United States District Court, E.D. New York
August 9, 2004.
STEVEN GOLUBCHICK, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: DAVID TRAGER, District Judge
MEMORANDUM AND ORDER
Plaintiff, Steven Golubchick ("plaintiff") brought this action
pursuant to the Social Security Act, 42 U.S.C. § 405(g) ("the
Act"), seeking review of a final decision of the Commissioner of
Social Security ("Commissioner") finding that he was not entitled
to disability insurance benefits under the Act. The Commissioner
requests that her decision be reversed and plaintiff's claim be
remanded for further administrative proceedings under
42 U.S.C. § 405(g). Plaintiff cross-moves for reversal and award of benefits.
For the reasons set forth below, plaintiff's request that the
court reverse the Commissioner's decision and award benefits
commencing February 3, 1997 is granted. The Commissioner's
decision should be remanded for further proceedings, before a new
ALJ, in order to determine whether plaintiff was disabled during
the period of August 10, 1995 until February 3, 1997, and for
calculation of benefits.
Plaintiff filed an application for a Period of Disability and
Disability Insurance benefits under Title II and Part A of Title
XVIII of the Social Security Act on October 29, 1996, claiming to
have been unable to work since August 10, 1995. (Tr. 190-93).
Plaintiff claimed disability resulting from osteoarthritis,
spinal stenosis with peripheral neuropathy, seizures, and
clinical depression with alcohol and drug addiction. (Tr. 211).
On June 3, 1997, the application was initially denied (Tr. 178,
180-82). Plaintiff requested reconsideration. The Social Security
Administration had plaintiff's claim reviewed by a physician and
disability examiner of the State agency. Plaintiff's request was
denied again. (Tr. 179, 184-85). Plaintiff then requested a
hearing before an administrative law judge ("ALJ") of the Office
of Hearings and Appeals which was held on May 6, 1998. (Tr.
59-121; 186). Plaintiff, however, was not present at the first
hearing and a second hearing was held on May 28, 1998. (Tr. 122).
After the hearing held on May 28, 1998, plaintiff asked the
Appeals Council to review the decision. The Appeals Council
granted plaintiff's request for review under the error of law
provision of the Social Security Administration regulations,
20 C.F.R. § 404.970. (Tr. 25). The Appeals Council vacated the
hearing decision and remanded the case to an ALJ. (Id.) The ALJ
asked that additional evidence pertinent to plaintiff's case be
submitted. (Id.) On August 20, 1998, the ALJ, before whom
plaintiff and his attorney appeared, considered the case de
novo, and found that plaintiff was not under a disability. (Tr.
30-49). The Appeals Council granted plaintiff's request for
review on August 1, 2001, and remanded the case to the ALJ for
failure to proffer evidence to plaintiff's attorney. (Tr. 24-26).
On January 22, 2002, after proffering the relevant evidence to
plaintiff's attorney, the ALJ issued a decision denying
plaintiff's claim. (Tr. 12-23). On May 23, 2003, the decision of
the ALJ became the final decision of the Commissioner when the
Appeals Council denied plaintiff's request for review. (Tr. 5-8).
This action followed.
Plaintiff, Steven Golubchick, was born on January 27, 1947.
(Tr. 124, 190). He completed high school (Tr. 124-25, 215),
graduated from City College with a degree in film production (Tr.
124-25, 215), and served in the air force where he worked as a
weather observer. (Tr. 127). Between 1986 and 1995, plaintiff
worked as a customer service representative. (Tr. 134-35). In
this capacity, plaintiff took orders and scheduled jobs over the
telephone. (Tr. 135). Between February and July 1995, plaintiff
worked as a night shift manager doing pre-press production work.
(Tr. 129). In this capacity, plaintiff worked on a computer
preparing negatives for printing. (Tr. 129-30). He left his job
in July 1995 to undergo neck surgery. (Tr. 131).
Plaintiff testified that he did not return to work after
recovering from neck surgery because he suffered from a
"breakdown." (Tr. 132). Plaintiff stated that he did not return
to work because he lost control of his hands, suffered from
numbness in his fingers, and could not feel. Furthermore, he
testified that he was also suffering from a mental breakdown.
(Id.) According to plaintiff, he was replaced at his previous
job (Tr. 133) and tried to obtain work at a "freelance place."
(Id.) Plaintiff did not secure work and claimed that it was
because he had numbness in his hands and could not "handle the
keyboard." (Tr. 134). Plaintiff did not attempt to return to his
job as a customer service representative because of stress, heavy
drinking, and "a problem with pills." (Tr. 136). He testified
that the only work he had performed since July 1995 was street
vending. This work only lasted a day or two and according to
plaintiff, he "couldn't take it." (Tr. 128).
According to plaintiff, he stopped drinking in November 1995
and attended an outpatient detoxification program at VA Hospital
for his drug and alcohol abuse. (Tr. 144). Plaintiff stated that
he had a mental breakdown and was hospitalized at the Brooklyn VA
Hospital in 1997. (Tr. 145). He also reported that he suffered
from short-term memory loss and would forget previous
conversations he had taken part in. (Tr. 172).
Plaintiff reported that he lived alone. (Tr. 126). He did not
have a driver's license and used public transportation. (Tr.
126-27). According to plaintiff, he would spend his days
shopping, going to program, watching television, cleaning his
apartment, and cooking. (Tr. 169-70). In October 1997, he was
approved for placement in a supported housing program and a
supportive single room occupancy residence because he was
homeless and considered mentally ill. (Tr. 353-54).
Standard for Finding Disability
To be "disabled" under the Act and therefore entitled to
benefits, a claimant must demonstrate an "inability 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."
42 U.S.C. § 423(d)(1)(A). Furthermore, an individual's impairment must be "of
such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy." 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration has promulgated a five step
procedure for evaluating disability claims. 20 C.F.R. § 404.1520.
This Circuit has implemented that procedure as follows:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience. Assuming
the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other
work which the claimant could perform. Rosa v.
Callahan, 168 F.3d 72 (2d Cir. 1999).
In his January 22, 2002 decision, the ALJ found that plaintiff
was "not `disabled' within the meaning of the Social Security Act
and Regulations [and] therefore not entitled to a Period of
Disability Insurance Benefits, based on his application filed
October 29, 1996." (Tr. 16). The ALJ reached that conclusion
based on the following findings: (1) there was no evidence that
plaintiff engaged in substantial gainful activity after August
10, 1995, the alleged disability onset date, (2) the plaintiff's
impairments were "severe," (3) however, the evidence failed to
establish that the plaintiff had an impairment or combination of
impairments which met the criteria of any impairment listed in
Appendix 1, Supbart P, Regulation No. 4, (4) plaintiff was
"capable of performing the full range of light work" (Tr. 21),
and (5) therefore plaintiff was capable of performing his past
relevant work as a customer service representative. (Id.)
Standard for Remand
A remand for further development of the record is appropriate
when the Commissioner did not make explicit findings, or failed
to correctly apply the law and regulations. Melkonyan v.
Sullivan, 501 U.S. 89, 101 (1991) (citing H.R. Rep. No. 96-100
at 13 (1979), 1980 U.S.C.C.A.N. 1277, 1336-37). See also
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) ("When there
are gaps in the administrative record or the ALJ has applied an
improper legal standard, we have, on numerous occasions,
remanded for further development of the evidence.") In
situations where there is "no apparent basis to conclude that a
more complete record might support the Commissioner's decision
remand for calculation of benefits" is appropriate. Rosa v.
Callahan, 168 F.3d 72, 83 (2d Cir. 1999). Plaintiff argues that
the appropriate remedy in this case is reversal and award of
benefits. Had the ALJ properly analyzed the evidence in this
case, application of the correct legal standards and the
overwhelming evidence would have led to the conclusion that
plaintiff was mentally disabled and entitled to benefits as of
February 3, 1997.*fn1 However, remand for further
proceedings is necessary to determine whether plaintiff was
disabled between August 10, 1995 and February 3, 1997.
ALJ's Determination of Disability
The ALJ made numerous errors while determining that plaintiff
did not meet the requirements for disability set forth in the
Act. These errors include the following:
(1) The ALJ failed to acknowledge or discuss the assessment of
Dr. Asad Ali, the medical expert who testified at the May 6, 1998
hearing. Dr. Ali's assessment of the plaintiff's functional
capacity was not consistent with the ALJ's findings that
plaintiff's depression was not a severe impairment or residual
functional capacity finding. The ALJ's failure to consider this
evidence was an error. The ALJ must consider every medical
opinion in the record, regardless of the source.
20 C.F.R. § 404.1527(d). (Def't Mem. of Law in Supp. of Mot. for Remand for
Further Administrative Proceedings, "Def't Brief" at 8-9). The
ALJ failed to acknowledge Dr. Ali's opinion regarding plaintiff's
mental functional capacity. Dr. Ali testified that after being
drug and alcohol free for one year, plaintiff was severely
depressed and had a mood disorder. (Tr. 71). In Dr. Ali's
opinion, the plaintiff would probably not be able to adjust in a
permanent work environment. (Id.) However, he further said that
plaintiff could likely perform simple, repetitive tasks that did
not require a great deal of memory. (Tr. 73). Dr. Ali's testimony
indicates that plaintiff's mental residual functional capacity
affected his ability to do basic work activities. Basic work
activities relate to the abilities and aptitudes necessary to do
most jobs. These activities include mental functions such as
understanding, carrying out & remembering simple instructions;
use of judgment; responding appropriately to supervision,
co-workers and usual work situations; and dealing with changes in
a routine work setting. 20 C.F.R. § 404.1521(b).
(2) The ALJ failed to acknowledge Dr. Ali's physical functional
capacity assessment. Dr. Ali testified that plaintiff could
perform sedentary work. (Tr. 68). Dr. Ali stated that plaintiff
could sit for five or six hours a day and could lift or carry
five or ten pounds. (Tr. 69-70). Dr. Ali's assessment is not
consistent with the ALJ's findings that plaintiff's depression
had a de minimus effect on his ability to perform work-related
activities. Furthermore, the ALJ did not indicate why he rejected
Dr. Ali's assessment or what weight he was affording the
assessment as required by the regulations.
20 C.F.R. § 404.1527(d).
(3) The ALJ failed to consider other evidence indicating that
plaintiff's mental impairment affected his ability to perform
basic work related activities. There is substantial evidence to
suggest that plaintiff's mental impairment was severe, and
therefore, had an effect on plaintiff's ability to perform
work-related activities. 20 C.F.R. § 404.1520(c) (defining a
severe impairment as one that significantly limits an
individual's physical or mental ability to do basic work
activities.) For example, plaintiff's global assessment of
functioning (GAF) noted moderate to severe limitations in his
ability to function. On March 26, 1997, plaintiff had a GAF of 45
(Tr. 457); on July 19, 1997, plaintiff had a GAF of 55 (Tr. 329);
and on June 11, 1998, plaintiff had a GAF of 52 (Tr. 499). A GAF
score of forty-five to fifty corresponds to "serious symptoms
. . . or any serious impairment in social, occupational, or
school functioning."*fn2 Additionally, Dr. Meadow, a
consultive physician, said that plaintiff's memory was mildly
impaired, his attention & concentration were moderately impaired,
and his ability for abstract thinking was slightly impaired. (Tr.
334). Dr. Meadow concluded that plaintiff had mild to moderate
difficulties with personal, social, and occupational adjustments
that impaired his ability to tolerate work pressures. (Id.) His
findings indicate some limitation of function resulting from
plaintiff's mental impairment.
(4) The ALJ failed to make a finding of what weight
he afforded to the testimony of Dr. Hamid Moussavian,
plaintiff's treating psychiatrist. Dr. Moussavian
described limitations that would have affected
plaintiff's ability to perform basic mental work
related activities. Dr. Moussavian indicated that
plaintiff suffered from major depression and
generalized anxiety. (Tr. 499). Dr. Moussavian
performed an assessment of plaintiff's mental
functional capacity. (Tr. 499-504). Moussavian
indicated that plaintiff suffered from major
depression and generalized anxiety. (Tr. 499). On
June 11, 1998, plaintiff had a current GAF of
fifty-two, and a highest GAF in the past year of
fifty-five. (Id.) According to Moussavian's report,
plaintiff suffered from occasional sleep disturbance,
mood disturbance, emotional lability, substance
dependence, occasional social withdrawal, occasional
decreased energy, anhedonia or pervasive loss of
interest, feelings of guilt and worthlessness,
difficulty concentrating, generalized persistent
anxiety, and dependency on drugs in the past. (Tr.
499-500). He was likely to be absent from work more
than three times a month and had a "fair" to "poor to
none" ability to maintain concentration and attention
for two hour segments, complete a normal workday
without psychological interruptions, deal with normal
work stresses, carry out detailed instructions, and
deal with stress of skilled and unskilled work.
(Id.) He had only a fair ability to perform nearly
all of the other requirements for performing work.
"Fair" was defined as a "seriously limited but not
precluded" ability to perform these tasks. (Tr.
502-03). Plaintiff had moderate limitations of daily
living, moderate difficulties in maintaining social
functioning, and frequent deficiencies of
concentration. He suffered from repeated episodes of
deterioration and decompensation. (Tr. 504).
As a treating source, Dr. Moussavian's opinions were entitled
to controlling weight when "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
. . . not inconsistent with the other substantial evidence."
20 C.F.R. § 404.1527(d)(2). Some of the factors the ALJ should have
considered while assessing the weight of Dr. Moussavian's opinion
are the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship,
supportability, consistency, and specialization.
20 C.F.R. § 404.1527. Furthermore, an ALJ is required to "give good reasons
in our notice of determination of decision for the weight we give
your treating source's opinion." Id. Dr. Moussavian frequently
examined the plaintiff and was a specialist. His opinion should
be afforded controlling weight if not inconsistent with other
(5) The medical evidence shows that plaintiff's abilities to
perform basic mental activities such as understanding,
remembering, and carrying out instructions, maintaining attention
and concentration, and responding appropriately to supervision,
co-workers and work pressures were impaired. Given the medical
evidence relating to plaintiff's mental impairment in the record,
the ALJ erred in not identifying any specific limitations
resulting from that impairment. The ALJ should have considered
these limitations in his decision and explained the extent to
which these limitations affected plaintiff's ability to perform
basic work related activities. 20 C.F.R. § 404.1520(a)(2).
(6) The ALJ erred in stating that the reports of Drs. Kessel
and Meadow supported a finding that plaintiff's residual
functional capacity allowed him to perform the full range of
light work. (See Tr. 21). The January 1997 mental functional
capacity assessment provided by Dr. Alain de la Chappelle, and
relied upon by the ALJ, was performed before plaintiff's
self-described "break" and prior to his psychiatric
hospitalization in February 1997. (Tr. 84, 462). Contrary to the
ALJ's findings, Dr. Kessel, the state agency physician, indicated
that plaintiff's mental impairment was severe and that an
assessment of plaintiff's mental limitations was required. (Tr.
305-07; see also Tr. 309.) Moreover, in finding that Dr.
Meadow's assessment was consistent with his own, the ALJ did not
adopt all the limitations proposed by Dr. Meadow (Tr. 21).
Therefore, the medical evidence relied upon by the ALJ to support
his residual functional capacity assessment does not provide
substantial support for his findings.
(7) The ALJ erred in failing to explain his consideration of
plaintiff's subjective complaints, as required by
20 C.F.R. § 404.1529. The only mention of plaintiff's credibility occurs in
the "findings" section, where the ALJ stated that plaintiff's
allegations were not entirely credible and were not consistent
with the objective medical evidence. (Tr. 22). However, the ALJ
was required to consider the factors laid out in
20 C.F.R. § 404.1529(c)(3) in making a credibility determination and did not
do so here. Outside of his discussion of the medical evidence,
the ALJ made no mention of plaintiff's testimony or other
statements about his symptoms in the decision.
Further Development of the Record
Defendant argues that remand for further proceedings is the
proper remedy because the evidence before the ALJ did not
establish that plaintiff was under a disability under the meaning
of the Act. However, Dr. Moussavin's report and progress notes
establish that plaintiff's condition as of February 3, 1997 meets
the requirements of Listing 12.04.*fn3 20 C.F.R. Pt. 404,
Subpt. P, App. 1, at 474. According to Dr. Moussavian, on June
11, 1998, plaintiff had a current GAF of only fifty-two, suffered
from major depression and generalized anxiety, and was being
treated once a week for counseling and once a month for
medication management. (Tr. 499). Dr. Moussavian reported that
plaintiff had the following signs and symptoms: sleep
disturbance, mood disturbance, emotional lability, substance
dependence, social withdrawal or isolation, decreased energy,
anhedonia or pervasive loss of interest, feelings of guilt or
worthlessness, difficulty thinking or concentrating, generalized
persistent anxiety, and pathological dependence or passivity.
(Tr. 499-500). He also found that plaintiff suffered from
frequent deficiencies of concentration, persistence, and pace and
had repeated episodes of decompensation (Tr. 504). Dr.
Moussavian's opinion falls right in the confines of Listing
12.04, making award of disability mandated at Step Three of the
sequential analysis, without consideration of plaintiff's many
physical limitations. Plaintiff's symptoms fall within part A and
his condition also meets the requirements of Part B (requiring
marked difficulties in concentration and repeated episodes of
Defendant also argues that the record does not demonstrate that
plaintiff's impairments prevented him from doing all work.
Defendant cites to medical evidence illustrating plaintiff's mild
to moderate mental limitations resulting from depression and
anxiety, suggesting that plaintiff's mental impairment was not
disabling. (Def't Brief at 13). For example, a March 26, 1997
psychiatric progress note indicated that plaintiff's attention
span, capacity to concentrate, short-term memory, long-term
memory, and judgment were normal. (Tr. 453). Plaintiff's
depression improved with medication (Tr. 332; Def't Brief at 13),
and subsequent evaluations of plaintiff's mental limitations
showed that his functioning improved (as reflected in higher GAF
However, Dr. Moussavian's June 1998 assessment is supported by
the rest of the evidence from mental health sources. Dr. Ali, the
medical expert, admitted that a GAF of below fifty is generally
recognized as precluding job activities on a sustained basis,
(Tr. 90), and noted the "records indicate that he does have some
difficulty with attention and recall, and with his memory. And he
probably would not be able to adjust himself in any work
environment if that thing is a permanent thing." (Tr. 71). Dr.
Kessel concluded an RFC assessment was necessary because
plaintiff's dysthymic disorder was a severe impairment (although
he characterized it as not meeting Listing 12.04). (Tr. 309,
312). Dr. Meadow characterized plaintiff's ability to tolerate
work pressures, his ability for abstract thinking, and his
attention and concentration as impaired. (Tr. 334). None of these
assessments, although differing in degree of severity from Dr.
Moussavian's, are inconsistent with his findings.
Although it is true that plaintiff's mental health slightly
improved after his hospitalization in February 1997, in general,
he continued to suffer from significant mental problems that
seriously limited his ability to perform the most basic work
activities. In October 1997, he was approved for placement in a
supported housing program and a supportive single room occupancy
residence because he was homeless and considered mentally ill.
(Tr. 353-54). Although plaintiff attempted to return to school
and return to work after the date of Dr. Moussavian's assessment,
he was never able to follow through with his efforts due to the
stress and fear of moving forward. In his weekly therapy
sessions, and in his monthly sessions with Dr. Moussavian,
plaintiff was encouraged to look for at least a part-time job or
vocational training program, (see, e.g., Tr. 540, 554, 555),
but he was unable to find a job (see, e.g., Tr. 547), and
continued to have periods of increased depression (see, e.g.,
Tr. 557). While Dr. Moussavian tried pushing plaintiff to pursue
employment, he never reported that plaintiff was capable of
holding down a job. Nor did plaintiff's condition steadily
improve. On the contrary, plaintiff's therapist noted on November
5, 1999 that plaintiff "now is very depressed. He has difficulty
getting up and going out. He needs to come in more frequently. He
is deteriorating." (Id.) In all, Dr. Moussavian's opinion is
entitled to controlling weight.
Furthermore, the Commissioner implicitly admits that there is
no need to develop the record or obtain additional evidence on
remand Rather, the only purpose of remand is to allow the ALJ to
review the same evidence a third time to allow the Commissioner a
seventh chance to make a decision. Although it is undisputed that
the ALJ erred in analyzing the evidence in this case, plaintiff
argues that this fact alone does not make remand necessary for
further development. Under 42 U.S.C. § 405(g), the court may, on
motion from the Commissioner of Social Security, remand the case
to the Commissioner for further action by the Commissioner, and
it may at any time order additional evidence which is material
and that there is good cause for the failure to incorporate such
evidence in the record in a prior proceeding. See Balsamo v.
Chater, 142 F.3d 75, 82 (2d Cir. 1998). This statutory section,
incorporated into the Social Security Act by amendment in 1980,
"was at least in part designed to limit federal court remands to
the [Commissioner]." Id. (citing Carroll v. Secretary of
Health & Human Servs., 705 F.2d 638, 644 (2d Cir. 1983)).
When "the reversal is based solely on the [Commissioner's]
failure to sustain [her] burden of adducing evidence of the
claimant's capability for gainful employment" and the
Commissioner's finding that the claimant can engage in the
residual functional capacity suggested by the ALJ is not
supported by the evidence, there is no purpose in "remanding the
case for rehearing unless the [Commissioner] could offer
additional evidence." Caroll, 705 F.2d at 643. Furthermore, in
accordance with 20 C.F.R. § 405(g), the Commissioner must
establish "good cause for the failure to incorporate such
evidence into the record in a prior proceeding" in order to
justify the admission of new evidence. Id. at 644 ("Absent a
showing by the [Commissioner] of good cause for a remand, the
present case would be a good one in which to carry out Congress'
mandate to foreshorten the painfully slow process by which
disability determinations are made.") In the instant case, remand
with instructions to obtain additional psychological evidence
would be useless as the record clearly indicates that plaintiff
was mentally disabled as of his "breakdown" which he was
hospitalized for on February 3, 1997. (Tr. 228, 279) As in both
Balasmo and Carroll, "[a] remand, potentially followed by
another appeal, could well delay the payment of benefits to which
[the claimant] appears to be entitled for still further years."
Balsamo, 142 F.2d at 82 (citing Carroll, 705 F.2d at 644).
A court should order payment of benefits only in those rare
cases where the record contains "persuasive proof of disability"
and remand for further evidentiary proceedings would serve no
further purpose. Parker v. Harris, 626 F.2d at 225, 235 (2d
Cir. 1980); Carroll, 705 F.2d at 644; Schaal v. Apfel,
134 F.3d 496, 504 (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d
Cir. 1987)). Had the ALJ properly analyzed Dr. Moussavian's
opinion, the ALJ would have determined that plaintiff was
disabled by virtue of his mental illness alone beginning on
February 3, 1997.
However, prior to plaintiff's "break" in February 1997, there
is not enough evidence suggesting that plaintiff would have met
the listings for mental impairment. Nonetheless, the ALJ clearly
erred in claiming that plaintiff had the ability to perform the
full range of light work. The ALJ ignored many pieces of medical
evidence illustrating that plaintiff suffered from nonexertional
limitations on his ability to perform the full range of light
work. For example, the ALJ did not discuss possible manipulative
limitations caused by numbness in plaintiff's right
hand,*fn4 and erroneously concluded that his "nonexertional
limitations concerning his mental capacity do not significantly
erode his exertional residual functional capacity." (Tr. 21).
Because the ALJ did not properly consider these nonexertional
limitations, and the record is not clear as to whether
plaintiff's residual functional capacity, age, education, and
experience would have allowed him to do any work that existed in
significant numbers in the national economy, remand for further
administrative proceedings is mandated to determine whether or
not plaintiff was disabled between August 10, 1995 and February
Defense's argument for remand consists almost exclusively on
the ALJ's failure to analyze properly the very same evidence that
the ALJ already examined on two separate occasions. Despite
having two attempts to review the same evidence, the ALJ was
still unable to draft a decision that complied with applicable
laws and that supported, with substantial evidence, the ALJ's
ultimate finding of plaintiff's nondisability. In the meanwhile,
eight years have already elapsed. The ALJ has had enough chances
to analyze plaintiff's case. Remand for further proceedings
concerning plaintiff's depression after his breakdown in February
1997 is unnecessary and would serve no purpose other than to
further delay the rightful award of benefits. There is no reason
to believe that a third remand would result in the Commissioner
finding a proper basis to discredit the treating physician's
medical opinions, when the ALJ was unable to articulate an
adequate basis in either the first or the second hearing
The Commissioner plainly erred as a matter of law in
determining that plaintiff was not disabled as of February 3,
1997. Mr. Golubchick's request that the court reverse the
Commissioner's decision and award benefits commencing February 3,
1997 is granted. The Commissioner's decision should be remanded
for further administrative proceedings, before a new ALJ, in
order to determine whether plaintiff was disabled during the
period of August 10, 1995 until February 3, 1997, and for
calculation of benefits.