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United States District Court, S.D. New York

February 6, 2004.

ROBERT BRUTSCHE, Plaintiff -against- JO ANNE BARNHART, Commissioner of the Social Security Administration, Defendants

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Robert Brutsche challenges the Commissioner of Social Security's determination that he was not entitled to Supplemental Security Income ("SSI") disability benefits because he was not disabled on or before December 31, 1999. He sues pursuant to 42 U.S.C. § 405 (g) and § 1383(c)(3) (2000). Both parties move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and Brutsche argues in the alternative that the case should be remanded for further administrative proceedings. For the reasons stated below, both parties' Fed.R.Civ.P. 12(c) motions are denied, and Brutsche's request for a remand is granted.


  Robert Brutsche was born on May 25, 1936.

  (Administrative Record ("R.") 27) He is a high school graduate and completed one year of college. (R. 108) He worked for most of his adult life, holding jobs in restaurants, as a mover, and most recently as a security guard from 1981 to 1989 and as a doorman from 1990 to 1992 and 1996 to 1997. (R. 30, 108) When he was a doorman, his duties included greeting tenants and visitors, using the intercom and elevator, carrying trash containers, and receiving deliveries. (R. 108-09) According to Brutsche, these responsibilities required him to stand for four hours a day, walk for four hours a day, and frequently lift up to Page 2 50 pounds. (R. 109) Brutsche stopped working on March 10, 1997, and he claims that he has been disabled since that date. (R. 104) He met the disability insured status requirements of Title II of the Social Security Act from March 10, 1997, through December 31, 1999, but not thereafter. (R. 13) Accordingly, he must have been disabled on or before December 31, 1999, to establish his entitlement to a period of SSI benefits. (R. 13)

  In July 1998, Brutsche filed an application for SSI benefits. (R. 42-44; 104-09) He reported that he was disabled by obsessive-compulsive disorder, which interfered with his ability to concentrate on tasks and thus caused him to lose jobs. (R. 104) He explained that he had been prescribed Prozac (R. 105), and he said that his daily activities included eating, doing laundry, cleaning his apartment, seeing friends occasionally, riding public transportation as needed, and taking long walks "when able to do so." (R. 107)

  Brutsche's application for SSI benefits was denied in August 1998 (R. 71-73), and he requested reconsideration of his claim shortly thereafter. (R. 75, 76) The Social Security Administration misplaced Brutsche's original request (R. 75) and then contacted Brutsche in August 1999, asking him to complete a new set of forms for his reconsideration request. (R. 76) Brutsche then submitted a second set of forms in support of his request for reconsideration. (R. 112-16) In this request, Page 3 Brutsche reported that he had developed these ailments since he first filed for SSI benefits: an irregular heartbeat, a stomach ailment, arthritic psoriasis in his joints, two hernias, and deteriorating hearing. (R. 112) He also stated that Dr. Mindy Beran of Mount Sinai had instructed him to walk at a slow pace and avoid lifting. (R. 112) Brutsche reported that he had visited Dr. Beran and Dr. Danie Sherer, both of Mount Sinai, since he filed his claim for disability benefits, and he indicated that he had last visited the New York State Psychiatric Institute in March 2000. (R. 113) At the end of his request for reconsideration, Brutsche attached a three-page, handwritten description of his typical day. (R. 114-16) Brutsche's request for reconsideration was denied in May 2000 (R. 93-95), and he then requested a hearing before an administrative law judge. (R. 96)

  Brutsche appeared with an attorney and two interns at a hearing before Administrative Law Judge Newton Greenberg ("the ALJ") on March 19, 2001.*fn1 (R. 26) Brutsche testified that he Page 4 suffered from low-grade depression and frequently took home food, or other items that he found on the streets. (R. 28) He also identified photographs*fn2 of his cluttered apartment. (R. 28-29) Brutsche said that he was "let go" from his last job because the superintendent of the building said he did not work fast enough (R. 29), and Brutsche did not seek other employment because he was "physically falling apart" due to back pain and depression. (R. 30-31) He testified that after leaving his job he sought treatment for obsessive-compulsive disorder by participating in an experimental program on obsessive-compulsive disorder run by the New York State Psychiatric Institute. (R. 31) In response to questions from the ALJ, Brutsche stated that he was unable to work because of "low-grade depression," which prevented him from functioning. (R. 32) Although Prozac lifted his spirits, Brutsche did not like its side effects, which made him "like a rubber duck" because he could not function or feel anything. (R. 32) Brutsche testified that he sometimes cleaned his apartment, did laundry every two days, and cooked and shopped for himself. (R. 34) He said that, at the time of the hearing, he was not on medication and was not seeing a psychiatrist because of the Page 5 expense. (R. 35) When asked about other physical ailments, Brutsche reported he had had back problems since he worked as a mover, and as a result had visited a chiropractor once every week or two since 1978. (R. 37) He testified further that, at the time of the hearing, he could "hardly walk" on some days because of his back ailments. (R. 37) Brutsche also mentioned in passing that he had flat feet, two past hernias, and once did poorly on a hearing test. (R. 37-38)

  The record before the ALJ included the following evidence of Brutsche's medical history. Since 1978, Brutsche had visited chiropractor Joseph T. Cunnane regularly for treatment of lower back pain and leg pain, which Dr. Cunnane believed interfered with Brutsche's ability to work. (R. 182, 201-02) Brutsche received psychotherapy from social worker Richard S. Klotz from 1979 to 1989, who reported that Brutsche had problems with obsession, paranoia, and depression during that period. (R. 199-200) From March 1997 to March 2000, Brutsche participated in the New York State Psychiatric Institute clinical study on obsessive-compulsive disorder. As a part of the study, Dr. Raphael Campeas performed a psychiatric assessment of Brutsche on March 3, 1997, and diagnosed him with obsessive-compulsive disorder. (R. 128-31) The record also contains "Progress Notes" from Dr. Campeas that described Brutsche's condition and response to treatment every two to three weeks between November 1997 and Page 6 July 1998. (R. 132-61) On August 4, 1998, Dr. Campeas completed a report on Brutsche's mental status, in which he indicated that Brutsche's ability to function in a work setting was "fair," though hindered by his practice of hoarding material and procrastination. (R. 168-69) Apart from a March 2000 psychiatric assessment by Dr. Campeas, in which he indicated that Brutsche's problems with hoarding had improved (R. 206-09), there is no other substantive evidence from the New York State Psychiatric Institute or Dr. Campeas in the administrative record.

  In addition to the evidence from Brutsche's own doctors, the record also contained the following evidence from consulting physicians. On July 21, 1998, consulting psychiatrist Dr. Richard King examined Brutsche and diagnosed him with a mild to moderate generalized anxiety disorder and "rule out" obsessive-compulsive disorder. (R. 163) Dr. King concluded that Brutsche had a satisfactory ability to understand, remember, and carry out instructions and a satisfactory ability to respond appropriately to supervisors, coworkers, and work pressures in a work setting. (R. 163) On May 16, 2000, Brutsche met with a second consulting psychiatrist, Dr. Renee Ravid, who tentatively diagnosed Brutsche with a depressive disorder; "rule out" obsessive-compulsive disorder, bipolar disorder, and personality disorder; and a history of psoriasis. (R. 173) She also opined Page 7 that Brutsche had some impairments in sustained concentration and a somewhat reduced tolerance to stress because of chronic anxiety and depression. (R. 173) However, she reached these conclusions without any of Brutsche's psychiatric records (R. 172), and she stated that a review of Brutsche's past and present psychiatric treatment was necessary for a definitive diagnosis. (R. 173) The same day, Brutsche' was physically examined by Dr. Michael Polak, a consulting physician, who diagnosed Brutsche with an irregular heart rate as diagnosed at Mount Sinai, psoriasis, and depression. (R. 175) Dr. Polak found that Brutsche was "mildly impaired for carrying/lifting, pushing/pulling, walking or standing" but stated that medical records should be obtained from Brutsche's primary medical doctor to confirm his diagnosis. (R. 176) The record also contains results of an EKG, chest x-ray, and blood test apparently ordered by Dr. Polak at this time (R. 177-80); the chest x-ray revealed that Brutsche had a 20 degree levoscoliosis in his upper thoracic spine. (R. 179)

  Brutsche supplemented the administrative record with affidavits from himself and two of his friends — attorney Susan Kemp and United Nations officer Richard Sydenham. (R. 191-98) These affidavits described Brutsche's life history and behavior, and to some extent Brutsche's friends — not medical professionals — discussed their impressions of Brutsche's psychiatric and physical health. (See R. 194-98) Kemp also Page 8 stated that Brutsche was unable to maintain a job because of his personality traits and behavioral problems, not because of an unwillingness to work. (R. 197)

  After reviewing the evidence in the case, the ALJ issued a decision on May 9, 2001, finding that Brutsche was not disabled on or before December 31, 1999, because his impairments did not prevent him from performing his past relevant work as a doorman. (R. 12-17) Shortly thereafter, Brutsche's legal representatives requested a corrected copy of the administrative record*fn3 and a copy of the tape of the administrative hearing (R. 212), but Brutsche still had not received these materials as of May 14, 2002. (R. 213) In order to avoid further delay, Brutsche's legal representatives appealed the ALJ's decision to the Appeals Council at that time and requested an expedited determination. (R. 213-25) On appeal, Brutsche introduced an August 2001 psychiatric evaluation by Dr. Peter Stastny, who diagnosed Brutsche with obsessive-compulsive disorder and dysthymic disorder. (R. 226-30) Dr. Stastny concluded that Brutsche's psychiatric conditions rendered him "markedly disabled" (R. 229) and "not likely to ever regain a substantial capacity to work in the open market." (R. 230) The Appeals Page 9 Council denied Brutsche's request for review on July 9, 2002 (R. 3-4) Brutsche then filed the present action on September 11, 2002.


  A federal court should set aside an ALJ decision to deny disability benefits only where it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted)'.

  The Social Security Act allows a claimant to receive disability benefits if he establishes that he has a disability. 42 U.S.C. § 423 (a)(1). For the purposes of the Act, a disability is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). Social Security Administration regulations establish a five-step process that the Commissioner must follow to evaluate a disability benefits claim. Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2001). "In essence, if the Commissioner determines (1) that the claimant is not working, (2) Page 10 that he has a severe impairment,' (3) that the impairment is not (one that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." Id. The claimant bears the general burden of proving that he has a disability that prevents him from continuing his past work, and the burden then shifts to the Commissioner to show that the claimant could perform some other gainful work in the national economy. Id.

  Here, the ALJ performed this five-step evaluation and made the following findings at each step: (1) Brutsche had not engaged in substantial gainful activity since March 10, 1997; (2) Brutsche's obsessive compulsive disorder and irregular heartbeat were "severe" impairments; (3) Brutsche did not have an impairment or impairments that met or equaled the criteria of an Appendix 1 impairment; and (4) Brutsche was capable of continuing his past relevant work as a doorman because he had the residual functional capacity to perform jobs at the medium exertional level that do not require intense concentration. (R. 14-17) Because the ALJ did not find Brutsche disabled at step four, he did not proceed to step five and determine whether there was other gainful work in the national economy that Brutsche could perform. Page 11


  Because benefits proceedings are essentially non-adversarial, the ALJ, unlike a judge at trial, must personally and affirmatively develop the record. Pratt v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). "This duty arises from the Commissioner's regulatory obligations to develop a complete medical record before making a disability determination and exists even when, as here, the claimant is represented by counsel." Id. (internal citations omitted). Under the regulations, the Commissioner must make every reasonable effort to help a claimant obtain medical reports from his own medical sources when the claimant has given permission to request the reports. 20 C.F.R. § 404.1512(d). Based on the incomplete administrative record before me, I conclude that the ALJ failed to make reasonable efforts to obtain the medical records in Brutsche's case before reaching a decision. See Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (finding that ALJ committed legal error by reaching a decision without fully developing the factual record).


  The first and perhaps most glaring problem with the administrative record is the near absence of records from Dr. Campeas or the New York State Psychiatric Institute for the period August 1998 through March 2000. The Social Security Page 12 Administration first requested records from the New York State, Psychiatric Institute in July 1998, and accordingly the following documents appear in the administrative record: one psychiatric assessment from March 1997 and "Progress Notes" from 15 meetings between Brutsche and Dr. Campeas that occurred between November 1997 and July 1998. (R. 128-62) Dr. Campeas also provided the Commissioner with his opinion about Brutsche's ability to function in a work setting in August 1998, presumably to help the Commissioner determine whether Brutsche was entitled to disability benefits. (R. 166-71)

  After Brutsche requested reconsideration of his denied claim, the Social Security Administration again requested records from the New York State Psychiatric Institute in April 2000. (R. 122) However, even though the relevant period for determining Brutsche's disability continued through December 31, 1999, Dr. Campeas apparently was never re-contacted to provide an updated opinion about Brutsche's ability to function during the second half of the relevant period. The result of the Social Security Admininistration's request for New York State Psychiatric Institute documents is unclear; although the denial of Brutsche's reconsideration request referred to a "report of 11/10/99" from the Institute (R. 95), the administrative record contains only two documents from Dr. Campeas and the New York State Psychiatric Institute for the period August 1998 to April 2000. (See R. 181, Page 13 206-09) The first is an April 21, 1999, letter from Dr. Campeas addressed "To Whom It May Concern" which states: "Mr. Robert Brutsche has been in treatment at the Anxiety Disorders Clinic for Obsessive Compulsive Disorder." (R. 181) The second is a March 21, 2000, psychiatric assessment of Brutsche by Dr. Campeas, in which Dr. Campeas states that Brutsche left the clinic on September 27, 1999. (R. 206) Both documents show plainly that Brutsche's treatment at the New York State Psychiatric Institute extended past July 1998, and neither the standard confirmation letter nor the psychiatric assessment — which Brutsche's legal representatives submitted after the hearing (R. 183-84) — appears to be have been provided' in response to the Social Security Administration's April 2000 request for files.

  Because the following circumstances indicated that reports from the New York State Psychiatric Institute were missing, the ALJ should have made reasonable efforts to obtain more records from the New York State Psychiatric Institute for the period after July 1998. First, both the April 1999 letter and the March 2000 psychiatric assessment state that Dr. Campeas was treating Brutsche in 1999, which suggests that Brutsche's records from the New York State Psychiatric Institute did not actually end abruptly in July 1998, the exact time when the Social Security Administration first requested them. Second, in Page 14 denying Brutsche's request for reconsideration, the Social Security Administration referred to a November 1999 report from the New York State Psychiatric Institute, but Dr. Campeas's letter was the only post-July 1998 document from the New York State Psychiatric Institute in the administrative record at the time of the hearing. This letter is not a typical medical record, and the absence of other evidence should have alerted the ALJ to the possibility of missing records. Third, the only copy of the March 2000 psychiatric assessment in the record was submitted by Brutsche's legal representatives after the hearing, which again should have put the ALJ on notice that documents from the New York State Psychiatric Institute were missing. Finally, Brutsche's representatives produced Brutsche's psychiatric assessments from 1997 and 2000 but informed the ALJ that [t]hese were the only psychiatric records provided by the New York State Psychiatric Institute upon [their] request for records," (R. 184) thus warning the ALJ that he could not rely on Brutsche to produce all relevant records, such as Dr. Campeas's Progress Notes.

  Despite the many indications that the administrative record did not include a complete set of files from the New York State Psychiatric Institute, the ALJ apparently made no attempt to obtain any documents from this institution. Indeed, the ALJ said at the hearing: "[The decision] will be based on the Page 15 testimony here today, the evidence in the file, as well as this additional evidence that your representatives are submitting at this time." (R. 27) This statement — an assertion that he would rely solely on evidence available at the hearing or presented later by Brutsche — suggests that the ALJ did not recognize his own duty to develop a complete medical record. Nothing else in the record indicates that the ALJ attempted to obtain Brutsche's records from the New York State Psychiatric Institute, and the ALJ explained that he reached his decision "[a]fter carefully considering the entire hearing record," (R. 12) without referring to any attempts to collect evidence for the case. If the ALJ had made reasonable efforts to obtain' Brutsche's records from the New York State Psychiatric Institute, he would have discovered 32 pages of "Progress Notes" which charted Brutsche's condition and response to treatment during 16 visits with Dr. Campeas between August 1998 and September 1999. (See Salzman Reply Declaration, Ex. A) However, because the ALJ made no effort to develop the record, these New York State Psychiatric Institute documents went undiscovered until Brutsche's attorney brought them to this court's attention in August 2003.*fn4 These records, which describe Brutsche's Page 16 psychiatric condition for one year of the relevant period, should have been part of the administrative record, and the ALJ erred when he failed to make a reasonable effort to obtain them before reaching a decision about Brutsche's non-exertional limitations.


  The ALJ also failed to develop a complete record with respect to Brutsche's exertional limitations. Brutsche reported in 2000 that he had visited two doctors at Mount Sinai for his physical ailments — Dr. Mindy Beran for a general examination and dermatologist Dr. Danie Sherer, whom Brutsche saw every other week as part of a study on psoriasis. (R. 113) Brutsche provided names, telephone numbers, and addresses for both doctors. (R. 113) In April 2000, the Social Security Administration apparently attempted to obtain records from these doctors (R. 122), but no records from either doctor appear in the administrative transcript. Brutsche's Disability Worksheet from 2000 states that Mount Sinai Medical Center "has no medical records available" (R. 122); it is not immediately clear whether this statement means that Mount Sinai had no records for Brutsche at all or, alternatively, simply could not produce those records for the Social Security Administration at that time. At any rate, at the time of the hearing, the ALJ had only one report from a medical doctor who had physically examined Brutsche, that Page 17 of Dr. Michael Polak, the consulting physician who examined Brutsche in May 2000. This report consists of two and one half pages of examination notes, two pages of EKG print-outs, a description by a radiologist of Brutsche's chest x-ray, and laboratory results from a blood test. (R. 174-80) At the hearing, Brutsche stated that he met with Dr. Polak for approximately five to ten minutes and then, when asked about the examination, said, "I never had a physical examination with my clothes on in my life." (R. 36) Although this statement could be interpreted in several ways, the most obvious interpretation is that Dr. Polak's examination was so cursory that Brutsche remained fully dressed the entire time.

  Even though the record contained minimal evidence about Brutsche's physical condition and no records from Mount Sinai, the ALJ made no attempt during the hearing to elicit more information from Brutsche about his past medical treatment. Indeed, the ALJ displayed little interest in Brutsche's testimony about his physical ailments; after Brutsche's legal representative questioned Brutsche about his physical condition for approximately two transcript pages (R. 36-38), the ALJ interrupted Brutsche's testimony mid-sentence and said, "All right. Anything else?" (R. 38) In response, Brutsche's legal representative stopped questioning Brutsche about his physical ailments and instead asked the ALJ for permission to make a few Page 18 additional comments. (R. 38) The ALJ could have used the hearing as an opportunity to flesh out the record regarding Brutsche's physical condition or to obtain more information about the location of Brutsche's medical records, but did not. There is also no evidence that the ALJ made any attempt to recontact Mount Sinai about Brutsche's records, and the ALJ's decision provides no explanation for the absence of these records.

  Despite making no attempt to compile a complete medical record, the ALJ rejected Brutsche's complaints about physical problems because "the objective medical evidence is minimal with respect to physical impairments." (R. 15) The ALJ first addressed Brutsche's alleged back problems and, after noting that chiropractor Cunnane had treated Brutsche since 1978 for back problems, found that Brutsche had failed to demonstrate any limitations from back problems because (1) "the claimant has apparently never received treatment from a medical doctor for these," (2) Brutsche did not mention a back condition in his SSI claim, and (3) Dr. Polak's examination "did not show any musculoskeletal impairment at all." (R. 15) Putting aside the question of whether these three facts would support the ALJ's conclusion, two of these three assertions are not necessarily supported by the evidence. First, it appears that the ALJ simply assumed that Brutsche never received medical treatment for his back; the ALJ never asked Brutsche at the hearing if he had Page 19 consulted a medical doctor about his back problems, and Brutsche made no statement either way. If the ALJ believed that Brutsche's failure to seek medical treatment for his back was somehow dispositive, the ALJ should have attempted to confirm his assumption that Brutsche never visited a medical doctor instead of relying for support on the incompleteness of the record. Second, contrary to the ALJ's assertion, Dr. Polak's report did include evidence of musculoskeletal impairment: the radiology report attached to his notes reported that Brutsche had "a 20 degree levoscoliosis in the upper thoracic spine." (R. 179)

  The ALJ next concluded that there was "no evidence" that Brutsche's psoriasis caused work-related functional limitations (R. 15-16), but he reached this conclusion without attempting to obtain any records from Dr. Sherer, the dermatologist whom Brutsche allegedly saw every two weeks in 1999. (R. 113) The ALJ found also that there was "no evidence" that Brutsche had a significant hearing problem or stomach ailment (R. 16), but again, the ALJ reached this conclusion without trying to locate any past medical records for Brutsche. In addition, there was no testimony about psoriasis or stomach ailments at the hearing, and the ALJ did not ask Brutsche any questions about these conditions even though Brutsche had listed them in his request for reconsideration and Dr. Polak had confirmed that Brutsche did have psoriasis. Page 20

  The ALJ then considered Brutsche's irregular heartbeat, which he had earlier characterized as a "severe" impairment. (R. 14) The ALJ stated: "Although there is no definite evidence that the claimant's irregular heartbeat causes any limitations, I agree with the opinion of Dr. Polak and the non-examining doctors that the claimant is limited to work at the medium exertional level." (R. 16) Although Brutsche had reported that Dr. Beran told him not to lift anything and to walk at a slow pace (R. 112), the ALJ did not mention these alleged restrictions or contact Mount Sinai to determine whether Dr. Beran had actually imposed such limitations on Brutsche. Furthermore, Dr. Polak did not actually state that Brutsche was capable of work at a medium exertional level; instead, he concluded that "the claimant is mildly impaired for carrying/lifting, pushing/pulling, walking or standing," but should have no difficulty with activities requiring dexterity, bending, or sitting. (R. 176) Although it is not clear from Dr. Polak's report what "mildly impaired" means for a claimant in his sixties, Dr. Polak's findings are not necessarily consistent with the ALJ's conclusion that Brutsche retained the residual functional capacity to "sit, stand, or walk for six hours in an eight hour workday, and lift/carry/push/pull up to 25 pounds frequently and 50 pounds occasionally." (R. 17) In addition, Dr. Polak included this statement at the end of his report: "Medical records should be obtained from the PMD to Page 21 confirm the above diagnosis." (R. 176) However, the ALJ made no attempt to obtain more medical records, as Dr. Polak had suggested, and instead used Dr. Polak's unconfirmed diagnosis as the only direct medical evidence to support his conclusions about Brutsche's exertional capacity.

  As the above discussion indicates, the ALJ failed to fulfil his duty to compile a complete medical record of Brutsche's physical condition. As a result, the ALJ lacked substantial evidence to support his conclusion that Brutsche was capable of doing work at a medium exertional level. Page 22

  * * *

  For the reasons stated above, I find that the ALJ did not fulfill his duty to develop the record in this case. Remand is appropriate "[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa. 168 F.3d at 82-83. Accordingly, this case is remanded to the Commissioner for further proceedings consistent with this opinion, and both motions for judgment on the pleadings are denied. Because there is insufficient evidence in the record to support a conclusion that Brutsche is entitled to SSI benefits, claimant's request for interim benefits is denied.


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