Opinion
01 Civ. 3672 (RWS).
January 27, 2005
CHARLES E. BINDER, ESQ. of Counsel, BINDER BINDER, New York, NY, Attorneys for Plaintiff.
SUSAN D. BAIRD, Assistant US Attorney of Counsel, DAVID N. KELLEY, United States Attorney for the Southern District of New York, New York, NY, Attorneys for Defendant.
OPINION
In this action brought pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), the plaintiff Anthony Rivas ("Rivas") has moved pursuant to Rule 12(c), Fed.R.Civ.P., for judgment on the pleadings in this action seeking Social Security Disability ("SSD") and Supplemental Security Income ("SSI") benefits reversing the decision of the Administrative Law Judge (the "ALJ") denying him benefits. The defendant Jo Anne B. Barnhart (the "Commissioner") has opposed Rivas' motion and has cross-moved for judgment on the pleadings.
At issue is the adequacy and evaluation of the evidence relating to Rivas' psychiatric condition, not an easy issue. Due to the legal errors discussed below and the insufficiently developed administrative record, the Commissioner's determination is reversed, and this matter is remanded for further administrative proceedings. Rivas' motion is denied, as is the Commissioner's cross-motion.
Prior Proceedings
Rivas concurrently filed applications for SSD and SSI benefits on September 28, 1995 alleging disability based on pulmonary and mental illnesses. The onset of disability was alleged to be April 18, 1995. His applications were denied by notices dated February 13, 1996, and he requested reconsideration by an undated request. Rivas' request for reconsideration was denied on October 31, 1996, and he subsequently requested a hearing, which was held on August 6, 1998 before ALJ Robin J. Arzt. In a decision dated January 28, 1999, the ALJ found Rivas not disabled within the meaning of the Social Security Act on the SSD application because "the claimant's medically determinable impairments do not prevent him from performing work that exists in significant numbers in the national economy." (Tr. at 15.) The SSI application was not considered based upon a representation that no SSI application had been filed. The Appeals Council declined Rivas' request for review on March 15, 2001.
References to "Tr." refer to the administrative transcript filed with the Court and certified on June 27, 2001 as well as to a supplemental transcript filed with the Court on May 20, 2004 and certified on May 5, 2004.
Rivas thereafter filed a complaint in this Court on May 1, 2001. Upon stipulation by the parties, by order dated August 30, 2001, this Court ordered that the matter be remanded to the Commissioner for further proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g). The Appeals Council vacated ALJ Arzt's decision and remanded the matter for another hearing on January 15, 2002.
A second hearing was held before ALJ Arzt on March 6, 2003. At the hearing, Rivas amended the period of disability to a "closed" period of disability from April 18, 1995 through December 12, 1999 in light of the fact that he had returned to work full-time. In a decision dated March 28, 2003, ALJ Arzt found that Rivas was not disabled within the meaning of the Act, concluding in part that "the claimant had a severe impairment or combination of impairments, but retained the residual functional capacity to perform light work. . . ." (Tr. at 460.) Rivas requested review of the hearing decision by the Appeals Council on April 17, 2003. The Appeals Council declined the appeal on March 30, 2004.
On July 21, 2004, Rivas moved for judgment on the pleadings. The Commissioner cross-moved on August 20, 2004, and neither party filed any subsequent papers. The motion and cross-motion were marked fully submitted on August 25, 2004.
The Commissioner acknowledges that Rivas has met the special earnings requirements of the Act for purposes of establishing entitlement to disability insurance benefits through September 30, 1997. The issue before the Court is whether substantial evidence supports the Commissioner's decision that Rivas was not entitled to SSD benefits for the period April 18, 1995 through September 30, 1997, and was not entitled to SSI benefits between April 18, 1995 and December 12, 1999, the date he returned to work. I. The Record A. Rivas' Testimony And Related Evidence
The essential difference between SSD and SSI is that, in order to qualify for SSD benefits, one must be both disabled and insured for disability benefits. See 42 U.S.C. §§ 423(a)(1)(A) 423(c); 20 C.F.R. §§ 404.101, 404.120 404.315(a). The last date that a person meets these requirements is commonly referred to as the date last insured, or the "DLI." Rivas' DLI is September 30, 1997. Thus, in order to qualify for SSD benefits, the onset of his disability must have occurred on or before September 30, 1997. SSI has no such insured status issue. To receive benefits, the claimant must be both disabled and financially needy.
Rivas was born September 23, 1955 and was 42 on his DLI in 1997 and 44 years old at the time he returned to work in 1999. He reported that he had completed school through the eleventh grade, and had attained a GED. He stated that he could read and write in English and had attended vocational training in elevator repair.
See supra note 2.
At the 1998 hearing, Rivas reported that he had worked as an elevator mechanic from January of 1982 through January of 1991. His duties in the position first included being a "helper," which involved maintaining the elevator equipment, "greasing, oiling . . . [c]leaning." (Tr. at 44.) Subsequently, he passed the test to become a mechanic. As a mechanic, his duties included "work with cables, heavy duty tools, rigging equipment." (Tr. at 45.) He reported that, as a mechanic, he lifted at least 100 pounds of cables and reels of cables with the assistance of either hydraulic jacks or helpers. Rivas stated that he stopped working in 1991 due to a lay-off. He reported that he was laid-off because he took too much sick leave due to "asthma and a depression" (Tr. at 46) and "problems with my life." (Tr. at 52). Rivas also stated that he could not work at his former job anymore due to "racial problems" with his superiors. (Tr. at 53.) Rivas testified that he had looked for a job after 1991, but that the work was all temporary.
At the 1998 hearing Rivas reported that he had worked as a doorman from April to October 1994. He elsewhere stated that he had worked as a doorman from 1993 to 1994. The doorman position was, according to Rivas, a temporary position but required 40 hours per week. Rivas testified that, as a doorman, he spent most of the day on his feet and that his duties included cleaning the windows and the front lobby, and "mainly, just standing in the lobby for 8 hours, announcing people." (Tr. at 47.) At the 1998 hearing he stated that he did not really do any lifting as part of his job.
At the hearing held in 2003, Rivas testified that he did not work at all from April 1995 through December 12, 1999. On December 12, 1999, Rivas returned to work and in March of 2003 he testified that he was working as a transit electronic mechanical maintainer, overseeing inventory in the escalator department of the New York City Transit Authority. He stated that he spent much of the working day walking, climbing steps and being outside. He further reported that he did some lifting and carrying of parts, and had handled up to 75 pounds with assistance.
In a July 1995 disability report, Rivas stated that he handled his own meals, shopped for small amounts of groceries without assistance, and did laundry. He also reported that he had moved to Florida because he "could no longer live in N.Y. due to my chronic asthma, and severe cold weather." (Tr. at 174.) By September 1995, however, Rivas was residing in Bronx, New York. He reported at the 1998 and 2003 hearings that he lived with his father in the Bronx.
At the 1998 hearing, Rivas stated that he did not drive and that it was difficult for him to use public transportation due to anxiety brought on by crowds. He also testified that he used to play trombone, but that his asthma prevented him from doing so. Rivas stated that he had no trouble sleeping during the day, but had difficulty sleeping at night.
Rivas testified at the 2003 hearing that his father was the only relative he saw and that he experienced difficulty leaving the house before 1998. Rivas also testified that he slept a lot during the relevant period. He reported that he watched television, but did not read at all and that his asthma had not improved. He also stated that he used a home nebulizer machine as well as pump medication.
At the 1998 hearing, Rivas stated that he used the nebulizer more often in the winter, about two or three times daily. In the warmer weather, he reportedly used it once or twice per month.
At the first hearing, Rivas stated that his asthma was allergic rhinitis, and was triggered by allergies. He stated that he was allergic to ragweed, dust, animal dander, mites, roaches, grass, trees, and extreme heat and cold. At the second hearing, Rivas testified that he got asthma when he had an infection, when he was going through a stressful time, or in extreme heat. Rivas further stated that he was allergic to the environment, dirty air, smog, dust mites and rapid changes in climate.
Rivas reported that he used pump medications, namely Arobidge and Proventil. He stated in 1998 that he took two puffs daily, when needed. He testified at the first hearing that he took one Alcalade tablet daily, and at the second hearing stated he used Prednisone at times. In 1998 he reported experiencing side effects from the medications he was taking, namely fatigue, anxiety, jitters, and sleepiness, but stated that the medication helped his asthma. At the 1998 hearing, Rivas stated that his last severe asthma attack had been about one month before the hearing. In 2003 Rivas reported experiencing side effects from the various medicines that he was using, including the asthma medications. According to Rivas, the medications made him feel nervous and jittery and caused him to have difficulty sleeping and to experience eating problems.
At the 1998 hearing, Rivas estimated that he could walk about seven blocks before stopping due to shortness of breath. At the 2003 hearing, he stated that he could probably walk one block during the relevant time period. At the first hearing, he stated he could stand for more than a half hour or one hour. At the later hearing, he stated that he could stand for only twenty minutes. When asked at the initial hearing how long he could sit, he stated that anxiety caused him to move if he sat too long, and thought he could sit continuously for less than one hour. At the second hearing, Rivas stated that he got restless sitting more than twenty minutes.
At the first hearing, Rivas testified that he was able to bend and pick things up off the floor. He also stated that he had joint problems due to swelling, perhaps due to medications. Rivas stated that he could not carry two gallons of milk (about 16 pounds) or groceries.
Rivas testified at the 2003 hearing that his relationship with his "common law" wife had ended in a "awful breakup" in 1995. (Tr. at 506.) He stated that things had "just snowballed" and described being in a "zombie state of mind." (Tr. at 506.) In 1998 Rivas stated that he had first seen a psychiatrist in November 1995 because of problems with his immediate family, and because he was depressed and suicidal. He also attributed his mental problems on his lay-off from his job in 1991 and from being out of work a lot.
Upon questioning by his attorney at the 1998 hearing, Rivas stated that he had experienced panic attacks and stated that the last such attack had occurred three months prior to the hearing. At the 2003 hearing he claimed that in 1995 he was in seclusion, depressed and subject to panic attacks. When asked about his panic attacks, Rivas acknowledged that they started after 1995, and that, notwithstanding the panic attacks, he was able to go to see his doctors.
Rivas stated that he took Effexor for depression and testified at the first hearing that, as of the time of the hearing, that was the sole psychiatric medication he was using. He acknowledged that it helped somewhat. At the second hearing, Rivas stated that during the period at issue, he had used Zoloft, Prozac and Paxil, and explained that his doctors "were experimenting as to which medication would be best effective" by switching him from one to the other. (Tr. at 510.)
At the 1998 hearing, Rivas stated that, as of the time of the hearing, he saw a psychiatrist every two months due to the psychiatrist's staffing shortage and was seen by a therapist between once and twice a month. He also testified that therapy was helping him. Rivas testified that his depression was "really bad" when he first sought treatment in 1995, but that after a while he had stabilized and that at the time of the first hearing he felt some self-worth. (Tr. at 58.)
Rivas reported at the first hearing that he had no friends, although he reported having had friends when he was growing up. He stated that he had lost trust in people and did not keep friends. He further stated that he was not interested in a romantic relationship and described himself as unmotivated to have a romantic relationship.
Upon questioning by his attorney at the second hearing, Rivas testified that during the period at issue he had nightly crying spells, and described having "[a] feeling of loneliness, being isolated from the world, not wanting to do anything, . . . I wasn't motivated to do anything significant in my life." (Tr. at 509.) He also recalled having been weaned off psychotropic medications by 1998 and stated that he was feeling "a little better" by 1998. (Tr. at 507.)
B. Medical Testimony And Evidence 1. Dr. Maurice Shilling — Treating Psychiatrist
Dr. Shilling, a psychiatrist, began treating Rivas at Morrisania Diagnostic Treatment Center ("Morrisania") on November 22, 1995. Rivas presented with a history of suicidal and homicidal ideation in the past and complained of depression and asthma. A mental status examination revealed a depressed mood, tearfulness, insomnia, social withdrawal, and vague auditory hallucinations. Dr. Shilling diagnosed rule-out major depression and bronchial asthma, and Rivas was scheduled for follow-up treatment.
On December 8, 1995, Dr. Shilling started Rivas on Benadryl, and on January 19, 1996 Dr. Shilling prescribed Ambien.
Dr. Shilling subsequently completed a Comprehensive Clinical Assessment dated February 23, 1996. Dr. Shilling reported symptoms of insomnia, poor concentration, anxiety, recollections of abuse, and low self-esteem. Dr. Shilling further commented that Rivas had recently been admitted to Bronx Lebanon Hospital for depression, and that he had had worsening asthma since 1995. Rivas' developmental history was notable for physical abuse by one of his brothers, emotional abuse from his other siblings and others in his neighborhood. Rivas' medical history included a report that Rivas presently had bronchial asthma and was being treated with Theophylline and Proventil. In connection with a mental status examination, it was noted that Rivas wore dark sunglasses, was irritable at times, and exhibited a depressed mood and blunt affect. Dr. Shilling diagnosed major depression, recurrent and bronchial asthma, and assigned Rivas the highest GAF (past year) of 50.
The Global Assessment of Functioning ("GAF") is a 100-point scale used to rate overall psychological functioning. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV"). Scores between forty-one and fifty reflect serious symptoms or a serious impairment of social, occupational or school (e.g., flat affect and circumstantial speech, occasional panic attacks) or serious impairments in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores of fifty-one to sixty indicate moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV at 32-34.
Dr. Shilling completed a residual functional capacity form for the Office of Disability Determinations on September 20, 1996. Dr. Shilling diagnosed major depression, recurrent, and bronchial asthma. Rivas' symptoms included poor sleep, mood swings, poor concentration, short attention span, crying a lot, and feelings of hopelessness and helplessness. The noted treatment included Benadryl, Paxil, Ambien, and bi-weekly supportive therapy. Mental status was noted for low and monotone speech, depressed mood with bland affect, short attention span with poor concentration, forgetfulness, anger, and poor judgment most of the time, although it was also noted that Rivas was cooperative, able to make eye contact, and had good insight into his problem.
Dr. Shilling opined: "He is not fit to work at present because of his medical problem, gets asthma attacks every day related to stress [and] severe depression." (Tr. at 199.) Dr. Shilling also reported that Rivas was very forgetful, could not be around people, and suffered from poor concentration and judgment. Dr. Shilling assessed that Rivas was limited in his ability for understanding and remembering, his ability for sustained concentration and persistence, his ability for social interaction, and his ability for adaption. Dr. Shilling commented: "Client is presently compliant with clinic appointments [and] wants to feel better." (Tr. at 201.)
Dr. Shilling completed another Social Security form on October 18, 1996. The diagnoses were affective disorders, anxiety related disorders, and major depression, recurrent. Clinical findings included disturbance of mood, blunt affect, emotional withdrawal and/or isolation, medically documented history of one or more episodes of acute symptoms, depressive syndrome characterized by anhedonia or pervasive loss of interest in almost all activities, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, thoughts of suicide, and auditory hallucinations. Dr. Shilling also reported anxiety disorder with findings of motor tension, apprehensive expectation, vigilance and scanning, and recurrent and intrusive recollections of a traumatic experience. Dr. Shilling opined that Rivas suffered from "extreme" restriction of activities of daily living and difficulties in maintaining social functioning, "constant" deficiencies of concentration, persistence or pace resulting in failure to complete tasks in timely manner (in work settings or elsewhere), and repeated (three or more) episodes of deterioration or decompensation in work or work-like settings causing him to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors). Dr. Shilling also assessed that Rivas remained more isolated and withdrawn and mistrusting of people and home and outside the home.
In a letter dated January 29, 1997, Dr. Shilling reported that Rivas was a client of the mental health clinic from November 22, 1995 to present. Dr. Shilling stated that Rivas was being treated for diagnosed recurrent major depression and chronic bronchial asthma. Rivas' medications included Prozac for depression and Ambien for sleep problems. It was noted that Rivas received biweekly verbal supportive therapy and stress reduction exercises with therapist Eleanor I. Legaspi and psychopharmotherapy with Dr. Shilling. Dr. Shilling opined, "Mr. Rivas is not employable at this time because of [the] above reasons. He needs continued treatment at OPD setting to prevent hospitalization." (Tr. at 212.)
2. Eleanor I. Legaspi NRC — Treating Therapist
Legaspi, Rivas' primary therapist for bi-weekly therapy at Morrisania, completed a comprehensive treatment plan form for him dated February 23, 1996. Rivas was to see Legaspi twice a month in order to talk about his problems, fears, and concerns, and to learn breathing techniques and relaxation to help with tension. Noted goals were to alleviate symptoms of depression, and to improve the ability to talk comfortably about issues that led to breaking up with his girlfriend.
On February 23, 1996, Legaspi wrote that Rivas suffered from depression, evidenced by crying spells, insomnia, isolativeness, and poor concentration. She reported anxiety evidenced by irritability, low frustration tolerance, and his chronic medical condition. Rivas' goals were to no longer feel depressed, no longer experience severe anxiety symptoms, and maintain a stable medical condition.
A diagnostic impression also dated February 23, 1996 was signed by Legaspi as well as a psychiatrist, and listed four other staff members as contributors. The diagnostic impression form included a diagnosis of major depression, recurrent, as well as bronchial asthma, and characterized Rivas' depression as "severe." (Tr. at 380.)
Legaspi completed a treatment plan review form on May 24, 1996. Rivas was in agreement with his treatment plan and understood the need to talk about his problems, fears, and concerns. Legaspi opined that Rivas needed to verbalize his fears and concerns to someone he trusts to motivate him to move forward in his life. His other goals included learning to cope with daily life stresses to prevent psychiatric hospitalizations.
On August 30, 1996, Legaspi completed a periodic treatment plan review form. Legaspi reported that Rivas continued to complain of depression and anxiety related to social stresses and lack of finances. On December 3, 1996, Legaspi opined that Rivas needed to continue his current level of review to prevent decompensation.
On March 3, 1997 and June 6, 1997, Legaspi completed treatment plan review forms. On June 6, 1997, Legaspi opined, "client needs continued treatment to maintain stability [and] prevent decompensation." (Tr. at 389.)
Legaspi and treating physician Dr. Coll-Ruiz, completed a mental residual functional capacity assessment on December 29, 1997. Rivas was found to be markedly limited in his ability to maintain attention and concentration for extended periods, to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance, to work in coordination with or proximity to others without being distracted by them, to make simple work-related decisions, to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, to accept instructions and respond appropriately to criticism from supervisors, to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and to set realistic goals or make plans independently. Rivas was deemed moderately limited in his ability to understand and remember detailed instructions, to carry out detailed instructions, to sustain ordinary routine without supervision, and to interact appropriately with the general public. They reported that he suffered from a very low frustration tolerance and noted that Rivas had recently been diagnosed as having panic disorder with agoraphobia.
"Markedly limited" was defined on the assessment form as effectively precluding the individual from performing the activity in a meaningful manner.
"Moderately limited" was defined on the assessment form as significantly affecting but not totally precluding the individual's ability to perform the activity.
3. Dr. E. Ruiz — Treating Physician
Dr. Ruiz supplied a residual functional capacity assessment dated July 29, 1997 in which he opined that Rivas was able to sit for 2 hours and stand/walk for 2 hours in an 8-hour workday. Dr. Ruiz did not test Rivas' ability to lift, carry, or bend. Dr. Ruiz opined that Rivas was totally restricted from being around unprotected heights, being around moving machinery, being exposed to marked changed in temperature and humidity, driving automotive equipment, and being exposed to dust, fumes, and gases. The doctor also reported that Rivas had difficulty with low levels of stress, and had side effects from his medications, including drowsiness and nausea.
Rivas also attributes to Dr. Ruiz an undated and unsigned narrative medical report on Morrisania letterhead reflecting multiple sessions with Rivas during the summer of 1997. In the report it is noted that Rivas had been treated in the mental health clinic since November 22, 1995 due to depression and anxiety as evidenced by insomnia, poor appetite, poor concentration, tearfulness, and isolation. It is also noted that Rivas' symptoms had gotten worse following a severe asthma attack resulting in Rivas' hospitalization on November 17, 1995. Rivas' admitting diagnoses were major depression, recurrent, panic disorder, and bronchial asthma. Treatment included supportive psychotherapy bi-weekly, stress reduction and relaxation to lower anxiety bi-weekly, and anti-depressive therapy including Paxil, Zoloft and Ambien.
According to the report, Rivas' first follow-up was on June 20, 1997. Rivas reported ups and downs with depression and persistent anhedonia. He was unable to tolerate the Prozac because of side effects including anxiety and panic attacks. On July 17, 1997, Rivas returned with complaints of depression and tearfulness. He was taking Prozac and Ambien. He was encouraged to make small plans in order to feel he could accomplish something and was provided with supportive therapy and relaxation exercises. On July 31, 1997, Rivas returned, and it is reported that he was irritable and angry. It is further noted that on August 14, 1997 the chief psychiatrist had evaluated Rivas, and a diagnosis of panic disorder was added. His medication was changed to Effexor. The author of the report opines that the prognosis for recovery was satisfactory with treatment. It is noted that Rivas' symptoms could recur, and that he required 12 months at least to respond to medication therapy.
Dr. Ruiz also completed a mental residual functional capacity assessment dated July 31, 1997. Dr. Ruiz assessed that Rivas was markedly limited in his ability to maintain attention and concentration for extended periods, to work in coordination with or proximity to others without being distracted by them, to make simple work-related decisions, and to complete a normal workweek without interruptions from psychologically based symptoms. Dr. Ruiz further found that Rivas was markedly limited in his ability to perform at a consistent pace without an unreasonable number and length of rest periods, to interact appropriately with the general public, to accept instructions and respond appropriately to criticism from supervisors, to get along with co-workers or peers without distracting them to exhibiting behavioral extremes, and to set realistic goals and make plans independently. In addition, Rivas was found to be moderately limited in his ability to remember locations and work-like procedure, to carry out detailed instructions, and to travel to unfamiliar places or use public transportation. Dr. Ruiz opined: "Mr. Rivas' mental residual functional capacity is markedly limited in general as he still feels depressed with anxiety [and] angry outbursts. . . ." (Tr. at 417.)
4. Dr. Michael Crooks — Treating Physician
Dr. Crooks began treating Rivas at Morrisania in November of 1996. In a continuation record dated November 18, 1996, Rivas was diagnosed with asthma and it was noted that Dr. Shilling was treating him for depression. Rivas was also diagnosed by Dr. Crooks with asthma in records dated February 18, 1997 and May 20, 1997.
In a report dated June 1, 1998, Dr. Crooks noted that Rivas had difficulty breathing and shortness of breath. Dr. Crooks diagnosed allergic rhinitis. Treatment included Proventil spray. The doctor opined that Rivas was unable to perform any full-time work because of seasonal allergic rhinitis since April 1995. Dr. Crooks also opined that his condition was expected to last an "indefinite" time.
Dr. Crooks also completed a residual functional capacity form on June 1, 1998. Dr. Crooks opined that Rivas was able to sit for 2 hours and stand/walk for 2 hours in an 8-hour work day. The doctor also indicated that he was incapable of using his hands for repetitive actions such as grasping, pushing/pulling, and fine manipulations, and incapable to using the lower extremities for pushing/pulling. Dr. Crooks reported that Rivas was totally restricted from unprotected heights, being around moving machinery, being exposed to marked changes in temperature and humidity, driving automotive equipment, and being exposed to dust, fumes, and gases. Dr. Crooks opined that Rivas had difficulty with low levels of stress and that he had side effects from his medications that included drowsiness, nausea, impaired concentration, irritability, and fatigue.
In a letter dated November 23, 1998, Dr. Crooks noted that Rivas was under his care and that Rivas' medical problems included asthma and depression. Dr. Crooks noted that he continued to treat Rivas one to two times a month for ongoing care. Dr. Crooks opined: "Because of the above he is disabled and unable to work at this time." (Tr. at 413.)
5. Dr. Swarupa Gaddipati — Treating Physician
Dr. Gaddipati began treating Rivas at Morrisania on August 11, 1999. Dr. Gaddipati completed a physical residual functional capacity questionnaire dated September 23, 1999. Dr. Gaddipati gave a "fair" prognosis and diagnosed bronchial asthma and allergic rhinitis. Rivas' reported symptoms included shortness of breath during asthma attack. Dr. Gaddipati opined that his impairments lasted or were expected to last at least twelve months. The doctor also opined that depression contributed to the severity of Rivas' symptoms and functional limitations. It was noted that Rivas' experience of pain or other symptoms frequently were severe enough to interfere with attention and concentration. Dr. Gaddipati did not assess Rivas exertional limitations. Dr. Gaddipati opined that Rivas would miss work more than four times a month as a result of the impairments or treatment. The doctor also commented: "Pt [patient] is being followed by psychiatry." (Tr. at 578.)
6. Dr. Micheline Loubeau — Treating Psychiatrist
In the claimant's medication form, Rivas reported that a "Dr. Labour" along with Legaspi prescribed him Effexor for his major depression and anxiety. (Tr. at 283.)
Dr. Loubeau completed a mental residual functional capacity assessment dated June 7, 1999. Dr. Loubeau specified that her assessment was for the period May 1998 through June 1999. Dr. Loubeau opined that Rivas was markedly limited in his ability to remember locations and work-like procedures, to understand and remember to carry out one- or two-step instructions, to understand and remember detailed instructions, to maintain attention and concentration, to maintain regular attendance, to be punctual, to work in coordination with or proximity to others without being distracted by them, to complete a normal work week without interruptions from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. According to Dr. Loubeau, Rivas was markedly limited in his ability to interact with the general public, to accept instructions and to respond appropriately to criticism from supervisors. Rivas was also found to be markedly limited in his ability in dealing with co-workers or peers, to respond appropriately to changes in the work setting, and to travel to unfamiliar places or use public transportation. Dr. Loubeau reported that Rivas "suffers from [p]anic disorder with [a]goraphobia. He avoids situations or places where he feels uncomfortable or thinks he is about to have an attack." (Tr. at 432.)
7. Dr. David Rosenzweig — Treating Physician
Dr. Rosenzweig has been a treating physician of Rivas since October of 1985. On June 21, 1995 Dr. Rosenzweig completed a residual functional capacity form for the Office of Disability Determinations. Dr. Rosenzweig diagnosed chronic bronchial asthma and allergic rhinitis. Dr. Rosenszweig reported that he had last seen Rivas a year before, at which time Rivas' symptoms included wheezing, shortness of breath, and congestion. Dr. Rosenzweig opined that Rivas was limited in his ability to lift and carry and limited in standing but could stand for up to six hours in a workday, but not limited in sitting. Other limitations noted were sensitivity to a number of environmental factors.
8. Dr. Daniel M. Libby — Consultative Pulmonologist
Dr. Libby saw Rivas in consultation on March 3, 2003, regarding the effect of his pulmonary impairments from 1995 through 1999. Dr. Libby noted that Rivas suffered from life-long asthma triggered by cold air, dust, high humidity, and upper respiratory infections. The doctor also reported that Rivas was out of work from 1995 to 1999 due to asthma. According to Dr. Libby, Rivas' symptoms consisted of shortness of breath, chest tightness, cough, and sputum. Dr. Libby noted that Rivas' medical history was also significant for major depression.
Spirometry taken on March 3, 2003 revealed mild obstructive ventilatory impairment. Dr. Libby also completed a pulmonary impairment questionnaire. He gave a "fair" prognosis and diagnosed asthma, with other diagnoses including depression. Dr. Libby dated the claimant's symptoms and limitations in the questionnaire back to 1995. Clinical findings included shortness of breath, orthopnea, chest tightness, wheezing rhonchi, episodic acute asthma, and coughing. Dr. Libby cited Spirometry testing that supported his diagnoses. Rivas' primary symptoms included dyspnea, cough, and chest tightness. It was noted that his acute asthma attacks were precipitated by upper respiratory infection, allergens, exercise, and cold air/change in weather. The doctor characterized Rivas' attacks as moderately severe on a weekly or monthly basis, and incapacitating for 2-4 hours.
Dr. Libby opined that Rivas was able to sit for 8 hours and stand/walk for 4 hours in an 8-hour work day. The doctor also assessed that Rivas was able to frequently lift 0-10 pounds and carry 0-20 pounds, occasionally lift 10-50 pounds and carry 20-50 pounds, and never lift or carry over 50 pounds. Dr. Libby reported that Rivas also suffered from major depression that contributed to his symptoms and functional limitations, and that Rivas' medications included Pulmicort, Ipatropium, and Albuterol. In addition, Dr. Libby noted that Rivas received nebulizer treatment and steroid treatment as needed. Side effects of his medications included nausea, insomnia, impaired concentration, and irritability. 9. Dr. Moon Sunwood — Consultative Physician
Dr. Sunwood examined Rivas on September 26, 1995 for the New York City Human Resources Administration. Dr. Sunwood observed that Rivas' mood was mildly depressed and noted that Rivas had been depressed for at least one year but had not sought treatment. The doctor's assessment included depression and asthma. Rivas admitted that he abused marijuana and alcohol and, at times, had been unable to work due to drug and/or alcohol abuse. Dr. Sunwood concluded that Rivas was temporarily disabled or unemployable for a period of one to three months.
10. Dr. Michael Polak — Social Security Consultant Examiner
Dr. Polak examined Rivas on October 20, 1995. Rivas told the doctor that he had no recent hospitalizations or emergency room visits. Dr. Polak opined that Rivas was alert and fully oriented. Physical examinations of Rivas' head, ears, eyes, nose, throat, neck, lungs, abdomen, skin, lymph nodes, and extremities were normal. Rivas' lungs were clear, with no rales, rhonchi or wheezes detected. Dr. Polak opined that Rivas' breath sounds were equal bilaterally. Orthopedic, musculoskeletal, neurological, and cardiovascular examinations were also normal. Chest x-rays and pulmonary function testing was essentially normal. Dr. Polak reported that Rivas complained of chronic shortness of breath secondary to his asthma associated with wheezing and paroxysmal coughing. Dr. Polak further reported that Rivas stated that he was taking Theophylline, Proventil Inhaler, Azmacort Inhaler, Vanceril Inhaler, and Vanceril Nebulizer.
Dr. Polak diagnosed asthma and recommended follow-up with treating sources. He gave a "fair" prognosis and opined that Rivas should have no difficulty doing activities requiring dexterity and no problem lifting mild to moderate sized objects. (Tr. at 181.) Dr. Polak further opined that Rivas should probably avoid exposure to extremes of cold or heat and excessive amounts of dust and smoke.
Dr. Polak evaluated Rivas again on October 10, 1996. Rivas stated that he had been hospitalized, most recently at Bronx Lebanon Hospital, and that he was being treated with Theodor, Albuterol, Azmacort, Altrovent, and Serevent. It was noted that Rivas was also depressed and reported frequent crying and episodes associated with excessive sleeping and erratic eating behavior. His psychiatric medications included Prozac and Ambien, and he was in psychotherapy treatment. Rivas reported having been hospitalized at Bronx Lebanon Hospital in 1995 for an episode of acute depression associated with a suicidal attempt, although he denied current suicidal ideations. The examination noted that Rivas exhibited an extremely flat affect, psychomotor retardation and depression.
Dr. Polak diagnosed depression, rule-out psychiatric disorder, and asthma. Dr. Polak gave a "fair" prognosis and opined: "Claimant should avoid exposure to dusts, chemicals, smoke, and noxious inhalants, and extremes of cold and heat." (Tr. at 207.) Dr. Polak also recommended that Rivas receive further evaluation by psychiatry.
11. Dr. Luigi Marcuzzo — Social Security Consultant Examiner
Dr. Marcuzzo, a psychiatrist, evaluated Rivas in psychiatric examination on November 3, 1995. Rivas complained of depression, and Dr. Marcuzzo noted that Rivas reported a hospitalization in August 1994-1995 for depression and suicidal ideation. The doctor reported that Rivas voiced feelings of hopelessness, helplessness, poor self-esteem, low energy for motivation, difficulty sleeping, poor appetite, and some paranoid ideation. His medical history was noted for asthma. A mental status examination revealed that Rivas was guarded, suspicious, and somewhat angry, and that he had poor personal hygiene, paranoid ideation present, and auditory hallucinations.
Dr. Marcuzzo noted that Rivas showed good control over the auditory commands and was fully oriented. Rivas' mood was reported to be depressed and his affect constricted. Dr. Marcuzzo stated that Rivas was easily distractible, requiring questions to be repeated. His attention and concentration were reportedly impaired. Rivas performed adequately on serial sevens and calculations, and his memory was adequate. Psychosis was reported to impair Rivas' insight and judgment. Dr. Marcuzzo assessed that Rivas' ability for sustained concentration, persistence, pace, adaptation, and social interaction were limited due to depression, low energy for motivation, paranoid ideation, command hallucinations, and insomnia, but that he had no limitations with memory and understanding. The doctor diagnosed depression with psychotic features. Dr. Marcuzzo opined that Rivas was limited in sustained concentration, persistence, social interaction, and adaption, "because of depression, low energy for motivation, paranoid ideation, command hallucinations, insomnia." (Tr. at 186.) Dr. Marcuzzo further stated: "It is my opinion the allegations are consistent with the findings of the interview." (Id.)
12. Dr. G. Kleinerman — Social Security Consultant Examiner
Dr. Kleinerman reviewed the medial evidence on February 9, 1996, and assessed Rivas' physical residual functional capacity. He opined that Rivas retained the ability to lift and carry up to 25 pounds frequently and 50 pounds occasionally. He also opined that Rivas could stand and walk for up to 2 hours, and sit for 6 hours in a work day. He opined that Rivas should avoid concentrated exposure to temperature extremes, humidity, wetness, noise, vibration and environmental irritants. Dr. Kleinerman further opined that Rivas had no postural, manipulative, visual or communicative limitations, and had no restrictions with respect to exposure to hazards.
On October 28, 1996, another physician, Dr. R. McClintock, reviewed the record and agreed with Dr. Kleinerman's physical functional assessment (Tr. 74, 102).
Dr. Kleinerman reviewed the medical evidence, and assessed Rivas' mental abilities on a mental residual functional capacity assessment form dated February 9, 1996. The doctor opined that Rivas had no significant limitations in the areas of understanding, memory, sustained concentration and persistence. Dr. Kleinerman assessed that Rivas generally had no significant limitations in social interaction, except that he had at most a moderate limitation in his ability to interact with the public (Tr. 76). Dr. Kleinerman indicated that in the area of adaptation, Rivas had, at most, a moderate limitation in his ability to respond appropriately to changes in a work setting, to travel to unfamiliar places, or to use public transit. Dr. Kleinerman opined that there was no indication in the record of any organic mental disorder, mental retardation, anxiety disorder, schizophrenic, paranoid or psychotic disorders, somatoform disorder, personality disorder or substance abuse disorder. Dr. Kleinerman took into consideration the benign observations from the Social Security Administration district office interviewers in reaching his opinion.
Dr. Kleinerman evaluated Rivas' mental impairment under section 12.04 of the Listing of Impairments, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, regarding affective disorders, and opined on February 9, 1996 that Rivas' condition did not meet the requirements of the listing. The doctor further opined that Rivas' activities of daily living were slightly limited, that he had slight to moderate limitations in maintaining social functioning, that he seldom exhibited deficiencies in concentration, persistence or pace, and that there was no evidence of deterioration or decompensation in the work setting.
13. Dr. Luis Zeiguer — Social Security Consultant Examiner
Dr. Zeiguer, a psychiatrist, examined Rivas in a psychiatric evaluation on October 10, 1996. Dr. Zeiguer reported that Rivas stated that he was laid off in 1991, but stated that he was laid off due to discrimination, not inability to do the job. Rivas also acknowledged having been imprisoned several times, and reported that he was last released from prison in 1995. The doctor stated that Rivas reported having gone through psychiatric hospitalization on several occasions but was not able to explain the dates or the places where he was hospitalized. He further stated that Rivas reported having been treated at the psychiatric clinic at Morrisania, where he was prescribed Prozac and Ambien, and received psychotherapy three times a week. It was also noted that Rivas had a history of bronchial asthma. Dr. Zeiguer stated that he was unable to obtain a "substantial history" from Rivas due to his "selective reticence." (Tr. at 203.)
Dr. Zeiguer opined that Rivas was mildly depressed. Dr. Zeiguer further observed that Rivas' answers were sparse and that he failed to elaborate. Concentration, memory, orientation and judgment were all considered adequate. Rivas' insight was fair and his mood was mildly depressed. Although he stated that he heard the voice of his dead sister, the doctor found it significant that Rivas "endorse[d] closed ended questions which are not usually endorsed by those individuals suffering of genuine psychosis." (Tr. at 203.) Dr. Zeiguer diagnosed history of chronic depression, rule-out dysthymia, rule-out personality disorder with borderline schizotype and maybe histrionic features, and history of bronchial asthma. The doctor gave a fair prognosis and opined that Rivas was able to perform at least simple repetitive chores. Dr. Zeiguer also stated that "[t]o make a more specific recommendation pertaining to psychiatric treatment more reliable information would be required." (Tr. at 204.)
C. The ALJ's Decision
Following the vacatur of the ALJ's initial decision in this matter and remand for further proceedings to complete the administrative record, a supplemental hearing was conducted on March 6, 2003 at which Rivas appeared and testified and new medical evidence was submitted. Thereafter, the ALJ issued a decision dated March 28, 2003 that Rivas was not entitled to a period of SSD benefits and not eligible for SSI benefits.
In reaching the decision, the ALJ followed a five-step sequential evaluation process. First, the ALJ found that there was no evidence of substantial gainful work activity during the relevant time period. Second, the ALJ concluded that,
See generally infra Part II.
The claimant had the following impairments which were considered to be "severe" within the meaning of the Social Security Act and Regulations prior to the date last insured: a history of bronchial asthma and a history of reactive depression. These conditions were "severe" because in combination, they imposed more than a minimal or slight limitation on the claimant's ability to perform basic work-related activities, such as extensive standing, walking, bending, lifting, carrying and concentrating. The claimant's panic disorder with agoraphobia could not be considered to be a medically determinable impairment based on the objective medical evidence of record.
(Tr. at 471.) The ALJ found that Rivas did not meet or equal the criteria of any impairment in the listing of impairments, citing 20 C.F.R. §§ 404.1520, 404.1521, 416.920, and 416.921.
At the third stage of analysis, the ALJ determined that Rivas' "impairments were not attended by clinical or laboratory findings that were the same as, or medically equivalent to, the criteria for any impairment described in Appendix 1, Subpart P, Regulations No. 4" on or before September 30, 1997, the date last insured. (Id.) The ALJ further concluded that, although Rivas had "an underlying medically determinable impairment that reasonably could cause some of the pain and other symptoms he described, the claimant's symptoms were not of such a severity, persistence, or intensity as to preclude all work activity." (Id.)
The ALJ then determined that Rivas retained "the residual functional capacity to perform light work activity in a clean air environment not requiring exposure to dust, chemicals, smoke, noxious inhalants, temperature and humidity extremes on a sustained basis during the closed period." (Tr. at 471-72.) It was further concluded that Rivas "retained the mental residual functional capacity to perform the basic mental demands of competitive, remunerative, unskilled work. . . ." (Tr. at 472.)
Light work, it was explained, "entails lifting and carrying no more than twenty pounds at a time, frequently lifting and carrying no more than ten pounds at a time, walking and standing no more than six hours out of an eight hour day, and pushing and pulling of light weight objects. Some light jobs are performed while standing, and those performed in the seated position often require the worker to operate hand or leg controls." (Tr. at 472 (citing 20 C.F.R. §§ 404.1567(b), 416.967(b)).).
In connection with the fourth step of analysis, the ALJ determined that Rivas was unable to perform his past jobs as elevator mechanic and doorman during the closed period, which jobs involved "arduous physical activity and exposure to pulmonary irritants." (Tr. at 472.) In connection with the fifth and final step of analysis, the ALJ explained that,
Considering the claimant's age, education, past work experience and physical capacity for light work activity in a clean air environment not requiring exposure to dust, chemicals, smoke, noxious inhalants, temperature/humidity extremes. I find that there were other jobs which he could have performed during the period in question.
(Tr. at 470.) Accordingly, the ALJ determined that Rivas did not meet the disability requirements of the Act, relying in part on Medical-Vocational Guidelines Rule 202.18 to reach this determination. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.18.
In reaching these determinations, the ALJ concluded that the assessments from Rivas' treating physicians concerning his mental impairment were not accompanied by any significant explanations for their findings and were not in accord with the clinical treatment notes. Thus, for example, certain assessments of Rivas' psychological residual functional capacity were "given no weight because they were not accompanied by a report that set forth positive objective signs of a mental disorder and they apparently relied only on the claimant's self-assessment." (Tr. at 463.) The ALJ also concluded that,
Dr. Shilling's reports about the claimant dated September 20, 1996 . . . and October 18, 1996 . . . cited many findings and conclusions not mentioned in the clinical notes and contained assessments of Mr. Rivas' psychological residual functional capacity that the undersigned had concluded were based solely on the claimant's subjective complaints precisely because they were at variance with the clinical notes. . . . Therefore, to the extent that the treating psychiatric reports from Dr. Shilling . . . did not support a finding that the claimant retained the mental capacity to perform the mental requirements of unskilled work, they were accorded little weight.
(Tr. at 463.)
With reference to the "sparse clinical records from Morrisania contained in the evidence of record," the ALJ stated that,
It was clear from the record and testimony that the claimant was an unhappy person, and the clinical notes reflected that his mood usually was depressed in varying degrees and that his affect had been blunt or bland. Nothing in the record showed that he had side effects from his medications. The clinical notes never mentioned any other objective signs of depression, such as psychomotor abnormalities and lethargy, weight change, a though disorder, memory dysfunction, poor eye contact, substandard grooming, or attempts at self-harm, that would be indicators of a significantly limiting or marked affective impairment. These clinical notes were given substantial weight and they unequivocally supported a finding that the claimant retained the mental capacity to perform the mental requirements of unskilled work because of his reactive depression, since he retained the capacity to concentrate and to perform simple repetitive tasks and had no demonstrated limitations in social, adaptive or personal care functioning.
(Id.) Similarly, the June 1999 mental residual capacity form completed by Rivas' treating psychiatrist, Dr. Loubeau, was given "little weight because it contains no clinical findings to support the markedly limited residual functional capacity and the residual functional capacity is not supported by the clinical findings recorded in the treating source psychiatric records." (Tr. at 467.) The ALJ added that "[n]o objective findings in the record demonstrate that the claimant has a panic disorder or agoraphobia." (Id.)
With respect to Rivas' pulmonary condition, the ALJ found that Rivas had mild, controlled asthma during the relevant time period. She noted that Rivas had never been admitted to the hospital because of asthma since the alleged disability onset date and further noted that the clinical notes often reported Rivas' asthma as being asymptomatic. The only finding that showed the presence of asthma, according to the ALJ, was a January 2, 1997 clinical note that mentioned occasional expiratory wheezing. The ALJ deemed a June 1995 report from treating physician Dr. Rosenzweig "not relevant" because Dr. Rosenzweig stated that he had not treated Rivas since June 1994. (Tr. at 463.) Dr. Ruiz's physical residual function capacity assessment dated July 29, 1997 was given "no weight because it was not accompanied by a report." (Tr. at 464.) Similarly,
A June 1, 1998, report by a Dr. Michael Crooks, who apparently had diagnosed the claimant's asthma symptoms as allergic rhinitis, which he was treating with Proventil, a common asthma medication, had an unreasonably restricted assessment of the claimant's physical residual functional capacity. Given the paucity of clinical findings, that assessment was given little weight. . . . Dr. Crooks' report about the claimant was not completely relevant to this proceeding since it was filled out over eight months after the date [Rivas] was last entitled to Title II benefits.
(Id.) The ALJ placed greater weight on the clinical findings of consulting source Dr. Polak.
The ALJ does not appear to have found Rivas' testimony credible. As she explained, "[a]lthough the claimant had and still has numerous complaints, the testimony and objective documentary evidence presented herein reveal a person who was still able to perform non-stressful light work activity, in a clean air environment, during the closed period." (Tr. at 466.) Rivas' statements regarding disabling symptoms and functional limitations experienced during the relevant period were deemed "not supported by the objective medical evidence of record, clinical findings, medical treatment received, or his own statements regarding his activities of daily living." (Tr. at 469.)
II. The Availability of Federal Disability Insurance Benefits
Federal disability insurance benefits are available to individuals who qualify as "disabled" within the meaning of the Act. See 42 U.S.C. §§ 423(a) 423(d). To qualify as disabled under the Act, an individual must establish his "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). An individual will only be considered disabled within the meaning of the Act if the impairment is 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 substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A). "An individual's statement as to pain or other symptoms shall not alone be conclusive evidence . . . there must be medical signs and findings, established by medically acceptable clinical and laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged. . . ." 42 U.S.C. § 423(d)(5)(A).
The Commissioner has established a five-step sequential evaluation for adjudication of disability claims, see 20 C.F.R. § 416.920, which the Court of Appeals for the Second Circuit has articulated as follows:
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" which 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 which is 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; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. 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 which the claimant could perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); accord DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). If a finding of disability or non-disability can be made at any point in the sequential analysis, the Commissioner will not review the claim further. See 20 C.F.R. §§ 404.1520(a) 416.920(a). The Second Circuit has explained that the plaintiff bears the burden of proof on each of the first four steps while the Commissioner bears the burden of proof on the final step.See DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at 467); accord Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
In reaching a determination pursuant to the sequential evaluation outlined above, the Commissioner considers four categories of evidence: objective medical facts and clinical findings; diagnoses and medical opinions based on those facts; subjective evidence of pain and disability testified to by the claimant or others; and the claimant's age, educational background and work history. See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)). While the Commissioner must consider the complete record,
[T]he Commissioner must accord special evidentiary weight to the opinion of the treating physician. See Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 119 (2d Cir. 1998). The "treating physician rule," as it is known, "mandates that the medical opinion of a claimant's treating physician is given controlling weight if it is well supported by the medical findings and not inconsistent with other substantial record evidence." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); see Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Clark, 143 F.3d at 119; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).Wenk v. Barnhart, 340 F. Supp. 2d 313, 320 (E.D.N.Y. 2004). As the relevant regulations make plain,
Generally, we give more weight to opinions by 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.20 C.F.R. §§ 404.1527(d)(2) 416.927(d)(2).
If the Commissioner elects not to give the treating physician's opinion controlling weight, he or she must "give good reasons in [its] notice of determination or decision for the weight [it] gives [claimant's] treating source's opinion." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (quoting 20 C.F.R. §§ 404.1527(d)(2) 416.927(d)(2)). In such a circumstance, the Commissioner must consider various factors to determine how much weight to accord the physician's opinion, including, "(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." Wenk, 340 F. Supp. at 321 (citing, inter alia, 20 C.F.R. §§ 404.1527(d)(2) 416.927(d)(2)); see also Clark, 143 F.3d at 118; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
III. Discussion
Rivas has argued that the Commissioner's conclusion that he is not disabled is unsupported by the record and is tainted by legal error. In particular, Rivas claims that the ALJ's decision at step three of the sequential analysis was legally flawed because the ALJ failed to apply the treating physician rule or otherwise consider the relevant factors in determining what weight to accord the opinions of treating physicians. Rivas also claims that the ALJ improperly employed the so-called Grid rules of 20 C.F.R. Pt. 404, Subpt. P, App. 2, at step five of the sequential analysis, and reached an inadequate and improper credibility finding.
The Commissioner contends that substantial evidence supports the ALJ's finding that Rivas did not meet the requirements of a listed impairment at step three of the process. Likewise, according to the Commissioner, there is substantial evidence supporting the ALJ's finding that Rivas could perform light work within certain non-exertional limitations and that Rivas could perform other work in the national economy. Finally, the Commissioner argues that the ALJ correctly evaluated the opinions of treating sources and that substantial evidence supports the ALJ's assessment of Rivas' credibility.
A. The Standard Of Review
In deciding a motion for judgment on the pleadings, the court is generally limited to considering the factual allegations set forth in the complaint and corresponding answer. See Fed.R.Civ.P. 12(c). A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that he or she is entitled to judgment as a matter of law. See Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990); Rosado v. Barnhart, 290 F. Supp. 2d 431, 435 (S.D.N.Y. 2003).
Under the Act, a district court's review of the denial of social security benefits is statutorily constrained. See generally 42 U.S.C. § 405(g). The determination of the Commissioner may be set aside only when that determination is "based upon legal error or not supported by substantial evidence." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Berry, 675 F.2d at 467 (2d Cir. 1982) (per curiam)); accord Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)). Accordingly, a district court conducts "a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied." Shaw, 221 F.3d at 131; see also Clark, 143 F.3d at 118 (explaining that the court's function is limited to determining whether the Commissioner's decision is supported by substantial evidence and based on a correct legal standard, "keeping in mind that it is up to the agency, and not this court, to weigh the conflicting evidence in the record").
The Commissioner's factual determination must be upheld if the court finds there is substantial evidence supporting it, even if there is also substantial evidence for the plaintiff's position.See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990);Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see also DeChirico, 134 F.3d at 1182-83 (affirming the Commissioner's decision where there was substantial evidence for both sides). "Substantial evidence" has been defined in the disability benefits context as "`more than a mere scintilla. It means 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. v. NLRB, 305 U.S. 197, 229 (1938)); accord Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam). Such relevant evidence includes both basic evidentiary facts and inferences and conclusions drawn from such facts. See, e.g., Crawn v. Barnhart, No. 03 Civ. 2315 (SHS), 2004 WL 637961, at *6 (S.D.N.Y. Mar. 31, 2004) (citingRodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977));Murphy v. Sec'y of Health Human Servs., 62 F. Supp. 2d 1104, 1106 (S.D.N.Y. 1999). "Where an administrative decision rests on adequate findings sustained by evidence having rational probative force, the court should not substitute its judgment for that of the Commissioner." Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).
The Commissioner's legal conclusions, and the compliance of the ALJ with applicable procedures mandated by statutes and regulations, are reviewed de novo. See Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004); Keefe on Behalf of Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995). Thus,
Although factual findings by the Commissioner are "binding" when "supported by substantial evidence," "[w]here an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal."Pollard, 377 F.3d at 188-89 (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (internal quotation marks and citations omitted)).
B. The Commissioner's Decision At Step Three Was Tainted By Legal Error
Rivas has challenged the Commissioner's determination at step three of the sequential analysis on the grounds that the ALJ's determination with regard to Rivas' mental impairment is both legally erroneous and not supported by substantial evidence.
Step three requires a determination as to "whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations." Berry, 675 F.2d at 467. Impairments listed in Appendix 1, see generally 20 C.F.R. Pt. 404, Subpt. P, App. 1, are impairments "acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). A claimant will be found to have a listed impairment if the diagnostic description in the introductory paragraph for the relevant listed impairment and the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed impairment are satisfied. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A). Rivas contends that the ALJ failed to consider all of the potentially relevant listed impairments set forth in Appendix 1, failed to provide reasons for certain of her determinations, and did not follow the treating physician rule or otherwise determine the proper weight to be accorded to the findings of Rivas' treating physicians.
In assessing Rivas' claimed mental impairment during the relevant period, the ALJ found that section 12.04 of the Listing of Impairments in Appendix 1 was the relevant impairment. Section 12.04 pertains to affective disorders, which are "[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04 (explaining that "mood" refers to "a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation"). The requisite level of severity is met when the requirements of both paragraphs A and B of section 12.04 are satisfied, or when the requirements of paragraph C are satisfied. Paragraph A pertains to:
Rivas argues that he also met section 12.03 of the Listing of Impairments, which relates to schizophrenic, paranoid and other psychotic disorders "[c]haracterized by the onset of psychotic features with deterioration from a previous level of functioning." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03. For the reasons set forth below, it may not be determined whether the ALJ's implicit decision that Rivas did not qualify under section 12.03 was based upon substantial evidence.
A. Medically documented persistence, either continuous or intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking;
Or
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes). . . .20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(A). To satisfy the required level of severity, the syndrome or syndromes set forth in paragraph A must:
B. Result in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration. . . .20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B). A "marked limitation" under paragraph B "may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C).
The required level of severity may also be met where the requirements of paragraph C are satisfied, namely:
C. Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(C).
The ALJ did not expressly discuss any of the factors identified under paragraph A, apparently conceding that Rivas' impairment satisfied the requirements of that paragraph. See, e.g., Smith v. Apfel, 69 F. Supp. 2d 370, 375 (N.D.N.Y. 1999). She concluded, however, that Rivas did not meet the paragraph B criteria. The ALJ stated:
The claimant's symptoms from his alleged depressive disorder were not shown to limit his ability to understand, remember, concentrate, adapt, interact with people, and respond appropriately to supervision and work pressures in a full-time work setting during the closed period. After examining all the evidence contained in the record, I can find no evidence to suggest that the claimant experienced any difficulties in these areas. Consequently, I have rated the degree of functional limitations as "mild" in the first and second B Criterions, and ["]moderate["] in the third criterion of the aforementioned 12.00 Listings describing the claimant's activities of daily living, social functioning and deficiencies of concentration, persistence and pace. The record does not reveal that the claimant experienced deterioration or decompensation in work or work-like settings in the fourth criterion of the aforementioned 12.00 Listings. I therefore rate this degree of functional limitation as "never."
(Tr. at 468-69.) With respect to paragraph C, the ALJ explained that,
Since there is no medically documented history of chronic affective or psychotic disorder of at least two years duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and since there has been no residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the claimant to decompensate[,] the "C" criteria of Section 12.04 has not been met.
(Tr. at 469.)
In assessing the severity of Rivas' asserted depressive disorder, the ALJ cited with approval the September 26, 1995 report from Dr. Sunwood, a consulting physician with the New York City Human Resources Administration, which noted simply and without further explanation that Rivas had a "mildly depressed" mood. (Tr. at 462; see also Tr. at 166.) The ALJ also cited with approval the findings of consulting physician Dr. Zeiguer, who opined that Rivas was mildly depressed. The ALJ deemed it noteworthy that Dr. Zeiguer "found the claimant to be evasive and untruthful in his answers" and that the doctor concluded that, apart from a mildly depressed mood, Rivas' mental status examination "otherwise was normal" and he had "no limits of his mental ability to do unskilled work." (Tr. at 462.) The ALJ also accorded "substantial weight" to clinical notes from Rivas' treating physicians which, the ALJ explained, "never mentioned any . . . objective signs of depression, such as psychomotor abnormalities and lethargy, weight change, a though disorder, memory dysfunction, poor eye contact, substandard grooming, or attempts at self-harm, that would be indicators of a significantly limiting or marked affective impairment." (Tr. at 463.)
The clinical notes cited by the ALJ are the undated narrative medical report which Rivas has attributed to Dr. Ruiz and the November 23, 1998 note from Dr. Crooks, which note the ALJ elsewhere discounted, explaining that the note was "not afforded significant weight" based on its timing and its lack of "any objective findings" with regard to a finding of asthma. (Tr. at 464.)
The ALJ assigned "no weight" to an assessment of Rivas' psychological residual functional capacity dated December 29, 1997 by Legaspi and a similar assessment dated July 31, 1997 by Dr. Ruiz "because they were not accompanied by a report that set forth positive objective signs of a mental disorder and they apparently relied only on the claimant's self-assessment." (Tr. at 463.) The ALJ also accorded "little weight" to Dr. Shilling's January 29, 1997 letter because it was not accompanied by any "objective findings of depression. . . ." (Id.) Similarly, Dr. Shilling's reports dated September 20, 1996 and October 18, 1996 were given "little weight" to the extent that they "did not support a finding that the claimant retained the mental capacity to perform the mental requirements of unskilled work," as they "cited many findings and conclusions not mentioned in the clinical notes and contained assessments of Mr. Rivas' psychological residual functional capacity that the undersigned had concluded were based solely on the claimant's subjective complaints precisely because they were at variance with the clinical notes" previously assigned substantial weight." (Id.) The June 1999 mental residual functional capacity form completed by treating psychiatrist Dr. Loubeau was also given "little weight because it contains no clinical findings" to support the conclusions reached. (Tr. at 467.)
The ALJ also appeared to find it significant that Rivas "answered questions relevantly and coherently" at the 2003 hearing and "exhibited no signs of pain or any outward manifestations of severe physical or mental limitations," as she proceeded to state that,
The claimant's statements regarding disabling symptoms and functional limitations therefore are not supported by the objective medical evidence of record, clinical findings, medical treatment received, or his own statements regarding his activities of daily living.
(Tr. at 469 (emphasis supplied).)
Although the ALJ provided partial explanations for her decisions to discount the findings of Rivas' treating physicians, as is required, see Clark, 143 F.3d at 118, nothing in the record or in the ALJ's decision suggests that these decisions were reached after due consideration of all of the relevant factors, including, "(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." Wenk, 340 F. Supp. at 321 (citing, inter alia, 20 C.F.R. §§ 404.1527(d)(2) 416.927(d)(2)). Where an ALJ fails to consider all of the relevant factors in deciding what weight to assign the opinion of a treating physician, the ALJ's decision is flawed.See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). The inconsistent weight accorded to Dr. Crooks' November 23, 1998 letter — which was given "substantial weight" (Tr. at 463) with regard to the absence of objective signs of depression but "not afforded significant weight" in view of the absence of any reference to objective findings of asthma (Tr. at 464) — casts further doubt on the manner in which the ALJ reached a determination of the weight to be accorded the treating sources' opinions and findings. See Shaw, 221 F.3d at 135.
Even had such factors been considered by the ALJ, it is not evident in what way Dr. Shilling's findings are "at variance" with the clinical notes of Dr. Ruiz and Dr. Crooks, as the ALJ concluded. (Tr. at 463.)
Moreover, where, as here, an ALJ concludes that the opinions or reports rendered by a claimant's treating physicians lack objective clinical findings, she may not reject the opinion as unsupported by objective medical evidence without taking affirmative steps to develop the record in this regard. In other words, an ALJ has an affirmative duty to seek amplification of an otherwise favorable treating physician report where the report is believed to be insufficiently explained or lacking in support. As the Second Circuit noted in Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999), "[e]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from the treating physician sua sponte." Rosa, 168 F.3d at 79; see also Shaw, 221 F.3d at 134 (concluding that, "[f]or the ALJ to conclude that plaintiff presented no evidence of disability at the relevant time period, yet to simultaneously discount the medical opinion of his treating physician, violates his duty to develop the factual record"); Clark, 143 F.3d at 118 (noting that a treating physician's "failure to include [specific clinical findings in] support for the findings in his report does not mean that such support does not exist; he might not have provided this information in the report because he did not know that the ALJ would consider it critical to the disposition of the case."); Schaal, 134 F.3d at 505 (stating that, "even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from Dr. Jobson sua sponte"); Devora v. Barnhart, 205 F. Supp. 2d 164, 172-73 (S.D.N.Y. 2002) ("The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant's treating physician."); Cleveland v. Apfel, 99 F. Supp. 2d 374, 380 (S.D.N.Y. 2000) ("When the opinion submitted by a treating physician is not adequately supported by clinical finding, the ALJ must attempt, sua sponte, to develop the record further by contacting the treating physician to determine whether the required information is available."). The ALJ's duty to develop the record exists regardless of whether a claimant is represented by counsel. See Shaw, 221 F.3d at 134 ("For the ALJ to conclude that plaintiff presented no evidence of disability at the relevant time period, yet to simultaneously discount the medical opinion of his treating physician, violates his duty to develop the factual record, regardless of whether the claimant is represented by legal counsel.") (citing Schaal, 134 F.3d at 505; Pratts, 94 F.3d at 37).
It is entirely possible that Rivas' treating sources could have provided explanations for any apparent absence of support for their findings or clarification concerning the basis for their opinions, "[i]f asked." Rosa, 168 F.3d at 80 (quoting Clark, 143 F.3d at 118) (quotation marks omitted). Apart from the ALJ's statement that "[e]very reasonable effort has been made to develop the medical record pursuant to 20 CFR §§ 404.1512, 416.912" (Tr. at 460), nothing in the ALJ's decision or elsewhere in the record demonstrates that efforts were made to develop the record with respect to the observed absence of reports or other indicia of medical findings from Rivas' treating sources, notwithstanding the Appeals Council's order to do just that. In vacating the initial decision in this matter and remanding the case to the ALJ for further proceedings on January 15, 2002, the Appeals Council noted that,
A treating source need not support his or her opinion with objective medical evidence. Rather, a treating source's opinion must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and "not inconsistent with the other substantial evidence in your case record" to be accorded controlling weight. 20 C.F.R. § 404.1527(d)(2). Efforts to develop the record with regard to the grounds for Rivas' treating sources' opinions might have yielded, for instance, clarification as to whether and to what extent "medically acceptable clinical . . . diagnostic techniques" with regard to psychiatric conditions such as depression permit reference to and reliance upon a patient's self-reported symptoms, a practice which the ALJ appears to have found unacceptable.
[T]he claimant's treating psychiatrist since November 1995 [Dr. Shilling] diagnosed the claimant with Major Depression, recurrent . . . and noted the claimant had a short attention span with poor concentration, poor judgement, and isolates himself . . . A mental residual functional capacity form from claimant's treating doctor at Morrisania Diagnostic and Treatment Center [Dr. Ruiz] indicated he had marked limitations: in maintaining attention and concentration; working in coordination with or proximity to others; in ability to make simple work-related decisions; in completing a normal workweek, etc. . . . .
(Tr. at 520.) The Appeals Council further observed that the ALJ had found the treating sources' assessments "to be at variance with the clinical notes . . ., but [s]he did not recontact them for additional evidence or clarification. . . ." (Id.) The ALJ was directed, upon remand, to "[o]btain additional evidence concerning the claimant's mental impairment in order to complete the administrative record," including "additional evidence and further clarification of the treating sources['] opinions. . . ." (Id.) Although the transcript from the 2003 hearing contains an extended discussion between the ALJ and Rivas' attorney concerning additional records sought from Drs. Crooks and Gaddipati (see Tr. at 487-92), there is no indication in the transcript from the 2003 hearing or elsewhere in the record that the ALJ took any steps to comply with either the Appeals Council's direction or the ALJ's affirmative duty to seek further clarification of the opinions of, at the very least, Drs. Ruiz and Shilling. The failure to comply with this affirmative duty represents legal error.
Lastly, in assessing the evidence of record, the ALJ stated:
The clinical notes never mentioned any other objective signs of depression, such as psychomotor abnormalities and lethargy, weight change, a though disorder, memory dysfunction, poor eye contact, substandard grooming, or attempts at self-harm, that would be indicators of a significantly limiting or marked affective impairment.
(Tr. at 463.) It was similarly noted:
A careful separation of the claimant's statements from the observations of the treating physicians reveal no objective signs of significant depression, such as psychomotor abnormalities and lethargy, weight change, a thought disorder, member dysfunction, poor eye contact, substandard grooming, or attempts at self-harm, that would be indicators of a significantly limiting affective impairment.
(Tr. at 469.) Under the law of this circuit, "it is well-settled that `the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.'" Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (concluding that the ALJ improperly "`set his own expertise against that of physician[s]'" when he concluded, without citation to medical evidence, that there was no atrophy of any muscle groups indicative of disuse as would have been expected in light of the circumstances) (quoting McBrayer v. Sec'y of Health Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)). While no such improper substitution of judgment is readily apparent here, the ALJ's decision does not state with sufficient clarity upon what basis the relevant "objective signs of significant depression" were identified.
In light of the ALJ's failure to seek clarification and additional evidence with regard to those statements of treating sources which she found to be unsupported, the absence of any suggestion that the relevant factors were otherwise considered in deciding the weight to be accorded to the opinions and findings of Rivas' treating sources, and the lack of an indication as to the evidentiary or authoritative basis for certain of the ALJ's conclusions, the Commissioner's decision is the result of legal error, and it can not be ascertained whether the Commissioner's determination at the third step of the sequential analysis is supported by substantial evidence. As the Second Circuit has explained,
"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 her disability determination made according to the correct legal principles."Schaal at 504 (quoting Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
Similarly, to the extent that the ALJ declined to credit Rivas' testimony concerning the disabling nature of his symptoms and functional limitations, basing her decision to do so upon the perceived absence of support from the "objective medical evidence of record, clinical findings, medical treatment received, or his own statements regarding his activities of daily living" (Tr. at 469), no determination may be made as to whether substantial evidence supports this conclusion for the reasons just stated. The credibility determination is particularly significant where there is a direct conflict, as there is here, between the evidence of the treating and the consulting sources on the subject of Rivas' psychiatric condition.
Finally, insofar as the ALJ's decision concerning Rivas' residual functional capacity, relevant to steps four and five of the sequential analysis, was dependent upon the ALJ's conclusions reached with regard to the weight to be accorded to the treating sources' opinions and reports, the sufficiency of the medical findings on which those opinions and reports rested, and the absence of certain objective signs articulated in the decision, no determination may be made as to whether substantial evidence exists to support the finding that Rivas "retained the mental residual functional capacity to perform the basic mental demands of competitive, remunerative, unskilled work. . . ." (Tr. at 472.)
C. The Commissioner's Decision At Step Five Was Tainted By Legal Error
Rivas argues that the ALJ erred in applying the Medical-Vocational Guidelines or "grids" of 20 C.F.R. Pt. 404, Subpt. P, App. 2, which relate to exertional limitations, at step five of the sequential analysis, since Rivas assertedly had only nonexertional impairments during the relevant time period. Rivas also contends that where there are significant nonexertional impairments the Commissioner cannot meet her burden at step five by employing the Guidelines rules but must bring in a vocational expert.
The Medical-Vocational Guidelines consist of a series of rules. "Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a). The Guidelines acknowledge that:
Since the rules are predicated on an individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be fully applicable where the nature of an individual's impairment does not result in such limitations, e.g., certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental restrictions.20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e) (noting that "[e]nvironmental restrictions are those restrictions which result in inability to tolerate some physical feature(s) of work settings that occur in certain industries or types of work, e.g., an inability to tolerate dust or fumes"). Accordingly, the Guidelines direct that,
In the evaluation of disability where the individual has solely a nonexertional type of impairment, determination as to whether disability exists shall be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in this Appendix 2. The rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments.20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)(1). Where an individual has an impairment "or combination of impairments resulting in both strength limitations and nonexertional limitations," however,
[T]he rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. Also, in these combinations of nonexertional and exertional limitations which cannot be wholly determined under the rules in this Appendix 2, full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor.20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)(2).
The ALJ appears to have implicitly found that one or both of Rivas' impairments, consisting of "a history of bronchial asthma and a history of reactive depression" (Tr. at 471), resulted in strength limitations, as she concluded that it was appropriate to use Rule 202.18 "as a framework for decisionmaking," in accordance with subsection 200.00(e)(2) of Appendix 2. (Tr. at 472.) Although evidence in the record supports the conclusion that Rivas was limited in his capacity to lift and carry weight of certain magnitudes, there does not appear to be any evidence, much less substantial evidence, supporting the conclusion that any limitation in Rivas' strength resulted from either his pulmonary condition, his mental condition, or some combination of the two, as is a prerequisite for application of subsection 200.00(e)(2).
Short of evidence that Rivas' strength limitation was the result of one or both of his identified impairments, subsection 200.00(e)(1), rather than subsection 200.00(e)(2), provides the proper basis for analyzing Rivas' nonexertional impairments at step five of the sequential analysis. Accordingly, the ALJ's decision at step five, which was determined by means of a "framework" analysis under subsection 200.00(e)(2) and in light of the present record, was based upon legal error.
D. The Errors Below Require Remand
This case, involving a four-year closed period of disability, has now been in the district court twice. Rivas filed his applications on September 28, 1995 and filed the instant complaint on May 1, 2001 following the denial of his appeal by the Appeals Council. By the parties' agreement the initial remand took place on August 30, 2001. Nearly three years passed before the parties returned to this Court and brought the instant motions. Based on this record, it is reasonable to expect that proceedings below would take at least another two years to cover a period of time from 1995 to 1999.
Remand of a disability claim for further administrative proceedings is an appropriate remedy where, inter alia, "there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa, 168 F.3d at 82-83 (internal quotation marks and citations omitted); see also Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (stating that "where `the ALJ failed to develop the record sufficiently to make' appropriate disability determinations, a remand for `further findings [that] would so plainly help to assure the proper disposition of [the] claim . . . is particularly appropriate'") (alterations in original) (quoting Rosa, 168 F.3d at 83 (internal quotation marks omitted)). As the Second Circuit has recently observed,
We do not hesitate to remand when the Commissioner has not provided "good reasons" for the weight given to a treating physician['s] opinion and we will continue remanding when we encounter opinions that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion.Halloran, 362 F.3d at 33.
Based upon the errors identified above, and notwithstanding the further, and regrettable, delay that will be occasioned by such a decision, remand is the only appropriate remedy under the circumstances presented.
Conclusion
For the reasons set forth above, both motions for judgment on the pleadings are denied. The Commissioner's determination is reversed, and this matter is remanded to the Commissioner for further administrative proceedings consistent with this opinion and order pursuant to the fourth sentence of 42 U.S.C. § 405(g).
It is so ordered.