical impairments as a result of her illness. (Id. at 177-84.) Dr. Newsome stated that plaintiff "had no disability," but elucidated in his testimony that he meant she could be fully functioning, if her diabetes was well controlled. (Id. at 179-80.) Additionally, he professed that he considered plaintiff "temporarily disabled" for the time that he was treating her. (Id. at 181.) Even if Dr. Newsome's assessment was correct and there were no reasons limiting plaintiff from complying with his treatment, he still considered that it would take a period of three to six months until she would be able to work again. (Id. at 164-65, 175-76.) Given that plaintiff had been in treatment since 1991 and was seen by Dr. Newsome from 1993-95, even if plaintiff had fully complied with Dr. Newsome's recommendations and they had returned her to full functioning, her disability still would have lasted for a twelve-month period prior thereto.

Considering the testimony before the ALJ, it is difficult to see how the ALJ could have made the decision of lack of disability without having determined the issue of noncompliance. Even Dr. Newsome, whose testimony she relies on, stated that plaintiff was unable to adjust to relevant work for the period in which he was treating her. (Id. at 181.) In his opinion, throughout the course of his treatment, plaintiff was unable to control her disease sufficiently to do sedentary work. (Id. at 181.) In reaching the conclusion that plaintiff had the ability to do sedentary work, Dr. Newsome and the ALJ relied on the conclusion that plaintiff had not been compliant with her prescribed treatment and did not have a good reason her failure to comply. The ALJ did take non-compliance in account in determining plaintiff was not disabled, even if not at the procedural step where she would be expected to. The burden of producing evidence concerning unjustified noncompliance lies with the Secretary. Preston, 769 F.2d at 990. The ALJ should not be able to get around the requirements of SSR 82-59 simply by not making clear findings.

4. Failure to comply with SSR 82-59

Accordingly, it is clear that the ALJ improperly denied plaintiff benefits in violation of SSR 82-59, which provides in pertinent part:

SSA may decide that it appears that the claimant or beneficiary does not have a good reason for failing to follow treatment as prescribed by a treating source and that the treatment is expected to restore ability to engage in any SGA (or gainful activity, as appropriate). However, before a determination is made, the individual . . . will be informed of this fact and of its effect on eligibility for benefits. The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.

It is very important that the individual fully understand the effects of failure to follow prescribed treatment. . . .

The issue of failure to follow prescribed treatment should be resolved as quickly as possible. However, in a case where the issue of "failure" arises or remains unresolved 12 months after onset, an allowance is in order. The issue of "failure" and if it is justifiable will continue to be developed. If the issue of "failure" arises at the hearing or AC levels, if not fully developed through testimony and/or evidence submitted, and it has been 12 months after onset, a favorable decision will be issued, and the case will be referred for development of failure to follow prescribed treatment.

SSR 82-59.

ALJ Zamora did not raise "failure to follow prescribed treatment" in the April 1995 hearing, (Rec. at 9-16), the Appeals Council did not raise it, (Id. at 2-3), and ALJ Arzt did not raise it in her April 1998 hearing notice or subsequently at the hearing, (Id. at 261-266; 153-226).

Accordingly, more that twelve months after onset had elapsed without raising the issue of noncompliance and the ALJ should have ordered an allowance of benefits. The need for alacrity is particularly important as plaintiff was requesting SSI benefits, a means tested federal welfare benefits, whose purpose is "to assure that recipients' income is maintained at a level viewed by Congress as the minimum necessary for subsistence." Jacques, 736 F.2d at 38 n. 2 (citations omitted).

IV. DISPOSITION

The "exclusive methods" by which a district court may remand a case to the Commissioner are outlined in 42 U.S.C. § 405(g).Schaefer, 509 U.S. at 296. The Social Security Act provides that:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.

42 U.S.C. § 405(g).

This court has twice attempted to dispose of this matter in a timely fashion. See Grubb v. Apfel 1998 U.S. Dist. LEXIS at *3-4;Grubb v. Chater, 992 F. Supp. at 640. Judge Baer initially characterized the case as "just one more sad saga by a powerless New Yorker who, while ill and without legal assistance, has attempted to traverse the bureaucratic maze built by the Social Security Administration" and lamented the four year delay. Grubb v. Chater, 992 F. Supp. at 636. It is now more than five and a half years later and twelve years after plaintiff filed her first application. She is entitled to a final disposition of her case. See Curry v. Apfel 209 F.3d 117, 124 (2d. Cir. 2000).

When Judge Baer disposed of this case, he directed the ALJ to obtain the testimony of the treating physician and gather any additional evidence needed to evaluate plaintiffs claim. Grubb v. Apfel 1998 U.S. Dist. LEXIS at *3-4. The judge also ordered, "[s]hould this procedure fail, my original decision is reinstated and benefits will begin forthwith." Id. This procedure has clearly failed. The ALJ had the opportunity to hold further hearings and gather any evidence needed to make evaluations with regards to plaintiffs claims. She did not attempt to gather other evidence or seek subpoenas for the records of Soundview Mental Health Center, Dr. Edwards, Dr. Kiyici. (Tr. at 20-21.) Remanding to collect further evidence as the defendant requests would only serve to prolong this case unnecessarily. The ALJ disregarded Judge Baer's order; accordingly, this court reinstates Judge Baer's original decision.

Furthermore, the record before the ALJ amply demonstrated that plaintiff had been disabled for more that 12 months. Under such circumstances, SSR 82-59 requires a "favorable decision" on benefits. It also would require that the case be "referred for development of failure to follow prescribed treatment." SSR 82-59. However, the benefits period at issue has ended: plaintiff is currently receiving disability benefits from an application filed in 2000. Accordingly, to refer the case for development of failure to follow prescribed treatment would have no purpose.

V. CONCLUSION

For the foregoing reasons, plaintiffs motion for an order reversing the determination of defendant and remanding plaintiffs claim solely for calculation of benefits is granted. The Clerk of the Court is directed to enter judgment for plaintiff and this matter is hereby remanded to the Commissioner solely for the purpose of the prompt calculation of the benefits to which plaintiff is entitled and payment thereof within thirty days of the filing of this opinion and order.

IT IS SO ORDERED.