Opinion
01 CV 8438 (SJ).
February 24, 2004
WENDY BRILL, ESQ., New York, NY, Attorney for Plaintiff.
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, Eastern District of New York, Brooklyn, NY, Michael J. Goldberger, Esq., Assistant U.S. Attorney, (Of Counsel), Attorneys for Defendant.
MEMORANDUM AND ORDER
Plaintiff Merryl Kaplan ("Plaintiff") brings the instant case challenging the final decision of the Commissioner of Social Security ("Defendant" or "the Commissioner") that she is not entitled to disability insurance benefits or to Supplemental Security Income (together, "disability benefits") under 42 U.S.C. §§ 216(I) and 223 and 42 U.S.C. §§ 1602 — 1614(a)(3)(A) for the period from September 30, 1995 to April 28, 1998. Currently before the Court are Plaintiff's motion for judgment on the pleadings and Defendant's motion for remand for further administrative proceedings pursuant to 42 U.S.C. § 405(g). After reviewing the administrative record and the briefs submitted by the parties, the Court grants Defendant's motion for remand.
BACKGROUND
Plaintiff filed applications for disability benefits on October 3, 1995 and January 23, 1996 in which she stated that since 1995, she has been unable to work full-time due to arthritis, hypertension, asthma, diabetes, and bronchitis. (Pl.'s Mem. L. at 2; Tr. 9.) Both applications were denied and Plaintiff requested a hearing. On August 27, 1997, Administrative Law Judge ("ALJ") Murray Sklaroff found that "while the claimant had an underlying medically determinable impairment that could reasonably cause the symptoms alleged, her symptoms were not of such severity and intensity as to preclude all work activity from September 30, 1995 to April 28, 1998." (Tr. 11.) ALJ Sklaroff also determined that "the claimant's past relevant work as a teacher's aid did not require the perform [sic] of work-related activities beyond her specified residual functional capacity." Id.
Plaintiff appealed the decision, and on August 11, 2000, the Appeals Council remanded the case to a different ALJ for further proceedings because ALJ Sklaroff's decision "did not express Plaintiff's residual functional capacity in specific terms, . . . did not adequately evaluate Plaintiff's subjective complaints, [and] . . . did not provide an adequate rationale of the evidentiary weight accorded the opinion evidence from [Plaintiff's treating physicians]." (Tr. 13.) A new hearing was scheduled for November 7, 2000 before ALJ Harold Rosenbaum, but the hearing was never held because Plaintiff failed to appear. (Tr. 5-6.) On April 26, 2001, ALJ Rosenbaum found that Plaintiff was not disabled. (Tr. 2-11.) On October 19, 2001, ALJ Rosenbaum's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review.
Through her representative, Plaintiff waived her right to a hearing and elected that a decision be made solely on the record. (Tr. 6.)
On December 19, 2001, Plaintiff filed this appeal. On June 30, 2003, the Commissioner filed a motion for remand for further administrative proceedings on the grounds that 1) certain medical records were missing from the administrative record, 2) the ALJ failed to properly evaluate the opinions of Plaintiff's treating physicians and the consultative examiner, and 3) the ALJ failed to explain the basis for his findings on Plaintiff's functional capacity. (Def.'s Mem. L. at 14.) On November 3, 2003, Plaintiff filed a motion for judgment on the pleadings. Plaintiff opposes remand and requests reversal of the ALJ's decision and an order granting her benefits. (Pl.'s Mem. L. at 17.) Alternatively, Plaintiff requests that the Court remand the case for further proceedings.
DISCUSSION
I. Standard of Review
The Social Security Act states that "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A district court may only set aside a final ruling by the Commissioner if the ruling is a result of legal error and is unsupported by substantial evidence. Id.; see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
The Court may review the Commissioner's decision only to determine whether the administrative record contains substantial evidence to support the findings of the ALJ that Plaintiff was not disabled within the meaning of the Social Security Act. The Court has the power to affirm, modify, or reverse the decision of the Commissioner upon the pleadings and transcript of the record, "with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g); see Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). Remand is appropriate under § 405(g) where the ALJ has failed to provide a full and fair hearing, the administrative record has not been fully developed, or where the ALJ has misapplied legal standards. Id. at 99.
II. Disability Determination under the Act
The regulations provide for a five-step sequential analysis for determining whether an individual is entitled to disability benefits. 42 U.S.C. § 423(d). First, the Commissioner determines whether the claimant is engaged in substantial gainful activity. If the claimant is not, the Commissioner determines whether the claimant has a severe impairment that limits her ability to do work-related activities. If such an impairment exists, the Commissioner then considers medical evidence to determine if the impairment meets or equals the criteria for an impairment listed in Appendices 1 to 20 C.F.R. Pt. 404, Subpt. P. App. 1 (the "Listing of Impairments"). If the impairment does not meet or equal a listed impairment, the Commissioner analyzes whether the impairment prevents the claimant from performing her past work. Finally, if the claimant cannot perform her past work, the Commissioner determines whether the impairment prevents her from doing any other work. If so, the Commissioner finds the claimant disabled.
A. Presumption of Disability under the Act
First, Plaintiff argues that Dr. Fafalak's evaluation and a laboratory test conclusively demonstrate that during the alleged disability period, she suffered from "Rheumatoid Arthritis and Other Inflammatory Arthritis," Listing 1.02 in 20 C.F.R. § 404, Subpart P, Appendix 1 ("Listing of Impairments"), and that her disability must therefore be presumed. (See Pl.'s Mem. L. at 8-9.) This Court finds Dr. Fafalak's RFC evaluation, dated June 6, 1996, to be illegible. Furthermore, although the ALJ made reference to a July 1997 RFC completed by Dr. Fafalak, the record contains no such evaluation. (See Tr. 8.) Additionally, the Court is unable to locate the laboratory test to which Plaintiff refers. (See Pl.'s Mem. L. at 8-9.) Therefore, the Court is unable to determine whether the record contains sufficient evidence to support a funding that Plaintiff was per se disabled under the Social Security Act during the alleged disability period. Upon remand, the ALJ is directed to examine the relevant documents and, if necessary, make appropriate inquiries, in order to make a determination as to Plaintiff's impairment under Listing 1.02.
B. Weight Accorded to Treating Physicians' Opinions
Second, Plaintiff argues that the Court should reverse because the ALJ failed to give proper weight to the opinions of her treating physicians — opinions which, she contends, clearly show that she was suffering from disabling conditions and unable to perform her work as a teacher's aide. (Pl.'s Mem. L. at 15.) An ALJ should generally give more weight to a treating physician's report, if the report is well-supported by medically-acceptable evidence and is not inconsistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(f); Fuller v. Shalala, 898 F.Supp. 212, 217 (S.D.N.Y. 1995).
Here, the ALJ found that the record did not contain objective evidence to support the treating physicians' opinions, and that these were not entitled to deference. (Tr. 9.) The Court finds, on the contrary, that the record contains copies of observations and consultation logs from Drs. Atkinson, Turovsky, and Fafalak, Plaintiff's treating physicians. The record also contains copies of laboratory test results ordered by these physicians. Under 42 U.S.C. § 404.1527(c)(2) and (3), the ALJ was required to evaluate all submitted opinions and, where necessary, to request additional evidence from Plaintiff's treating physicians. Upon remand, the ALJ is directed to evaluate the opinions and evaluations of all of Plaintiff's treating physicians, as well as all laboratory tests ordered by these physicians.
The Commissioner argues that the Court should remand because the administrative record was incomplete, in particular because the RFC completed by Dr. Atkinson was missing. (Def.'s Mem. L. at 12). For a district court to remand on the basis of an incomplete administrative record, the Commissioner must give sufficient justification why the records were not previously included in Plaintiff's administrative file. Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998) (citing Carroll v. Sec'y of Health and Human Services 705 F.2d 638, 643 (2d Cir. 1983)). In this case, the Commissioner has not provided such justification. The Court will nevertheless remand the case, as the ALJ failed to give proper consideration to the opinions of Plaintiff's treating physicians, and because there may be additional evidence that should be taken into consideration.
3. Plaintiff's claim of pain and suffering
Third, Plaintiff argues that under 20 C.F.R. § 404.1529(c), the ALJ erred in his evaluation of Plaintiff's pain and credibility. (Pl.'s Mem. L. at 17.) An ALJ can make credibility determinations where there is conflicting evidence about a claimant's pain.See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) (citingDonato v. Secretary of HHS, 721 F.2d 414, 418-19 (2d Cir. 1983)). However, the Second Circuit has held that an individual who engages in activities of daily living, especially when these activities are not engaged in "for sustained periods comparable to those required to hold a sedentary job," may still be found to be disabled. Balsamo, 142 F.3d at 81. Plaintiff claims that she was unable to work for most of the period for which she seeks disability benefits, and that her physicians' opinions do not significantly contradict her claims of pain. On remand, the ALJ is directed to evaluate Plaintiff's subjective claims in light ofBalsamo.
CONCLUSION
Pursuant to 42 U.S.C. § 405(g), the Court remands this matter for further administrative proceedings, so that the ALJ can consider the medical records missing from, or illegible in, the original administrative record; properly evaluate Plaintiff's subjective claims of pain and the opinions of Plaintiff's treating physicians and the consultative examiner; and make a well-supported determination as to Plaintiff's residual functional capacity. Given the length of time this case has been pending, the Court directs the Commissioner to begin the remand process forthwith.SO ORDERED.