Opinion
00 CIV. 4317 (DLC)
March 9, 2001.
Wendy Brill, 9 Murray Street, Suite 4 West, New York, N.Y. 10007, for Plaintiff.
Susan D. Baird Assistant United States Attorney, Office of the United States Attorney, 100 Church Street, New York, N.Y. 10007, for Defendant.
OPINION AND ORDER
On June 12, 2000, Carmen Tavarez ("Tavarez") filed this action pursuant to the Social Security Act seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") benefits. Plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P., or in the alternative, for remand to the Commissioner. The Government has cross-moved for an order reversing the Commissioner's final decision and remanding the case pursuant to the fourth sentence of 42 U.S.C. § 405(g). For the reasons set forth below, the Government's motion is granted.
Tavarez applied for SSI benefits on March 12, 1997. The application was denied initially, and by an Administrative Law Judge ("ALJ") after a hearing held on June 29, 1998. Tavarez requested an Appeals Council review on September 21, 1998. The Council denied her request for review on April 21, 2000, and this action followed.
DISCUSSION
A. Standard of Review
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation omitted). Thus, the reviewing court is not to decide the casede novo. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). This Court may set aside a determination of the ALJ only if it is based upon legal error or is not supported by substantial evidence. Rosa, 168 F.3d at 77;Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997).
To be considered disabled under the Act, a claimant must demonstrate:
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). Further, the claimant's impairment must be "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). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Social Security Administration uses a five-step process when making determinations of disability. See 20 C.F.R. § 404.1520 and 416.920. The Second Circuit has summarized this procedure 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 . . . . 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.Rosa, 168 F.3d at 77 (citation omitted). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
B. Commissioner's Findings
In his decision, the Commissioner found that (1) Tavarez had not engaged in substantial gainful activity since March 12, 1997, when she filed her SSI application; (2) she has severe impairments; (3) she does not have an impairment or combination of impairments listed in or equivalent to those listed in Appendix 1 of the relevant regulation; (4) she is unable to perform her past relevant work as a machine operator; (5) she has the residual functional capacity to perform sedentary work; and (6) based on Tavarez's residual functional capacity to perform sedentary work, age, education, and work experience, she is not disabled.
C. Objections to the Commissioner's Decision
Tavarez objects to the Commissioner's finding that she is not disabled. Tavarez argues that: (1) the Commissioner erred by failing to stop at step three in the five-step sequential analysis of disability; (2) the Commissioner erred by ignoring her testimony concerning her pain and other symptoms in reaching his conclusions; (3) the Commissioner erred by failing to consider the combination of all of her impairments in reaching his conclusions, and (4) the Commissioner erred by concluding that she was able to perform sedentary work.
Step Three — Listing of Impairments
Tavarez first claims that the Commissioner failed to stop at step three in the five-step sequential analysis of disability. At issue is whether the ALJ's step three determination was supported by substantial evidence. If Tavarez can prove in step three that she meets or equals the criteria set forth in Appendix 1 under the Listing of Impairments, she would automatically be entitled to disability benefits under the Social Security Act. 20 C.F.R. § 404.1520(d), 404.920(d); DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998).
Specifically, Tavarez argues that the ALJ erred by concluding that she did not meet the criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04 ("Section 12.04"). Tavarez claims that the medical information provided by her treating psychiatrist, Dr. Alba, established that Tavarez meets the depressive syndrome criteria under both Section 12.04 A and Section 12.04 B. The ALJ found that Tavarez suffers from major depressive disorder and met four of the conditions of Section 12.04 A: appetite disturbance, sleep disturbance, decreased energy, and difficulty concentrating. The ALJ found, however, that Tavarez failed to meet the requirements of Section 12.04 B.
Listing 12.04, for affective disorders, provides:
Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. . . . The required level of severity for these disorders is met when the requirements in both A and B are satisfied. . . .
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 . . . ; or
3. Bipolar syndrome . . . ; and B. Resulting 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. Part 404, Subpart P, Appendix 1, § 12.04 (emphasis supplied).
Tavarez argues that Dr. Alba provided medical information establishing the criteria for Section 12.04 B. Dr. Alba reported that Tavarez has marked restriction of activities of daily living (Section 12.04 B(1)) and marked deficiencies of concentration, persistence, and pace resulting in frequent failure to complete tasks in a timely manner (Section 12.04 B(3)). Thus, Tavarez contends that disability is established and that the ALJ improperly disregarded Dr. Alba's opinion that Tavarez met the criteria of Section 12.04.
Tavarez correctly notes that application of Regulation 404.1520(d) is not discretionary. The regulation provides that a claimant will be found disabled if the claimant has the required elements of the Listing of Impairments. 20 C.F.R. § 404.1520(d), 416.920(d); DeChirico, 134 F.3d at 1180. The Commissioner, however, has final responsibility for deciding whether a claimant's impairment meets the requirements of any listed impairment. 20 C.F.R. § 416.927(e)(2). In determining whether an impairment meets the criteria in Section 12.04, adequate descriptions of functional limitations must be obtained from the claimant's psychiatrist or psychologist. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(D). Although Dr. Alba circled answers on a questionnaire in a manner that suggested that Tavarez met the criteria of Section 12.04, she did not provide any medical data supporting her questionnaire responses. Thus, as the Commissioner contends, Dr. Alba's report is too conclusory to establish disability.
In a questionnaire dated June 30, 1998, Dr. Alba circled "yes" in response to a question asking if Tavarez has a "marked" limitation of daily activities. Pursuant to the Commissioner's regulations, a "marked" limitation "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. Part 404, Subpart P, Appendix 1, § 12.00(C). Dr. Alba did not provide any examples of how Tavarez performed these daily activities; nor did she assess Tavarez's independence, appropriateness, and effectiveness in carrying out these functions or comment on Tavarez's ability to initiate or participate in these activities independent of supervision or direction. Dr. Alba's progress notes of Tavarez's five visits with her do not provide this information either. The Government contends that, because "marked" is not defined in Dr. Alba's questionnaire, it is not clear that Dr. Alba intended to rate Tavarez as having "marked" limitations as that term is defined in the regulations. To the extent the Government argues that Dr. Alba's report was unclear, however, it was incumbent upon the ALJ to request further information.See Rosa, 168 F.3d at 80.
Pursuant to Section 12.00(C)(1): Activities of daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office. In the context of your overall situation, we assess the quality of these activities by their independence, appropriateness, effectiveness, and sustainability. We will determine the extent to which you are capable of initiating and participating in activities independent of supervision or direction.
Dr. Alba also circled "yes" that Tavarez had deficiency of concentration, persistence, and pace resulting in frequent failure to complete tasks in a timely manner. According to 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(C)(3), concentration, persistence, and pace refer to "the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." An impairment in this area can often be assessed through direct clinical examination or psychological testing. Id. Dr. Alba did not provide any psychiatric or psychological test results; nor did she report any observations of Tavarez's ability to function in a work-like setting.
The Government argues that Dr. Alba's opinion was too conclusory. To the extent the ALJ found Dr. Alba's opinion too conclusory, however, he had a duty to request additional medical records. See Rosa, 168 F.3d at 80 ("[The doctor]'s assessment was only one page in length and . . . wholly conclusory. Having nevertheless failed to request any additional records or support from [the doctor], the ALJ was left to base her conclusions on incomplete information that was necessarily `conclusive of very little.'"). The ALJ should have taken steps directing Tavarez to ask Dr. Alba to supplement her findings with additional information. It is possible that Dr. Alba, if asked, could have provided a sufficient explanation for any seeming lack of support for her ultimate diagnosis of disability. See Rosa, 168 F.3d at 80.
Further, the ALJ did not adequately explain why he disregarded Dr. Alba's testimony. The ALJ acknowledged that Dr. Alba had opined that Tavarez met the requirements of 12.04 B. The ALJ wrote, however, that "[t]he claimant's impairment has resulted in a moderate restriction of activities of daily living, in slight difficulties in maintaining social function and in often occurring deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner." (emphasis supplied). These findings contradict Dr. Alba's assessment, which specifically reported that Tavarez has a "moderately severe" impairment in "estimated degree of daily activities." The ALJ did not adequately explain the weight he gave to Dr. Alba's opinion. See 20 C.F.R. § 404.1527(d)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). The failure of the ALJ to explain adequately why he disregarded Dr. Alba's opinion requires a remand. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.") (citation omitted).
Tavarez points out that the difference between the ALJ's finding of "moderate" and Dr. Alba's assessment of "moderately severe" is significant. The questionnaire completed by Dr. Alba defines "moderate" as an impairment which "affects but does not preclude ability to function," and "moderately severe" as "an impairment which seriously affects ability to function."
The ALJ stated:
[T]hese conclusions are not supported by objective clinical findings and are inconsistent with the other medical evidence of record, including the conclusion in September 1997, when the claimant underwent an evaluation prior to undergoing treatment, that the claimant had a GAF score of 75-80, indicative of no more than slight impairment social or occupational functioning. It must be noted that if prior to undergoing treatment and experiencing an improvement in her condition, the claimant only had a slight impairment in social or occupational functioning, the claimant would not have a more significant impairment in social or occupational functioning after undergoing treatment which had improved her condition.
Subjective Complaints
Tavarez also argues that the ALJ ignored her testimony concerning her pain and other symptoms in reaching his conclusions. In assessing a disability claim, the ALJ is required to consider the claimant's subjective complaints of pain and other symptoms. 20 C.F.R. § 404.129(a). ("In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence."). The Commissioner concedes that the ALJ did not consider Tavarez's subjective allegations of pain and limitations correctly.
Although the ALJ found that Tavarez's testimony of pain and functional limitation was not supported by the objective clinical findings, symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence. 20 C.F.R. § 416.929(c)(3). Thus, evaluation of symptoms must extend beyond the objective clinical findings. The regulations also require the ALJ to consider other factors such as (1) daily activities; (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has received for relief of her pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of her pain or other symptoms; (6) any measures the claimant uses or has used to relieve her pain or other symptoms; and (7) other factors concerning the claimant's functional limitations due to pain or other symptoms. 20 C.F.R. § 416.929(c).
The record shows that Tavarez took Buspar and Zoloft. Tavarez also testified that she had difficulty sleeping and that she had trouble performing daily chores. The ALJ did not consider these factors in evaluating Tavarez's testimony. Thus, the case must be remanded so that the Commissioner can consider Tavarez's testimony. If Tavarez's symptoms suggest a greater restriction or limitation than can be demonstrated by objective evidence alone, the ALJ shall consider, among other facts, Tavarez's daily activities; the nature, location, onset, and duration of her pain and other symptoms; the type of medication taken by Tavarez; and other types of treatment for relief of pain or other symptoms. 20 C.F.R. § 416.929(c)(3).
Combination of Impairments
Tavarez contends that the ALJ did not consider the combination of her impairments in making his disability determination. This argument is without merit. Tavarez has a severe mental impairment, upper and lower back problems, knee and shoulder problems, hypertension, and mild cardiomegaly. Even if each of these impairments were not disabling alone, the ALJ should consider the combination of all of Tavarez's problems together. See Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995) ("[A]s this court has long recognized, the combined effect of a claimant's impairments must be considered in determining disability; the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe."); DeLeon v. Secretary of Health and Human Services, 734 F.2d 930, 937 (2d Cir. 1984) ("It is the clear rule in this circuit that `all complaints . . . must be considered together in determining . . . work capacity.'") (citation omitted). Based on the ALJ's opinion, it is clear that the ALJ considered the combination of Tavarez's impairments in making a determination of disability.
Step Five — Sedentary Work
Next, Tavarez argues that the Commissioner erred by concluding that she was able to perform sedentary work. Because the ALJ did not consider Tavarez disabled at step three of the five-step sequential evaluation, he considered the impact of Tavarez's impairments on her physical and mental abilities and found that Tavarez could perform low stress sedentary work. As discussed above and as conceded by the Commissioner, the ALJ did not adequately consider Tavarez's subjective complaints regarding her ability to perform sedentary work. Thus, a remand for further evidentiary proceedings is appropriate. See 20 C.F.R. § 416.929(c); Barnes v. Chater, No. 96 Civ. 0674 (SAS), 1997 WL 118387 (S.D.N.Y. March 17, 1997) ("In proving the fifth step, the Commissioner must: `consider objective medical facts, diagnoses and medical opinions based on such facts, and subjective evidence of pain or disability testified to by the claimant or others.'") (quoting Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir. 1984)).
Tavarez further argues that the record supports the conclusion that she is unable to perform low stress sedentary work. Tavarez claims that the Commissioner did not introduce any evidence that supports his conclusion at step five. To support his finding that Tavarez could perform sedentary work, however, the ALJ reviewed Tavarez's numerous medical problems. Specifically, the ALJ found that there was no documentation in the record of a severe impairment or combination of impairments involving Tavarez's upper or lower extremities; that Tavarez did not display any motor or sensory deficits; that Tavarez was capable of achieving a functional range of motion of both the cervical spine and trunk; and that Tavarez was only precluded from lifting or carrying heavy objects.
Tavarez's treating physician, Dr. Rivas, stated in a June 27, 1998 report that "claimant's muscoskeletal impairments preclude her from engaging in a full range of sedentary work activity." The ALJ addressed the medical finding of Dr. Rivas by stating that "this estimation is not supported by objective clinical findings and is inconsistent with the other medical evidence of record."
"A treating physician's statement that the claimant is disabled cannot itself be determinative." Snell, 177 F.3d at 133. According to 20 C.F.R. § 416.927(d)(2), controlling weight should be given to a report of a treating physician only insofar as that opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." When an opinion is not given controlling weight, the ALJ considers (1) the length of the treatment relationship and frequency of examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the opinion's consistency with the record as a whole, (5) physician specialty, and (6) other relevant factors. 20 C.F.R. § 416.927(d).
A consultive examiner, Dr. Karam, evaluated Tavarez on April 1, 1997, and found that Tavarez was limited from lifting and carrying heavy objects, and from standing for a long time and walking long distances. These limitations do not conflict with the requirements of sedentary work, which requires lifting up to ten pounds occasionally and small items frequently and is performed primarily while seated. 20 C.F.R. § 416.967(a).
The record also contains medical opinions of state agency medical experts who stated that Tavarez was capable of light and medium exertion. These opinions conflict with the medical opinion of Dr. Rivas, who stated that Tavarez was unable to perform any physical activity. The opinions of state agency medical consultants may be properly considered in assessing disability. 20 C.F.R. § 416.927(f)(2)(i); see Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993) (regulations permit the opinions of nontreating sources to override treating sources if they are supported by evidence in the record). One state medical expert concluded — based upon the absence of spasm, atrophy, or sensory impairment, the existence of normal muscle power, and the negative MRI result — that Tavarez would be able to perform light work. The opinions of Dr. Rivas, Dr. Karam, and the state agency medical experts are therefore conflicting.
While the ALJ acknowledged that Tavarez suffered from major depressive disorder, he found that "there is no documentation in the record of an impairment which would preclude the claimant from engaging in low stress work activity." The ALJ also noted that Tavarez's treating psychiatrist, Dr. Alba, had given Tavarez a global assessment of functioning ("GAF") score of 75-80, which demonstrates only a slight impairment in social or occupational functioning. The ALJ concluded that Tavarez "retains the functional capacity to perform low stress sedentary work activity."
The Government and Tavarez disagree on what Dr. Alba's progress notes show. The Government contends that, because Dr. Alba reported on November 13, 1997 and January 24, 1998 that Tavarez improved and was less depressed, the ALJ reasonably concluded that Tavarez would be able to work in a low stress environment. Tavarez points out, however, that on January 10, 1998, Dr. Alba reported that Tavarez was again depressed, and, on February 24, 1998, Dr. Alba reported that Tavarez was "very anxious." Moreover, in the questionnaire, Dr. Alba indicated that Tavarez's symptoms were "marked". Although Dr. Alba's questionnaire does not define "marked", the regulations provide that a "marked" limitation "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. Part 404, Subpart P, Appendix 1, § 12.00(C). Based on this record, the medical evidence is unclear and appears to be conflicting. Further findings are therefore necessary, and remand for further factual findings is appropriate. Rosa, 168 F.3d at 83; see also Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998) (where plaintiff's doctor was not asked to explain why he believed plaintiff's condition had deteriorated over time, there was a serious question as to whether the record was adequately developed).
Because there is conflicting medical opinion evidence in the record, remand for further administrative proceedings is appropriate. "[W]here application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration."Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). If, however, there is conflicting evidence in the record, it is for the Social Security Administration, and not this Court to weigh such evidence. See Clark, 143 F.3d at 118.
On the record before this Court, it cannot be said that there is "only one conclusion" to be reached about Tavarez's application. As conceded by the Commissioner, the failure to address Tavarez's subjective descriptions of pain expressly amounts to legal error. The ALJ's failure to explain adequately his decision not to credit Dr. Alma's reports also amounts to legal error. The record also contains conflicting evidence regarding Tavarez's physical and mental impairments. Thus, a remand for further evidentiary proceedings is the appropriate disposition in this case. See Snell, 177 F.3d at 133. A remand will allow the ALJ to evaluate Tavarez's testimony along with all of the other relevant materials and, if necessary, to update the medical evidence to evaluate this application for benefits fairly and completely. See Rosa, 168 F.3d at 79 (the opinion of a treating physician cannot be rejected based on deficiencies in the administrative record without first attempting to fill those gaps);Clark, 143 F.3d at 118.
CONCLUSION
For the reasons explained above, the Commissioner's motion for an order reversing his final decision is granted. The case is remanded to the Commissioner pursuant to sentence four of Section 405(g) for further administrative proceedings consistent with this Opinion. The Clerk of Court shall enter judgment for the plaintiff and close the case.
SO ORDERED: