The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff James Roat ("Roat") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for benefits under the Social Security Act. Roat moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Dkt Nos. 9, 13. For the reasons which follow, it is recommended that the Commissioner's decision be remanded.
In December 2004, Roat filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. T. 71-77.*fn2 That application was denied on February 28, 2005. T. 21-24. Roat timely appealed, requesting a hearing on or about March 29, 2005. T. 31, 37, 90-96. On April 20, 2006, a hearing was held before the administrative law judge ("ALJ") Terence Farrel. T. 43-46, 355-99. In a decision dated July 20, 2006, the ALJ held that Roat was not entitled to disability benefits. T. 8-17. Roat filed a timely request for review with the Appeals Council, which was denied on December 8, 2006, thus making the ALJ's findings the final decision of the Commissioner. T. 4-6. This action followed.
Roat contends that the ALJ erred in (1) finding that, pursuant to either the guidelines or his obesity, both Roat's mental condition and his obesity were not of sufficient severity to constitute a listed condition, (2) not considering properly the medical opinions and other evidence of record, (3) finding that Roat was not credible, and (4) concluding that Roat retained sufficient residual functional capacity (RFC) to perform both his past work, and work in general.
Roat is currently forty years old and has successfully obtained his General Educational Development ("GED") certificate and completed nurses aide training. T. 14-15, 363-64. Roat's previous work experience includes being a laborer in factory and production work, nurse's aide, and dishwasher. T. 364-69. Roat alleges that he became disabled on January 1, 2004 due to depression, anxiety, and suicidal behaviors. T. 71-72.
"Every individual who is under a disability shall be entitled to a disability. . . benefit. . . ." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "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." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. 04-CV-9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] 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 [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).
"In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.
Roat has not engaged in any substantial gainful activity since the alleged onset of disability on January 1, 2004. T. 13. The record and Roat's testimony indicate that he has previous work attempts, but that those attempts were unsuccessful because Roat's impairments compelled him to leave prior to reaching his three month employment anniversary. Id.
2. Mental Health Treatment
On December 10, 2004, Roat was evaluated at the Essex County Mental Health ("Essex") crisis team for symptoms consistent with depression and anxiety. T. 136-37. While Roat was noted to be cooperative, alert and oriented, have a logical thought process and be free from cognitive defects and impaired judgment, he was advised to report to the emergency room at Champlain Valley Psychiatric Hospital ("CVPH") for an evaluation due to his suicidal ideations and thoughts of helplessness and hopelessness. Id. Roat arrived at CVPH, where the medical history indicated that he had been suffering from depression and anxiety for quite some time, he had thoughts of suicide, specifically overdosing on prescription pills and alcohol, he was an alcoholic who had been drinking every day for the past twenty years, and he had difficulty sleeping and handling his aggression. Id. at 261, 263. Roat was given some medication samples, promptly discharged from the emergency room, and referred to Essex for follow up treatment. Id. at 141, 292-93.
On December 14, 2004, Roat returned to Essex where a psychiatric assessment and screening was performed. T. 139-40. Medical staff noted Roat's long time depression and alcohol abuse, his unemployment and inability to hold a job for an appreciable amount of time, and his lack of prior mental health treatment. T. 139. Roat's thought process was logical, he had no cognitive defects, and he was denying any suicidal ideations. Id. at 140. Roat was referred to St. Joseph's Hospital for substance abuse services, and scheduled to continue returning to Essex to meet with a counselor for follow up therapy and medication. Id. 140. Also on December 14, Roat met with his treating psychiatrist, Dr. Hinsman. Id. at 143. Dr. Hinsman determined that Roat "ha[d] difficulty with depression and had chronic vague suicidal ideation [but] . . . no intention[s] of harming himself, has no suicidal plan and is invested in treatment and future oriented." Id. Roat was sober at that time, and Hinsman had given him new medication to try, which would be evaluated in two weeks. Id.
Roat was again counseled at Essex on December 23, 2004. T. 135. At that time, Roat possessed no evidence of a thought disorder, though he was depressed and sometimes suicidal. Id. Roat's appetite was noted to be good, but his sleeping habits poor. Id. Roat seemed to be motivated, but the motivation appeared to come from his wife's ultimatum to receive treatment and not from himself. Id
On January 3, 2005, Roat was seen at Essex, describing himself as feeling less anxious and suicidal than he had been before. T. 133. Roat was still quite depressed, not sleeping well, and easily agitated. Id. While Roat claimed to remain sober, he had failed to follow up with St. Joseph's for substance abuse treatment. Id. Roat agreed to contact St. Joseph's after he left Essex though. Id. On January 10, Roat was seen by his primary counselor, and social worker, Molly Jacobson. Id. at 131-32. Roat was not experiencing side effects for his mental health medication, but also felt that it had not been overly helpful as of yet. Id. at 131. Roat's treatment focused on changing his behaviors and reactions, and identifying his triggers for his anger and depression.
On January 12, 2005, a treatment plan was designed for Roat, hoping to reduce his symptoms of anxiety and depression by having him attend counseling appointments and following up on the efficacy of his medication with a psychiatrist, taking his medications as prescribed, identifying and learning new coping strategies, and using positive thinking. T. 130. A few days later, Roat completed a social assessment with Jacobson whereupon he stated that he lives with his wife, but his children from a past relationship had been taken from him and he had relinquished his parental rights to said children. Id. at 129. Roat seemed open minded towards progressing with counseling and substance abuse therapy. Id. Jacobson hoped to assist Roat with managing his finances, finding him a vocational program to provide training so that he could maintain employment, and successfully completing both his outpatient therapies. Id.
On January 19, 2005, Dr. Hinsman completed a psychiatric assessment of Roat noting that his depression had existed since childhood, his father had committed suicide, and Roat had been abused by his stepfather. T. 125, 341. Roat stated that his depression resulted in two suicide attempts, one as a teenager and the other while he was in his twenties, both from overdosing on prescription medications and alcohol. Id. Roat noted no subsequent attempts and denied feeling suicidal at that time. Id. While Roat did not presently possess suicidal ideations, he was still having difficulty with his anger and sleeping and is notably uncomfortable around a lot of people feeling like he is suffocating and needs to escape, citing that as the reason why he has had between fifty and sixty jobs as an adult. Id at 126, 342. Roat reported staying sober for the past five weeks, and was noted to have a pleasant demeanor with intact cognitive function. Id. at 126-27, 342-43. Roat again denied having hallucinations and did not appear to be delusional or a danger to himself or others. Id. at 127, 343. Roat's Global Assessment of Functioning ("GAF") score was forty-five, "primarily because of the serious impact his social anxiety has on his social and occupational functioning. Depression per say would rate a higher score above [fifty] but nonetheless is chronic and in need of treatment." Id. Hinsman concluded that he would switch Roat to a different medication, provide him with a sleeping aide, and continue scheduling therapy sessions. Id. at 128, 344.
At Roat's next appointment, on January 26, 2005, he indicated to Jacobson that he was taking his medication as prescribed and was generally feeling alright. T. 123. On January 31, Roat complained about negative effects from his sleeping medication, which Jacobson advised that he discuss with Dr. Hinsman. Id. at 122, 339. On February 2, 2005, Roat met with Dr. Hinsman and indicated that he had been having no difficulty tolerating his medication, but that he also was not feeling any improvements. Id. at 121, 338. Roat admitted that he had used beer to fall asleep, but had not had any additional alcohol to drink after the few beers he had in his fridge were consumed. Id. 121, 338. Roat was depressed, but denied suicidal ideations.
On February 4, 2005, Roat underwent a psychiatric evaluation with Brett Hartman. T. 115-19. The evaluation included a discussion about Roat's previous work history, noting that he had never been employed for more than three months and he usually quit or was terminated from employment due to his aggravation. Id. at 115.
Roat had not yet been psychiatrically hospitalized, though he had undergone prior mental health evaluations. Id. Roat never attended mental health treatment until December 2004, confirming that his motivation to enroll came from his wife's ultimatum. Id. Roat was taking antidepressant medication and reported that while his drinking was a problem in the past he has "tapered off . . . and does not feel that it is a problem." Id. at 116. Roat also reported that he had weight fluctuations of as much as fifty pounds, he preferred to isolate himself and be away from people, and while he did not feel suicidal, he "hates people . . . ." and cannot tolerate crowds. Id. at 116-17.
Hartman concluded that Roat had a coherent and goal directed thought process, his attention and concentration were mildly impaired, his memory skills were generally intact, he was able to follow and understand simple directions and instructions, and he possessed a fair ability to learn new tasks. Id. at 118. Roat had mild attention and concentration problems, mild difficulty making appropriate decisions, and a likely difficulty performing tasks that required a lot of social interaction. Id. Hartman diagnosed Roat with major depressive disorder, dysthymic disorder, and generalized anxiety disorder, and recommended that Roat continue with intensive mental health treatment as Hartman felt he has a "guarded [prognosis] given the long term and multiple nature of [his] symptoms." Id. at 119.
Roat's next session with Jacobson, on February 7, included a notation that Roat felt that therapy was helping his condition. T. 120, 337. On February 16, Roat's treatment notes with Dr. Hinsman reported Roat was feeling more confident being around other people, was feeling less depressed, and was having no side effects or issues with the medication he was recently prescribed. Id. at 336. However, Roat's treatment notes from February 24 indicate that Roat perceived Dr. Hinsman as dismissive and that he had missed a previous appointment because he did not want to speak with anyone and "was upset with the 'system.'" Id. at 335.
On February 25, 2005, Roat underwent a mental RFC assessment with Dr. Hameed. T. 148-64. Dr. Hameed found that Roat's abilities to (1) understand and remember instructions, (2) carry out instructions and maintain attention and concentration for long periods, (3) perform activities on a schedule, (4) sustain an ordinary routine with minimal supervision, and (5) work in coordination to others without being distracted were not significantly limited. Id. at 148. Roat's ability to complete a normal work day and work week without psychological interruptions was moderately limited. Id. at 149. Roat's social interaction skills were not significantly limited except for his moderately limited ability to accept instructions and respond to criticism from supervisors. Id.
Additionally, Roat's ability to be aware of normal hazards, take precautions, and travel in unfamiliar places was not significantly limited although his abilities to respond to changes in the workplace and set realistic goals or make plans were moderately limited. Id. Roat reported that he was currently on medication and that while he had a history of heavy drinking, he now only drank a case of beer a month. Id. at 50. Roat's ability to communicate, understand, remember, and perform daily activities was relatively normal and Dr. Hameed concluded that Roat was not disable per any of the categories because he had no restrictions of daily living or repeated episodes of deterioration, only mild difficulties with social functioning, and only moderate difficulties with maintaining concentration. Id. at 150, 152, 162-63.
On March 2, 2005, Roat returned to Essex for an appointment with Dr. Hinsman where Roat complained that his medication was making him drowsy. T. 334. While his mental status was unchanged, it was unclear whether that was due to the therapeutic effect of the medication, or its sedative effects, so the medication's dosage was adjusted. Id. A few weeks later, Roat had a session with Jacobson where he expressed frustration with the therapeutic process, threatening to cease all mental health treatments. Id. at 332. On April 1, 2005, Roat again met with Jacobson, explaining that he generally heard two voices, one positive and the other negative, which guided his thought process. Id. at 330. Roat stated that he was trying to listen to the positive voice more often, and was hoping that change would successfully occur. Id.
However, on April 12, 2005, Roat attended his session with Jacobson stating that he felt very depressed and hopeless, he was not leaving the house or opening the shades, and his aggression had returned. T. 329. Dr. Hinsman prescribed Roat an increased dose of his medication, and Jacobson recommended that Roat try using the medication prior to seeking inpatient psychiatric treatment. Id. at 328-29. Dr. Hinsman questioned Roat thoroughly about his propensity to commit suicide, and determined that Roat was not suicidal or a suicidal risk, and recommended that if Roat's condition had not improved within ten days that he return and have his medication's dosage increased again. Id. at 328.
Roat's condition appeared to deteriorate, as on April 22, Essex County received information from Roat's substance abuse treatment counselor at St. Joseph's that Roat was "very depressed and had an extremely negative outlook." T. 327. Roat agreed with the assessment, though at the end of the session with Jacobson, Roat appeared to be in a better mood. Id. On April 27, Roat again met with Dr. Hinsman who noted that Roat was doing better after having been on his increased dose of anti depressants for the previous month. Id. ...