Opinion
05 Civ. 6638 (SAS).
May 1, 2006
For Plaintiff: Josephine Gottesman, Esq. South Amboy, New Jersey.
For Defendant: Susan D. Baird Assistant United States Attorney New York, New York.
OPINION AND ORDER
I. INTRODUCTION
Noemi Rivera brings this action for review of the final decision of the Commissioner of Social Security ("the Commissioner") denying her claim for disability insurance benefits and supplemental security income ("SSI") payments under the Social Security Act. Plaintiff has moved to remand to the Social Security Administration ("SSA") for further administrative proceedings. Defendant has filed a cross-motion for a judgment on the pleadings affirming her decision. For the reasons set forth below, plaintiff's motion for remand is granted and defendant's cross-motion for judgment on the pleadings is denied.
See Complaint ("Compl.") ¶ 4.
See Plaintiff's Memorandum of Law in Support of Motion for Remand ("Pl. Mem.") at 1, 21.
II. BACKGROUND
A. Procedural Background
Rivera first applied for Social Security benefits on December 30, 2002, and was denied at the initial level. Rivera did not appeal this denial but rather re-applied on July 31, 2003 for disability benefits and SSI. Plaintiff claims that she became disabled on January 1, 2003, due to back pain, hip pain, carpal tunnel syndrome, asthma and depression. Plaintiff's claim was denied initially and on reconsideration. Plaintiff then requested a hearing before an administrative law judge ("ALJ") and appeared without counsel on December 13, 2004. In denying her application for benefits, the ALJ held that although Rivera suffers from a number of "severe" ailments, she "has the residual functional capacity to perform a significant range of light work" and that there are sufficient jobs in the national economy that she is able to perform. The ALJ's decision became final when the Appeals Council denied Rivera's request for appeal on May 24, 2005.
See Transcript of the Administrative Record ("Tr."), filed by the Commissioner as part of her Answer pursuant to 42 U.S.C. § 405(g), at 18.
See id.
See id. at 19.
See id. at 18.
See id.
Id. at 27.
See id. at 4.
B. Plaintiff's Personal History
Plaintiff was forty-four at the time of her administrative hearing. Rivera worked as a home care worker for eleven years before stopping in September 2002 due to pain in her back and legs. Before that, she worked in a factory for a short period of time. Rivera, who completed the seventh grade, is unmarried and lives alone. When she shops for food, she can carry two bags at most. Plaintiff cooks occasionally and bathes herself with a sponge but, except for vacuuming, she does not do housework. She is able to use public transportation. The ALJ did not ask if Rivera could read and write English, but assumed that she may have trouble fully communicating in English. However, an interpreter was not present at Rivera's administrative hearing.
See id. at 299-300.
See id. at 301-02.
See id.
See id. at 299.
See id. at 308.
See id. at 309-10.
See id. at 310.
See id. at 296.
See id. at 296-97. Plaintiff was given the choice of adjourning the hearing in order to find an interpreter but she elected to proceed without an interpreter. See id.
C. Plaintiff's Medical History
1. Overview of Medical Condition
Among other conditions, Rivera suffers from asthma, fibromyalgia, insomnia, tendinitis in her foot, carpal tunnel syndrome, narrowing of the facet joints, a number of small cervical and lumbar disc herniations, a bulging lumbar disc, high cholesterol, obesity, bursitis of the hip, spinal degenerative disease, plantar fasciitis, irritable bowel syndrome and a bone spur in her foot. Rivera has also been treated for depression with medication and group therapy.
See id. at 112, 156, 165, 179, 243-44, 261, 281, 299-302.
See id. at 140, 303-04.
2. Physical Assessments
a. MRI, EMG and CT Testing
On March 23, 2001, an electromyograph ("EMG") test revealed that Rivera has mild carpal tunnel syndrome in her left wrist. Follow-up magnetic resonance imaging ("MRI") tests conducted on April 10, 2001, revealed a spur in the cervical spine, herniations in cervical and lumbosacral discs, degenerative disc disease, and narrowing of the facet joints. EMG and MRI tests performed in June 2003 showed mild nerve entrapments across Rivera's wrists and tiny disc herniations in the cervical spine without evidence of impingement or spinal stenosis. In June of 2004, Rivera underwent a spinal neurosurgery evaluation, where it was determined that she was responding well to pain medication and that she was not a candidate for spinal surgery.
See id. at 165.
See id. at 110-11.
See id. at 239, 243. A final MRI scan was performed on May 19, 2004, where disc bulge and herniation in the lumbar spine were confirmed. See id. at 261.
See id. at 279-81.
b. Treating Physicians
Rivera saw Dr. Sophia Au, an internist, from April 2001 until January 2005. On January 7, 2003, Dr. Au reported that Rivera complained of neck, arm and shoulder pain, but that she was able to freely move her arms and legs without limitation. Dr. Au subsequently prescribed both a cane and a back brace for Rivera to use in times of pain. In October of 2003, Dr. Au reported that Rivera complained of minor pain, that her asthma was stable, and that while Rivera moved slowly, she was able to walk normally. On November 28, 2003, Dr. Au was asked to evaluate Rivera's residual functional work capacity, but she declined to do so. However, Dr. Au noted that Rivera had a limited capacity to work in environments that contained dust, humidity, noxious fumes, and temperature extremes.
See id. at 110-11, 202-04, 206, 208, 235-36, 239-44, 247, 259, 261, 270-85, 290.
See id. at 203.
See id. at 150, 236.
See id. at 204, 236.
See id. at 129-32.
See id.
Dr. Wainapel, a rehabilitation specialist, saw plaintiff once since 2002. In August 2002, Dr. Wainapel noted that plaintiff had a mild restriction in the range of motion of her cervical spine but good range of motion in her shoulders. In October 2002, Dr. Wainapel stated that Rivera was "clearly in a good deal of distress" due to back pain and recommended that she increase her dosage of pain relievers. In November 2004, Dr. Wainapel assessed Rivera's functional capabilities as part of an SSA questionnaire. Dr. Wainapel's diagnoses included bilateral carpal tunnel syndrome and fibromyalgia. Dr. Wainapel indicated that Rivera could lift and carry a maximum of five pounds and that she could sit for two to four hours and stand for one hour in an eight hour workday. Dr. Wainapel also indicated that plaintiff had pain associated with bending, squatting and kneeling as well as hand pain and decreased sensitivity caused by carpal tunnel syndrome. In a Condition Status Report dated December 20, 2004, Dr. Wainapel stated that Rivera was "unable to work at present" due to lower back pain, carpal tunnel syndrome, and cervical spinal pain.
See id. at 141.
See id. at 159.
Id. at 163.
See id. at 141-45.
See id. at 142.
See id. at 143-44.
See id. at 143.
Id. at 290.
Dr. David Shein, an orthopedist, treated Rivera in January and September of 2003. Dr. Shein found Rivera to have a full range of motion in her cervical spine and hips and full motor skills in her shoulders, elbows, knees and ankles. He also noted that Rivera complained of general stiffness and pain throughout her body, depression, and localized pain and numbness in numerous areas. Dr. Shein felt that Rivera did not have any orthopedic issues but that she should visit a rheumatologist and seek physical therapy.
See id. at 230-31, 252-53.
See id. at 230-31.
See id. at 231, 252-53.
See id. at 253.
On October 23, 2003, Rivera was seen by a podiatrist, Dr. Elizabeth Elsinger, for complaints of heel pain. Upon examination, plaintiff had no pain on range of motion of the ankle joints, and no tenderness on palpation. Dr. Elsinger diagnosed Rivera with plantar fasciitis, bursitis, a heel spur and equinus.
See id. at 254-55.
See id. at 255.
See id.
c. Consulting Physicians
On November 1, 2002, Dr. Lavonna Branker, an internist, conducted a consultative examination of Rivera and reviewed the findings of Rivera's previous MRI, CT and EMG tests. Rivera complained of intermittent joint and hip pain that usually occurred while walking or after standing up from a lying position. Dr. Branker noted that Rivera was taking Vioxx to treat her hip and back pain and diagnosed her with stable asthma, pain in her spine and lower back, osteoarthritis, multi-level disc disease, and a mild decrease in the range of motion of her spine. Despite these complications, Dr. Branker found that Rivera was "able to sit, stand, walk, lift, carry, handle objects, hear, speak and travel."
See id. at 112.
See id. at 117.
See id. at 114.
Id.
Dr. Peter E. Graham, an internist, examined Rivera in September of 2003. Dr. Graham found that although Rivera suffered from intermittent back, joint and hip pain, she was capable of sitting, standing, walking, lifting, carrying and handling objects, and had a full range of motion in all of her joints. Dr. Graham noted that prolonged walking or heavy lifting may be limited by pain in Rivera's back and hips. In general, Rivera was able to walk normally and suffered only a minimal functional deficit due to pain in her hip. Rivera did not suffer any deficit as a result of her back pain.
In his decision, the ALJ mistakenly attributed this examination to Dr. Au. See id. at 20.
See id. at 117-19.
See id. at 119.
Dr. David Kaufman, a neurologist, examined plaintiff on June 28, 2004. Upon examination, plaintiff's cranial nerves were intact, there was no focal weakness, and reflexes were within normal limits. Plaintiff reportedly had tenderness throughout her whole spine, but particularly in the lumbar region. A limited range of motion in the cervical and lumbar spine was reported. According to Dr. Kaufman, EMG studies showed "minor problems" and there was "no need for further neurologic testing."
See id. at 279-80.
See id. at 279.
See id.
See id.
Id. at 280.
Dr. John K. Houten examined plaintiff on August 30, 2004. While plaintiff's motor strength was five out of five, there was degeneration at the L3/L4 and L4/L5 intervertebral discs. Dr. Houten summarized plaintiff's diagnoses which included fibromyalgia, carpal tunnel syndrome, tendonitis and bursitis. Despite the degeneration of the lumbar spine at L3/L4 and L4/L5, there was no need for surgical management.
See id. at 281-82.
See id. at 282.
See id.
See id.
3. Mental Assessments
Dr. Aida Franco-Julian, a psychiatrist, completed a residual functional capacity assessment of Rivera in January of 2004. Dr. Franco-Julian stated that Rivera suffered from recurrent major depression that moderately impaired her ability to understand, remember and carry out both short, simple instructions and detailed instructions. Her ability to make work-related decisions and judgments was also moderately impaired.
See id. at 133-34.
By definition, a person suffering from a moderate impairment "is still able to function satisfactorily." Id. at 133.
See id.
The record also contains a one-page, undated and unsigned Psychiatric/Psychological Report. That Report indicates that plaintiff participated in group treatment and received monthly medications since May 26, 2004. Plaintiff's diagnoses included major depressive disorder, fibromyalgia, asthma, slipped disc, and carpal tunnel syndrome. The Report noted that plaintiff was depressed and in physical pain.
See id. at 140.
See id.
See id.
See id.
D. The ALJ's Decision
The ALJ followed the five-step procedure for evaluating Social Security claims as required under the Social Security regulations. First, the ALJ found that Rivera was not currently engaged in gainful employment. Second, he found that Rivera suffered from a "severe" impairment due to her chronic back pain, hip pain, degenerative disc disease in the cervical and lumbar spines, and depression. Third, the ALJ found that these severe impairments did not correspond with any of the conditions listed in Appendix 1 of the regulations. Fourth, the ALJ determined that Rivera did not have the residual capacity to perform her past work as a home care or factory worker. Finally, the ALJ determined that Rivera was able to perform a significant range of light and sedentary work including jobs such as a counter clerk and machine tender, of which there are 50,000 positions in the national economy. The ALJ therefore denied Rivera's request for Social Security benefits.
See id. at 26.
See id. at 21.
See id. at 26-27.
See id. at 27.
See id.
III. LEGAL STANDARDS
A. Substantial Evidence and the Regulatory Framework
In deciding disability claims, an ALJ must follow a five-step procedure. First, the ALJ must consider whether the claimant is currently engaged in substantial gainful activity. Second, if she is not so engaged, the ALJ must determine whether the claimant has a "severe" impairment that significantly limits her physical or mental ability to do basic work activities. Third, if the claimant suffers from such a limitation, the ALJ must decide whether, based solely on the medical evidence, that limitation corresponds with one of the conditions listed in Appendix 1 of the regulations. If it does, the ALJ does not inquire into vocational factors such as age, education and work experience because the claimant is presumed to be disabled. Fourth, if the claimant does not have a listed impairment, the ALJ must determine whether the claimant has the residual capacity to perform her past relevant work despite her severe impairment. Fifth, if the claimant satisfies the burden of showing that she has a severe impairment that prevents her from performing her past work, the burden then shifts to the Commissioner to prove that the claimant retains the residual functional capacity to perform alternative work which exists in the national economy. "In the ordinary case, the Commissioner meets [her] burden at the fifth step `by resorting to the applicable medical vocational guidelines (the "grids"), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986).'" The grids take into account the claimant's age, residual functional capacity, work experience, and education. "Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy. Although the grids are generally dispositive, exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant's physical limitations."
See 20 C.F.R. §§ 404.1520(a), 416.920(a).
See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
See 20 C.F.R. §§ 404.1520(d), 416.920(d).
See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). See also Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies [his] burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working.").
Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)).
See id.
Id.
The Social Security Act provides that "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence means "more than a scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion." A court may only set aside a Commissioner's finding when it is "based upon legal error or not supported by substantial evidence." The task of a court is limited to deciding if the ALJ's decision is based upon substantial evidence in the record and the correct application of legal principles. A court has the latitude to enter a "judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a hearing."
Id. See also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
Rosa, 168 F.3d at 77 (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)).
Pratts, 94 F.3d at 37.
See Rosa, 168 F.3d at 77.
42 U.S.C. § 405(g) (fourth sentence).
B. Duty to Develop the Record
Because a Social Security hearing is a non-adversarial proceeding, the ALJ has a duty to develop the record regarding a claimant's impairments. "In considering whether the decision of the SSA was supported by substantial evidence, the reviewing court looks to whether the ALJ complied with [her] affirmative duty to fully develop the record." If the record has not been fully developed, the reviewing court should remand the case for further development of the record. As part of the duty to develop the record, the Social Security regulations state that before the SSA makes a determination that a claimant is not disabled, it is required to develop the claimant's medical history. If the medical reports in the record are inadequate to determine whether a claimant is disabled, the ALJ must "recontact [the claimant's] treating physician . . . or other medical source to determine whether the additional information we need is readily available." The ALJ must seek additional evidence when the reports from medical sources contain "a conflict or ambiguity that must be resolved." The ALJ is required to take an active role in this process, which includes asking relevant questions of the claimant in order to assess her medical condition. This duty to develop the record is heightened when the claimant is proceeding pro se.
See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
Rivera v. Barnhart, 379 F. Supp. 2d 599, 604 (S.D.N.Y. 2005) (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
See id.
See 20 C.F.R. §§ 404.1512(d), 416.912(d).
20 C.F.R. §§ 404.1512(e), 416.912(e).
Id.
See Maestre v. Apfel, No. 96 Civ. 8273, 1998 WL 477950, at *4 (S.D.N.Y. Aug. 13, 1998) (citing Cruz v. Sullivan, 912 F.2d 8, 10-11 (2d Cir. 1990)).
See Cruz, 912 F.2d at 11.
C. Treating Physician Rule
The ALJ must give controlling weight to a treating physician's opinion concerning the nature and severity of a claimant's impairments when the opinion is "well-supported by medically acceptable clinical and diagnostic laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in record." When a treating physician's opinion is not given controlling weight, the ALJ must apply a number of factors in deciding how much weight to give such opinion. These factors include: 1) the frequency of the examination and the length, nature, and extent of the treatment relationship; 2) the opinion's consistency with the record as a whole; 3) whether medical signs and laboratory findings support the opinion; and 4) whether the opinion is from a specialist. Because the treating physician has a "unique perspective" that "cannot be obtained from the objective medical findings," an ALJ must "provide `good reasons' for not crediting the opinion of a claimant's treating physician." Failure to provide good reasons for not following the opinion of a treating physician is grounds for remand.
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
See id.
Id.
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).
See id.
IV. DISCUSSION
A. Duty to Develop the Record
Plaintiff claims that a September 10, 2003 report from Dr. Au was incomplete because it did not specify any time, distance or weight limitations. According to plaintiff, "the ALJ had the duty to request of Dr. Au a more definite RFC statement." However, the September 10, 2003 report was completed by Dr. Graham, a consulting physician for the SSA, not Dr. Au. Under the regulations, the Commissioner is required to make reasonable efforts to help a claimant obtain medical reports from her own medical sources when the claimant has given permission to request the reports. Thus, the ALJ was under no obligation to supplement a report from an SSA consulting physician.
See Pl. Mem. at 17.
Id. (citing 20 C.F.R. § 1512(d)).
See 20 C.F.R. §§ 404.1512(d), 416.912(d) ("We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.").
Plaintiff also takes issue with the Residual Functional Capacity Questionnaire completed by Dr. Wainapel on November 8, 2004. Once again, plaintiff argues that the ALJ "had the duty to obtain from Dr. Wainapel a statement and/or records concerning how he came to his RFC conclusions." Plaintiff overlooks the fact that this information is already requested in the questionnaire. Under the Medical Assessment portion of the questionnaire, the doctor is asked to describe patient's symptoms; state all clinical findings, laboratory and test results; list his diagnosis, prescribed medications and other treatment and response; and provide a prognosis. At the end of the questionnaire is a section for Comments in which Dr. Wainapel wrote "None." Dr. Wainapel could have included the information sought by plaintiff in the questionnaire provided to him. He chose not to. The ALJ is not obligated to request this information again when the physician declined to respond the first time he was asked.
Pl. Mem. at 17.
See Tr. at 141.
See id. at 145.
B. Compliance with the Treating Physician Rule
In assessing plaintiff's claims, the ALJ acknowledged that one of Rivera's treating physicians, Dr. Wainapel, determined that Rivera was unable to perform even sedentary activity. The ALJ dismissed this finding as being "inconsistent with the reports from claimant's other treating physicians." In support of this conclusion, the ALJ relied on a report dated September 10, 2003, that he mistakenly attributed to treating physician Dr. Au when, in fact, it was completed by consulting physician Dr. Graham.
See Tr. at 24 ("I recognize that in a report dated November 8, 2004 Dr. Wainapel found that claimant was unable to perform even a range of sedentary exertional activities.").
Id.
See id. at 117-19.
See id. at 24.
Notwithstanding this error, the ALJ provided sufficient reasons for his decision to discount the opinion of Dr. Wainapel. First, the ALJ noted the infrequent contact Dr. Wainapel had with plaintiff since 2002. Second, the ALJ pointed out that there were no objective findings in support of Dr. Wainapel's conclusions that plaintiff was unable to lift or carry more than five pounds, walk more than one block, stand for more than one hour in an eight hour day, or sit for more than two to four hours in an eight hour day. Finally, this opinion was inconsistent with the record as a whole. According to the ALJ, "[n]o other treating or consulting examiner found that claimant was unable to perform any level of exertional activities." In sum, the ALJ provided sufficient reasons for his decision to reject Dr. Wainapel's opinion.
See id. at 20 (referring to Dr. Wainapel's statement that he had seen plaintiff only once since 2002).
See id.
Id. at 24.
C. Consideration of Plaintiff's Impairments in Combination
During the hearing, Rivera testified that she suffers from fibromyalgia, a condition resulting in allegedly severe pain which, in turn, causes her to feel very depressed. Although the ALJ acknowledged his duty to consider plaintiff's subjective complaints of pain, his decision gives short shrift to such allegations. The ALJ's decision makes no reference to fibromyalgia, which has been recognized as an impairment severe enough in some cases to support a claim of disability under the Social Security Act. Nor did the ALJ consider the effects of fibromyalgia in combination with plaintiff's depression and other physical ailments. The failure to do so is reversible error. On remand, the ALJ should consider the combined effect of all of plaintiff's impairments and he should explicitly state in his decision that he has done so.
See id. at 304-05.
See id. at 23 ("In making this assessment, the undersigned must consider all symptoms, including pain, and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence based on the requirements of 20 CFR §§ 404.1529 and 416.929, and Social Security Ruling 96-7p.").
The ALJ recognized that "due to complaints of lack of concentration from pain; claimant requires simple, routine and repetitive work instructions in routine work process and settings." Id. at 24-25. This limitation was included in the hypothetical posed to the vocational expert. See id. at 313 ("And the work would have to be simple and routine work."). However, the vocational expert was not asked to consider the effects of depression and pain, in combination, in assessing whether there were a significant number of jobs in the national economy that plaintiff could perform.
See Brunson v. Barnhart, No. 01-CV-1829, 2002 WL 393078, at *15 (E.D.N.Y. Mar. 14, 2002) ("Both conditions [fibromyalgia and myofascial pain syndrome] have been recognized as potentially severe impairments that may support a claim of disability under the Social Security Act.") (citing Lisa v. Secretary of Health Human Servs., 940 F.2d 40, 44-45 (2d Cir. 1991)).
See Kolodnay v. Schweiker, 680 F.2d 878, 879 (2d Cir. 1982) (stating that an ALJ is required "to consider the combined effect of all of [a claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity").
V. CONCLUSION
For the foregoing reasons, plaintiff's motion for remand is granted and the Commissioner's cross-motion for judgment on the pleadings is denied. Because the Commissioner is directed to reconsider plaintiff's case in light of existing evidence, the remand is a "sentence four" remand rather than a "sentence six" remand. The Commissioner's decision denying Rivera benefits is therefore reversed and the matter is remanded for further administrative proceedings consistent with this Opinion. The Clerk of the Court is directed to close the instant motions (Document #8) and this case.
SO ORDERED: