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GOLUBCHICK v. BARNHART

United States District Court, E.D. New York


August 9, 2004.

STEVEN GOLUBCHICK, Plaintiff,
v.
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.

Procedural History

  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.

  Background

  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).

  Discussion

  (1)

  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.)

  (2)

  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.

  (3)

  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 substantial evidence.

  (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.

  (4)

  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 decompensation).

  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 scores).

  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 3, 1997.

  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 decisions.

  Conclusion

  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.

  SO ORDERED.


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