In her decision, the ALJ also considered Dr. Casals' Questionnaire. The ALJ understood Dr. Casals to indicate that plaintiff has a good ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, and function independently, a fair ability to deal with work stresses and maintain attention and concentration, a good ability to understand, remember and carry out simple or complex job instructions, an unlimited ability to maintain personal appearance, and a good ability to behave in an emotionally stable manner, relate predictably in social situations and demonstrate reliability. (Tr. 18, 339-342.) The ALJ, however, did not mention that Dr. Casals also wrote: "Patient[']s impairment of immediate recall and loss of energy may affect his ability to carry out instructions" and "Patient is often tearful. Under stress he becomes more acutely nervous and unable to focus." (Tr. 340.) Further, Dr. Casals indicated that plaintiff's impairment lasted or can be expected to last at least twelve months, and that "patient[']s progress has been slow and he is under great stress due to severe losses. He will continue to need psychiatric services to maintain present level of functioning and prevent return of more severe symptoms." (Tr. 342.)
The ALJ also stated in her decision that plaintiff does housework, uses public transportation, and visits people. (Tr. 16.) In March 1992, Dr. M. Mescon, a consultative examiner, reported that plaintiff was able to clean and cook and was able to carry two gallons of milk easily. (Tr. 225) The record reflects, however, that plaintiff had significant difficulties with common life tasks. Plaintiff stated, for instance, that "I am not able to use the bus as it makes me dizzy. I use the subway but suffer shortness of breath when climbing up and down the stairs. I try to take a taxi when I can-" (Tr. 133.) Plaintiff also testified during the hearing that when he travels on public transportation, sometimes he does not know where he is. (Tr. 35.)
Plaintiff further testified that he felt afraid in the street, that he did not want anyone to see him, that he did not have any friends. (Tr. 42-43.) Plaintiff also stated that he could not cook because he forgot that he was cooking and ruined everything; that he could not do household chores because he never finished and did not put things where they belonged; and that he did not like visitors because they bother him. (Tr. 156.)
Despite the foregoing evidence in the record, the ALJ found that plaintiff was not disabled and that "none of the claimant's impairments was attended by clinical or laboratory findings, either singly or in combination, which were the same as, or medically equivalent to, the criteria for any impairment described in Appendix 1, Subpart P, Regulations No. 4." (Tr. 19.) The ALJ determined that plaintiff is classified as a younger individual, see 20 C.F.R. §§ 404.1563, 416.963, who is unable to communicate in English, see 20 C.F.R. §§ 404.1564, 416.964, with a past history of unskilled work. See 20 C.F.R. §§ 404.1568, 416.968. Having concluded that plaintiff retained the residual functional capacity for light work activity and applying the vocational profile set forth in the grids, the ALJ found that Rule 202.16 of 20 C.F.R. Pt. 404, Subpt. P, App. 2 applied to this case and that plaintiff is not disabled. The ALJ determined that plaintiff's capacity for the full range of light work has not been compromised significantly by his additional nonexertional
limitations. The ALJ completed the OHA Psychiatric Review Technique Form, dated October 21, 1995, finding that plaintiff had a dysthymic disorder in category 12.04, with slight restrictions of activities of daily living and slight difficulties in maintaining social functioning. The ALJ also found that the plaintiff often had deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner. (Tr. 21-23)
On October 30, 1995, plaintiff requested that the Appeals Council review the decision of the ALJ, but the Appeals Council denied the request on February 13, 1996 (Tr. 6-9.),
and this became the final decision of the Commissioner. This civil action followed.
Judicial review of the Commissioner's determination is strictly limited. A reviewing court may not decide de novo whether the plaintiff is entitled to benefits; rather, it must assess whether the Commissioner has applied the appropriate legal standards and whether the Commissioner's findings of fact are supported by substantial evidence. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); Quinones v. Chater, 117 F.3d 29, 1997 WL 349852, at *4 (2d Cir. 1997); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). A finding of gaps in the record or need for further development of the evidence is cause for remand. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). In the Second Circuit, "the ALJ, unlike a judge in a trial, must him [or her]self affirmatively develop the record" in light of "the essentially nonadversarial nature of a benefits proceeding." Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982) (citing Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); Gold v. Secretary of Health Education & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). This duty originates from the Commissioner's regulatory responsibilities to develop a complete medical record prior to making a disability determination, 20 C.F.R. § 404.1512(d)-(f) (1997). Based on the administrative record before me, I find that the ALJ did not fulfill her duty in Batista's case in several respects. Therefore, I find that the decision to deny plaintiff's benefits is not supported by substantial evidence.
When the claimant appears pro se and suffers from ill health, as in this case, the court has "a duty to make a 'searching investigation' of the record" to be sure that the claimant's rights have been properly protected. Gold, 463 F.2d at 43 (quoting Miracle v. Celebrezze, 351 F.2d 361, 383 (6th Cir. 1965)).
Generally to establish a disability under the Act, a plaintiff has the burden of demonstrating that he or she has a disability that will last continuously for twelve months and that the disability is supported by medical evidence, 42 U.S.C. § 423(d)(1), (3), (5) (1997). See Parker v. Harris, 626 F.2d 225, 230-31 (2d Cir. 1980); Gold, 463 F.2d 38, 41 n.2 (2d Cir. 1972). The Second Circuit, however, has noted on several occasions that the application of burden of proof is "'particularly elusive in cases involving social security benefits,' in part because the proceedings 'are not designed to be adversarial' and certainly are not likely to be such when the claimant, as here, is unrepresented." Donato v. Secretary of Department of Health & Human Services of the United States, 721 F.2d 414, 418 (2d Cir. 1983) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir 1982)). When the claimant is unrepresented, the ALJ is directed by a heightened duty "'to scrupulously and-conscientiously probe into, inquire of, and explore all of the relevant facts,'" Echevarria, 685 F.2d at 755 (quoting Hankerson, 636 F.2d 893 at 895)); see also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (ALJ has duty to sufficiently protect a pro se claimant's rights "by ensuring that all of the relevant facts were developed and considered."); cf. Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) ("It is our conclusion that Cruz, appearing in the administrative proceeding herein as a pro se claimant, did not have an adequate hearing. Since counsel now represents Cruz, it is likely that the unexplored information discussed above will be pursued.")
Under 20 C.F.R. § 404.1512 (1997), the Commissioner has a regulatory duty to develop a complete medical record before making a disability decision, see Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). When determining a plaintiff's eligibility for disability, the ALJ must consider objective medical evidence as well as any testimony concerning an applicant's impairment(s), restrictions, daily activities, efforts to work, or any other relevant considerations. See 20 C.F.R. § 404.1512(b)(3) (1997). The ALJ also has a duty to develop psychiatric evidence where there exists some indication that the plaintiff has psychiatric problems. Pascual v. Sullivan, 715 F. Supp. 1268, 1271 (S.D.N.Y. 1989). In the case at bar, plaintiff's psychiatric impairment is evidenced by the recommendations of Dr. Kao and Dr. Galst, the diagnosis of depression by plaintiff's treating physician, Dr. Pignaelli, the Questionnaire by Dr. Casals and the fact that plaintiff has been undergoing psychotherapy and taking Pamelor.
A claimant's "impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1508 (1997). Here, although the ALJ considered the Questionnaire and the Medical Assessment of Ability to Do Work-Related Activities (Mental) by Dr. Casals, the ALJ's decision and the record do not indicate that the ALJ based her decision on sufficient evidence. Dr. Casals' Questionnaire contains a brief summary of the results of plaintiff's mental status examination, which revealed that the claimant has an anxious and depressed mood, although alert and fully oriented with mild memory problems. However, the actual result of the mental status examination is not in the record. "The results of well-standardized psychological tests such as the Wechsler Adult Intelligence Scale (WAIS), the Minnesota Multiphasic Personality Inventory (MMPI), the Rorschach, and the Thematic Apperception Test (TAT), may be useful in establishing the existence of a mental disorder. . . the process of taking a standardized test requires concentration, persistence and pace; performance on such tests may provide useful data." 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D) (1997).
Plaintiff contends that his psychiatric history is not in the record and that the ALJ failed to develop fully plaintiff's psychiatric evidence. This Court agrees. "The presence of a mental disorder should be documented primarily on the basis of reports from individual providers, such as hospitals and clinics. Adequate descriptions of functional limitations must be obtained from these or other sources which may include programs and facilities where the individual has been observed over a considerable period of time." Id. Further, "the existence of a medically determinable impairment of the required duration must be established by medical evidence consisting of clinical signs, symptoms and/or psychological test findings." 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(B) (1997). The Court must be satisfied that the ALJ's decision was based on substantial evidence. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). This Court does not find that basing the decision of plaintiff's psychiatric impairments on one questionnaire filled out by Dr. Casals constitutes substantial evidence.
The record refers to plaintiff's psychiatric condition several times. (Tr. 58-59, 165, 409, 412, 414.) Plaintiff's treating physicians, Dr. Pignaelli and Dr. Casals, both diagnosed him with psychiatric impairments. Dr. Kao indicated that plaintiff "appears to be agitated; psychiatric evaluation suggested." (Tr. 323.) Dr. Galst stated that plaintiff has "very little insight into his problems", and that plaintiff was depressed and suffered from severe anxiety. (Tr. 58.) Dr. Galst also testified that plaintiff's anxious appearance (wringing of his hands and twisting of his hat) was consistent with the report of Dr. Casals. (Tr. 59.) Dr. Galst further mentioned that plaintiff's taking Pamelor, also known as Nortriptyline, an antidepressant, indicated that psychiatric disorder was plaintiff's major disorder at the time of the hearing. (Id.) Despite these apparent indications of plaintiff's mental ailment, the ALJ failed both to seek plaintiff's psychiatric medical records from his treating psychiatrist, see 20 C.F.R. § 404.1512(d) (Social Security Administration has responsibility to develop a claimant's complete medical history (records of medical sources) for at least the 12 months preceding the month in which a claimant files his or her application unless there is a reason to believe the development of an earlier period is necessary), or if they were unavailable or unclear, to send plaintiff out to a psychiatric consultative evaluation, see 20 C.F.R. §§ 404.1512(f), 416.912(f), by his own treating psychiatrist or by an independent examiner. See 20 C.F.R. §§ 404.1519g-i, 416.919g-i (1997). See also 20 C.F.R. § 404.1520a (1997) (mental status examination and psychiatric history will provide needed information to evaluate existence of mental impairment); Gecevic v. Secretary of Health and Human Services, 882 F. Supp. 278, 287 (E.D.N.Y. 1995) (Before making a disability determination, the ALJ should obtain and examine treating psychiatrist's records regarding plaintiff's psychiatric condition).
The need for examining plaintiff's complete psychiatric history is further noted in the Commissioner's regulations concerning mental disorders:
An individual's level of functioning may vary considerably over time. The level of functioning at a specific time may seem relatively adequate or, conversely, rather poor. Proper evaluation of the impairment must take any variations in level of functioning into account in arriving at a determination of impairment over time. Thus, it is vital to obtain evidence from relevant sources over a sufficiently long period prior to the date of adjudication in order to establish the individual's impairment severity. This evidence should include treatment notes, hospital discharge summaries, and work evaluation or rehabilitation progress notes if these are available.
20 C.F.R., Pt. 404, Subpt. P, App. 1, 12.00(D).
"Incomplete medical records may not provide the substantial evidence necessary to uphold the Commissioner's decision." Rudder v. Chater, 1997 U.S. Dist. LEXIS 7703, 1997 WL 297009 (S.D.N.Y. 1997) (remanding the case because ALJ did not fully develop plaintiff's neurological evidence by inquiring into circumstances under which plaintiff's headaches arose, the degree of the pain from the headaches, and whether the headaches had worsened over time. Also, the ALJ did not inquire into whether any neurological examinations existed and failed to obtain a report from the neurologist or to seek the neurologist's records) (citing Pratts v. Chater, 94 F.3d at 38 (remanding the case because most of plaintiff's medical history was not in the record)).
Dr. Galst testified that plaintiff's impairment was mainly psychiatric, and thus plaintiff's residual functional capacity was less than sedentary even though he did not meet any specific listings. (Tr. 58.) The ALJ ignored Dr. Galst's statements regarding plaintiff's psychiatric condition, and instead asked the doctor: "Prior to the onset of the psychiatric problem, can you give me an assessment as to what his physical residual capacity would have been?" In her decision, the ALJ did not include any explanation for her omission of Dr. Galst's testimony on plaintiff's psychiatric impairment.
(See Tr. 13-20.) Administrative law judges, however, may not ignore findings of fact made by State agency medical consultants and "must explain the weight given to these opinions in their decisions." Social Security Ruling ("SSR") 96-6p, 1996 WL 374180 at *1 (S.S.A. 1996). Thus, the Court cannot allow the unexplained dismissal of the medical evidence in a claimant's favor. Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (ALJ's denial of disability benefits was not based on substantial evidence where the ALJ did not give a reason for rejecting all of the medical evidence favoring plaintiff); See also Gecevic, 882 F. Supp. at 285 (ALJ owed plaintiff an explanation of why consultative psychiatrist's findings, which favored plaintiff, were being disregarded).
This Court finds that the ALJ did not have enough evidence of plaintiff's nonexertional psychiatric impairment to properly apply the Medical-Vocational Guidelines (the "grids"), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1997), to Batista's case. "Under the Social Security Act, the Commissioner bears the burden of proof for the final determination of disability." Pratts v. Chater, 94 F.3d at 38. Generally, if a claimant is only afflicted with exertional impairments, e.g. strength restrictions, then the Commissioner may satisfy this burden by applying the grids mechanically. Id. at 38-39. If however, the claimant "suffered from additional 'nonexertional' impairments [such as anxiety or depression, 20 C.F.R. § 404.1569a(c)(i) (1997)], the grid rules may not be controlling" and "the guidelines cannot provide the exclusive framework for making a disability determination." Id. (quoting Bapp v. Bowen, 802 F.2d 601, 604-05 (2d. Cir. 1986)); see also Bapp at 605-06 (where the claimant's work capacity is significantly diminished beyond that caused by his exertional impairment the application of the grids is inappropriate).
The ALJ determined that plaintiff is classified as a younger individual, see 20 C.F.R. §§ 404.1563, 416.963, who is unable to communicate in English, see 20 C.F.R. §§ 404.1564, 416.964, with a past history of unskilled work. See 20 C.F.R. §§ 404.1568, 416.968. Having concluded that plaintiff retained the residual functional capacity for light work activity and applying the vocational profile set forth in the grids, the ALJ found that Rule 202.16 applied to this case and that plaintiff is not disabled. The ALJ determined that plaintiff's capacity for the full range of light work has not been compromised significantly by his additional nonexertional limitations. However, in the record, there is not enough documentation of plaintiff's nonexertional impairment such as his psychiatric history for the ALJ to make such a determination. The ALJ acknowledged that plaintiff suffers from a dysthymic disorder which she described as a severe medical impairment. (Tr. 19.) Also, plaintiff's treating psychiatrist has characterized him as being frequently tearful, nervous, unable to concentrate, continuously depressed with limited adaptive coping skills, and increasingly sensitive to changes in his environment which increase his depression and lower his ability to concentrate. (Tr. 342.) Dr. Galst did not think plaintiff was able to do any work due to his psychiatric impairments. (Tr. 58.) The ALJ should have tried to fully develop this evidence of plaintiff's nonexertional impairment, and then determine if his nonexertional impairment so significantly diminished his work capacity that the grids would not apply in this case. See Pratts v. Chater, 94 F.3d at 39; Nelson v. Bowen, 882 F.2d 45 at 46; Bapp v. Bowen, 802 F.2d at 605-06; 20 C.F.R. 404 Subpt. P, App. 2, 200.00(e)(2) (1997).
The plaintiff also notified the Social Security Administration (SSA) that he had two treating doctors, Dr. Pedro L. Benedicto and Dr. Caplan. (Tr. 123, 131.) Plaintiff indicated that he had been seeing Dr. Benedicto for chest pains until October 31, 1991, and that he had been seeing Dr. Caplan for headaches from June, 1979 to September, 1991. The record does not indicate that these doctors were asked to submit complete narrative reports or any medical records. Because these two doctors were treating plaintiff during the time of his alleged disability onset date of September 6, 1989, records and statements from these treating physicians would provide significant evidence regarding plaintiff's physical and psychiatric impairments. In plaintiff's Residual Physical Functional Capacity Assessment by Dr. Marasigan, dated January 31, 1993, the doctor indicated that there were no treating or examining source statements regarding the claimant's physical capacities in file. (Tr. 109.) Because the opinions of a treating physician regarding a plaintiff's medical condition generally has more weight than other pertinent evidence in disability determination, See 20 C.F.R. § 404.1527(d) (1997); Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993); Massimino v. Shalala, 927 F. Supp. 139, 144 (S.D.N.Y. 1996), the ALJ has a duty to obtain sufficient information from a pro se claimant's treating physician to make his or her decision. See Flanders v. Chater, 1995 U.S. Dist. LEXIS 15249, 1995 WL 608287, at *7-8 (S.D.N.Y. 1995); Carroll v. Secretary of Dep't of Health and Human Services, 872 F. Supp. 1200, 1204-05 (E.D.N.Y. 1995) (ALJ failed to develop record fully where pro se plaintiff's record did not contain documentation regarding relevant time period from treating physician, which pursuant to 20 C.F.R. § 404.1527(d) was to be given significant weight).
There was also a question as to whether plaintiff received adequate translation of the testimony of Dr. Galst. The discussion between the ALJ and the interpreter regarding the translation was as follows:
Q Okay. I don't want to interrupt you but I'm going to ask the interpreter, how are you-- this man has to have an understanding of what the Doctor is saying in order for him to be able to pose questions later. It might, be given the length of this, it might be better for you to do a simultaneous translation for him. Are you planning on doing a summary or what were you--