Opinion
15 Civ. 4704 (KMK)(JCM)
08-02-2016
THOMAS LOVELACE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
To the Honorable Kenneth M. Karas, United States District Judge:
Plaintiff Thomas Lovelace ("Plaintiff"), appearing pro se, commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security ("the Commissioner"), which denied Plaintiff's application for disability insurance benefits ("DIB") and supplemental security income ("SSI"), finding him not disabled. Presently before this Court is the Commissioner's motion for judgment on the pleadings to remand this action to the Commissioner pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Rule 12(c)"). (Docket No. 19). Plaintiff has not filed a cross-motion. For the reasons below, I respectfully recommend that the Commissioner's motion should be granted.
I. BACKGROUND
Plaintiff was born on July 27, 1962. (R. 107). From 2006 to 2010, Plaintiff was a picker, loading tracks, at Western Beef. (R. 134, 149). On October 28, 2011, Plaintiff filed an application for DIB and on December 8, 2011 he filed an application for SSI, alleging that he became disabled and was unable to work as of January 1, 2011 as a result of his HIV positive status, hypertension, and sinus pressure in his nose. (R. 107, 114, 142). The Social Security Administration ("SSA") denied Plaintiff's applications on February 13, 2012. (R. 63). Plaintiff appealed the denial and, on April 17, 2013, Plaintiff appeared before Administrative Law Judge ("ALJ") Miriam L. Shire. (R. 6-40). Medical Expert Dr. Richard Wagman and Vocational Expert Andrew Vaughan also appeared and testified. (R. 28-36). ALJ Shire affirmed the denial of benefits on January 29, 2014. (R. 48-58). On May 11, 2015, the Appeals Council denied Plaintiff's request for review. (R. 1-3). Thereafter, Plaintiff appealed the SSA's decision by submitting his complaint in the present action to the Pro Se Office of this Court on June 16, 2015. (Docket No. 2). The Commissioner filed a motion for judgment on the pleadings under Rule 12(c) on January 15, 2016. (Docket No. 19). Plaintiff did not oppose the motion or cross move.
Refers to the certified administrative record of proceedings ("Record") related to Plaintiff's application for social security benefits, filed in this action on November 19, 2015. (Docket No. 14).
A. Plaintiff's Medical Treatment History
The administrative record contains medical records from treatment that Plaintiff has received for his HIV positive status, hypertension, and psychiatric conditions.
Treating records from Woodhull Medical and Mental Health Center following Plaintiff's alleged date of onset indicated treatment with nurse practitioner Valerie Santangelo on February 8 and April 4, 2011 for his HIV positive status, and showed that Plaintiff received education and prescriptions for his HIV medications. (R. 192-97). Regarding his hypertension, Plaintiff said that he had been given medication to treat the condition, but that he never took it because he believed that the increased blood pressure was a result of his use of crack cocaine at the time. (R. 192, 195). He appeared to be in no acute distress, had a normal affect and no evidence of a thought disorder. (R. 194, 197). He denied substance abuse, but said that he drank and smoked marijuana on occasion. (R. 193, 196). On May 11, 2011, his symptoms and treatment were the same, although he admitted having used crack cocaine recently. (R. 199). On July 7, 2011, he reported additional pain in his left shoulder from a handcuffing injury when he was arrested, and he had decreased range of motion in the left shoulder, but otherwise his examination results were the same as at prior appointments. (R. 203, 205). Plaintiff's blood pressure on Hydrochlorothiazide was measured as 122/77 on October 27, 2011, although he later stated that he did not take his blood pressure medication. (R. 207, 211). At this appointment, and later on December 8, 2011, he denied symptoms of fatigue, depression, nervousness, or sleep disturbance. (R. 207, 211). On December 8, 2011 he was listed as virologically stable. (R. 209).
Following Plaintiff's attestations at the hearing regarding the mental health treatment he had received, ALJ Shire issued a subpoena to Dr. Diane Gottfried at Woodhull Medical Center, seeking all medical records relating to Plaintiff's treatment. (R. 290). The documents produced in response to the subpoena were additional treatment records from nurse practitioner Valerie Santangelo for routine follow up regarding Plaintiff's HIV positive status and hypertension, dating from February 14, 2012 to August 6, 2013. (R. 300-340). Beginning in November 2012, the records indicated a referral to Dr. Chauhdry for psychological services. (R. 320). A record from January 23, 2013 stated that Plaintiff had an appointment with Dr. Chauhdry scheduled on January 31, 2013. (R. 316). Records following that date indicated that Plaintiff attended that appointment, was prescribed BuSpar for anxiety and was seeing Dr. Gottfried. (R. 300, 304, 308, 312). The administrative record does not contain a medical source statement or any treatment records from Dr. Chauhdry or Dr. Gottfried.
B. Consulting Physicians
The administrative record contains evaluations by two consulting physicians.
1. Dr. Marilee Mescon
Dr. Marilee Mescon conducted an independent medical examination on January 5, 2012. (R. 237-40). Plaintiff stated at the examination that he had HIV and high blood pressure since 1990. (R. 237). He said that he was experiencing right shoulder pain occasionally, which was a nine out of ten, reduced to a five out of ten with analgesic medication. (R. 237). He stated that he was always tired and had problems with his memory and concentration. (R. 237). Regarding his substance abuse, he reported that he "was drunk every day when [he] was drinking," and that he used marijuana until 2008 and cocaine until about a year prior to the examination. (R. 238). He reported activities of daily living of cooking, cleaning, doing laundry, shopping. (R. 238). He said that he spent his time playing chess, socializing with friends, watching television, listening to the radio, and reading. (R. 238). Dr. Mescon noted that he appeared to be in no acute distress, his gait was normal, he could squat half way and he required no assistance with changing, rising from his chair or getting on or off the exam table. (R. 238). Her examination showed normal results, including full range of motion in Plaintiff's shoulders. (R. 239). She concluded that Plaintiff had no limitations for physical activities of sitting, standing, climbing, pushing, pulling or carrying heavy objects. (R. 240).
2. Dr. Michael Kushner, Ph.D.
Dr. Michael Kushner, Ph.D. conducted a psychiatric evaluation on January 20, 2012. (R. 241-45). At the evaluation, Plaintiff reported that he had seen a psychiatrist while in prison "once or twice," but that he was not currently seeing a mental health specialist. (R. 241). He reported difficulty sleeping, and said that he often needed alcohol to sleep. (R. 241). He did not report any depressive symptoms, but said that he was excessively apprehensive, worried about his future, was irritable, restless, and had memory issues and difficulty concentrating. (R. 241- 42). He also described symptoms of delusions and paranoid ideation, in that he felt that he could read people's minds and therefore knew that they were talking about him behind his back. (R. 242). He reported drinking at least one beer every day and often more than that, and said that he had last used cocaine in December 2011. (R. 242). He stated that he was able to dress, bathe, and groom himself on most days, that he managed his own money, took public transportation, and did his own cooking, cleaning, laundry and shopping. (R. 243). He reported socializing with friends and acquaintances, saying that he spent his days visiting his friends and watching television. (R. 244).
Dr. Kushner's examination revealed coherent thought processes with no evidence of hallucinations, delusions or paranoia in the evaluation setting, but mild impairments in recent and remote memory skills. (R. 243). His cognitive functioning was average to below average, his general fund of information was somewhat limited, and his insight and judgment were fair to poor. (R. 243). Dr. Kushner concluded that Plaintiff could follow and understand simple directions and could perform simple tasks independently. (R. 244). He found that Plaintiff could not maintain attention and concentration, perform complex tasks independently, make appropriate decisions, or relate adequately with others, and probably could not learn new tasks. (R. 244). He said that Plaintiff definitely could not appropriately deal with stress. (R. 244). His diagnoses were anxiety disorder, psychotic disorder, and alcohol dependence/abuse. (R. 244).
C. Residual Functional Capacity ("RFC") Assessments
The record contains a Physical RFC Assessment dated January 10, 2012 by W. Begelman. (R. 160-65). After reviewing the medical evidence in Plaintiff's file, the analyst concluded that Plaintiff was HIV positive and had hypertension, and found that he could occasionally lift and/or carry fifty pounds, frequently lift and/or carry ten pounds, stand and/or walk and sit for six hours in an eight hour workday, and push and/or pull an unlimited amount. (R. 161). The examiner found no postural, manipulative, visual, communicative, or environmental limitations. (R. 162-63). W. Begelman completed another physical RFC assessment on February 13, 2012 with the same findings, except that the amount Plaintiff was found to be able to frequently lift and/or carry was increased to twenty-five pounds. (R. 263).
J. Kessel, Psychiatry, completed a psychiatric review and Mental RFC Assessment on February 13, 2012 and determined that Plaintiff's anxiety disorder did not satisfy the "paragraph A" criteria of listing 12.06. (R. 253). Regarding Plaintiff's personality disorder, the examiner found that Plaintiff demonstrated "pathologically inappropriate suspiciousness or hostility." (R. 255). Regarding the "paragraph B" criteria, the examiner found mild limitations in activities of daily living, moderate limitations in maintaining social functioning and concentration, persistence or pace, and no episodes of deterioration of extended duration. (R. 258). The consultant found none of the "paragraph C" criteria. (R. 259). Regarding Plaintiff's mental RFC, J. Kessel concluded that Plaintiff was not significantly limited in most of the categories, but found that he had moderate limitations in the following categories: understanding, remembering and carrying out detailed instructions; working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; accepting instructions and responding appropriately to criticism from supervisors; getting along with coworkers or peers; and responding appropriately to changes in the work setting. (R. 268-69).
D. Testimony during April 17, 2013 Hearing before ALJ Shire
Plaintiff, Medical Expert Dr. Wagman, and Vocational Expert Mr. Vaughan testified at the April 17, 2013 hearing before ALJ Shire. (R. 8-40). Plaintiff testified that he last worked at Western Beef, loading trucks, but that he had missed a number of days of work and was very tired all the time. (R. 12). He said that he had been drinking "a lot" at the time, and that the substance abuse was part of why they let him go. (R. 12-13). He also testified about his work in the construction industry in 1997. (R. 11). He stated that he suffered from right shoulder pain, and took painkillers, but that imaging of the shoulder showed normal results. (R. 14). He later testified that the pain in his right shoulder was not as severe as it had been previously, and that he was able to reach over his head without a problem. (R. 32). Regarding his mental health, he said that he had been seeing a therapist, Diane Gottfried, for three months, and that he had seen a psychiatrist on one occasion. (R. 15-16). He reported that he began seeking these mental health services on referral from his primary health care provider, Valerie Santangelo, because he was experiencing depression, stress, and paranoid thoughts. (R. 16-17). He had been on the antidepressant BuSpar for two weeks. (R. 18). He said that he was still drinking. (R. 19). Regarding his HIV positive status, Plaintiff testified that he previously had thrush, but the medication cleared it up, and his current T cell count was around 180 and his viral load was not detectable. (R. 20). Regarding any physical limitations, Plaintiff said that he was able to keep up with his apartment, cook, clean, and do the laundry, and that he was physically strong. (R. 21). He reported that he had difficulty sleeping at night because of his previous work on the night shift for Western Beef, and he missed his mother a lot, as she died while he was incarcerated. (R. 22). He indicated that he was able to follow along with television programs and the news, and that he read occasionally. (R. 24). He also attested that he had been experiencing loss of memory lately. (R. 27).
The medical expert Dr. Wagman testified as well. He reviewed Plaintiff's medications and testified that he was taking BuSpar, Hydrochlorothiazide for blood pressure, Bactrim DS, Altace, Truvada, Norvir and Prezista for HIV, and Bactrim DS for cholesterol. (R. 26). He noted that Plaintiff's last CD4 count was at 19 percent on October 27, 2011, and that normal was 25 percent or more. (R. 28). He said that there was no history of opportunistic infections, aside from thrush, which wasn't considered significant. (R. 28). He indicated that Plaintiff's high blood pressure was under control with his medication. (R. 28). In analyzing the listings, he looked at 12.04A, for depression and said that Plaintiff had marked limitations in social functioning and maintaining concentration, but that the "big problem" was that Plaintiff's alcohol use was material to the finding. (R. 29-30). Following this testimony, the ALJ said that she was going to get Plaintiff's records from his psychiatrist and seek a medical source statement as well. (R. 30). Dr. Wagman testified that he believed Plaintiff maintained an RFC for normal activities given "his medicals overall." (R. 32).
The vocational expert Mr. Vaughan testified next. The ALJ asked Mr. Vaughan to consider the following hypothetical: an individual of the same age, education and work experience as Plaintiff, with the following limitations: no exposure to temperature extremes or excessive humidity; can occasionally interact and socialize with the general public, supervisors and coworkers; can only occasionally tolerate changes in the work place; and is capable of simple and repetitive tasks. (R. 34). He clarified that the hypothetical covered people at all exertional strengths. (R. 34). With that hypothetical person in mind, Mr. Vaughan opined that this hypothetical person could not do Plaintiff's prior relevant work, which involved temperature extremes. (R. 34-35). Instead, he named three jobs in the local, regional, or national economy that such a person could perform: kitchen porter or dishwasher; packager or hand packager; and silver wrapper. (R. 36).
Plaintiff concluded his testimony by explaining to ALJ Shire that his concern with going back to work was based on his fear that he would catch a cold with his immunity impaired from his HIV positive status. (R. 38). ALJ Shire commented that she was sure Plaintiff's doctors had counseled him to stop drinking. (R. 38). He responded that he was "working on that," but that he still suffered from depression. (R. 39).
E. ALJ Shire's January 29, 2014 Decision
ALJ Shire applied the five-step approach in her January 29, 2014 decision. (R. 48-58). At the first step, ALJ Shire found that Plaintiff had not engaged in "substantial gainful activity since January 1, 2011, the alleged onset date." (R. 50). At the second step, ALJ Shire determined that Plaintiff had the following severe impairments: HIV positive status, anxiety disorder and depression. (R. 51). She noted that Plaintiff had non-severe impairments of hypertension, which was controlled by medication, and right shoulder pain, which was unsupported by the medical evidence in the record. (R. 51). At the third step, ALJ Shire held that Plaintiff did not have a medically determinable impairment or a combination of impairments that were listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 52). With regard to listings 12.04 and 12.06, the ALJ noted her consideration of the "paragraph B" criteria and her findings that Plaintiff had mild restrictions in activities of daily living, moderate difficulties in social functioning, moderate difficulties with regard to concentration, persistence or pace, and no episodes of decompensation of extended duration, (R. 52-53). ALJ Shire also found that the evidence failed to establish the presence of "paragraph C" criteria. (R. 53).
With regard to Plaintiff's DIB claim, ALJ Shire also found that Plaintiff met the insured status requirements through June 30, 2013. (R. 50).
ALJ Shire then concluded that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with the further limitation that he could have no exposure to temperature extremes and excessive humidity. (R. 53). The ALJ's RFC finding also took into account Plaintiff's mental limitations, which she found allowed for occasional social interaction with the general public, supervisors and coworkers, occasionally tolerating changes in the workplace, and the performance of a simple repetitive job. (R. 53).
In determining Plaintiff's RFC, ALJ Shire held that Plaintiff's allegations as to the intensity, persistence and limiting effects of his symptoms were not entirely credible. (R. 55). She noted some inconsistencies in his testimony, saying that although he said that he had problems remembering appointments and completing tasks, he had previously asserted that he was able to perform activities of daily living, such as cleaning, cooking, shopping, watching television, and doing math in his head. (R. 55). She also pointed out that although he said that he tried to stay away from people due to his low immunity from HIV, he also stated at the consultative examination that he spent his days visiting friends. (R. 55).
ALJ Shire reviewed the records from the internal medical examination done by Dr. Mescon, at which Plaintiff reported a history of HIV, high blood pressure and right shoulder arthralgia, and symptoms of fatigue, and memory and concentration problems. (R. 54). Dr. Mescon noted that Plaintiff appeared to be in no acute distress, had a normal gait, could walk on his heels and toes without difficulty, could squat halfway, had a normal stance and demonstrated no difficulty changing for the examination or getting on or off the table. (R. 54). She took into account that Dr. Mescon had assessed that Plaintiff's physical examination was within normal limits and he had no limitations for sitting, standing, climbing, pushing, pulling, or carrying heavy objects. (R. 54). Regarding Plaintiff's treatment notes from Woodhull Medical and Mental Health Center through August 2013, ALJ Shire noted that Plaintiff was found to have decreased range of motion in his left shoulder on July 7, 2011, had PHQ scores ranging from 0 to 2 and showed no cognitive deficits in 2011 and 2012, and that he continued to drink and use crack cocaine. (R. 54). Regarding his HIV positive diagnosis, ALJ Shire reported that Plaintiff had not had any hospitalizations, history of myalgia, or opportunistic infections. (R. 55). Although he reported symptoms of fatigue, she noted that he was able to perform activities of daily living such as cooking, cleaning, laundry, shopping, and socializing with friends. (R. 55). She discredited his claim of sleep disruption because he attributed it, in part, to the fact that he used to work the night shift. (R. 55). She also noted that Plaintiff's poor memory and concentration could be in part be attributed to poor sleep from the sleep reversal, or from Plaintiff's alcohol or cocaine use. (R. 55).
Regarding opinion evidence, the ALJ said that she gave some weight to Dr. Wagman's opinion that Plaintiff would meet Listing 12.04, but that drugs and alcohol were material to that finding. (R. 56). She gave varying weight to the opinions of Dr. Kushner: she gave great weight to Dr. Kushner's opinion that Plaintiff could perform simple tasks independently, but only some weight to the opinion that Plaintiff could not maintain attention and concentration, learn new tasks, relate adequately with others or appropriately deal with stress, because of her own determination that Plaintiff was continuously abusing alcohol and perhaps cocaine as well. (R. 56). She noted that Plaintiff testified that he had been drinking 80 ounces of beer a day and one pint of brandy, and that he had recently cut back to 40 ounces of beer and half of a pint of brandy. (R. 56). She concluded that "it is feasible to believe that the claimant's drinking contributes to his complaint of fatigue (psychomotor retardation), excessive worry, paranoia, or delusions that people were talking about him, and his claimed decreased concentration and memory." (R. 56).
At the fourth step, ALJ Shire determined that Plaintiff was not capable of performing his past relevant work. (R. 56). ALJ Shire noted that Plaintiff was a younger individual on the alleged disability onset date, that he subsequently changed age category to closely approaching advanced age, that he had at least a high school education and was able to communicate in English. (R. 56). At the fifth step, ALJ Shire noted that Plaintiff's additional limitations impeded his ability to perform all or substantially all of the requirements of medium work, and she, therefore, consulted the vocational expert's testimony to determine whether jobs existed in the national economy that Plaintiff could perform. (R. 57). Based on the vocational expert's testimony that an individual with Plaintiff's age, education, work experience, and RFC as stated by ALJ Shire in the hypothetical at the hearing would be able to perform jobs such as kitchen porter/dishwasher, hand packager and silver wrapper, ALJ Shire concluded that Plaintiff was not disabled. (R. 57-58).
II. DISCUSSION
The Commissioner seeks remand of this case on the ground that the ALJ improperly considered Plaintiff's alcohol dependence before making a finding of disability. (Docket No. 20). Moreover, the Commissioner contends that the ALJ failed to sufficiently develop the record regarding Plaintiff's mental health treatment. (Id.). Finally, the Commissioner asserts that a remand for further consideration is warranted, rather than for the calculation of benefits, because the record does not compel the conclusion that Plaintiff is disabled. (Id.).
Plaintiff's complaint summarily argues that ALJ Shire's decision "was erroneous, not supported by substantial evidence in the record, and/or contrary to law." (Docket No. 2 at ¶ 9). As noted above, Plaintiff did not file a motion for judgment on the pleadings, or an opposition to the Commissioner's motion. On January 20, 2016, Plaintiff wrote to inform the Court that he had been incarcerated and would be released on May 31, 2016, and he sought an adjournment until that date. (Docket No. 21). The Court granted Plaintiff's request, and adjourned the deadline for Plaintiff to respond to the Commissioner's motion to June 30, 2016. (Docket No. 23). The clerk's office mailed this order to Plaintiff at his place of incarceration, and this mail was not returned. Nonetheless, to date, Plaintiff has not filed an opposition or cross motion. Plaintiff has clearly been made aware of the deadlines for responding to the Commissioner's motion or for filing his own motion, and did not respond.
A. Legal Standards
A claimant is disabled and entitled to disability benefits if he or she "is unable '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.'" Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)).
The claimant has the general burden of proving that he or she is statutorily disabled "'and bears the burden of proving his or her case at steps one through four.'" Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts "to the Commissioner to show there is other work that [the claimant] can perform." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012) (citation omitted).
B. Standard of Review
When reviewing an appeal from a denial of Social Security benefits, the Court's review is "limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quotation marks and citations omitted); see also 42 U.S.C. § 405(g). The Court does not substitute its judgment for the agency's, "or determine de novo whether [the claimant] is disabled." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quotation marks and citations omitted). However, where the proper legal standards have not been applied and "might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quotation marks and citation omitted). "Where there are gaps in the administrative record or the ALJ has applied an improper legal standard" remand to the Commissioner "for further development of the evidence" is appropriate. Rosa v. Callahan, 168 P.3d 72, 82-83 (2d Cir. 1999) (internal quotation marks and citations omitted).
C. ALJ's Consideration of Plaintiff's Alcohol Dependence
Where the record shows evidence of an applicant's drug addiction or alcoholism, "the 'disability' inquiry does not end with the five-step analysis." Cage, 692 F.3d at 123 (citing 20 C.F.R. § 416.935(a)). "'An individual shall not be considered . . . disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled.'" Cage, 692 F.3d at 123 (quoting 42 U.S.C. § 1382c(a)(3)(J)). Accordingly, if the ALJ determines that a claimant is disabled, and has "medical evidence of [his] drug addiction or alcoholism, [the ALJ] must determine whether [his] drug addiction or alcoholism is a contributing factor material to the determination of disability[.]" 20 C.F.R. §§ 404.1535(a), 416.935(a). The key factor in this determination is "whether [the ALJ] would still find [the claimant] disabled if [he] stopped using drugs or alcohol." 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). The claimant bears the burden of proving that the drug addiction or alcoholism is immaterial to the disability determination. Cage, 692 F.3d at 123.
The Eighth Circuit has interpreted these regulations to require that the ALJ's determination of disability be based on plaintiff's medical limitations, free of "deductions for the assumed effects of substance use disorders." Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003). Where an ALJ has made references to a claimant's substance addiction in determining whether a claimant is disabled in the first instance, and has appeared "to conflate the substance abuse analysis with the disability determination" courts in this Circuit have found legal error warranting remand. See Morales v. Colvin, No. 13 Civ, 06844(LGS)(DF), 2015 WL 2137776, at *27 (S.D.N.Y. May 4, 2015); Piccini v. Comm'r of Soc. Sec., No. 13-cv-3461 (AJN)(SN), 2014 WL 4651911, at *15 (S.D.N.Y. Sept. 17, 2014).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009), and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and any others cited herein, only available by electronic database, accompany this Report and Recommendation and shall be simultaneously delivered to pro se Plaintiff.
Here, the record contains substantial evidence of Plaintiff's alcoholism. He reported to Dr. Mescon at the independent medical examination that when he was drinking he "was drunk every day[.]" (R. 238). He told Dr. Kushner at the psychiatric evaluation that he often needed alcohol to sleep. (R. 241). Dr. Kushner diagnosed Plaintiff with alcohol dependence/abuse, among other diagnoses. (R. 244). At the hearing before ALJ Shire, Plaintiff said that he was let go from his position at Western Beef because of his excessive alcohol consumption. (R. 11). He also said that he was still drinking. (R. 19). When ALJ Shire asked him if his doctors had counseled him to stop drinking, he responded that he was "working on that" but continued to struggle with depression. (R. 38-39).
Despite the substantial evidence in the record that Plaintiff suffered from alcoholism, the ALJ did not follow the procedures dictated in 20 C.F.R. §§ 404.1535 and 416.935 of first determining whether Plaintiff was disabled and then deciding whether Plaintiff's impairments would remain if he stopped using alcohol. Instead, ALJ Shire conflated the two steps. She noted that Plaintiff's reported difficulties with memory and concentration could be attributed, at least in part, to his alcohol or cocaine use. (R. 55). She gave less weight to Dr. Kushner's opinion that Plaintiff could not maintain attention and concentration, learn new tasks, relate adequately with others or appropriately deal with stress, because of her own determination that Plaintiff was continuously abusing alcohol, and perhaps cocaine as well. (R. 56). Finally, she concluded that Plaintiff's drinking contributed to his excessive worry, paranoia, and his delusions that people were talking about him. (R. 56). In taking Plaintiff's alcohol dependence into account in determining whether Plaintiff had particular impairments for purposes of assessing whether he was disabled in the first instance, the ALJ deviated from the procedure required in the regulations. This legal error warrants remand.
D. ALJ's Duty to Develop the Record
The ALJ has an affirmative obligation to develop the record due to the nonadversarial nature of the administrative proceeding. Burgess, 537 F.3d at 128 (citations omitted). This duty to develop the record remains where the claimant is represented by counsel, Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000), and is heightened where the claimant is unrepresented at the administrative hearing, Rivera v. Barnhart, 423 F. Supp. 2d 271, 277 (S.D.N.Y. 2006). The ALJ must seek additional evidence or clarification where the documentation "from a claimant's treating physician, psychologist, or other medical source is 'inadequate . . . to determine whether [the claimant] is disabled.'" Antoniou v. Astrue, No. 10-CV-1234 (KAM), 2011 WL 4529657, at *13 (E.D.N.Y. Sept. 27, 2011) (alterations in original) (citations omitted). "This duty to develop the record is particularly important where an applicant alleges he is suffering from a mental illnesses, due to the difficulty in determining whether these individuals will be able to adapt to the demands or 'stress' of the workplace." Hidalgo v. Colvin, No. 12CV9009-LTS-SN, 2014 WL 2884018, at *4 (S.D.N.Y. June 25, 2014) (internal quotation marks and citations omitted).
The Commissioner concedes that the ALJ erred by failing to satisfy her duty to develop the administrative record when she did not request either psychiatric records or a medical source statement from Plaintiff's psychiatrist, Dr. Chauhdry, when she did not request a medical source from Plaintiff's psychologist, Dr. Gottfried, and when she ultimately obtained no records regarding Plaintiff's mental health treatment. (Docket No. 20 at 12). In reviewing the administrative record, it is clear that there are gaps regarding Plaintiff's mental health treatment, which the ALJ had a duty to develop further. At the hearing before ALJ Shire, Plaintiff testified that he had been seeing a therapist for three months, and that he had seen a psychiatrist on one occasion in which he had been prescribed BuSpar. (R. 15-16, 18). He said that he had reported experiencing depression, stress and paranoid thoughts. (R. 16-17). The medical expert, Dr. Wagman, also found that Plaintiff met the listing for depression based on his marked limitations in social functioning and maintaining concentration. (R. 29-30). Admittedly, the ALJ attempted to develop the record by issuing a subpoena seeking medical records from Dr. Gottfried. (R. 103). However, the records received in response only corroborated Plaintiff's account that he was seeking mental health services from Dr. Gottfried and the psychiatrist, Dr. Chauhdry, but did not fully develop the record regarding the services that Plaintiff had received, or regarding any assessment these providers had of Plaintiff's impairments. The ALJ erred in not seeking additional medical records regarding these mental health services, or a medical source statement from either of these treating sources.
E. Remand
Finally, the Commissioner argues that the case should be remanded for further administrative proceedings because the record does not compel a conclusion that Plaintiff is disabled. (Docket No. 20). Courts "have opted simply to remand for a calculation of benefits" where there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision[.]" Rosa v. Callahan, 168 F.3d at 83; see also Parker v. Harris, 626 P.2d 225, 235 (2d Cir. 1980) (reversing and ordering that benefits be paid where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose."). On the other hand, "remand for further development of the evidence" may be appropriate "where there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa, 168 F.3d at 82-83 (citations omitted).
Here, ALJ Shire failed to follow the regulations when considering Plaintiff's alcohol dependence in assessing whether Plaintiff was disabled, and failed to develop the record fully regarding Plaintiff's mental health. Where "further findings will plainly help to assure the proper disposition of the claim" and "it is entirely possible that a complete record would justify the SSA's current conclusion that plaintiff was not disabled at the relevant time, remand for calculation of benefits is not appropriate[.]" Lugo v. Barnhart, No. 04 Civ. 1064(JSR)(MHD), 2008 WL 515927, at *25 (S.D.N.Y. Feb. 8, 2008), report and recommendation adopted, No. 04 Civ. 1064 (JSR), 2008 WL 516796 (S.D.N.Y. Feb. 27, 2008). Consequently, I recommend that the case be remanded for further administrative proceedings.
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Commissioner's motion for a remand should be granted and this case should be remanded for further administrative proceedings.
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed. R. Civ. P. 6(a) and (d) (rales for computing time). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, If any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008). Dated: August 2, 2016
White Plains, New York
RESPECTFULLY SUBMITTED,
/s/_________
JUDITH C. McCARTHY
United States Magistrate Judge