The opinion of the court was delivered by: The Honorable Kenneth M. Karas, U.S.D.J.
REPORT AND RECOMMENDATION
Hector Luis Martinez brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"), finding that he was not entitled to supplemental security income under the Social Security Act (the "Act"). Currently pending before the Court are the Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Docket # 12, and the Commissioner's motion for a reversal of his decision and a remand to the Social Security Administration for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Docket # 16. In response to the Commissioner's motion, Plaintiff agrees that the case must be remanded, but claims that such remand should be solely for the purpose of calculating benefits. See Docket # 20. For the reasons that follow, I conclude, and respectfully recommend that Your Honor should conclude, that the Commissioner's determination should be reversed and remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
On April 9, 2004, Plaintiff filed his application for supplemental security income ("SSI"), claiming that his disability began on May 1, 2002. Administrative Record ("AR") 57-60. His claimed disability included hepatitis C and mental illness. Id. 67. Plaintiff's application was denied on September 23, 2004, id. 27-30, and he thereafter requested a hearing by an Administrative Law Judge ("ALJ"). Id. 31-33. Following the September 19, 2005, hearing, the ALJ issued a decision, on March 29, 2006, finding that Plaintiff was not disabled within the meaning of the Act and was not entitled to SSI. Id. 15-25. Plaintiff filed a request for review of the ALJ's decision with the Appeals Council. Id. 11, 146-50. On June 29, 2006, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. Id. 7-9.
On August 16, 2006, Plaintiff commenced the instant action in this Court (Docket # 2), alleging that the ALJ wrongly denied him SSI. After filing an Answer (Docket # 9), Plaintiff filed a motion for judgment on the pleadings on several grounds, including the ALJ's failure to give appropriate weight to the opinion of Plaintiff's treating physician and the lack of substantial evidence in support of the ALJ's ruling with respect to Plaintiff's ability to meet the mental demands of work. Docket # 12. The Commissioner separately moved for a remand for further administrative proceedings on the ground that the ALJ applied the incorrect legal standard in weighing the medical opinion of the consultative examiner. Docket # 16.
Dr. Isaac Torruella wrote a letter dated November 24, 2003, noting that Plaintiff began treatment at New Beginnings Community Counseling Center ("New Beginnings") on February 11, 2003. AR 111. Dr. Torruella indicated that Plaintiff was receiving medication once a month and psychotherapy twice a week. Id. The staff psychiatrist evaluated Plaintiff on November 24, 2003, and diagnosed Plaintiff with major depression, for which the medications Wellbutrin and Elavil were prescribed. Id.
On March 26, 2004, Felix Velazquez, a clinical social worker at New Beginnings, wrote a letter in which he indicated that Plaintiff suffered from severe depression with psychotic feautres. Id. 110. He stated that Plaintiff was "in dire need of public assistance [because] he is severely and persistently mentally ill and is unable to work at present." Id. Mr. Velazquez reiterated Plaintiff's diagnosis of chronic recurrent depression with psychosis in a note dated May, 19, 2004. Id. 108. He also noted that Plaintiff was taking the medications Wellbutrin and Elavil. Id.
On May 12, 2004, Confesora Castoire, a case manager, wrote a letter noting that Plaintiff was a resident of Unique People Services Supported Housing Program for the Homeless & Mentally Ill. Id. 109. She explained that Unique People Services was a community residential agency aimed at helping individuals with psychiatric disabilities. Id. Ms. Castoire stated that Plaintiff was being treated for chronic recurrent depression with psychosis. Id. She said that at that time, Plaintiff was being visited on a weekly basis since his level of functioning was unstable due to his depression and reported suicidal ideation. Id. She noted that he was taking the psychotropic medications Wellbutrin and Elavil. Id.
On May 20, 2004, a consultative physical examination was conducted by Dr. E. B. Balinberg. Id. 112-15. Dr. Balinberg noted that Plaintiff had been diagnosed with hepatitis C six years ago and was in treatment for chronic recurrent depression with psychosis. Id. 112. He stated that Plaintiff smoked two packs of cigarettes a day, drank alcohol, and did not use illicit drugs other than smoking marijuana occasionally. Id. Dr. Balinberg reported that Plaintiff spent his days at home and received help from a friend with shopping and household chores. Id. He noted that Plaintiff had walked to the examination. Id. Dr. Balinberg diagnosed Plaintiff with hepatomegaly and possibly chronic liver disease, with a history of hepatitis C. Id. 113. With respect to Plaintiff's functional ability to do work-related activities, Dr. Balinberg opined, "He has an enlarged liver. He was diagnosed to have hepatitis C. I estimated that due to fatigue, he has some restriction in his ability to do heavy physical activities. His main problem is a psychiatric condition. . . ." Id. 114.
A report provided by Dr. David Molina and Mr. Velazquez from New Beginnings after a June 1, 2004, examination of Plaintiff indicates a diagnosis of major depression with psychotic features. Id. 118. According to the report, Plaintiff was first seen on February 11, 2003, and was receiving medication therapy once a month and verbal therapy once a week. Id. 120. He was taking Wellbutrin and Elavil, but his response to those medications was poor. Id. His current symptoms were listed as "Depressed, constricted anxiouse [sic] sleep disturbance, insomnia[,] isolation, anger, poor impulse control -- agressive behavioure [sic]." Id. 118. As of his most recent status examination, he was oriented to person, place, and time and was friendly and cooperative. Id. 120. He exhibited pressured, fast speech that was over-inclusive, tangential, and defensive, with angry content. Id. His mood and affect were depressed, constricted, distressed, and anxious. Id. Plaintiff was alert, edgy, and of normal intelligence. Id. 121. With respect to attention and concentration, he had racing thoughts and was preoccupied, but he had a normal range of knowledge, normal memory, and an ability to perform calculations within a normal range. Id. Nonetheless, he exhibited poor insight, poor judgment, poor impulse control, and had a history of volatile behavior. Id. Plaintiff's current functional assessment included reports of pacing at night, sleeping during the day, and isolating himself from others. Id.
With respect to Plaintiff's ability to function in a work setting, the report states, "[Patient] reports finding jobs, but not able to hold on to them. [Patient] is not emotionally stable, irritable [and] volatile with a tendency to isolate when depressed. [Patient] is not able to assimilate criticism. [Patient] is apparently unable to work." Id. The report found that Plaintiff suffered from suicidal ideations and that Plaintiff's understanding and memory were limited because he is "chronically and persistently mentally ill." Id. 122. It also noted that his sustained concentration and persistence were limited since he reported "low tolerance for criticism, poor impulse control, [and] defensiveness." Id. The report stated that Plaintiff was inconsistent in keeping appointments, forgot appointments, and isolated for weeks at a time. Id. 123. It noted, "[Patient] suffers from severe depression[,] isolates -- has interrupted sleep patterns -- irritable, defensive." Id.
On June 3, 2004, a consultative psychiatric examination was conducted by Dr. Eugene Allen. Id. 116-17. Dr. Allen noted that Plaintiff came alone by bus to the appointment. Id. 116. He reported that Plaintiff had been in therapy for nearly two years but had been treated before and was hospitalized twice in 1994 in Puerto Rico, each time for an overdose. Id. Plaintiff was seeing a psychiatrist once a month, a therapist weekly, and a social worker, who went to his home to check that he was taking his medications. Id. Plaintiff was taking Elavil and Wellbutrin, which helped him "somewhat." Id. Plaintiff had no history of alcohol abuse and was drug-free for six years, although he had used heroin for three years, had used crack cocaine and marijuana for 25 years, and was in a drug program in the past. Id. Plaintiff had last worked eight months prior as an usher for four months, however, he stopped because of the side effects of his medications. Id. He was not currently working because he was depressed. Id.
With respect to Plaintiff's mental status, Dr. Allen stated that "[g]ood relatedness and eye contact were established. Speech was relevant and coherent." Id. Dr. Allen noted that Plaintiff "heard voices two days ago calling him," and "[f]our days ago he saw the knobs on his dresser moving." Id. Plaintiff reported that "[p]eople talk about him behind his back and follow him." Id. Plaintiff reported that he had had suicidal thoughts three weeks prior, which he had relayed to his doctor, and that he had had homicidal thoughts in the past which he had relayed to his doctor. ...