Opinion
99-CV-5214 (JG)
August 23, 2000
CHRISTOPHER JAMES BOWES, Center for Disability Advocacy Rights New York, NY, Attorney for Plaintiff.
LORETTA E. LYNCH, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Randi Weinberg, Assistant United States Attorney, Mary Miller, Law Student Intern, Attorney for Defendant
MEMORANDUM AND ORDER
This action seeks review of the Commissioner of Social Security's denial of disability benefits. Confessing error, the Commissioner has moved for a remand for further development of the record on plaintiffs possible psychiatric condition. The plaintiff has cross-moved for an award of benefits. For the reasons discussed below, the Commissioner's motion is granted — but not on the basis he has advanced — and the petitioner's cross-motion is denied.
BACKGROUND
A. Plaintiff's Personal and Work History
Plaintiff Mihail Tutuianu was born in Romania in 1945. (Tr. at 41.) While there, he worked for an unspecified period of time as a "commercial correspondent" for the national airline. (Id. at 50.) In that capacity, he drafted letters and other commercial papers. (Id. at 51.) He came to the United States in 1985. (Id. at 41-42.)
"Tr." refers to the administrative transcript for Tutuianu's disability claim.
Tutuianu worked for four months in 1986 doing data entry. (Id. at 48-49, 107.) He resigned because he thought his co-workers were "mock[ing]" him and because he did not want to work with homosexuals. (Id. at 50-52.) He worked for two months in 1988 assembling and disassembling light fixtures. (Id. at 48, 107.) He left that position for a data entry position with a cable company. (Id.) He was laid off after 12 weeks because, according to Tutuianu, he complained too much about second-hand smoke. (Id. at 48.)
In 1991 or 1992, Tutuianu earned an associates degree in audio and video electronics technology. (Id. at 44.) In connection with his studies, he worked for two to five months in 1992 as a paid intern in a television repair facility. (Id. at 47, 107.) In that capacity, he learned to mount and dismount "different TV pieces." (Id.. at 47.) In 1993, Tutuianu worked for three months as an electronic technician servicing IBM printers. (Id. at 44-45, 107.) For reasons that were not explained to him, he was laid off. (Id. at 45.)
Tutuianu became homeless in 1993, after he moved out of his apartment in Flushing because of noisy neighbors. (Id. at 63.) At his administrative hearing on August 12, 1997, Tutuianu reported that he had been living in a shelter for more than three years. (Id. at 42.)
B. Medical History
1. Tutuianu's Account
Shortly after he became homeless, Tutuianu recalls having heard a "snap" in his neck. (Id. at 53.) After that, he began experiencing headaches. (Id.) He reported continuing headaches, neck pain, pins and needles in his fingers, pain in his middle and lower back, and soreness in his left leg down to the knee. (Id. at 53-58.)
Upon questioning by the ALJ Tutuianu said that he had experienced some depression after he became homeless due to living conditions in the shelters. (Id.. at 61-62.) He said that he did not need or want psychiatric treatment because "my character . . . is too strong." (Id. at 62.)
Although Tutuianu said that he had walked the approximately three miles to his disability hearing, he said that he experienced serious pain when walking. (Id.. at 65.) He also said that he cannot stand for more than 15 minutes. He said Tylenol 3 controlled his pain some of the time. (Id.. at 65.) He reported no problem sitting. (Id. at 66.)
2. Medical Records
Unless otherwise noted, all of Tutuianu's treatment took place at the Bellevue Medical Center. Although there is mention of other conditions in the medical records, the following discussion addresses only Tutuianu's neck and back pain and his possible depression.
On April 18, 1994, Tutuianu underwent x-rays, which, in the opinion of the physician who conducted them, showed "positional and early osteodegenerative changes." (Id. at 132.) Specifically, the x-rays showed a "[m]ild list, concave right secondary to pain and/or spasm" in the cervical spine and "[l]oss of disc space height at C5-6, C6-7 with anterior osteophytes noted." (Id. at 132.)
X-rays taken on June 21, 1995, showed degenerative changes at the C5-6 and C6-7 vertebrae, mild scoliosis and degenerative changes in the thoracic spine, and degenerative disease in the lumbar spine. (Id.. at 126.)
On July 25, 1995, Tutuianu's physician noted that Tutuianu reported pain in his cervical spine, mid spine, and lower back, with occasional radiation in both legs. (Id.. at 225.)
On August 23, 1995, Tutuianu was seen by a physician at the Bellevue Hospital Center Rehabilitation Medicine Service. (Id. at 134.) The diagnosis was listed as chronic lower back pain and cervical spine pain. (Id.) Tutuianu reported that his pain was sharp and intermittent and that it was not relieved by the Oruvail he was taking. (Id.) The pain, Tutuianu reported, was worse when standing or walking. (Id.) Upon physical examination, the doctor found tenderness in the trapezius muscles and the supraspinal and sacroiliac areas. (II) Tutuianu's motor strength was rated a five on a scale of one-to-five, and his sensory capacity was reported to be "intact." (Id..) The physician prescribed a series of physical therapy exercises to be done twice a week for six weeks. (Id.)
On September 1, 1995, Tutuianu underwent an initial evaluation by a physical therapist. Tutuianu reported pins and needles in his upper extremities, a constant "deep dull ache" in his lower back, which became worse when standing or lying prone. (Id.. at 138.) Tutuianu had further physical therapy sessions in late 1995 and early 1996. (Id. atId.140-44.)
On November 1, 1995, Tutuianu told a physician at Bellevue that he experienced "relief immediately" from physical therapy, but that it was "short-lived." (Id.. at 136.) The doctor prescribed continued physical therapy and use of a TENS unit, which administers electrical stimulation to the nervous system for pain relief. (Id.) The physician also recommended that Tutuianu be evaluated for a home TENS machine. (Id..)
Tutuianu was seen again at Bellevue on November 22, 1995. (Id. at 137.) He reported that the TENS session had eliminated his pain for 24 hours before it returned. A rental TENS unit was ordered for Tutuianu, and continued physical therapy was ordered. (Id..)
Tutuianu underwent a consultative examination by Dr. Peter Graham on behalf of the Social Security Administration on February 20, 1996. He told Graham that he suffered "intermittent" pain in the lower back and neck. He said that Oruvail, a prescription drug he was taking, "does usually relieve the pain." (Id. at 148.) Upon examination, Graham found "no tenderness on palpation of the spine" and "no para-spinal muscle tenderness or spasm." (Id. at 149.) As one of Graham's "final assessment[s]," he stated that Tutuianu had "no functional deficit" arising from any back condition. (Id. at 150.) In sum, according to Graham, Tutuianu was "able to sit, stand, walk, lift, carry, handle objects, hear, speak and travel." (Id..)
Dr. Rocco P. Bevilacqua, a consulting radiologist, examined Tutuianu's x-rays. He noted "moderately prominent osteoarthritic changes" of the lower dorsal body and L1; "moderately prominent reactive spur formations" on L1, extending to L2; and changes between L5 and S1 "consistent with degenerative discogenic pathology with chronic irritation." (Id. at 154.)
On February 28, 1996, Tutuianu reported that he was not completing his home exercises due to "dizziness." (Id. at 147.) He was still awaiting the home TENS unit. (Id.) (Tutuianu ultimately received the unit on March 27, 1996. (Id. at 222.))
c On March 6, 1996, a physician at Bellevue — whose name cannot be deciphered but who is identified as "Medical Records Physician" — completed a report for the Social Security Administration. Among the doctor's diagnoses was "cervical lumbar back pain [with] sciatic radiation." (Id. at 124.) The reported clinical findings were bilateral trapezius tenderness and lower thoracic spine tenderness. (Id.. at 123.) The physician opined that Tutuianu could: lift up to ten pounds, stand or walk for less than two hours per day, sit without limitation, and "push and/or pull" without limitation. (Id. at 127, 129.)
On March 14, 1996, Dr. Pellagrino reviewed Tutuianu's medical records on behalf of the Social Security Administration and completed an evaluation form. He concluded that Tutuianu could occasionally lift or carry 50 pounds; frequently lift or carry 25 pounds; stand or walk six hours in an eight-hour work day; sit for six hours in an eight-hour work day; and was not limited in his ability to "push and/or pull." (Id. at 83.) The doctor noted no "postural" or "manipulative" limitations. (Id. at 84-85.) Finally, Pellagrino noted that he had reviewed the statement of a treating or examining physician (although he did not identify the statement or the physician) and that it was not "significantly different" from his conclusions. (Id. at 88.) Pellagrino's conclusions were later adopted by another reviewing physician, Dr. Anthony Danza. (Id. at 89.)
On April 2, 1996, Tutuianu was prescribed Tylenol 3 for a possibly pulled muscle in his back. (Id. at 221.) Tutuianu also reported that he did not exercise due to dizziness and the fact that he becomes "tired." (Id.) The doctor recommended continuation of TENS therapy. (Id..)
On May 29, 1996, Tutuianu was evaluated by Bellevue's behavioral medicine service. (Id. at 220.) The evaluating physician noted that Tutuianu was "[v]ery angry and suspicious." (Id.) The physician recommended that Tutuianu undergo psychotherapy. Tutuianu said he was "reluctant" but would "consider the possibility." (Id.)
On June 3, 1996, Tutuianu was seen at Bellevue and complained of headaches and neck pain interfering with his sleeping. (Id. at 223.) He also reported numbness and tingling in his hands. (Id.)
On July 15, 1996, Dr. Schiffman reported that Tutuianu "absolutely refuses" to have mental treatment, "but will think about it." (Id. at 218.)
On July 29, 1996, Tutuianu reported that his prescribed medication was not relieving his neck pain. (Id. at 217.) His symptoms were particularly bad when lying down, necessitating that he sleep in a seated position. (Id..) He was prescribed Tylenol 3, and several diagnostic tests were ordered. (Id.)
On August 14, 1996, Tutuianu reported that the numbness in his hands had gone away and that he was still not doing his exercises because of dizziness. He still reported neck pain, although he was using his home TENS unit for his back pain. (Id.. at 216.) The physician noted cervical paraspinal muscle spasms and a limited range of motion in the cervical spine. (Id..) He was prescribed continued physical therapy and use of the TENS unit at home and was advised to avoid "cervical extension." (Id..)
On August 26, 1996, Tutuianu reported that he was not sleeping well and was "depressed about [his] situation." (Id. at 215.) Nonetheless, he refused to see a psychiatrist or to take anti-depressants. (Id..)
On November 22, 1996, Tutuianu was taken by ambulance to Bellevue, complaining of having had a "stiff neck" and a headache for three days. (Id. at 192.) Upon examination, Tutuianu showed "very mild tenderness to palpitation" and moderate to severe muscle spasms when sitting up. (Id.. at 194.)
On December 2, 1996, Dr. Schiffman noted that Tutuianu's neck condition had improved. She discontinued some medicines. (Id.. at 195.)
On December 20, 1996, Tutuianu complained of depression. (Id.. at 196.) A follow-up appointment was scheduled for December 23, but the record is silent as to whether it took place.
On January 6, 1997, Tutuianu complained of chronic neck pain and side effects from one of his medications. (Id.. at 197.) He requested an alternative pain medication. The physician noted that any narcotics should be avoided because Tutuianu suffered from "chronic pain syndrome." (Id.)
On February 27, 1997, Tutuianu underwent a CAT Scan of the lumbosacral spine, which showed "degenerative changes to the L-5 [to] S-1 disc with small right paracentral disc herniation and vacuum disc phenomenon." (Id. at 199.)
3. Procedural History
Tutuianu filed an application for Supplemental Security Income benefits on January 29, 1996. (Id.. at 78-80.) His application was denied on March 18, 1996, and, upon reconsideration, on April 23, 1996. (Id.. at 81, 97-101.) Tutuianu then requested a hearing, which took place on August 12, 1997, with Tutuianu's appearing pro se.
During the hearing, the ALJ asked Tutuianu if he had a "problem with depression," and Tutuianu responded affirmatively. (Id. at 60.) He attributed the condition to being homeless and the rough conditions in the shelters. (Id.. at 61.) He said he had not sought psychiatric treatment because "my character . . ., is too strong." (Id.. at 62.)
Tutuianu told the ALJ that he had no problem sitting. (Id. at 66.) He said he could only lift three to four pounds. (Id.) He had walked the three miles to the hearing and he walked to a soup kitchen 15 blocks away each day, although he said his back hurt after such walks. (Id.. at 67.)
The ALJ also took testimony from Dr. Platz, who participated in the hearing as a medical expert. Platz noted that the x-rays from June 1995 showed mild osteoarthritis but no nerve impingement. (Id.. at 71.) He noted a "negligible" disc herniation visible on Tutuianu's CAT scan. (Id..) Platz opined that Tutuianu could do "a full range of light and sedentary work." (Id..) He would, however, be somewhat limited in his ability to lift. (Id. at 71-72.)
The ALJ then queried Platz about Tutuianu's psychiatric condition. Platz was reluctant to answer, given that he is not a psychiatrist, but upon being pressed, he stated that Tutuianu likely suffered from a personality disorder. (Id.. at 72.)
Next, the ALJ questioned a Mr. Mooney, who was present as a vocational expert. The ALJ asked Mooney whether there would be a job available for Tutuianu, given his age, work experience, his inability to do more than "light exertional activities," and his need for "minimal amounts of interaction between him and the public or supervisors or coworkers." (Id.. at 74.) The expert opined that Tutuianu's past jobs of data entry and mechanics technician fit the description. (Id..)
In a written decision dated August 21, 1997, the ALJ concluded that Tutuianu was not disabled. (Id. at 18.) The ALJ concluded that, because Tutuianu did not have one of the Social Security Administration's "listed" impairments, it was necessary to determine whether he had the "residual functional capacity" to perform his past relevant work as an electronic technician or data entry clerk. (Id. at 19.) The ALJ answered this question in the affirmative, even allowing for what he considered a personality disorder. (Id. at 25.) The ALJ then assumed that he had answered the question in the negative and proceeded to step five of the disability analysis, concluding that, even if Tutuianu could not return to his past work, he could perform light work, an ability that, when considered with his age, educational background, and work experience, dictated a finding of not disabled. (Id..)
On June 28, 1999, the Appeals Council declined to review the ALJ's decision. ( Id. at 3-4.)
Tutuianu subsequently filed his complaint in this action. The Commissioner confessed error in the ALJ's handling of Tutuianu's possible psychiatric condition and therefore moved for a remand for further development of the record. Rather than attempt to diagnose Tutuianu on his own and then evaluate the impact of his alleged personality disorder on his ability to work, the Commissioner conceded, the ALJ should have ordered a consultative psychiatric examination. In a cross-motion, Tutuianu opposed remand and asked that I direct an award of benefits.
In Tutuianu's opposition papers and at oral argument, his counsel conveyed Tutuianu's adamant opposition to a remand on the basis suggested by the Commissioner. Counsel represented that he had had numerous discussions with his client about the issue and that his client did not believe he suffered from any mental impairment and was resolute in his opposition to seeking benefits on that basis. Even if I rejected his cross-motion for an award of benefits, however, Tutuianu identified several other bases for remand, other than for development of evidence on mental illness, including an insufficient waiver of the right to counsel and insufficient analysis of Tutuianu's "past relevant work."
In a supplemental submission I requested, the Commissioner pressed forward with his original argument for remand, without discussing the significance of the fact that it was seeking relief on Tutuianu's behalf that he vigorously opposed. The Commissioner then unhelpfully took an equivocal position on the other issues raised by Tutuianu, stating that "if the Court determines that the Commissioner may not consider plaintiffs mental impairments, the Commissioner's decision denying benefits should be affirmed, unless the Court finds that there is another basis for remand." (Defendant's Supplemental Memorandum of Law at 1.)
DISCUSSION
Under the Social Security Act, disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." § 42 U.S.C. § 423 (d)(1)(A). The Social Security Administration follows a five-step procedure in evaluating disability applications:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment . . . listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work [that] the claimant could perform.Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999)).
In this case, there is no dispute between the parties as to the correctness of the ALJ's determination regarding the first three steps, but at that point their positions diverge. Tutuianu contends that the ALJ's decision at step four — that Tutuianu could return to his past relevant work — was infected by legal error. He acknowledges that when a court finds an erroneous step four determination, the usual disposition is a remand so that the Commissioner may conduct a step five analysis. See Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999) (remand required in this circumstance unless "record provide[s] persuasive evidence of total disability that render[s] any further proceedings pointless"). However, he points out that in this case the ALJ has already proceeded to step five, notwithstanding his determination adverse to Tutuianu at step four. Tutuianu contends that the step five analysis was also erroneous; therefore, "remand for the sole purpose of calculating an award of benefits is mandated." See 209 F.3d at 124.
Tutuianu contends that the ALJ erred at step four by concluding that Tutuianu could perform his past relevant work because Tutuianu's intermittent and unsuccessful attempts at employment do not constitute past relevant work at all. Work experience is considered "relevant" for these purposes "when it was done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." Melville v. Apfel, 198 F.3d 45, 53 (2d Cir. 1999) (quoting Social Security Ruling 82-62, 1982 WL 31386, at *1). The Social Security Administration has a number of regulations defining "substantial gainful activity," but for present purposes the most significant one "indicates that neither poorly performed work nor minimally valuable make-work is to be considered substantial gainful activity." Id. (citing 20 C.F.R. § 416.973 (b)).
It is impossible to conclude that there is substantial evidence supporting the ALJ's implicit conclusion that Tutuianu's past jobs constituted "past relevant work" because there is nothing in the ALJ's opinion indicating that he even considered this question. There is no discussion of whether Tutuianu held these jobs long enough to learn them or whether his work was so poor that they would not be considered substantial gainful activity. The ALJ had a duty to develop the record on these questions and analyze them. The fact that he did not constitutes legal error.
Although I agree with Tutuianu up to this point, I disagree with his contention that I should direct a finding in his favor on step four. "`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 1 for further development of the evidence.'" Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal alteration omitted)). The only exception is where the court concludes that there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision." Id. at 83. I do not find this exception applicable in this case because it is possible that a more complete record on this point could demonstrate, for example, that Tutuianu worked long enough to learn how to conduct data entry. As the Second Circuit noted in a case also addressing whether past job experience constituted past relevant work, "it is not within the proper scope of review for a court to address those questions in the first instance or de novo." Melville, 198 F.3d at 54;see also Rosa, 168 F.3d at 83 ("This case, in our view, is one in which remand for further development of the evidence is the wiser course.").
Notwithstanding my finding of legal error in the Commissioner's step four determination, I must continue the analysis because the Commissioner did as well, concluding that Tutuianu is not entitled to benefits even if he had prevailed at step four. Therefore, if the Commissioner's step five inquiry were proper, it would obviate the need for a remand to reconduct the step four inquiry. However, I conclude that the ALJ erred at step five as well because he did not follow the treating physician rule.
"The law gives special evidentiary weight to the opinion of the treating physician." Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Specifically, the SSA regulations state as follows:
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining the weight to give the opinion.
§§ 20 C.F.R. § 404.1527 (d)(2), 416.927(d)(2). The factors that an ALJ must apply when a treating physician's opinion is not given controlling weight include: "(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)). The regulations also provide that, when a treating physician's opinion is afforded less than controlling weight, the SSA "will always give good reasons in our notice of determination or decision for the weight we give [a claimant's] treating source's opinion." §§ 20 C.F.R. § 404.1527 (d)(2), 416.927(d)(2); see also Schaal, 134 F.3d at 505.
As the Commissioner concedes, it is possible that the March 6, 1996, report from Bellevue was completed by a treating physician. That report concluded that Tutuianu could stand or walk for less than two hours per day, (tr. 127), while "sedentary" work, which the A concluded at step five Tutuianu could do, generally requires a claimant to be able to walk or stand for up to two hours per day. See Curry, 209 F.3d at 123; Social Security Ruling 96-9p, 1996 WL 374185. If the March 6, 1996, report was from a treating physician, the ALJ was obligated to either give it controlling weight or explain his reasons for not doing so. If the report was not from a treating physician, the ALJ, as part of his obligation to develop the record, should have identified Tutuianu's treating physician or physicians and solicited an evaluation from them about his work capacity. See Rosa 168 F.3d at 79 ("[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history . . .
For these reasons, the Commissioner's analysis at step five was infected by legal error and cannot be sustained. Nonetheless, the fact that the Commissioner still may prevail on step four differentiates this case from Curry, 209 F.3d at 124, where the Second Circuit directed an award of benefits. Accordingly, remand for reconsideration applying the correct legal principles is the correct result.
The Commissioner's motion for a remand for the purpose of developing evidence of a possible psychiatric disability is denied. The claimant adamantly refuses to pursue benefits on this basis. There has been no suggestion — by either the Commissioner or by Tutuianu's able counsel — that Tutuianu is not competent to make this decision. Accordingly, the Commissioner is directed not to attempt to assess the presence of disability based on possible mental illness, absent the consent of Tutuianu or a finding that he is incompetent.
CONCLUSION
This case is remanded to the Social Security Administration for further proceedings consistent with this opinion. The Clerk is advised to enter judgment and close this
I need not determine whether Tutuianu's allegedly inadequate waiver of his right to counsel at his hearing would provide another basis for remand.
So Ordered.
case.