Opinion
No. 99 Civ. 9348 (HB).
May 22, 2000.
OPINION ORDER
Plaintiff Joyce Johnson brings this action pursuant to 42 U.S.C. § 405 (g) and 42 U.S.C. § 1383 (c)(3), to challenge the final decision of the Commissioner of Social Security ("the Commissioner") denying her application for disability benefits. Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, plaintiff moves for an order reversing the decision of the Commissioner, or in the alternative, reversing the final decision of the Commissioner and remanding this action for further administrative proceedings. Defendant moves pursuant to 42 U.S.C. § 405 (g) for reversal of the Commissioner's decision, and an order remanding this case for further administrative proceedings. For the reasons stated below, the defendant's motion is DENIED, the plaintiffs motion is GRANTED, and the case is reversed and remanded to the Commissioner solely for the calculation of benefits.
I. PRIOR PROCEEDINGS
Plaintiff filed an application for Supplemental Security Income disability benefits on September 11, 1997. (Tr. 212-214) At the time she applied, she stated that she became disabled and unable to work on April 1, 1995. (Tr. 212). Plaintiff completed a Disability Report form on September 11, 1997 in which she indicated that she became unable to work due to an anxiety disorder that rendered her "unable to concentrate, depressed, paranoid, couldn't control bowel movements, couldn't keep a job." (Tr. 87). The Social Security Administration ("SSA") initially denied plaintiffs application by notice dated November 4, 1997. (Tr. 216-19). The SSA found that plaintiff retained the capacity to perform work "in which [plaintiff] would have simple tasks." (Tr. 219). Plaintiff appealed that decision by thereafter filing a Request for Reconsideration. (Tr. 60-61; 94-99).
"Tr." refers to the administrative record transcript, filed by the Commissioner as part of his answer.
By a notice dated December 16, 1997, the SSA again denied plaintiffs claim. (Tr. 220-23). The notice indicated that the plaintiff could return to her prior job as a "keyboard specialist." (Tr. 223). Subsequently, plaintiff requested a hearing on or about February 2, 1998. (Tr. 62-64). On June 30, 1998, plaintiff appeared, with counsel, at an administrative hearing before Administrative Law Judge Jonathan Jacobs. (Tr. 39-59). By notice dated September 18, 1998, ALJ Jacobs denied the plaintiffs application for disability benefits. (Tr. 7-18). The ALJ determined that plaintiffs functional abilities were not significantly limited by her mental health problems. (Tr. 13). Additionally, the ALJ found that plaintiff could lift and carry twenty pounds during the workday. (Tr. 12). He then determined that plaintiff had the capacity to return to her past work as a keyboard specialist. (Tr. 14). By notice dated June 25, 1999, the Appeals Council denied the plaintiffs request for Appeals Council review, making the ALJ's decision of September 18, 1998 the final administrative decision of the Commissioner. (Tr. 3). On August 31, 1999, plaintiff commenced this action for judicial review of the Commissioner's final decision. The parties now move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedures.
II. STATEMENT OF FACTS
A. Non-Medical Evidence
Born in Manhattan on January 23, 1953 (Tr. 77), plaintiff was 45 years old at the time of her administrative hearing. (Tr. 43). Plaintiff has graduated from high school and also attended one year of college. (Tr. 91). From 1974 to 1984, plaintiff worked as a homemaker. (Id.) In 1982, she began employment as a secretary in a law firm. (Id.) Plaintiff remained at this job for only two years. She did not work again until 1994 and 1995, as a secretary and keyboard specialist. (Id.)
From the record, it appears plaintiff has lived a troubled life. She began drinking alcohol heavily at age 14 and attempted suicide at age 16 by taking an overdose of pills. (Tr. 107). She began psychiatric treatment at age 18, and continued with this treatment for a two year period. (Tr. 45, 107). She indicated that from age 18 until 42, she did not take care of herself reasoning that she was "trying to make . . . a living." (Tr. 45). During this time, plaintiff abused drugs and alcohol. (Tr. 292). Plaintiff testified that she worked only "sporadically" and "never kept a job for a very long time . . ." (Id.) She was raped at the age of 20 and again at age 30. (Id.)
Plaintiff reported that she was fired from her last two jobs as a result of cocaine and alcohol addiction. (Tr. 101). Thereafter, she sought treatment for her addiction disorder at the Create Center. (Tr. 292). It seems that her treatment was effective as plaintiff stopped abusing drugs and alcohol on August 10, 1996. (Tr. 45). The record shows that plaintiff had a conflict with her therapist, and was subsequently transferred to the Upper Manhattan Mental Health Clinic in April 1997, where she commenced regular mental health treatment, and was diagnosed as having depressive and anxiety disorders. (Tr. 203-208, 292-328). Since January 1998, she has actively sought vocational rehabilitation through the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"). (Tr. 315).
B. Medical Evidence
Plaintiff applied for SSI benefits complaining of both physical and psychiatric impairments. I review each of these in turn, beginning with the physical impairments.
Plaintiff provided a report from her treating gynecologist dated July 16, 1998 who reported that she had been treated monthly since 1993 for "chronic pelvic pain." (Tr. 287). In her report, the treating gynecologist indicated that the pelvic pain was "constant" and only relieved by medication. She also reported clinical findings of lower abdominal tenderness and uterine tenderness on examination. (Id.) The plaintiff was prescribed Anaprox, Ultram, and Daypro to relieve pain caused by pelvic adhesions. (Tr. 288). The gynecologist reported that the medications used to treat plaintiffs pain caused sleepiness. (Id.) She also diagnosed plaintiff as depressed. (Tr. 287). The gynecologist reported that the plaintiff should "never" lift or carry anything weighing more than 10 pounds during an eight-hour workday. (Tr. 289). She did report that plaintiff could lift 0-5 pounds frequently (up to 66% of the time during an eight-hour workday) and could lift 6-10 pounds "occasionally" (up to 33% of an eight-hour workday). (Id.) She further indicated that the plaintiff could only "occasionally" bend, squat, reach, or crawl. (Id.) The doctor also stated that plaintiffs ability to travel was hampered because her pain was exacerbated by walking long distances. (Tr. 291).
Medical records from New York Hospital confirm that the plaintiff has had endocervical hyperplasia since 1993. (Tr. 236). In 1993, plaintiff complained of abdominal and lower back pain, and was noted to have fibroid tumors. (Tr. 242). She was admitted to the hospital in June 1994 complaining of pelvic pain and upon medical examination, was determined to have an ovarian cyst. (Tr. 252, 256). She presented with nausea and vomiting and spent ten days in the hospital for treatment of pelvic inflammatory disease and a fibroid uterus. (Tr. 254). She was given Anaprox upon discharge. (Tr. 255).
Plaintiff again complained of abdominal and lower back pain in August 1996. (Tr. 260). In April 1997, plaintiff complained of "chronic pelvic pain." (Tr. 261). Motrin was used for pain relief, however, plaintiff complained it resulted in gastritis.Id. Plaintiff further complained of "severe dysmenorrhea." (Tr. 269). A July 1997 pelvic sonogram revealed that a left adnexal cyst was no longer visible, but a new right adnexal cyst was present. (Tr. 271). Daypro and Naprosyn were prescribed to treat the pain. (Tr. 277). A September 25, 1997 cytopathy report revealed no evidence of dysplasia or malignancy. (Tr. 285).
We now review plaintiffs claims of psychiatric impairment. Plaintiff was first seen at the Upper Manhattan Mental Health Center on April 9, 1997 for psychiatric intake. (Tr. 292). The psychiatric assessment form indicates that she was not delusional, but appeared anxious. The intake psychiatrist indicated that her insight and judgment were limited. She was diagnosed as suffering a depressive episode, and post-traumatic stress disorder (deferred), with polysubstance abuse in full remission. Id.
The record shows that treating psychiatrist Peter Cuneo completed a questionnaire sent to him by SSA. (Tr. 110). In this report, Dr. Cuneo indicated that the plaintiff had been in day treatment five days a week since April 24, 1997. (Tr. 110). He indicated a diagnosis of anxiety disorder and polysubstance dependence. Dr. Cuneo noted that the plaintiff had not used drugs in the past fifteen months.
Although he reported that plaintiff was not homicidal or suicidal, Dr. Cuneo noted that she was apt to become "anxious and depressed, particularly when overwhelmed by environmental stressors" such as rent problems, and problems with her daughter.Id. Specifically, Dr. Cuneo noted that plaintiff demonstrated "some referential thinking (people staring at her)[and increased blood pressure], poor concentration, feelings of helplessness, palpitations, [and a] sense of fear . . ." Id.
In regard to performing work-related activities, Dr. Cuneo responded that plaintiffs "poor concentration-attention inhibits her ability to work." (Tr. 113). Further, he reported that her understanding and memory were limited "due to current stress." (Tr. 114). Dr. Cuneo also noted that she exhibited limited sustained concentration and persistence in tasks and that a host of environmental influences distracted her from performing meaningful tasks. (Tr. 114). He also observed that plaintiffs capacity to adapt to changes in a work setting were limited, and her "concurrent environmental difficulties" limited functioning in this area. Id. Dr. Cuneo reported that plaintiff was taking hydroxyine 25 mg twice a day and 50 mg at night. (Tr. 111). He reported that due to plaintiffs complaints of sleepiness from the medication, he needed to decrease the dosage. Id.
Dr. Cuneo completed a psychiatric assessment on May 19, 1997, for purposes of determining the plaintiffs course of treatment at the Upper Manhattan Mental Health Center. (Tr. 293-95). Dr. Cuneo reported that the plaintiff complained of being "stressed out" and gave a history of excessive worry and feared that she would embarrass herself and believed that she "smells bad." (Tr. 294). Dr. Cuneo stated that the plaintiff does not have a thought disorder, and diagnosed her with a polysubstance dependence disorder. (Tr. 294-95). Dr. Cuneo prescribed Buspar, but the plaintiff stated she would like to try the substance abuse program. Id. In August of 1997, Dr. Cuneo diagnosed the plaintiff as having an anxiety disorder. (Tr. 306).
Plaintiffs medical records were reviewed by Joseph Minola, M.D., a consultative psychiatrist hired by SSA, as indicated in a report dated November 3, 1997. (Tr. 116). From his assessment, Dr. Minola determined that the plaintiff suffered from an affective disorder (Tr. 119) and a substance abuse disorder. (Tr. 122). He opined that the disorders resulted in "slight" limitations in activities of daily living and social functioning and "often" deficiencies in concentration, persistence and pace. (Tr. 123). He found that plaintiff "never" experienced episodes of deterioration in work-like settings. Id.
Plaintiffs file was further examined by non-examining psychiatric consultant Judith Belsky, M.D. on December 12, 1997. (Tr. 129-137). Dr. Belsky opined that plaintiffs anxiety resulted in a "slight" limitation in activities of daily living, a "moderate" limitation in social functioning, "often" deficiencies in concentration, persistence and pace, and "once or twice" episodes of deterioration in work or a work-like setting. (Tr. 136)
The Court notes that Dr. Belsky's evaluation of plaintiff's impairment severity with respect to social functioning; concentration, persistence and pace; and deterioration in work were only one degree removed from the level of limitation that satisfies the regulations.
Dr. A. Pierre of the Upper Manhattan Mental Health Center, plaintiffs second treating psychiatrist, also provided psychiatric evaluations of the plaintiff. Dr. Pierre completed an SSA psychiatric report form on May 6, 1998 in which he indicated that the plaintiff suffered from a "depressive disorder." (Tr. 139). In this report, Dr. Pierre measured the plaintiffs vocational functioning and reported that she had no useful ability to function with supervisors, deal with work stresses, understand, remember and execute complex job instructions, behave in an emotionally stable manner, and relate predictably in social situations. (Tr. 139-141). Dr. Pierre's assessment also indicated that plaintiffs ability to follow work rules, relate to co-workers, deal with the public, use judgment, maintain attention and concentration, understand, remember and execute detailed (but not complex) job instructions, execute simple job instructions, and demonstrate reliability was seriously limited, but not precluded. (Tr. 139-141).
Dr. Pierre completed a second psychiatric report form dated May 21, 1998. (Tr. 224). In this report, based upon plaintiffs subjective complaints, he diagnosed her impairment as "Paranoid State Anxiety Disorder." (Tr. 225). Dr. Pierre opined that plaintiffs psychiatric impairment caused "marked" limitations in several areas including execution of work tasks, concentration, and working with others. (Tr. 227-28).
III. DISCUSSION
A. Standard of Review
In reviewing the administrative ruling, the district court does not make a de novo determination whether the plaintiff is disabled. The court does, however, "undertake `plenary review' of the administrative record to determine whether substantial evidence supports the denial of benefits." Quinones on behalf of Quinones v. Chater, 117 F.3d 29, 33 (2nd Cir. 1997) (quotingPratts v. Chater, 94 F.3d 34, 37 (2nd Cir. 1996)). "The findings of the Secretary are conclusive unless they are not supported by substantial evidence." 42 U.S.C. § 405 (g); see Diaz v. Shalala, 59 F.3d 307, 312 (2nd Cir. 1995) (reviewing court must consider the Commissioner's findings conclusive when Commissioner's decision is supported by substantial evidence). The Supreme Court has explained that "substantial evidence" is "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. of New York v. NLRB, 305 U.S. 197, 229 (1938)). The Commissioner's decision is entitled to deference, and it is not for the trial court to review de novo the Secretary's decisions of fact and reasonable inferences drawn therefrom. Reyes v. Secretary of Health, Education and Welfare, 476 F.2d 910, 914 (D.C. Cir. 1973);Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977).
The term "disability" is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A). Furthermore, "an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of gainful work which exists in the national economy . . ." 42 U.S.C. § 423 (d)(2)(A). The plaintiff must show that the impairment has caused functional limitations that prevent engagement in any substantial gainful activity, thus entitling him to benefits. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2nd Cir. 1983).
When determining a claimant's disability, the Commissioner considers objective and subjective factors. These factors include objective medical facts, physicians' diagnoses and medical opinions, testimony by the claimant and others regarding the claimant's subjective claims of pain as well as the claimant's age, work experience and level of education. Parker v. Harris, 626 F.2d 225, 231 (2nd Cir. 1980).
The district court's review of the Commissioner's final decision must undertake "two levels of inquiry." See Johnson v. Bowen, 817 F.2d 983, 985 (2nd Cir. 1987). First, the court must determine whether the correct legal principles were applied. Id. Second, the court must decide whether substantial evidence supported the Commissioner's determination. Id. A court may reverse and order benefits only if it believes the evidence clearly shows a disability and that no purpose would be served by remanding the case for a new hearing. Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 644 (2nd Cir. 1983). A remand to the Commissioner under 42 U.S.C. § 405 (g) is authorized when there are gaps in the administrative record and further development of evidence is required, or when the Commissioner has misapplied legal standards. Rosa v. Callahan, 168 F.3d 72, 82-83 (2nd Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2nd Cir. 1996)).
B. The ALJ's Decision
Applying the five-step evaluation set forth in 20 C.F.R. § 404.1520, 416.920, the ALJ found that the plaintiff had not performed substantial gainful activity since April 1, 1995, the date she allegedly became disabled. (Tr. 11). The ALJ then concluded that the plaintiffs "impairments produce a limitation which meets the definition of `severe.'" Id. In applying the third step, the ALJ found that the plaintiff did not suffer from a disabling condition pursuant to the criteria set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. In conducting the fourth step, the ALJ found that the plaintiff retained the residual functional capacity to perform the full range of sedentary work as described in the above-cited regulation. (Tr. 13-14). The ALJ determined accordingly that the plaintiff had not been under a disability for purposes of Title II and XVI of the Social Security Act at any time since the alleged onset date. (Tr. 14). Because the ALJ found that plaintiff could return to her past work, it was not necessary to apply step five, an inquiry into whether plaintiff is able to perform some other type of work in the national economy.
C. The ALJ Failed to Apply the Correct Legal Standard
I find that the ALJ's decision fails to apply the correct legal standard in weighing the opinion of plaintiffs treating physician against the other medical evidence. The Second Circuit has consistently held that "[t]he opinion of a treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence."See Rosa v. Callahan, 168 F.3d 72, 78-79 (2nd Cir. 1999). The regulations provide that "[treating physicians] are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [one's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527 (d)(2). In analyzing a treating physician's report, "the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2nd Cir. 1983). However, "[w]hen other substantial evidence in the record conflicts with the treating physician's opinion, . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2nd Cir. 1999) (citing 20 C.F.R. § 404.1527 (d)(4)).
As the Second Circuit has stated, "[u]nder the applicable regulations, the Social Security Administration is required to explain the weight it gives to the opinions of a treating physician." Snell, 177 F.3d at 133, 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."). Furthermore, the failure to provide "good reasons" for not crediting the opinion of plaintiffs treating psychiatrists is a ground for remand. Schaal v. Apfel, 134 F.3d 496, 505 (2nd Cir. 1998). While the ALJ is not obligated to "reconcile explicitly every conflicting shred of medical testimony," Fiorello v. Heckler, 725 F.2d 174, 176 (2nd Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2nd Cir. 1981), he cannot simply selectively choose evidence in the record that supports his conclusions, Fiorello, 725 F.2d at 176; Andino v. Bowen, 665 F. Supp. 186, 190 (S.D.N.Y. 1987) (citing Fiorello,id.).
In this case, the Commissioner concedes, as he must, that "[t]he ALJ did not properly evaluate the reports from Drs. Pierre and Cuneo." (Def. Mem. at 4). The ALJ concluded that the "mental health counseling records also showed that her functional abilities were not significantly limited by her mental symptoms." (Tr. 13). The ALJ's decision thus implicitly rejects the opinions of the plaintiffs treating psychiatrists without providing "good reasons."
D. The ALJ's Decision Was Not Supported By Substantial Evidence
Upon a careful review of the record, I find that the ALJ's determination that the plaintiff retained the capacity to perform past work was not supported by substantial evidence. The relevant regulations state that if the Commissioner "find[s] 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." 20 C.F.R. § 404.1527 (d)(2).
Treating psychiatrist Dr. Pierre made two reports in May 1998 concluding that plaintiff had "no useful ability" to interact with supervisors or deal with work stresses. (Tr. 139). Additionally, Dr. Pierre indicated that the plaintiff had "no useful ability to behave in an emotionally stable manner" or to "relate predictably in social situations." (Tr. 141). Dr. Pierre also concluded that plaintiffs abilities in several areas of occupational and work performance functioning were seriously limited. (Tr. 139-41).
Treating psychiatrist Dr. Cuneo completed psychiatric reports in May 1997 and October 1997, concluding that plaintiff was suffering from an anxiety disorder. (Tr. 110). Furthermore, Dr. Cuneo indicated that plaintiff suffered from poor concentration/attention which inhibited her ability to work, (Tr. 113) and that her sustained concentration and memory were limited due to "too many distractions for client to perform in any meaningful manner." (Tr. 114).
The reports from plaintiffs treating psychiatrists were not inconsistent with reports from the Commissioner's three consulting psychiatrists. Though the consulting psychiatrists concluded that plaintiff was not disabled their clinical findings were quite similar. Dr. Richard King, who interviewed plaintiff only once, observed that she suffered from a dysthymic disorder (mild degree). Drs. Minola and Belsky reviewed the medical evidence of record and both opined that though plaintiff was afflicted with an anxiety disorder. It is significant that Drs. Minola and Belsky never examined the patient. I do not place much weight on these opinions in so far as they relate to plaintiffs mental disability, because, standing alone, they are insufficient to constitute substantial evidence. See Hidalgo v. Bowen, 822 F.2d 294, 297 (2nd Cir. 1987) (consultative physician's testimony alone . . . is insufficient to constitute the contrary substantial evidence required to override the treating physicians' diagnosis); see also Filocomo v. Chater, 944 F. Supp. 165, 170 n. 4 (E.D.N.Y. 1996). Put another way, Dr. Pierre's and Dr. Cuneo's opinions are consistent with each other and the other medical evidence in the record, and their clinical observations are not "substantially contradicted" by the clinical observations of the Commissioner's physicians. As the Second Circuit held inWagner v. Secretary of Health and Human Servs., reversal of the Commissioner's decision is warranted where the medical testimony that plaintiff is disabled is not "substantially contradicted." 906 F.2d at 856, 862 (2nd Cir. 1990).
Furthermore, the ALJ's finding that the plaintiffs gynecological problems were not a disabling condition under the regulations was not supported by substantial evidence. The ALJ acknowledged that "the claimant's impairments significantly limit her ability to perform some basic work activities and are therefore `severe.'" (Tr. 14). The ALJ concluded that the plaintiff could lift twenty pounds though the medical evidence suggests that she could only lift ten pounds. (Tr. 14). The record does not supports the ALJ's finding that despite her physical impairment, plaintiff retained the residual functional capacity to perform her past work as a secretary and keyboard specialist, which required sitting about five hours per day, walking or standing about one to two hours, and lifting up to ten pounds. (Tr. 14). The most recent medical report indicates that plaintiff's chronic pelvic pain is "constant" and "only relieved w[ith] medication." (Tr. 287). However, the drowsiness caused by plaintiff's prescribed painkillers and the constant pelvic discomfort she experiences, in combination with her psychiatric impairments, make plaintiff particularly unsuited to return to her past relevant work.
This Court observes that proper application of the "treating physician" rule could sustain only a finding of disability in this case. See Johnson v. Bowen, 817 F.2d 983, 986 (2nd Cir. 1987) (reversal for award of benefits appropriate only where record "compel[s] but one conclusion"). Moreover, there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision," and thus this Court "opt[s] simply to remand for calculation of benefits." Rosa v. Callahan, 168 F.3d 72, 83 (2nd Cir. 1999).
IV. CONCLUSION
For the reasons stated above, I find that the ALJ's determination that the plaintiff could perform her past relevant work is not supported by substantial evidence. Thus defendant's motion for remand is DENIED, and the plaintiffs motion for judgment on the pleadings is GRANTED, and this case is reversed and remanded solely for the of benefits. The Clerk of the Court is directed to close this case.
SO ORDERED.