Opinion
6:03-CV-813.
June 28, 2004
MARK A. SCHNEIDER, ESQ., Plattsburgh, New York, Attorney for Plaintiff.
GLENN T. SUDDABY, WILLIAM H. PEASE, Assistant U.S. Attorney, Syracuse, New York, United States Attorney for the Northern District of New York.
MEMORANDUM-DECISION AND ORDER
This matter has been referred to me by the Honorable Thomas J. McAvoy, Senior United States District Judge, by Order dated October 20, 2003 (Docket # 8), in accordance with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, Local Rule N.D.N.Y. 73.1, and the consent of the parties for all proceedings, including the entry of a final judgment. This matter has proceeded in accordance with General Order 18. Both parties have filed briefs. Oral argument was not heard.
PROCEDURAL HISTORY
Plaintiff was previously before this court when she was known as "Donna Lunan". She filed a case against the Commissioner of Social Security during 1994 (94-CV-1682), and on February 8, 1996, this court, pursuant to the consent of the parties under 28 U.S.C. § 636(c), issued a Memorandum-Decision and Order.
In the Memorandum-Decision and Order, this court found that Administrative Law Judge (ALJ) Joseph F. Gibbons erred by not giving proper weight to the opinion of plaintiff's treating physician; by not determining whether the plaintiff's diagnosis of Chronic Fatigue Syndrome (CFS) was made in accordance with a specific diagnostic technique to evaluate disability claims based on CFS (Ex. A at 8, 9); that the ALJ reached conclusions that he was not qualified to make (Ex. A at 12); and that the ALJ failed to set forth reasons for his findings about plaintiff's credibility (Ex. A at 12). This court remanded the case to the Commissioner for further proceedings. (Ex. A at 13).
Lunan v. Commissioner of Social Security, 94-CV-1682 (N.D.N.Y. Feb. 8, 1996). A copy of this court's previous decision is attached to plaintiff's memorandum of law in this case as Ex. A. (Dkt. No. 9).
On remand, ALJ John R. Stewart reviewed the entire case, and after giving appropriate weight to the opinions of plaintiff's treating physicians and a psychological evaluation by a clinical psychologist, (T. 211-212), accepted the opinions of plaintiff's treating physicians that plaintiff was totally disabled. (T. 211). ALJ Stewart further accepted the plaintiff's testimony about her condition at that time (T. 212) and found that plaintiff's impairments limit her to less than a full range of sedentary work activity. (T. 213). ALJ Stewart found plaintiff eligible for Supplemental Security Income benefits. As a result, plaintiff began receiving benefits during 1996. During 1999, plaintiff was married and became financially ineligible for Supplemental Security Income benefits. (Plaintiff's Brief, Dkt. #9, p. 2).
The Present Claim
In October 2001, plaintiff again applied for SSI benefits because she was no longer living with her husband. (T. 74). Her application was denied (T. 55), and she requested a hearing before an ALJ. On March 25, 2003, plaintiff appeared once again before ALJ Gibbons who decided on April 25, 2003, that plaintiff was not entitled to SSI benefits. (T. 9-14). The Appeals Council denied plaintiff's request for review on June 13, 2003. (T. 2-4).
This case is again before this court on consent of the parties, pursuant to 28 U.S.C. § 636(c), to review the Commissioner's decision.
CONTENTIONS
The plaintiff makes many claims. Rather than repeating all of them, this court will group them together under the following categories:1. The ALJ erred by failing to follow the Treating Physician Rule; by rejecting plaintiff's credibility; and by concluding that plaintiff had the residual functional capacity for light work. (Plaintiff's Brief, p. 1 — claims V, VI and VII).
2. The ALJ utilized an incorrect standard of review, and did not properly consider the regulations and the Commissioner's rules. (Plaintiff's Brief, p. 1 — claims I, II, and III).
3. This court should award benefits based on the record in this case.
(Plaintiff's Brief, p. 1 — claim VIII).
The defendant argues that the Commissioner's determination is supported by substantial evidence in the record and must be affirmed.
FACTS
This court adopts the non-medical facts contained in the plaintiff's brief at pages 2-5, and adopts the medical facts under the heading "The medical record" on pages 5-10 of plaintiff's brief to the extent that these facts are consistent with this Memorandum-Decision and Order.
DISCUSSION
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that she is "unable 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 twelve months. . . ." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. §§ 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If [she] is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits [her] physical or mental ability to 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 which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider [her] disabled without considering vocational factors such as age, education, and work experience;. . . . Assuming the claimant does not have listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, [she] has the residual functional capacity to perform [her] past work. Finally, if the claimant is unable to perform [her] past work, the [Commissioner] then determines whether there is other work which the claimant can perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920.
The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984).
1. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 197 U.S. 229 (1938)).
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
2. ALJ Stewart's Decision of August 29, 1996
ALJ Stewart's decision established that plaintiff's treating physicians, Drs. Brenes and Federman, each found her suffering from CFS, and each believed that plaintiff was totally disabled. (T. 210-11). ALJ Stewart therefore gave great weight to the opinions of plaintiff's longtime treating physicians. ALJ Stewart also noted that the psychological evaluation by Dr. (Ph.D.) Summerell found that plaintiff had memory and concentration impairments. (T. 211). ALJ Stewart accepted the plaintiff's testimony given at the hearing held on July 22, 1996 in Plattsburgh, New York. (T. 209-214). Based on all of the medical evidence, ALJ Stewart found that plaintiff was incapable of performing sedentary work and was therefore disabled within the Social Security law.
At the hearing before ALJ Gibbons on March 25, 2003, plaintiff's counsel requested her file from the first application in order to review the file prior to the hearing before ALJ Gibbons. ALJ Gibbons questioned the relevance of plaintiff's counsel's request (T. 18), and plaintiff's counsel answered that the relevance of the prior file was that "it . . . shows . . . her . . . medical history." (T. 19). It is clear that plaintiff's prior medical history where she had the same medical condition she had in 2003 was relevant, especially because plaintiff had the same treating physicians in 2003 that she had in 1996 when ALJ Stewart found that medical evidence convincing and sufficient.
3. Treating Physician
The medical conclusions of a treating physician are controlling if well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). See also Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). An ALJ may not arbitrarily substitute his own judgment for competent medical opinion. Rosa v. Callahan, 168 F.3d at 79 (citations omitted). If the treating physician's opinion is not given "controlling weight," the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician for the condition(s) in question, the medical evidence supporting the opinion, the consistency of the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. §§ 404.1527(d)(2-6); 416.927(d)(2-6). Failure to follow this standard is a failure to apply the proper legal standard and is grounds for reversal. Barnett v. Apfel, 13 F. Supp. 2d 312, 316 (N.D.N.Y. 1998) (citing Johnson v. Bowen, 817 F.2d at 985).
Plaintiff's longtime treating physician, Dr. Dorothy Federman, stated in a report dated October 14, 2002 that plaintiff has CFS, and that plaintiff has profound fatigue which severely impairs plaintiff's ability to work. (T. 169). The record contains other opinions from Dr. Federman's Office Notes over many years which contain the exact same opinion that plaintiff is suffering from CFS. Dr. Federman expressed this opinion in 1992 (T. 182); in 1994 (T. 180); in 1997 (T. 176); in 2001 (T. 174); in 2002 (T. 171, 201); and in 2003 (T. 207).
In his decision of April 25, 2003 (T. 9-14), ALJ Gibbons rejects Dr. Federman's opinion, because "it is not supported by the medical record." (T. 12). This finding is not supported by substantial evidence based on the record before this court. ALJ Gibbons has repeated the same error made in his May 26, 1994 decision. ( See Plaintiff's Ex. A). While it certainly could be the case that plaintiff's medical condition improved and the ALJ was justified in reviewing the medical evidence in his April 25, 2003 decision, ALJ Gibbons again ignored critical medical evidence.
ALJ Gibbons' opinion that the medical record does not support Dr. Federman's opinion is error since the ALJ is rendering a medical opinion which he is not qualified to do, and is error since he ignores the basic nature of Chronic Fatigue Syndrome which allows a diagnosis "on the basis of the plaintiff's reported symptoms alone once other possible causes for the symptoms have been ruled out. See Lunan v. Barnhart, 01-CV-424, 2003 U.S. Dist. LEXIS 22891 *13-14 (N.D.N.Y. Dec. 4, 2003) (citing inter alia Bischof v. Apfel, 65 F. Supp. 2d 140, 145 (E.D.N.Y. 1999) (quoting Social Security Ruling 99-2p, "Titles II and XVI Evaluating Cases Involving Chronic Fatigue Syndrome (CFS)", 64 Fed. Reg. 23380, 23381 (April 30, 1999) (quotation omitted)). See also Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003) (discussing Fibromyalgia).
While the ALJ is free to resolve issues of credibility or to choose between properly submitted medical reports, the ALJ may not substitute his own judgment for competent medical opinion or set his own expertise against that of a physician who either testified before the ALJ or submitted a medical opinion. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citations omitted).
The "Lunan" involved in 01-CV-424 was "Ross Lunan" and there appears to be no relation to plaintiff in this case.
Plaintiff underwent a physical examination by Dr. Sateesh Goswami on January 15, 2002. (T. 140-42). Although the ALJ mentions Dr. Goswami's report, it is not substantial evidence since it is a one-time examination, and adds or detracts nothing from the opinion of plaintiff's treating physician since all Dr. Goswami concludes is that plaintiff had a history of CFS and exhibited "some motor weakness symmetrically, indicating some decrease in general strength." (T. 142). Dr. Goswami makes no conclusions regarding plaintiff's ability or inability to work and does not specify what functions he believes plaintiff could or could not perform with her "decrease in general strength." Thus, Dr. Goswami's report is not substantial evidence to contradict plaintiff's treating physician.
A psychological examination done on January 18, 2002 by Dr. (Ph.D.) Richard Williams (T. 135-137) found that "the combination of intellectual deficits and physical problems interferes significantly with her ability to work." (T. 137). The court would first note that the ALJ misquotes the report by leaving out the word "significantly." (T. 10, 12). Then the ALJ rejects the conclusions stated in the report because the ALJ finds that any "physical" problems would be "beyond his area of expertise." (T. 12).
The ALJ is assuming that Dr. Williams is making an evaluation of plaintiff's physical problems, however, this may not be the case, and Dr. Williams may simply be relying on the fact that CFS has been diagnosed in plaintiff's case. This psychological evaluation is not inconsistent with plaintiff's treating physician and supports the plaintiff's claim. 4. Residual Functional Capacity (RFC)
The ALJ appears to rely upon the opinion of Dr. Blaber, "a state Agency medical expert" in finding that plaintiff is capable of light work. (T. 12). However, in rendering an RFC determination, the ALJ must consider objective medical facts, diagnoses and medical opinions based on such facts, as well as a plaintiff's subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R §§ 404.1545; 416.945. See also Martona v. Apfel, 70 F. Supp. 2d 145 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). RFC can only be established when there is substantial evidence of each physical requirement listed in the regulations. LaPorta v. Bowen, 737 F. Supp. at 183. Furthermore, an ALJ must specify the functions plaintiff is capable of performing, and may not simply make conclusory statements regarding a plaintiff's capacities. Verginio v. Apfel, 1998 WL 743706 (N.D.N.Y. Oct. 23, 1998); LaPorta v. Bowen, 737 F. Supp. at 183.
ALJ Gibbons's finding that plaintiff can perform light work is not supported by substantial evidence in the record since it is not based on medical evidence from any examining physician. The ALJ's reference to Dr. Blaber, a non-examining, non-treating physician who simply reviewed the record in this case is insufficient. That report does not provide substantial evidence for the ALJ's conclusion. (T. 160). There is absolutely no other evidence that plaintiff can perform these functions, and even the agency's consultative physician, Dr. Goswami, refers to "generalized weakness", it is unclear how this comment would relate to the ability to do any exertional category of work. Thus, the ALJ's finding as to RFC is not supported by substantial evidence.
5. Credibility
"An [ALJ] may properly reject [subjective complaints] after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons `with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.'" Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No. 96 CIV 9435, 1999 WL 185253, at *5 (S.D.N.Y. March 25, 1999)). To satisfy the substantial evidence rule, the ALJ's credibility assessment must be based on a two step analysis of pertinent evidence in the record. See 20 C.F.R. §§ 404.1529, 416.929; see also Foster v. Callahan, No. 96-CV-1858, 1998 WL 106231, at *5 (N.D.N.Y. March 3, 1998).
First, the ALJ must determine, based upon the claimant's objective medical evidence, whether the medical impairments "could reasonably be expected to produce the pain or other symptoms alleged. . . ." 20 C.F.R. §§ 404.1529(a), 416.929(a). Second, if the medical evidence alone establishes the existence of such impairments, then the ALJ need only evaluate the intensity, persistence, and limiting effects of a claimant's symptoms to determine the extent to which it limits the claimant's capacity to work. Id. §§ 404.1529(c), 416.929(c).
When the objective evidence alone does not substantiate the intensity, persistence, or limiting effects of the claimant's symptoms, the ALJ must assess the credibility of the claimant's subjective complaints by considering the record in light of the following symptom-related factors: (1) claimant's daily activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional limitations and restrictions due to symptoms. Id. §§ 404.1529(c)(3), 416.929(c)(3).
The ALJ's finding about plaintiff's credibility is not supported by substantial evidence in the record. Part of the reason for the ALJ rejecting plaintiff's credibility is the fact that Dr. Federman's opinion was given very little weight. (T. 12). As stated above, the ALJ's reasons for discrediting Dr. Federman's opinion were not supported by substantial evidence, thus the ALJ's credibility determination is also not supported by substantial evidence since it relies upon another finding that is not properly supported. The entire record is consistent that plaintiff has always complained about lack of energy and stamina. (T. 121, 122, 104, 108, 110). Her testimony before ALJ Gibbons on March 25, 2003 was similar (T. 15-34). Her testimony before ALJ Stewart was found credible by ALJ Stewart.
6. Conclusion
The court has authority to reverse with or without remand. 42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record or further development of the evidence is needed. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Marcus v. Califano, 615 F.2d 23 (2d Cir. 1979) (remanded for reconsideration under standard that subjective evidence of disabling pain, if credited, may support a finding of disability); Cutler v. Weinberger, 516 F.2d 1282 (2d Cir. 1975). Reversal is appropriate, however, when there is "persuasive proof of disability" in the record and remand for further evidentiary development would not serve any purpose. Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Sec'y of Health Human Serv., 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for additional evidence particularly appropriate where payment of benefits already delayed for four years; remand would likely result in further lengthening the "painfully slow process" of determining disability).
This record contains clear medical evidence supporting a finding of disability. The record also shows that ALJ Gibbons made the same erroneous conclusions in 2003 as he made earlier in 1994. The record shows that plaintiff's condition has not changed, and the only reason that her benefits were discontinued was because of her financial ineligibility (marriage) and not because of a change in her medical condition.
WHEREFORE, based on the findings in the above Report, it is hereby
ORDERED, that the Commissioner's decision is REVERSED and that this case is REMANDED solely for calculation of benefits for the plaintiff in accordance with Sentence Four of 42 U.S.C. § 405(g).
CIVIL JUDGMENT
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS ORDERED AND ADJUDGED
the Commissioner's Decision is reversed and the case is remanded solely for the calculation of benefits for the pltf in accordance w/Sentence 4 of 42 USC 405(g).