hours in an 8-hour workday and in [sic] unable to lift or carry any weights. . . . Dr. Baraya stated that the claimant has a cervical spine herniated disc and a lumbar herniated disc and is disabled." (R. at 17.) The ALJ concluded, however, that "there are no supporting clinical or diagnostic findings concerning Dr. Baraya's assessment of the claimant's residual capacity, which must therefore be discounted. . . . Following the claimant's brief hospitalization in January 1985, there are no contemporaoneous medical records of treatment through the date that the claimant was last insured." (R. at 19; emphasis added.)
The ALJ discounted the opinion of Martinez's treating physician as unsupported by any contemporaneous clinical or diagnostic findings. (R. at 19.) The record does contain some albeit general evidence of treatment prior to March 31, 1987, including billing and related records indicating back surgery and followup treatment in 1981, as well as subsequent hospital admissions in March 1982, October-November 1982, and January 1985. More significantly, the record contains evidence of not only bimonthly treatment but testing since that date, including an MRI examination of Martinez's lumbar spine in February 1989, a cervical spine MRI examination in January 1990, a nerve conduction study of the cervical spine performed in December 1992, additional lumbar spine MRI examinations in April 1996. various x-ray tests from April through July and in December 1996, and an x-ray scan of Martinez's lumbrosacral spine conducted in April 1998. Also, an additional MRI examination of her lumbar and cervical spine was performed in May 1998, the results of which were submitted to the Appeals Council. The ALJ's decision to discount Dr. Baraya's opinion rests specifically on the absence of supporting "clinical and laboratory diagnostic techniques," 20 C.F.R. § 404.1527(d)(2), that were "contemporaneous" with the relevant time period, in other words, conducted prior to March 31, 1987. (R. at 19.) Absent from the ALJ's analysis, however, is a discussion of retrospective diagnosis.
It is well-settled that the "treating physician rule" applies to retrospective diagnoses, those relating to some prior time period during which the diagnosing physician may or may not have been a treating source, as well as to contemporaneous ones. See Shaw, 221 F.3d at 133; Perez, 77 F.3d at 48; Wagner v. Secy. of Health and Human Serv., 906 F.2d 856, 861-62 (2nd Cir. 1990). This means that a retrospective diagnosis by a treating physician is entitled to controlling weight unless it is contradicted by other medical evidence or "overwhelmingly compelling" non-medical evidence. See Rivera v. Sullivan, 923 F.2d 964, 968-69 (2nd Cir. 1991). The retrospective opinion of a doctor who is currently treating a claimant is "entitled to significant weight" even though the doctor did not treat the claimant during the relevant period. Campbell v. Barnhart, 178 F. Supp.2d 123, 134-35 (D.Conn. 2001) (quoting Dousewicz v. Harris, 646 F.2d 771, 774 (2nd Cir. 1981)). The Second Circuit has explained that
[a] diagnosis of a claimant's condition may properly
be made even several years after the actual onset of
the impairment. Such a diagnosis must be evaluated in
terms of whether it is predicated upon a medically
accepted clinical diagnostic technique and whether
considered in light of the entire record, it
establishes the existence of a physical impairment
prior to [the relevant time.]
Dousewicz, 646 F.2d at 774. "Indeed, claimants have won reversal of adverse decisions by the [SSA] even where their condition is degenerative, making retrospective evaluation of their ability to work somewhat speculative, and even where some non-physician testimony or evidence suggests a possible ability to work at the relevant time." Rivera, 923 F.2d at 968 (citing Wagner, 906 F.2d at 861).
It is true that Martinez was treated and diagnosed by Dr. Baraya after she became uninsured, but his conclusions regarding pain explicitly extend back to her 1981 back surgery, well into the insured period. What remains unclear, however, is whether Dr. Baraya's diagnoses based on evaluations conducted after the date last insured also relate back into the insured period and account for Martinez's condition at that time, or, whether Martinez's condition was too amenable to change and aggravation to enable Dr. Baraya to form this conclusion reasonably. The Second Circuit has explained that "an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record" and that "where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history even when the claimant is represented by counsel. . . ." Rosa v. Callahan, 168 F.3d 72, 79 (2nd Cir. 1999); see 20 C.F.R. § 404.1512(e)(1); Schaal, 134 F.3d at 505; Perez, 77 F.3d at 47.
The ALJ's failure to pursue and consider the possibility of retrospective diagnosis based on these subsequent tests and treatments was error. The ALJ was not bound to accept as sufficiently supported Dr. Baraya's diagnoses as retrospectively applicable in light of the other evidence of pain and treatment in the record during the insured period. However, that three physicians who evaluated Martinez, including Dr. Baraya, her treating source, acknowledged a continuity of back problems commencing well before the date last insured obligated the ALJ to explore the possibility that the diagnoses applied retrospectively to the insured period. The ALJ, instead, ignored or overlooked the possibility of retrospective diagnosis and testing, concentrating instead on the absence of contemporaneous diagnosis and testing during the insured period as grounds to discount Dr. Baraya's opinion.*fn2 To the extent that the evidence submitted was insufficient for the ALJ to form a conclusion regarding the reliability of the assessments Dr. Baraya performed as sufficient bases to support an inference of retrospectiveness in his diagnoses, he was obligated to supplement the record with clarifying evidence. See 20 C.F.R. § 404.1512(e)(1) and (f); Perez, 77 F.3d at 47; Schaal, 134 F.3d at 505. Additional evidence should have addressed such matters as the reliability of the diagnostic tests and techniques conducted after the date last insured as indicators of some enduring, preexisting, or even progressive condition, the permanent or variable nature of Martinez's diagnoses and ailments, and, perhaps, any potential intervening aggravating factors possibly accounting for some worsening of her condition. The ALJ pursued none of these questions and left a gap in the record regarding retrospectiveness.*fn3
The Commissioner argues that the presence of inconsistent evidence in the record, namely, the evaluation and opinion submitted by Dr. Polack and by Dr. Wells, constitutes a basis not to accord Dr. Baraya's opinion controlling weight as Martinez's treating source. (See Memorandum Of Law In Opposition To Plaintiff's Motion For Judgment On The Pleadings And In Support Of The Commissioner's Cross-Motion For Judgment On The Pleadings dated March 4, 2002 ("D.Br."), at 12.) Initially, the Court recognizes a certain general consistency among the documented evaluations and conclusions offered by Dr. Baraya, Dr. Finelli, and Dr. Vosough.*fn4 Nonetheless, the Court need not address the Commissioner's argument that the opinion of Dr. Baraya, Martinez's treating source, was properly denied controlling weight for being inconsistent with that of Dr. Polack and Dr. Wells because that argument highlights a second defect in the SSA Decision: the ALJ failed to articulate and, it appears, engage in the credibility analysis dictated by 20 C.F.R. § 404.1527(d)(2) through (d)(6) and, instead, summarily discounted Dr. Baraya's opinion. (R. at 19.) The ALJ's failure to properly assess the probity of Dr. Baraya's opinion, once determining, albeit improperly for the reasons stated above, that this opinion was not controlling, independently constitutes error. See 20 C.F.R. § 404.1527(d)(2) through (d)(6); Shaw, 221 F.3d at 134; Clark, 143 F.3d at 118.
C. MARTINEZ'S CREDIBILITY
Martinez also argues that the ALJ's analysis of her credibility was improper insofar as the bases upon which he determined that her "testimony about her symptoms and limitations was not credible," (R. at 19), were not set forth adequately in the SSA Decision. In asserting this claim, Martinez points out the existence of corroboration in the form of the billing records reflecting hospitalizations in the years following her 1981 surgery as well as the diagnostic testing and the reports from Dr. Baraya following the date she was last insured. (Memorandum Of Law In Support Of Plaintiff's Motion For Judgment On The Pleading, dated Feb. 1, 2002, at 18.) The Commissioner argues that Martinez's credibility was set forth as best as possible given what he asserts to be "very little objective medical evidence, or other evidence," in the record. (D. Br. at 12-13.)
This Court has previously explained that the ALJ has
discretion to evaluate the credibility of the
claimant and to arrive at an independent judgment, in
light of the medical findings and other evidence,
regarding the true extent of the pain alleged.
However, if the ALJ decides to reject subjective
testimony concerning pain and other symptoms, she
must do so explicitly and with sufficient specificity
to enable the Court to decide whether there are
legitimate reasons for the ALJ's disbelief and
whether [her] determination is supported by
Lugo v. Apfel, 20 F. Supp.2d 662, 663 (S.D.N.Y. 1998) (citations omitted) (internal quotations omitted). In this case, determining Martinez's credibility necessarily depends in large part on the extent to which her subjective claims of impairment are corroborated by medical evidence. The ALJ's assessment of the medical evidence was incomplete for the reasons set forth in Section II.B supra. Therefore, a definitive finding concerning the ALJ's credibility analysis is not only unnecessary, as the Court has already found error warranting a remand, but it also would serve no purpose on remand because the facts upon which Martinez's credibility would be assessed would have fundamentally changed insofar as the new hearing would address the issue of retrospective diagnoses, which the original hearing overlooked. Accordingly, while the Court does recognize a certain conclusory element to the ALJ's analysis of Martinez's credibility, the Court sees no reason to offer further comment.
III. CONCLUSION AND ORDER
For the reasons discussed above, it is hereby
ORDERED that Martinez's motion for judgment on the pleadings 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 Commissioner's motion for judgment on the pleadings 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 Morillo v. Apfel, 150 F. Supp.2d 540, 548 (S.D.N.Y. 2001); Nivar v. Apfel, No. 98 Civ. 3390, 1999 WL 163397, at *5 (S.D.N.Y. March 23, 1999). The 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.