to which the medical source
supported his opinion; (4) the degree of consistency between the opinion
and the record as a whole; (5) whether the opinion is given by a
specialist; and (6) other evidence which may be brought to the attention
of the ALJ. See 20 C.F.R. § 404.1527(2001).
2. The Treating Physician Rule Applied to Dr. Hernandez
The ALJ held that Dr. Hernandez's assertion that Morillo is disabled is
"totally conclusory and of little or no evidentiary value." Tr. at 26. As
noted above, Dr. Hernandez stated that Morillo was disabled in an August
1995 note given to her and a March 1997 form provided to her counsel.
Tr. at 221 and 328. The ALJ seemed to imply, although he did not
expressly state, that Dr. Hernandez's treatment opinion did not satisfy
the first prong of the treating physician rule. The ALJ also found Dr.
Hernandez's credibility lacking because in the form Dr. Hernandez
provided to Morillo's counsel, he stated that she became "totally
disabled" on February 5, 1995, but she did not stop working until July
1995. Id. In addition, the ALJ pointed out that Dr. Hernandez completed
the form a year after he last examined Morillo. Id.
The ALJ also implied that Dr. Hernandez's treating opinion did not
satisfy the second prong of the treating physician rule because the
doctor's treatment notes and the medical impairments he listed in the
August 1995 and March 1997 letters were inconsistent with an assertion of
disability. Tr. at 26-27. Moreover, the ALJ suggested that Dr.
Hernandez's characterization of Morillo as disabled contradicted other
substantial evidence in the record. Id.
The ALJ further refused to credit the opinion of Dr. Hernandez on the
grounds that the doctor's treating notes contained no mention of Morillo
complaining about joint or back pain, or pain from leg edema, although
these were two of the principal impairments from which she claimed to
suffer. Tr. at 22.; Finally, the ALJ held that Dr. Hernandez's diagnosis
of Morillo as disabled is unconvincing because it was predicated upon
"the more minor of her conditions," which the non-examining medical
expert, Dr. Plotz, testified would not cause any limitations on her
capacity to work "except for the need to avoid environmental irritants."
Tr. at 27.
The ALJ failed to correctly apply the law in his determination of
whether to accord controlling weight to Dr. Hernandez's treatment
opinion. First, the ALJ did not have the luxury of terminating his inquiry
with the findings that Dr. Hernandez's assertion of disability is
"totally conclusory" and inconsistent with the impairments from which
Morillo admittedly suffers. Even if the clinical findings were
inadequate, the ALJ had a duty to seek additional information from the
treating physician, sua sponte. Schaal v. Apfel, 134 F.3d 496, 505 (2d
Cir. 1998). See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) ("[T]he
ALJ generally has an affirmative obligation to develop the administrative
record. This duty exists even when the claimant is represented by
counsel"); see also Clark v. Commissioner of Social Security, 143 F.3d 115,
118 (2d Cir. 1998) ("If asked, . . . the doctor might have been able to
offer clinical findings in support of his conclusion . . . [and] failure
to include this type of support for the findings . . . does not mean that
such support does not exist.").
Second, even if the ALJ properly determined that Dr. Hernandez's
treatment opinion did not merit controlling weight, he was still required
to apply the six factors specified above to determine what degree of
weight should be applied. See Schaal, 134 F.3d at 503. In Schaal,
Second Circuit vacated an adverse judgment on a disability benefits
claim, and remanded for further proceedings, because the ALJ failed to
"provide plaintiff with `good reasons' for the lack of weight attributed
to her physician's opinion as required by SSA regulations," and therefore
the court "was unsure exactly what legal standard the ALJ applied in
weighing" the treating physician's opinion. Schaal, 134 F.3d at 505. The
ALJ's failure here to fully apply the strictures of the treating
physician rule compels a remand. As noted by the Second Circuit in Johnson
v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987), "where there is a reasonable
basis for doubt whether the ALJ applied correct legal principles,
application of the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be deprived
of the right to have her disability determination made according to the
correct legal principles."
3. The Treating Physician Rule Applied to Dr. Laniado
Morillo also asserts that the ALJ erroneously failed to accord
controlling weight to the treatment opinion of her psychiatrist, Dr.
Claude Laniado. The ALJ found that Dr. Laniado's opinion that Morillo is
disabled and unable to work due to depression is contradicted by
treatment notes that indicate improvement. Tr. at 27. Consequently, the
ALJ appears to completely discount the mental residual functional
capacity assessment administered to Morillo in October 1996, in which
Dr. Laniado rated her as "markedly limited," the most severe rating, in
eighteen out of twenty categories. Tr. at 228-31. The ALJ also seems to
discount Dr. Laniado's cover letter to the assessment in which he
states, "overall there is some improvement, but not enough to work at
this time." Tr. at 228.
Once again, the ALJ did not fulfill his responsibility to develop the
administrative record. If questioned, Dr. Laniado might have been able to
marshal the requisite medical support to explain the apparent discrepancy
between his findings on the mental residual functional capacity
assessment and the indications of improvement on the treatment notes.
The ALJ also failed to state why Dr. Laniado's opinion that Morillo is
disabled does not merit controlling weight. In assessing Morillo's
psychiatric health, the ALJ appears to find authoritative evidence
demonstrating that Morillo has inexplicably missed several appointments
with her therapist. Tr. at 23. It is unclear what bearing this
information has upon the determination of whether the opinion of
Morillo's treating psychiatrist should be assigned controlling weight, or
some lesser degree of weight. Thus, while the ALJ may conclude that the
opinion of Dr. Laniado does not merit controlling weight, he is still
obligated to apply the six factors enumerated above to determine the
appropriate weight that should be assigned.
Finally, throughout his written decision, the ALJ inserted his own
observations of Morillo's physical capacities to buttress his decision.
*fn3 SSA regulations state that all evidence will be considered in
adjudicating a claim for disability benefits, including "observations by
our employees and other persons." See 20 C.F.R. § 416.929(c)(3)(2001).
The SSA has interpreted this regulation to mean that the ALJ "may also
consider his or her own recorded observations of the individual as part
of the overall evaluation of the credibility of the individual's
statements." See SSR 96-7 p. 61 Fed. Reg. 34,483. at 34,486(1996). The
Second Circuit has held that such observations are entitled to only
"limited weight," but there is no per se legal error where the ALJ
considers physical demeanor as one of several factors in evaluating
credibility." Carroll v. Secretary of Health and Human Servs.,
705 F.2d 638, 643 (2d Cir. 1983).
At one point in his decision, the ALJ remarked that "claimant in fact
bec[a]me quite tearful when talking about this [depression] and one of
her other conditions, though she soon recovered her composure." Tr. at
20. Although observations about "physical demeanor" are not proscribed,
an ALJ should take care to avoid making determinations about a
plaintiff's psychological capacities based on those observations.
For the reasons set forth herein, it is hereby
ORDERED that the plaintiff Maria Morillo's motion for judgment
on the pleadings [9-1] is DENIED to the extent she seeks reversal
of the Commissioner's decision, but GRANTED to the extent she seeks
a remand to the Commissioner for a new hearing; and it is further
ORDERED that the defendant Commissioner's motion for judgment on the
pleadings [12-1] is DENIED; and it is further
ORDERED that this case is remanded to the Commissioner of Social
Security for further administrative proceedings consistent with this
Decision and Order.
This remand is ordered pursuant to sentence four of
42 U.S.C. § 405(g). See Nivar v. Apfel, No. 98 Civ. 3390, 1999 WU
163397, *5 (S.D.N.Y. Mar. 23, 1999); Gracia v. Apfel, No. 97 Civ. 4035,
1998 WL 599714, *7 (S.D.N.Y. Sept. 10, 1998). This Court retains
jurisdiction over this case for the enforcement of this Order and any
future proceedings with respect to this application.
The Clerk of Court is directed to close this case.