Opinion
01 Civ. 4330 (GEL)
May 29, 2003
Daniel Berger, for Plaintiff Germania Bussi.
John E. Gura, Jr., Assistant United States Attorney, Southern District of New York (James B. Comey, United States Attorney, on the brief), for Defendant Jo Anne B. Barnhart.
OPINION AND ORDER
Germania Bussi brings this action pursuant to 42 U.S.C. § 405 (g), challenging the final decision of the Commissioner of Social Security ("the Commissioner"), denying her application for Supplemental Security Income ("SSI") benefits under the Social Security Act ("Act"). Plaintiff and Defendant both move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiffs motion will be denied, and defendant's granted.
BACKGROUND
I. Procedural History
Plaintiff applied for SSI benefits on March 11, 1999, alleging that she was unable to work due to hypertension, low back pain, and poor vision. Her application was denied upon initial review, and again on reconsideration. (Tr. 46-64.) Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), and on November 17, 1999, plaintiff appeared with a representative before ALJ Dennis G. Katz. and testified through an interpreter. (Tr. 23-31, 65.) On March 2, 2000, the ALJ ruled that plaintiff had not been disabled at any time through that date. (Tr. 9-18.) The Appeals Council denied plaintiffs request for review on March 16, 2001, making the ALJ's decision the final decision of the Commissioner. (Tr. 4-6.) This action followed.
SSI benefits are not payable for any month prior to the month in which an application is filed. 20 C.F.R. § 416.330. Thus, plaintiff must establish that she was disabled between March 11, 1999, and March 2, 2000, the date of the Commissioner's final decision.
"Tr." refers to pages of the administrative record filed by the Commissioner as part of her answer. See 42 U.S.C. § 405 (g).
Thus, the date of the Commissioner's final decision is March 2, 2000, the date on which the ALJ ruled on plaintiffs application. See Brown v. Barnhart, No. 02 Civ. 4523 (SHS), 2003 WL 1888727, at *11 (S.D.N.Y. Apr. 15, 2003).
II. Plaintiffs Personal History and Testimony
Plaintiff was born in the Dominican Republic on August 1, 1948. and emigrated to the United States in 1990. (Tr. 25; 32-33.) She completed the fourth grade, and while in the Dominican Republic, worked selling clothing in a store that she owned. (Tr. 24.) Since coming to the United States, she has not worked, allegedly because she suffered a stroke shortly after arriving here. (Tr. 25, 27, 33.)
At the hearing before the ALJ, Bussi testified that she has difficulty breathing, and cannot stand up or walk for extended periods of time. (Tr. 26.) She stated that she had to lie down up to five times a day because of fatigue, and use an "oxygen machine" to help with her shortness of breath. (Tr. 27.) She also had pain in her chest and left arm, which prevented her from doing any housework. (Tr. 29.) She had trouble sleeping at night, but testified that her pain medications made her fall asleep during the day. (Tr. 29.) Finally, she stated that she did not go out alone, and could not take public transportation. (Tr. 29.)
III. Medical Evidence
In support of her application, plaintiff submitted medical evidence consisting of treatment records, dating from August 1994 to March 1999, from the Bronx-Lebanon Hospital Center. Following her application, plaintiff was examined by several state consultative physicians, whose reports were considered by the ALJ. As part of this motion, plaintiff has submitted additional medical evidence for the Court's consideration, consisting of the treatment notes taken during her visits to the Bronx-Lebanon Hospital clinic.
A. Treatment Records
Plaintiff was first treated at Bronx-Lebanon Hospital between August 27 and September 10, 1994, when she was admitted for an acute onset of weakness in her left side. (Tr. 187, 189.) The records indicate muscular weakness on her left side, and a history of hypertension, but other diagnostic tests were negative. (Tr. 187, 215.) After physical therapy, plaintiff improved markedly, and by the time she was discharged from the hospital, the attending physician observed that her muscle strength and motility had "improved [to] almost near normal." (Tr. 187-88.)
Plaintiff was next treated two years later, in February 1996, when she was again admitted to Bronx-Lebanon for left-sided chest pain, nausea, and right shoulder pain. (Tr. 99-101.) The Hospital determined that she had not suffered a heart attack, and diagnosed unstable angina. (Tr. 99.) She was discharged after three days, and instructed to follow up with her primary care doctor. (Tr. 100.) In April 1996, plaintiff returned to the emergency room, complaining of vomiting, diarrhea, and abdominal pain. (Tr. 393.) A physical examination revealed no remarkable findings, and plaintiff was diagnosed with gastroenteritis and discharged in stable condition. (Tr. 387, 392.)
In February 1997, plaintiff began physical therapy at the Bronx-Lebanon clinic for degenerative joint disease in her right shoulder. (Tr. 384.) After a month of therapy, plaintiff reported that her pain was 90% better, and the therapist concluded that the sessions could be discontinued if plaintiffs improvement continued. (Tr. 376.) Plaintiff was discharged from therapy after she failed to attend several sessions. (Tr. 371, 383). She resumed physical therapy in September 1997 for right shoulder pain, but again was discharged after she failed to attend several sessions. (Tr. 365-66.)
In June 1998, plaintiff sought treatment at Bronx-Lebanon Hospital for back pain and unnary retention. (Tr. 354.) She was diagnosed with kidney stones and instructed to follow up with her primary doctor. (Tr. 355, 364.)
Since 1994, plaintiff was also a patient at the Bronx-Lebanon Hospital's clinic, where she was under the care of Dr. Iris Herrera, her treating physician. (Tr. 155.) She submitted two notes from Dr. Herrera as part of her claim, both of which indicated that the clinic was treating her for hypertension, obesity, and a history of cerebral vascular accident. (Tr. 112; 155.) Dr. Herrera also stated that Bussi had a sleep apnea that caused her to fall asleep during clinic visits, but that this condition had improved with use of a CPAP machine. (Tr. 156.) Although she was on several medications, none of them caused side effects that should limit her activities, and Dr. Herrera thought that none of Bussi's conditions could be expected to produce the pain of which Bussi complained. (Tr. 156.) She also wrote that Bussi's impairments had not lasted for over a year, and could not be expected to last for a year, and that Bussi did not have any problems using her extremities in a normal range of motion. (Tr. 157.) She stated that she was unable to assess Bussi's ability to sit and stand for extended periods of time, but did indicate that Bussi had problems bending, squatting, and kneeling, because she was obese. (Tr. 157.)
This may refer to the 1990 stroke to which plaintiff testified at the hearing, but for which she produced no treatment records.
B. SSA Consultative Examinations and Consultative Review
After filing her application for benefits, plaintiff was examined by two consultative physicians, and her claim was reviewed by two others. On March 6, 1999, Dr. Kenneth Herwig performed a cardiac treadmill test on plaintiff. (Tr. 113.) Although the test was curtailed after a minute due to extreme fatigue, the test revealed no abnormal conditions, and Dr. Herwig's assessment was that she simply had decreased exercise capacity. (Tr. 113.)
Plaintiff was next seen by Dr. Lavonna Branker, an internal medicine specialist, who diagnosed her with hypertension, chest pain, lower back pain, and slightly decreased visual acuity. (Tr. 130-33.) Dr. Branker noted that plaintiff reported a six-year history of hypertension and a ten-year history of chest pain, and claimed to have had cardiac surgery. (Tr. 130.) There is no evidence of such surgery, however, and Dr. Branker believed that plaintiffs account was unreliable, as she was manifestly uncooperative with the examination. (Tr. 130.) Although plaintiff stated that she was unable to raise her arms, Dr. Branker observed plaintiff removing her clothing by raising her arms above her head. (Tr. 132.) Dr. Branker concluded that plaintiff was able to sit, stand, lift, and carry objects, but stated that her chest pain required further evaluation. (Tr. 133.)
Finally, in April 1999, plaintiffs record was reviewed by Dr. Shukla and Dr. W.H. Wells. (Tr. 52-60.) Both doctors' primary diagnosis was hypertension that was controlled by medication. (Tr. 52-53.) They stated that plaintiffs vision was unimpaired, and that she had full manipulative use of her hands and arms. (Tr. 56.) While they noted that plaintiff's ability to push and pull with her upper extremities was limited, they concluded that should sit and stand for about six hours each, and that she could "do a full range of medium work." (Tr. 54.)
C. Additional Evidence Presented to the Court
As part of her motion for judgment on the pleadings, plaintiff has submitted additional medical evidence that was not considered by the ALJ, or included in plaintiff's appeal of the ALJ's decision. While the ALJ issued a subpoena for all of Bronx-Lebanon's records relating to plaintiff, the hospital sent only hospitalization, emergency room, and physical therapy notes, omitting physician progress notes taken by Dr. Herrera and other doctors at the clinic between 1996 and 2000. (Pl. Mem. at 4.) The notes detail Bussi's clinic visits and her continuing treatment for hypertension, degenerative joint disease, and shortness of breath. (Pl. Ex. at 42-155.)
DISCUSSION
To determine whether the Commissioner made an appropriate finding that plaintiff was not disabled, the Court considers first, whether, on the record of the administrative proceedings, the Commissioner's determination that Bussi was not disabled under the Act was procedurally and substantively valid, and second, whether the additional evidence presented by Bussi warrants remand for further consideration by the Commissioner.
I. The Applicable Law A. Determining Disability
In order for a claimant to be deemed "disabled" under the Act, she must demonstrate her "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). Moreover, the impairment must be:
of such severity that [she] is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for h[er], or whether [she] would be hired if [she] applied for work.Id. § 423(d)(2)(A).
As promulgated in 20 C.F.R. § 416.920, the Commissioner is required to apply a five-step procedure in evaluating disability claims. This procedure was recently articulated by the Second Circuit as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If [she] is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits h[er] 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 h[er] 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, [she] has the residual functional capacity to perform h[er] past work. Finally, if the claimant is unable to perform h[er] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)); see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).
Although reference to Appendix 1 appears in 20 C.F.R. § 416.920, Part 416 does not actually contain an Appendix 1. However, 20 C.F.R. Part 404, Subpart P, Appendix 1 is incorporated by reference into Part 416 in 20 C.F.R. § 416.925.
The disability claimant bears the burden of proving the first four steps laid out above. Once claimant's burden has been satisfied, the burden shifts to the Commissioner to establish the fifth step, that work exists in the national economy that the claimant can perform. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies her 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.").
B. Standard of Review
Under the Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405 (g). The statutory standard of substantial evidence in the Social Security benefits context has been defined 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) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJs decision. Thus, a district court may remand, modify, or reverse an ALJ's decision if the ALJ has misapplied the appropriate legal standard, or if his finding is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) ("We set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence." For example, the Commissioner has adopted regulations that give great, and under some circumstances controlling, weight to the opinion of a claimant's treating physician, and set forth a particular methodology that must be followed in deciding whether to accept or reject such an opinion, 20 C.F.R. § 416.927 (d)(2). Such regulations will be enforced by courts. See Rosa, 168 F.3d at 78-79; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Further, an ALJ may not rely, as factfinders in adversarial proceedings customarily do, on the absence of probative evidence supporting the opinions of a claimant's expert, without making an affirmative effort to fill any gaps in the record before him. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.").
In light of rules such as these see Santiago v. Massanari, No. 00 Civ. 3847 (GEL), 2001 WL 1946240, at *7-*9 (S.D.N.Y. July 16, 2001) (discussing additional procedural rules), a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or an expert opinion that supports the administrative determination. Rather, the record must be carefully evaluated to determine whether all the relevant regulations were fully complied with.
II. Application to this Case
Plaintiff challenges the Commissioner's decision on four grounds. First, she argues that the ALJ's decision is not supported by substantial evidence. Second, she contends that the ALJ wrongfully failed to give controlling weight to her treating physician's opinion that she could not kneel or bend. Third, she argues that the ALJ failed to fulfill his duty to develop the record, by rendering his decision in the absence of the Bronx-Lebanon clinic's treatment notes. Finally, she argues that her application should be remanded to the Commissioner for consideration of the new evidence contained in the treatment notes.
A. The Commissioner's Decision on Plaintiffs Claim
Applying the five step procedure as set forth in 20 C.F.R. § 416.920, the ALJ first determined that plaintiff was currently unemployed. The ALJ next found that although plaintiffs hypertension, obesity, unstable angina, and lower back and shoulder pain constituted severe impairments, her condition did not constitute a per se disability under 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13.) The ALJ denied plaintiffs claim at step four, finding that, despite plaintiffs physical ailments, she could still perform her past work in clothing retail. (Tr. 16.) This conclusion was supported by substantial evidence.
Plaintiff does not challenge the ALJ's "third step" conclusion that her symptoms did not meet or exceed the level of severity associated with a listed impairment. (Tr. 13.)
At the hearing before the ALJ, plaintiff relied on a variety of physical problems: her hypertension, chest pains, shoulder and leg pain (presumably connected to her degenerative joint disease), sleep apnea, and her shortness of breath. (Tr. 22-28.) The ALJ declined to give her testimony controlling weight, however, because it was contradicted by the objective medical evidence, and because Dr. Herrera, her treating physician, did not view plaintiffs ailments as debilitating. (Tr. 14-15.)
The record shows that plaintiff frequently visited with physicians, and went to the emergency room, for the ailments to which she testified. However, none of these visits revealed a serious condition that could not be either controlled or treated with medication. In particular, physicians that examined plaintiff generally found that her blood pressure was well controlled. (Tr. 200, 208.) Plaintiffs shoulder and back pain improved significantly with physical therapy, until she stopped attending the sessions. (Tr. 365-85.) Most significantly, Dr. Herrera indicated that plaintiff's conditions should not be producing the pain of which Bussi complained, that her sleep apnea and shortness of breath had improved significantly with treatment, that none of her medications would cause unpleasant side effects, and that none of her conditions had lasted more than 12 months, or could be expected to last for more than 12 months. (Tr. 156.)
The consulting physicians concurred with Dr. Herrera's analysis and the picture presented by the treatment records. Dr. Branker observed Bussi move and undress without difficulty (despite Bussi's assertion that she was unable to lift her arms), and did not view her hypertension as severe enough to keep her from working. (Tr. 132.) Dr. Wells considered her hypertension controlled by medications, and did not think that she had any major occupational impairments. (Tr. 54-58.) Thus, all of the medical evidence before the ALJ suggested that none of plaintiff's conditions were untreatable or debilitating.
The ALJ was therefore justified in discounting plaintiffs testimony as to the extent of her symptoms. He found that her account of not being able to walk, stand, or lift her arms was contradicted not only by the doctors' opinions, but by actions that her doctors had observed, such as lifting her arms and taking the subway by herself. (Tr. 15, 132.) He also credited Dr. Herrera's conclusion that the severity of plaintiffs conditions did not account for the extent of her reported symptoms. (Tr. 15.) On this basis, he concluded that plaintiff would be able to perform medium exertion level work, involving sitting and standing for eight hours and lifting up to 50 pounds. (Tr. 15.) Since her past relevant work in clothing retail constituted light exertion, involving little lifting, the ALJ concluded that she would be capable of working as a clothing salesperson. (Tr. 16.) Because this conclusion was in accordance with the objective medical evidence, and because the ALJ was justified in not giving plaintiff's testimony controlling weight, his decision is supported by substantial evidence.
Plaintiff also appears to argue, in a footnote, that the ALJ's conclusion that Bussi's past employment constituted "substantial gainful activity" was supported by "no evidence" in the record. (Pl. Mem. at 8 n. 1.) In order for the ALJ to conclude that Bussi was not disabled because she could perform her past relevant work, he had to find that her past employment constituted "substantial gainful activity." 20 C.F.R. § 416.965 (a). Substantial gainful activity is defined as work involving "significant and productive physical or mental duties; and [i]s done for pay or profit." Id. § 416.910. Plaintiff testified at the hearing before the ALJ that she worked in the Dominican Republic purchasing and selling clothing. (Tr. 24.) Buying and selling clothes necessarily involves significant and productive mental activity, and Bussi does not allege that she did not conduct her business for profit. Thus, the ALJ's finding that Bussi's past relevant work constituted substantial gainful activity was supported by substantial evidence.
Finally, plaintiff argues that her inability to communicate in English renders her incapable of performing her past relevant work in this country, contrary to the ALJ's finding at step four of the inquiry. (Pl. Mem. at 8 n. 1) A claimant's inability to speak English is irrelevant to the determination of whether she can perform her past relevant work, however, because the Regulations direct that as long as the claimant's ailments themselves do not prevent her from meeting the mental and physical demands of the job, the claimant must be found not disabled. 20 C.F.R. § 416.920 (e). In Social Security Ruling 82-40, the Commissioner interpreted this regulation to require that work experience in a foreign country be considered equivalent to experience in the United States for the purpose of determining whether a claimant can perform her past relevant work. See Frank v. Chater, 924 F. Supp. 416, 431 (E.D.N.Y. 1996) (noting that several circuits have upheld the Commissioner's interpretation as reasonable); Han v. Bowen, 671 F. Supp. 702, 705 (D. Or. 1987) (discussing Social Security Ruling 82-40). Thus, a claimant who is found to be capable of performing her past relevant work in another country is not disabled, regardless of her inability to speak English and the impact that inability might have on her employment prospects in this country. Martinez v. Bowen, 685 F. Supp. 70, 71 (S.D.N.Y. 1988) (holding that remand for consideration of impact of plaintiffs inability to speak English on his ability to perform past relevant work was inappropriate, and citing Social Security Ruling 82-40). Put another way, the SSI program is designed to insure against disability due to "medically determinable physical or mental impairment," 42 U.S.C. § 423 (d)(1)(A), not by lack of proficiency in English. Therefore, Bussi's inability to speak English does not require that she be found unable to perform her past relevant work.
B. The Treating Physician's Opinion
Plaintiff argues that the ALJ failed to give controlling weight to Dr. Herrera's opinion that she would have difficulty bending and kneeling because of her obesity, in violation of the "treating physician rule." (Pl. Mem. at 6-8.) The ALJ is required to give the treating physician's opinion controlling weight if it is based on medically accepted techniques and is uncontradicted by other medical evidence. 20 C.F.R. § 404.1527 (d)(2); 416.927(d)(2) (2001); see also Schaal, 134 F.3d at 503. When the ALJ decides not to give controlling weight to the treating physician's opinion, the regulations provide that "various factors" must be considered in assessing the weight to be given it, see 20 C.F.R. § 404.1527 (d)(2)-(6), and that the Commissioner "will always give good reasons in our notice of determination or decision for the weight we give [claimant's] treating source opinion." 20 C.F.R. § 404.1527 (d)(2),Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir. 1999). The ALJ must defer questions requiring medical expertise to "physicians instead of substituting his own medical conclusions for those already present in the record, for a "circumstantial critique by [a] non-physician, however thorough or responsible, must be overwhelmingly compelling" to justify a denial of benefits. Wagner v. Sec'y of Health Human Servs., 906 F.2d 856, 862 (2d Cir. 1990).
The ALJ apparently did not consider Dr. Herrera's statement that plaintiffs obesity would impair her ability to kneel, bend, or squat, focusing in stead on Dr. Herrera's opinion that Bussi's conditions, taken together, were not debilitating, and were not causing her significant pain. This omission does not violate the treating physician rule, however, as the rule simply requires the ALJ to give controlling weight to the physician's overall opinion, not to every observation on which that opinion was based. Parish v. Apfel, 70 F. Supp.2d 279, 282-84 (W.D.N.Y. 1999) (finding that ALJ did not violate treating physician rule by not giving controlling weight to physician's opinion as to plaintiff's limited ability to sit, when physician's ultimate conclusion was that plaintiff could do light work). The purpose of the treating physician rule is to allow trained physicians to consider a claimant's individual limitations and determine how debilitating the symptoms are, and whether, taken together, those symptoms may interfere with the activities involved in working. Thus, while any treating physician's assessment of a claimant's conditions will necessarily include a recitation of the claimant's individual limitations, it is the physician's conclusion as to the effect and severity of those conditions that is given deference under the treating physician rule. See e.g., id. Schaal, 134 F.3d at 499-500 (focusing on treating physician's conclusions as to plaintiff's ability to work).
Here, Dr. Herrera considered the effect of plaintiffs obesity on her ability to kneel and squat, but concluded that none of plaintiff's conditions were disabling. The ALJ was therefore entitled to infer that Dr. Herrera did not view Bussi's difficulty in kneeling as disabling in its own right, and to consider the observation as simply a factor that Dr. Herrera took into account in reaching her ultimate conclusion. Thus, this is not a case in which the ALJ disregarded a treating physician's diagnosis of a potentially debilitating condition, see Garcia v. Barnhart, No. 01 Civ. 8300 (GEL), 2003 WL 68040 (S.D.N.Y. Jan. 7, 2003); rather, Dr. Herrera's conclusion that Bussi's conditions — including her trouble kneeling — were not causing her significant pain is consistent with Dr. Herrera's and the ALJ's conclusion that Bussi could perform medium exertional work. The ALJ properly accorded Dr. Herrera's overall conclusions "great weight," after explicitly considering her statements as to Bussi's obesity, hypertension, and response to medications. (Tr. 14.)
C. The ALJ's Duty to Develop the Record
Plaintiff next argues that the ALJ's failure to obtain the treatment notes from the Bronx-Lebanon clinic violated his duty to develop the administrative record. The ALJ subpoenaed Bussi's Bronx-Lebanon records, but the Hospital did not include her clinic treatment records in its response, so the ALJ did not consider the records kept by Dr. Herrera and the other physicians who saw her on a walk-in basis at the Bronx-Lebanon clinic. These records, included with plaintiffs motion, reveal that plaintiff visited the clinic fairly regularly between 1996 and 2000, generally with complaints of shoulder or leg pain, or symptoms related to her hypertension. (Pl. Ex. at 40-56.) She was treated with the medications detailed in Dr. Herrera's report on the record (Tr. 155), and instructed as to compliance with her treatment regime. (Pl. Ex. at 49.) Thus, these records provide a more detailed view of plaintiff's illnesses and ongoing treatment, but do not contain any significant information that is not summarized in the documents submitted to the ALJ by Dr. Herrera.
The ALJ generally has a duty to develop the record of a claimant's medical treatment before denying benefits, because the hearing is non-adversarial, and claimants are often unrepresented or represented by a non-lawyer. See 20 C.F.R. § 404.1512 (d), (e). This duty is not absolute, however, requiring the ALJ only to ensure that the record contains sufficient evidence to make a determination. Thus, the ALJ must obtain additional information in two situations: (1) when the existing record of the treating physician's opinions is insufficient for the ALJ to accord it controlling weight, and (2) when the evidence as a whole is not complete enough for the ALJ to make a determination. Perez, 77 F.3d at 47-48. Conversely, the ALJ does not need to attempt to obtain every extant record of the claimant's doctor visits when the information on the record is otherwise sufficient to make a determination, and need not request more detailed information from the treating physician if the physician's report is a sufficient basis on which to conclude that the claimant is not disabled. Id.; Rosa, 168 F.3d at 79.
Here, the ALJ satisfied his duty to develop the record of Bussi's medical treatment. As discussed above, the ALJ had sufficient evidence before him to determine that Bussi was not disabled. The two reports from Dr. Herrera, as well as plaintiff's hospital and test records, provided the ALJ with substantial evidence about plaintiffs conditions and treatment, even in the absence of the more detailed notes taken during her clinic visits. Dr. Herrera's report in particular was obviously designed to summarize plaintiffs treatment history, as Dr. Herrera was the doctor who had attended to plaintiff in her more recent clinic visits. In addition, the ALJ did not have to reject the treating physician's opinion in denying Bussi's application; rather, he accepted it. Thus, the ALJ had no obligation to obtain more detailed records from the treating physician in order to ascertain whether the opinion was entitled to controlling weight, and no obligation to attempt to supplement the existing record. Infante v. Apfel, No. 97 Civ. 7689 (LMM), 2001 WL 536930, at *6 (S.D.N.Y. May 21, 2001).
D. Additional Evidence Proffered by Plaintiff
Finally, plaintiff argues that her claim should be remanded to the Commissioner for consideration of the clinic treatment notes that were not part of the record before the ALJ or the Appeals Council. As provided in 42 U.S.C. § 405 (g), judicial review of the Commissioner's disability determination is based on the "pleadings and transcript of the record." However, a district court may remand a case to the Commissioner for consideration of new evidence, "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405 (g) (2001). This test is satisfied only if plaintiff shows (1) that the evidence is new and not merely cumulative, (2) that the evidence is material, meaning both that it is relevant to plaintiffs condition during the time period for which benefits were denied, and that it could have affected the Commissioner's decision had it been presented earlier, and (3) that there is good cause for not having presented the evidence earlier. Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). In order to satisfy the materiality requirement, additional evidence must also relate back to the time period for which benefits were denied, that is, before the ALJ's decision. 20 C.F.R. § 416.330; see also Grubb v. Chater, 992 F. Supp. 634, 637 (S.D.N.Y. 1998).
Of the 156 pages of treatment notes submitted by plaintiff, roughly 110 pages pertain to the period before the ALJ's decision, and the other 40 were recorded between September 2001 and December 2002. While those notes taken after March 2000 are relevant to the extent that they may shed light on the severity of plaintiff's conditions as they existed at the time of the ALJ's decision, any subsequently developed conditions that the notes reveal may not be the basis of a remand. See Tracy v. Apfel, 97-CIV-4357, 1998 WL 765137, at *6 (E.D.N.Y. April 22, 1998) ("While new evidence does not require remand where it proves only a later-acquired disability or subsequent deterioration of the previously non-disabling condition, later developments which shed light on the seriousness of the claimant's condition at the time of the ALJ's decision are relevant."). Thus, the Court will consider the later notes to the extent that they deal with the conditions that Bussi had at the time of the hearing and decision, but will not consider their documentation of new conditions, such as Bussi's depression, first noted in 2001 (Pl. Ex. at 23), and her diabetes, noted by Dr. Herrera in April 2002 (Pl. Ex. at 157).
As discussed above, the treatment notes do not contain any new information. The notes reveal that Bussi visited the clinic on a fairly regular basis, generally complaining of shortness of breath and joint pain. (Pl. Ex. at 17, 30.) These conditions were well documented in the record before the ALJ. Bussi also visited the clinic frequently for refills of her hypertension medication; the notes reveal that Bussi's hypertension flared up only when she stopped taking her medication, and that compliance was a recurring issue. (Pl. Ex. at 7, 23, 48, 50, 56.) When she took the medications, her hypertension would be controlled (Pl. Ex. at 49), and this was reflected in the record before the ALJ (Tr. 52-53). Her sleep apnea was noted, but she showed improvement with the CPAP machine (Pl. Ex. at 56), as Dr. Herrera noted in her report (Tr. 155-56). While these notes provide a day-to-day record of plaintiffs conditions, they do not reveal any existing conditions not known to the ALJ, or suggest that plaintiff's conditions were more severe than the record suggested. Cf. DeValle v. Apfel, 97 F. Supp.2d 215, 222 (D. Conn. 1999) (stating that evidence is "new" when it pertains to conditions not discussed in the record). Thus, the treatment notes are "merely cumulative" of the evidence that the ALJ considered. Szubak v. Secretary of Health Human Servs., 745 F.3d 831, 833 (2d Cir. 1984).
These notes are also not material, in that they do not provide any information that would have affected the ALJ's decision. The notes do not indicate that Bussi's conditions are any more burdensome than the record suggested, nor do they contain any additional doctors' opinions as to the extent of Bussi's capabilities. It is therefore unlikely that the notes would have caused the ALJ to determine that Bussi was disabled. Cf. Clark v. Callahan, No. 96 Civ. 3020 (SAS), 1998 WL 512956 (S.D.N.Y. Aug. 17, 1998) (holding that evidence that "shed new light on the seriousness of claimant's condition" was material). Thus, there is no need to remand the case to the Commissioner for consideration of these notes.
With respect to the third prong of the analysis, good cause for failing to submit the evidence to the Commissioner in a timely manner, plaintiff argues that her inability to speak English and her non-lawyer representative's failure to notice the omission excuse the nonproduction of the treatment notes. (Pl. Mem. at 11.) While the Government does not contest this argument, there is no need for the Court to consider it, since the treatment records are neither new, nor material, and therefore do not merit a remand in any event. 42 U.S.C. § 405 (g); Tirado, 842 F.2d at 597.
Plaintiff has also submitted two letters, written in 2002, that document the state of her health in 2002. The first, a letter from Dr. Herrera, dated April 9, 2002, stating that "patient cannot stand or sit for prolonged periods of time . . . I recommend that the patient does not work at this time." (Pl. Ex. 157.) The letter lists the diagnoses given during the relevant time period, before March 2000, as well as the later ones of uncontrolled diabetes and depression. As noted above, however, conditions that developed subsequent to the ALJ's denial of benefits are not relevant or material to the ALJ's determination. With respect to the conditions that plaintiff had at the time of the determination, Dr. Herrera's letter does not state any opinion as to the severity of those conditions during the relevant time period, and expressly states that plaintiff should "not work at this time" (emphasis added). Thus, the letter does not provide a basis for inferring the extent of plaintiff's illnesses before March 2000. Indeed, since Dr. Herrera explicitly stated that she thought that plaintiff was not significantly limited at the time of the ALJ's determination (Tr. 155-56), the only possible reading of this letter is that it reflects the worsening of plaintiff's conditions, or the onset of additional conditions, subsequent to the ALJ's decision.Tracy, 1998 WL 765137, at *6. The same is true of the second letter, a note from Bronx-Lebanon Hospital, dated June 18, 2002, which states that Bussi was admitted to the Cardiac Intensive Care Unit. (Pl. Ex. 158.) Without any information as to the reason for her admittance, or a medical opinion as to whether this admittance sheds light on the severity of her health problems prior to the ALJ's decision, the letter cannot be considered material evidence. Therefore, neither letter necessitates a remand to the Commissioner.
While this evidence is undoubtedly new, in that it contains information not contained in the record, and plaintiff presumably would be able to establish good cause for not submitting these letters to the ALJ since they were not written until 2002, immaterial evidence cannot be the basis of a remand.