Opinion
01-cv-424 (NAM/RFT)
December 4, 2003
MARK A. SCHNEIDER., ESQ., Pittsburgh, New York, for Plaintiff
GLENN T. SUDDABY, Syracuse, New York, UNITED STATES ATTORNEY
WILLIAM H. PEASE, ESQ. Assistant United States Attorney
MEMORANDUM DECISION AND ORDER
I. INTRODUCTION
Plaintiff Ross Lunan brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of Commissioner of Social Security Jo Anne Barnharts decision to deny his application for disability benefits. This matter was referred to Magistrate Judge Randolph F. Treece for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Treece recommended that this Court reverse the Commissioner's decision to deny disability benefits and remand this matter solely for the calculation of benefits. Presently before the Court are the Commissioner's objections to two aspects of Magistrate Judge Treece's Report-Recommendation,
II. FACTUAL BACKGROUND
After graduating high school, Lunan worked as a security guard, auto dismantler, and factory worker. Lunan, who is thirty-seven, claims he suffers from Chronic Fatigue Syndrome ("CFS") and that it has rendered him totally disabled since January 1992. Magistrate Judge Treece adopted the facts set forth in plaintiffs brief under the heading "Statement of the Case". Dkt. n. 10. Neither party has objected to this aspect of Magistrate Judge Treece's Report-Recommendation.
III. PROCEDURAL HISTORY
The Court adopts the Procedural History set forth by Magistrate Judge Treece in the Report-Recommendation in its entirety:
Lunan applied for disability insurance benefits on January 19, 1996, alleging a disability onset date of January 3, 1992. Tr. 76. His application was denied initially (Tr. 76) and upon reconsideration (Tr. 77). Lunan requested a hearing before an Administrative Law Judge ("ALJ"), which was held on October 23, 1997 (TR. 48-75). On March 5, 1998, the ALJ issued an unfavorable decision. Tr. 6-15. On November 3, 1998, the Appeals Council denied Lunan's request for review, thus making the ALJ's decision the final decision of the Commissioner. Tr. 2-2. Lunan then filed an action in the U.S. District Court for the Northern District of New York. See Lunan v. Apfel 98-CV-1943 (NAM/RWS) ("Lunan I"). On December 22, 1999, U.S. Magistrate Judge Ralph W. Smith recommended that the Commissioner's decision denying Lunan disability benefits be reversed and remanded for further proceedings. See Lunan I Docket No. 14. By order dated March 10, 2000, U.S. District Judge Norman A. Mordue adopted Magistrate Judge Smith's report and recommendation. Id. at Docket No. 15. On remand, a second hearing was held before ALJ Joseph Gibbons on July 18, 2000. Tr. 325-62. On August 8, 2000, the ALJ issued an unfavorable decision. Tr. 241-51. On February 27, 200[1], the Appeals Council denied Lunan's request for review, thus making the ALJ's decision the final decision of the Commissioner. Tr. 223-24. This action followed.
IV. Report-Recommendation and Objections
In the Report-Recommendation, Magistrate Judge Treece found that: (1) the ALJ did not violate the law of the case doctrine; (2) the ALJ failed to apply the factors listed in the relevant regulations to determine what weight should be afforded plaintiffs two treating physicians, Barry Kilbourne, M.D., and Joseph Brenes, M.D., and erroneously relied on Dr. Kilbourne's opinion over Dr. Brenes's opinion; (3) the ALJ failed to explain the reasons for his rejection of plaintiffs credibility and complaints of subjective symptomology with sufficient specificity; (4) the ALJ's failure to consider plaintiff's nonexertional limitations in determining whether plaintiff retained the residual functional capacity ("RFC") to perform past relevant work as a security guard was contrary to law and in view of Lunan's nonexertional impairments, the ALJ's finding that Lunan had the RFC to perform past work as a security guard is not supported by the record; and (5) that this case should be remanded solely for the calculation of benefits because the record demonstrates persuasive proof of disability.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court engages in a de novo review of any part of a magistrate judge's report-recommendation to which a party specifically objects. Failure to object timely to any portion of a magistrate's report-recommendation operates as a waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of Health Human Serv. 892 F.2d 15, 16 (2d Cir. 1989).
The Commissioner filed two objections to the Report-Recommendation. First, the Commissioner objects to Magistrate Judge Treece's finding that the ALJ did not apply the relevant guidelines in evaluating the opinions of Lunan's treating physicians, and recommendation for remand for calculation of benefits rather than reconsideration and application of the treating physician rule. Second, the Commissioner objects to Magistrate Judge Treece's recommendation that this case be remanded solely for calculation of benefits, and argues that the record contains "plenty of evidence in support of the ALJ's decision". The Commissioner did not specifically object to any other portion of the Report-Recommendation, including the portions regarding Lunan's credibility, nonexertional impairments, and residual functional capacity. Accordingly, the Court accepts these portions of the Report-Recommendation in their entirety. Plaintiff responded to the Commissioner's objections, but filed no objections to the Report-Recommendation.
The Court notes that the Commissioner, in her objection to the recommended disposition of this case, points out that, "The ALJ's residual functional capacity finding is also supported by the July 5, 1999, assessment of the State agency physician who reviewed plaintiffs records and found no exertional limitations." Dkt. n. 15, p. 4. To the extent this statement regarding Lunan's exertional impairments is intended to be an objection to the portion of the Report-Recommendation which addresses residual functional capacity and nonexertional impairments, it is without merit, for it ignores, and more importantly, does not challenge Magistrate Judge Treece's finding that the ALJ's residual functional capacity assessment that Lunan could return to past work as a security guard is not supported by the record because the substantial evidence in the record demonstrated that Lunan's nonexertional impairments prohibited him from returning to such work.
V. DISCUSSION
A. The ALJ's Decision
To be eligible for Social Security disability benefits, a claimant must establish "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). There is a five-step analysis for evaluating disability claims:
"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a `severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the SSA bears the burden on the last step.Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (citing Shaw v, Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted)).
Here, at step one, the ALJ found that Lunan had not worked since January 2, 1992. Next, at step two the ALJ found that Lunan had symptoms of chronic fatigue syndrome, obesity, and a history of alcohol abuse, but at step three, that Lunan did not have an impairment or combination of impairments that was listed in Appendix 1 of the regulations. The ALJ proceeded to step four and, noting that "no treating sources has opined that he is totally disabled for all work activity", determined that Lunan's subjective complaints were overstated and not credible and that Lunan had the residual functional capacity to perform work-related functions except for work involving heavy lifting or strenuous physical labor. Because Lunan's past relevant work as a security guard did not require the above limitations, the ALJ found no reason "why [Lunan] would be precluded from performing at least sustained sedentary to light work such as his past work as a security guard." Accordingly, the ALJ found Lunan was not entitled to disability benefits.
B. Standard of Review
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence" or when a decision is based on legal error. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Shaw, 221 F.3d at 131 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). As noted, the Court also 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).
C. Objections
1. Treating Physician Rule
In this case, plaintiff's two treating physicians, Joseph Brenes, M.D., and Barry Kilbourne, M.D., rendered different opinions. Dr. Brenes diagnosed Lunan with CFS and opined that Lunan would probably have CFS for the rest of his life, was "probably impaired due to this" and was "totally disabled for many type of endeavor [sic]." Dr. Kilbourne, on the other hand, while acknowledging that Lunan had been diagnosed with CFS, also noted that CFS was not recognized universally as a medical condition, and that there was some dispute within the medical community as to whether CFS exists. Dr. Kilbourne opined that Lunan was moderately limited with respect to walking, standing, sitting, lifting and carrying, pushing, pulling, and bending, climbing stairs, maintaining attention and concentration, functioning in a work setting at a consistent pace and understanding and remembering instructions. When asked for a statement regarding Lunan's condition, Dr. Kilbourne responded that he found no disability in Lunan that was verifiable by physiological testing and that Lunan's symptoms were purely subjective. Dr. Kilbourne further stated that he could not verify disability due to CFS. The ALJ found that Dr. Brenes's diagnosis of CFS was not supported by the record or by the objective medical evidence. The ALJ agreed with Dr. Kilbourne's opinion that there was "no evidence of any objective illness" in this case.
Judge Treece found the ALJ erred in four respects in according Dr. Kilbourne's opinion greater weight than Dr. Brenes's opinion. First, Magistrate Judge Treece found that the substantial evidence in the record supported Dr. Brenes's diagnosis of CFS, and therefore that the ALJ improperly substituted his judgment of the medical record over competent medical opinion regarding the diagnosis of CFS. Second, Magistrate Judge Treece found that the ALJ erred as a matter of law by rejecting Dr. Brenes's diagnosis of CFS on the basis that there were no objective medical findings that would support this diagnosis because the relevant regulations permit a diagnosis on the basis of a claimant's reported symptoms. Third, Magistrate Judge Treece found the ALJ erred as a matter of law in relying on Dr. Kilbourne's opinion that there is "no evidence of any objective illness" over Dr. Brenes's opinion that Lunan suffers from CFS, because the ALJ failed to mention, let alone apply, the five factors set forth in 20 C.F.R. § 404.1527(d)(1) and (d)(2), 416.927(d)(1) and (d)(2) in determining what weight to accord the differing opinions. Finally, Magistrate Judge Treece found that proper application of the five factors contained in 20 C.F.R. § 404.1527(d)(1) and (d)(2), 416.927(d)(1) and (d)(2), require that Dr. Brenes's diagnosis and opinion be given greater weight than Dr. Kilbourne's opinion.
The Commissioner contends that the ALJ applied the factors outlined in the relevant regulations and ultimately concluded that Dr. Kilbourne's opinion was more persuasive, and that the ALJ's decision to accord greater weight to Dr. Kilbourne's opinion is supported by substantial evidence. Therefore, the Commissioner argues, the ALJ's opinion is "conclusive" "even where the reviewing court's independent analysis may differ from that of the ALJ's analysis."
As Magistrate Judge Treece explained: "Under the regulations, a treating physician's opinion is entitled to `controlling weight' where it is Veil-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record.'" 20 C.F.R. § 404.1527(d)(2) (2001); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
In this case, Dr. Brenes and Dr. Kilbourne were plaintiffs treating physicians, but had different medical opinions, thus, the ALJ was required to apply the five factors listed in 20 C.F.R. § 404.1527, 416.927(d)(2) to determine what weight should be given each opinion. These factors are: "(I) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant factors." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)). As Magistrate Judge Treece noted, however, the ALJ's decision is devoid of any reference to the treating physician rule, or the applicable factors.
Additionally, the ALJ failed to specify, in the first instance, the weight he gave to their opinions. "Under the applicable regulations, the Social Security Administration is required to explain the weight it gives to the opinions of a treating physician." Snell v, Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(d)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.")). In short, it is simply unclear what weight the ALJ afforded Dr. Brenes's opinion and Dr. Kilbourne's opinion, and in the absence of a specific allocation of weight to each opinion and clearly stated reasons for each allocation of weight, the Court "cannot ascertain whether [the Commissioner] applied the correct legal principles, in particular, the treating physician rule, in assessing [Lunan's] eligibility for disability benefits." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). Thus, the Court agrees with Magistrate Judge Treece that the ALJ failed to apply the treating physician rule. Accordingly, the ALJ's decision to reject Dr. Brenes's diagnosis of CFS and reliance on the opinion by Dr. Kilbourne, who questioned the existence of the condition in the first place, that "there is no evidence of any objective illness" and that he could not find any basis for finding disability, is not, as the Commissioner suggests, "conclusive." Nor is it supported by substantial evidence since "the prevailing medical definition of Chronic Fatigue Syndrome allows a diagnosis on the basis of `an individual's reported symptoms alone once other possible causes for the symptoms have been ruled out.'" Bischof v. Apfel, 65 F. Supp.2d 140, 145 (E.D.N.Y. 1999) (quoting Social Security Ruling SSR 99-2p, "Titles II and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome (CFS)," 64 Fed. Reg. 23380, 23381 (April 30, 1999) (citing Annals of Internal Medicine, 121:953-9 (1994)). Thus, Dr. Kilbourne's report which indicated that Dr. Kilbourne could not find any objective medical basis for finding that Lunan was disabled, is not substantial evidence. See id. at 147 (finding ALJ who "viewed the lack of objective medical indicators as undermining the treating physicians' views regarding the severity of plaintiff's symptoms and her capacity to work . . . acted without substantial evidence and in contravention of the Commissioner's policy on Chronic Fatigue Syndrome and the treating physician rule."). Accordingly, the Court agrees with Magistrate Judge Treece that the ALJ failed to apply the treating physician rule and further that the ALJ's reliance on Dr. Kilbourne's opinion is not supported by substantial evidence. The Court must next consider the appropriate disposition of this matter.
2. Disposition
Magistrate Judge Treece recommends that this action be remanded solely for calculation of benefits because the record in this case "demonstrates persuasive proof of disability."
As Magistrate Judge Treece explained:
the district court may reverse with or without remand. 42 U.S.C. § 405(g). It has been six years since Lunan first applied for benefits and the District Court has already remanded this matter back to the Commissioner once for further proceedings. Delay alone is insufficient to warrant a remand solely for the calculation of benefits. See Bush v. Shalala. 94 F.3d 40, 46 (2d Cir. 1996). Remand solely for the calculation of benefits is appropriate only when the record demonstrates persuasive proof of disability that there is "no purpose" for further proceedings. Parker v. Harris. 626 F.2d 225. 235 ( 2d Cir. 1980).
In this case, Magistrate Judge Treece found as follows:
Generally, where, as here, the Commissioner has denied disability benefits at step four of the disability determination process, further proceedings to determine whether the claimant can perform any work in the nation [sic] economy is usually the appropriate procedure. See e.g. Bischof, 65 F. Supp.2d at 148. Nonetheless, the record here demonstrates that Lunan's nonexertional limitations prevent him from keeping a regular work schedule. The medical records from various physicians and psychologists all identified the same symptomology. Furthermore, the unique nature of CFS requires that a claimant's complaints be given greater credibility. Thus, under this circumstance, remand solely for the calculation of benefits is appropriate. See e.g. Doyle v. Apfel. 105 F. Supp.2d 115, 120 (E.D.N.Y. 2000).
The Commissioner objects to this disposition and contends that the finding of no disability should be affirmed and that "the record before this Court contains plenty of evidence in support of the ALJ's decision." Alternatively, the Commissioner argues that remand for further proceedings is the proper disposition. As an initial matter, the final decision of the Commissioner may not be affirmed, because, in addition to failing to apply the treating physician rule, as Magistrate Judge Treece found: (1) the ALJ failed to explain the reasons for his rejection of plaintiff's credibility and complaints of subjective symptomology with sufficient specificity; (2) the ALJ failed to consider Lunan's nonexertional limitations in determining whether Lunan retained the RFC to perform past relevant work as a security guard; and (3) in view of Lunan's nonexertional impairments, the ALJ's determination that Lunan retained the RFC to perform past relevant work as a security guard is not supported by the record. As previously discussed, the Commissioner did not specifically object to these portions of the Report-Recommendation, thus the Court has adopted those portions in their entirety. Consequently, affirmance is not warranted. See e.g. Johnson, 817 F.2d at 986 ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have [his] disability determination made according to the correct legal principles."). Thus, the Court turns to the Commissioner's objection to Magistrate Judge Treece's recommendation that this matter be remanded solely for calculation of benefits, and the Commissioner's request that this matter be remanded for "further proceedings."
Here, the ALJ made an erroneous determination at step four and concluded that Lunan could return to past work as a security guard, therefore, there has been no consideration whatsoever at step five of whether Lunan has the residual functional capacity to perform other work in the economy. The Second Circuit has made clear, that "a remand for further proceedings is the appropriate remedy when an erroneous step four determination has precluded any analysis under step five", Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 2000) (citing Tejada, 167 F.3d at 776), unless the record provides persuasive evidence of total disability that "render any further proceedings pointless." Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991). Since both of the ALJs to consider this case have only reached step four of the evaluation process, there has been no analysis whatsoever at step five of whether Lunan, despite his exertional and nonexertional impairments, including his memory loss, erratic sleep patterns, dizziness, and muscle and joint aches, and subjective symptomology, has the residual functional capacity to perform other work in the national economy. Further, the Court cannot say that the record in this case is sufficiently complete or persuasive with respect to disability as to "render any further proceedings pointless." Id; cf., Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (awarding benefits without proceedings to step five finding that "[i]t must have been as obvious to the A.L.J. as it is to us that there was an infinitesimal likelihood that employment of any kind would be available for the sickly, uneducated, illiterate, inexperienced, 45-year-old claimant."); Rivera, 923 F.2d at 970 ("a review of the record fails to reveal any evidence which could support a finding that Rivera was capable of performing substantial gainful work which was available in the national economy. Indeed, the Secretary explicitly found that as of 1983 the claimant was not capable of performing such alternative work. Moreover, the retrospective diagnosis of Dr. Zavalla-Macapagal stated that Rivera's condition was approximately the same in 1977 as it was in 1983, and further stated without qualification that Rivera had been unable to work since 1977. Given this evidence establishing Rivera's inability to perform her prior work as of 1978, and considering the unskilled nature of the claimant's earlier work, the failure of HHS to present any evidence to suggest that Rivera possesses other skills or for any reason would be capable of performing alternative substantial gainful work, and the length of time this litigation has already consumed, reversal and the immediate award of benefits is appropriate."). Here, for example, as Magistrate Judge Treece noted, there is no finding by either of Lunan's treating physicians that Lunan's symptoms are so severe as to preclude all work activity. Indeed, the record in this case is wholly undeveloped with regard to step five and Lunan's ability to perform other substantial gainful work in the national economy. Accordingly, while mindful of the seven years Lunan's application has been pending, the Court nevertheless reverses the final decision of the Commissioner and remands this case to the Commissioner for further administrative proceedings limited to a determination under step five whether there is any work in the national economy which plaintiff would be capable of performing. See Bischof, 65 F. Supp.2d at 148 (noting that although application for disability benefits had been pending eight years, because record did not provide persuasive proof of disability, proper application of SSA's CFS policy and the treating physician rule would not necessarily lead to a different result, and ALJ made no determination regarding the claimant's "ability to perform other work in the national economy" "[t]o remand solely to calculate benefits would . . . be premature."). In deciding this question, the ALJ is directed to reweigh the evidence concerning Lunan's CFS condition, including treating physicians' opinions, and Lunan's nonexertional impairments and subjective symptomology. In doing so, the ALJ is also directed to consider the Social Security Administration's policy on CFS. Hilton v. Apfel, No. 97 Civ. 1613(SS), 1998 WL 241616, *12 (S.D.N.Y. May 13, 1998); see also Social Security Ruling 99-2p. Given the seven years that this application has been pending, however, the Court urges the Commissioner to expedite the administrative proceedings and directs the Commissioner to calculate and award benefits to Lunan, if it is found that the Commissioner has failed to meet her burden at step five.
VI. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Report-Recommendation is rejected to the extent it recommends remand solely for calculation of benefits; and it is further
ORDERED that the Report-Recommendation is otherwise accepted it its entirety; and it is further
ORDERED for the reasons stated above and in the Report-Recommendation that the Commissioner's decision denying Lunan disability benefits is reversed and this matter is remanded to the Commissioner for further administrative proceedings limited to a determination under step five.
IT IS SO ORDERED.