Opinion
No. 03 Civ. 5801 (GBD)(KNF).
January 31, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff William Smith ("Smith") brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying Smith's application for disability insurance benefits and Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Smith also has moved for judgment on the pleadings and seeks an order remanding the matter to the Commissioner for further proceedings, on the grounds that the Commissioner: (1) did not give proper weight to a treating source opinion; and (2) did not develop the record adequately. Each party opposes the other's motion.
For the reasons set forth below, I recommend that the Commissioner's motion be granted and that Smith's motion be denied.
II. BACKGROUND
Procedural ChronologyOn November 8, 2000, Smith filed applications for disability insurance benefits and SSI benefits, in which he alleged that he became disabled on May 15, 2000, due to depression. (Tr. 97, 200-12). In his applications, the plaintiff sought disability benefits for the period from May 15, 2000, to November 2001. (Tr. 13, 196). The applications were denied on April 19, 2001. (Tr. 42-46, 214-17). Smith then requested a de novo hearing before an Administrative Law Judge ("ALJ"), and appeared before ALJ J. Lawson Brown on August 1, 2002. (Tr. 21-86). On October 8, 2002, the ALJ issued a decision finding that the plaintiff was not entitled to disability benefits under the Social Security Act. (Tr. 9-19). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the plaintiff's request for review on June 27, 2003. (Tr. 4-6). See 42 U.S.C. § 405(h). Thereafter, Smith filed the instant complaint, seeking review of the Commissioner's decision.
"Tr." refers to the administrative record.
The record does not reveal ALJ Brown's full first name.
Factual Background
1. Non-Medical Evidence
Smith was born on March 13, 1956. (Tr. 97). He earned a general equivalency diploma and completed several college courses. (Tr. 24). Smith testified that he worked for the United States Postal Service ("Postal Service") between the years of 1986 and 1998, first as a letter sorter and later as a maintenance worker. (Tr. 26-27, 119). During his employment with the Postal Service, the plaintiff lifted, at most, seventy pounds. (Tr. 27). The plaintiff also buffed and waxed floors, cleaned, emptied trash, removed snow, cut grass, and engaged in other physical work. Id. Smith testified that between May 1999 and May 2000, he worked as a supervisor for an asbestos removal company and that as a supervisor he carried equipment frequently and lifted, at most, fifty pounds. (Tr. 25-26, 119). The plaintiff testified that he was unable to work after May 15, 2000, because of an onset of depression following the deaths of his brother and sister during the same twenty-four hour period. (Tr. 28). The plaintiff testified that he was unable to work between May 15, 2000, and November 2001, because he: (1) had a difficult time facing each day; (2) had difficulty getting out of bed; (3) felt as though every and any activity was work; and (4) suffered from migraine headaches. (Tr. 33-34). According to Smith's testimony, he lived alone during this period of alleged disability and did his own shopping, cooking, and chores. (Tr. 127-28). Smith stated that he spent leisure time reading, listening to music, watching movies, visiting his family and driving. Id.
In October and November of 2001, Smith attended commercial driving school. (Tr. 24). He received a commercial driver's license in December 2001, and began working as a full time driver in July 2002. (Tr. 24-25).
2. Medical Evidence
On May 18, 2000, Dr. E. Schwartz, a physician at Four Winds Hospital, examined Smith and generated a medical report. (Tr. 145-52). Dr. Schwartz found the plaintiff was well groomed, well nourished, attentive, and had suicidal ideation. (Tr. 147-48). Dr. Schwartz reported that the plaintiff's chief complaint was depression. Dr. Schwartz noted that Smith had suffered from polysubstance abuse since the age of sixteen. (Tr. 145-46). Dr. Schwartz reported that the plaintiff was abusing cocaine, methadone, and alcohol. (Tr. 147). Dr. Schwartz diagnosed Smith with: (1) polysubstance abuse; (2) major depressive disorder; (3) Hepatitis C; (4) anti-social personality disorder; and (5) a heart murmur. (Tr. 148, 150). Dr. Schwartz reported that the plaintiff was intelligent, hated his job, had problems with his primary support group, due to the deaths of his sister and brother, and had isolated problems relating to his social environment. (Tr. 150). Dr. Schwartz stated that Smith planned to return to work and that he had no physical or diet limitations. (Tr. 152).
The record does not reveal Dr. Schwartz's full first name.
On October 31, 2000, Dr. Joseph Ades, an attending physician at Phelps Memorial Hospital Center ("Phelps"), and Dr. R., a psychiatrist at Phelps, each examined the plaintiff and generated a medical report. (Tr. 182, 184-88). Dr. Ades reported that Smith was a well developed and well nourished male who was in no apparent distress. Dr. Ades stated that the plaintiff: (1) had Hepatitis B in the past; (2) tested positive for Hepatitis C; (3) had a history of asthmatic bronchitis; (4) did not smoke; (5) was admitted for alcohol abuse; (6) had a mild rash on his upper extremities; and (7) had mild left side chest pain without associated cardiac symptoms. Id. Dr. Ades reported an impression of illicit drug abuse, alcoholism, and vague left side chest pain that was probably muscular in nature. According to Dr. Ades, testing including biopsy and Interferon therapy could not occur until Smith had been sober for several months. Id. Dr. Ades found that Smith had mild pulmonary wheezing, but did not appear uncomfortable. Id. Dr. Ades advised that the medication Ventolin might be used by Smith on an as needed basis.
The administrative record does not reveal Dr. R.'s full name.
Dr. R. reported that the plaintiff had a history of depression and polysubstance abuse and that Smith abused heroin, cocaine, marijuana and alcohol. (Tr. 184). Dr. R. stated that Smith's medical history included: (a) irritable bowel syndrome; (b) heart murmur; (c) Hepatitis C; and (d) migraine headaches. (Tr. 186). Dr. R. also commented on the plaintiff's mental condition. He stated that the plaintiff: (1) had a casual and cooperative appearance; (2) was oriented; (3) had organized speech; (4) had average intelligence; (5) had intact recent and remote memory; (6) did not report having hallucinations or delusions; (7) was not imminently suicidal; (8) had poor impulse control; (9) had fair insight and judgment; (10) had low frustration tolerance; and (11) had poor coping skills. (Tr. 187-88). Dr. R. diagnosed the plaintiff with polysubstance dependence, depression, and irritable bowel syndrome, and recommended that Smith be hospitalized in a day program for safety and rehabilitation purposes. Id.
On December 12, 2000, Dr. Alex Gindes, a psychiatrist at Industrial Medicine Associates, evaluated Smith and generated a report. (Tr. 140-43). Dr. Gindes indicated that the plaintiff was taking three anti-depressant medications that had been prescribed by doctors at Phelps. (Tr. 140). According to Dr. Gindes, Smith advised him that he had: (1) normal sleep and appetite; (2) decreased satisfaction regarding sexual function; (3) dysphoric moods, guilt and self-esteem; (4) recurrent thoughts of death; (5) no suicidal intentions; and (6) significant manic symptoms. (Tr. 140-41). Dr. Gindes noted that the plaintiff's drug and alcohol history was extensive and recent, and that he was participating in Alcoholics Anonymous and Narcotics Anonymous programs. Nevertheless, according to Dr. Gindes report, Smith experienced difficultly remaining sober. Id. Dr. Gindes observed that Smith was cooperative, appropriately dressed, and well groomed, and had a normal gait, posture and motor skills.Id. Dr. Gindes found that the plaintiff had fluent speech, a clear voice, and "adequate" expressive and receptive language skills. Id. Dr. Gindes reported that Smith's thought processes were coherent and "goal directed" with no evidence of hallucinations, delusions, or paranoia. (Tr. 142). Dr. Gindes found that Smith's affect was of full range, appropriate to speech and thought content, and mildly depressed.Id. Dr. Gindes stated that the plaintiff's sensorium was clear. According to Dr. Gindes, the plaintiff's attention and concentration were intact and he was able to perform all calculations. Id. Dr. Gindes indicated that the plaintiff's recent and remote memory skills were intact and his intelligence/cognitive functioning was average to above average.Id. Dr. Gindes stated that Smith had good insight and judgment. In addition, Dr. Gindes reported that Smith was able to: (1) follow and understand simple directions and instructions; (2) perform simple rote tasks under supervision; (3) maintain attention and concentration for tasks; (4) make appropriate decisions; (5) perform simple tasks consistently; (6) learn new tasks; (7) perform complex tasks independently; and (8) relate adequately with others. (Tr. 142). Dr. Gindes expressed doubt regarding whether Smith would be able to deal with stress appropriately, so soon after his psychiatric and substance abuse hospitalization. Id. Dr. Gindes diagnosed Smith with alcohol dependence in recent remission, cocaine dependence in recent remission, Bipolar I disorder and Hepatitis C. Dr. Gindes recommended that Smith continue psychiatric treatment and drug and alcohol treatment. Id. Dr. Gindes stated that the plaintiff's prognosis was fair, given the severity of his substance abuse and the challenges posed by his Bipolar disorder.Id.
On April 11, 2001, Dr. Carl Anderson, a psychiatrist, examined the plaintiff and generated a medical report. (Tr. 154-70). Dr. Anderson found that Smith had Bipolar disorder. (Tr. 157). Dr. Anderson stated that Smith was mildly restricted in his daily activity, had mild difficulty maintaining social functioning, concentration, persistence and pace, and had one or two extended relapses of drug and alcohol abuse. (Tr. 164). According to Dr. Anderson, the plaintiff was not limited significantly in his ability to: (1) remember locations and "work-like" procedures; (2) follow instructions of varying complexity; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; (5) work in coordination with or in proximity to others without being distracted by them; (6) complete normal workdays and workweeks without interruptions from psychologically based symptoms; (7) interact appropriately with the general public; (8) accept instructions and respond appropriately to criticisms from supervisors; (9) get along with co-workers or peers without distracting them or exhibiting behavioral symptoms; (10) adhere to basic standards of grooming; (11) be aware of normal hazards and take appropriate precautions; and (12) travel to unfamiliar places or use public transportation. (Tr. 168-69). Dr. Anderson indicated that Smith was moderately limited in his abilities to respond appropriately to changes in the work setting and set realistic goals or make plans independently of others. (Tr. 169). Dr. Anderson stated that Smith had appropriate judgment to make simple, work-related decisions and respond appropriately to supervision, co-workers and work situations.Id. Dr. Anderson reported that the plaintiff could cope with changes in a routine work setting appropriately. Id.
On July 30, 2001, Dr. Patrick Murphy, a radiologist at St. Francis Hospital, generated a medical report based upon his previous examinations of Smith. (Tr. 177-81). Dr. Murphy reported that the plaintiff had a history of severe alcohol and drug abuse. (Tr. 178). Dr. Murphy stated that on June 14, 2000, the plaintiff insisted, repeatedly, that the doctor prescribe a pain relief medication for him. (Tr. 179).
On August 13, 2002, Dr. David Hansen, a psychologist, examined the plaintiff and opined that Smith's diagnosis of Bipolar disorder was not supported by medical evidence. (Tr. 199). Dr. Hansen stated that the plaintiff suffered from acute unresolved grief related to the tragic deaths of his brother and sister.Id. Dr. Hansen reported that Smith had an anxiety disorder and that the plaintiff's anxiety was most pronounced in new or stressful situations. Id. Dr. Hansen recommended that Smith remain on antidepressant medication, attend psychotherapy sessions weekly and remain in group therapy. Id.
As part of his request that the Appeals Council review the ALJ's decision, Smith submitted a letter dated December 3, 2002, authored by Dr. Hansen. In that letter, Dr. Hansen discussed Smith's mental health and Smith's mental condition while employed by the Postal Service. Dr. Hansen stated that: (a) Smith suffered from both anxiety and addictive disorders; and (b) even when Smith was not using drugs or alcohol, he was nevertheless "ruminative[,] anxious and insecure" during his service with the Postal Service. (Tr. 230).
Decision of the ALJ
The ALJ considered whether Smith was disabled within the meaning of the Social Security Act. The ALJ found that: (1) Smith met the insured status requirements of the Social Security Act at all times pertinent; (2) Smith did not engage in substantial gainful activity from May 15, 2000, to July 2002; (3) Smith had a severe mental impairment during the period of alleged disability, which did not meet or equal the level of severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Appendix 1"); (4) Smith's impairment prevented Smith from performing his relevant work or any other work existing in significant numbers in the national economy; (5) the plaintiff's alcoholism and drug addiction contributed to Smith's disability; and (6) the plaintiff was not eligible for benefits. (Tr. 18-19).
III. DISCUSSION
Judgement on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides, in pertinent part, that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." 42 U.S.C. § 405(g). The standard for granting a motion for judgment on the pleadings under Rule 12(c) is identical to that of a Rule 12(b)(6) motion for failure to state a claim. See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). In both instances, a court is required to accept as true all factual allegations in the complaint and to view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. See id; District Council No. 9 v. APC Painting, Inc., 272 F. Supp. 2d 229, 235 (S.D.N.Y. 2003). Dismissal of a complaint is not warranted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ad-Hoc Comm. Of the Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987) (quotingConley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02). Additionally, on a motion to dismiss, a court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Standard of Review
Under the Social Security Act, the findings of the Commissioner about any fact are conclusive, if they are supported by substantial evidence. See 42 U.S.C. § 405(g). When a district court reviews a decision by the Commissioner denying a claim for disability benefits, it must assess whether the Commissioner applied the appropriate legal standard and whether her decision is supported by substantial evidence. See Toribio v. Barnhart, No. 02 Civ. 4929, 2003 WL 21415329, at *2 (S.D.N.Y. June 18, 2003) (citing Balsamo v. Chater, 142 F.3d 75, 79 [2d Cir. 1998]). "Substantial evidence" within the meaning of the Social Security Act is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (Quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427) (internal quotation marks omitted). Thus, a reviewing court is limited to considering whether the Commissioner's determination is supported by substantial evidence in the record and is free from legal error.See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Determination of Disability
An individual is disabled within the meaning of the Social Security Act if he or she can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment suffered must be such that the individual:
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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A). However, if there is medical evidence of drug addiction or alcoholism, and the physical and mental limitations that would remain if the individual stopped using drugs or alcohol would not be disabling, then the individual is not disabled, within the meaning of the Social Security Act. See 20 C.F.R. § 404.1535.
Pursuant to 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner must apply a five-step sequential procedure for evaluating a disability claim. The Second Circuit has summarized that procedure as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if he is not, the Commissioner considers whether the claimant has a "severe impairment" which significantly limits his or her physical or mental ability to do basic work activities; (3) if the claimant suffers from a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment that is listed in Appendix 1 and, therefore, will be considered disabled without regard to vocational factors such as age, education, and work experience; (4) if the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; and (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. See Rosa, 168 F.3d at 77 (citing Berry v. Schweiker, 675 F.2d 464, 467 [2d Cir. 1982]).
The disability claimant has the burden of proving the first four steps. Thereafter, at the fifth step, the burden shifts to the Commissioner, who must prove that the claimant is capable of performing other work. See Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000); Toribio, 2003 WL 21415329, at *3. Treating Source Opinions
The Social Security Administration's regulations provide, in pertinent part:
Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medial professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultive examinations or brief hospitalizations. 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. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.20 C.F.R. § 404.1527(d)(2).
Failure of the Commissioner to give proper weight to the medical opinion of a treating source and failure to give good reasons for the weight accorded to such opinion may constitute good cause for remand. See Schaal v. Apfel, 134 F.3d 496, 503-05 (2d Cir. 1998).
Development of the Record
In determining whether there is substantial evidence to support the Commissioner's findings, a court must be satisfied that "the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 [2d Cir. 1982]). "[T]he ALJ, unlike a judge in a trial, must . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding."Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). In particular, the ALJ must develop the claimant's "complete medical history," which means:
the records of your medical source(s) covering at least the 12 months preceding the month in which you file your application. If you say that your disability began less than 12 months before you filed your application, we will develop your complete medical history beginning with the month you say your disability began unless we have reason to believe your disability began earlier.20 C.F.R. 404.1512(d).
Application of the Legal Standard
The ALJ's decision engages in the sequential analysis of the plaintiff's disability claim required by 20 C.F.R. §§ 404.1520 and 416.920. At all steps of the analysis, the ALJ applied the appropriate legal standards and made findings supported by substantial evidence. First, the ALJ found that the plaintiff had not engaged in substantial gainful activity from May 15, 2000, the date of the onset of the alleged disability, through November 2001, the end of the alleged period of disability. Second, the ALJ found that Smith had an impairment that was severe within the meaning of the Social Security Act. At the third step of the analysis, the ALJ considered the plaintiff's medical evidence and found that Smith did not have an impairment listed in Appendix 1. At the fourth step of the analysis, the ALJ considered all relevant evidence and concluded that the plaintiff was not capable of performing his past work as an asbestos remover or as a maintenance worker during the alleged period of disability. At the fifth step of the analysis, the ALJ considered all relevant evidence and concluded that, although the plaintiff experienced many limitations during the alleged period of disability, most of the limitations were due to alcohol abuse. The ALJ found that, but for Smith's alcohol abuse, the plaintiff would have retained the residual functional capacity needed to perform basic work activities. Therefore, pursuant to 20 C.F.R. § 404.1535, the ALJ determined that Smith was not disabled within the meaning of the Social Security Act. The ALJ's findings at all steps of the sequential analysis are supported by substantial evidence in the record, including Smith's hearing testimony and the medical reports contained in the record.
In making his determination, the ALJ provided good reasons for the weight that he attached to the August 13, 2002 report of Smith's treating physician, Dr. Hansen. The ALJ acknowledged the psychological impairments with which Dr. Hansen diagnosed Smith, but determined that "the record simply does not contain findings to support such debilitating limitations as to preclude the performance of basic-work activities if the claimant abstained from drugs and alcohol use." This determination is not inconsistent with Dr. Hansen's August 13, 2002 report because the report does not indicate that Smith is unable to engage in basic work activities.
Dr. Hansen's letter of December 3, 2002, was not available to the ALJ, but was considered by the Appeals Council. Although the December 3, 2002 letter discusses Smith's job history, it, like Dr. Hansen's earlier report, does not indicate that Smith is unable to perform basic work activities. Therefore, Dr. Hansen's December 3, 2002 letter provides no basis upon which to reverse the decision of the ALJ.
Smith contends that the ALJ did not fulfill his obligation to develop the a complete medical record because Smith testified that he had received psychiatric or psychological treatment at a Veterans Administration hospital and the ALJ did not seek medical records of that treatment. However, Smith also testified that this treatment began in March 2002, after the end of the alleged period of disability for which Smith seeks Social Security benefits. Accordingly, the ALJ was not obliged to obtain records of Smith's treatment at the Veterans Administration hospital in order to develop a complete medical history, as that term is defined by the Social Security Administration's regulations. Smith does not identify any other records that the ALJ failed to acquire. Accordingly, his contention that the ALJ did not develop the record fully is without merit.
The Court finds that the ALJ applied the appropriate legal standard in evaluating Smith's disability claim. Therefore, in light of the substantial medical evidence supporting the ALJ's determination, his determination should be upheld.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the Commissioner's motion for judgment on the pleadings be granted and that Smith's motion for remand be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).