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Clark v. Astrue

August 4, 2010


The opinion of the court was delivered by: Sand, J.


Pursuant to 42 U.S.C. § 405(g), Plaintiff Thelma Clark seeks review of a final decision of the Commissioner of Social Security (the "Commissioner"), finding that she was not eligible for Supplemental Security Income ("SSI") under the Social Security Act. Plaintiff filed an application for SSI on October 22, 2004. A hearing was held before an administrative law judge ("ALJ") on September 29, 2006. The ALJ issued a decision on October 16, 2006 finding that Plaintiff became disabled on May 21, 2005, her fiftieth birthday, but was not disabled for the approximately seven months between the application date and her fiftieth birthday. The decision became final on March 25, 2008 when the Appeals Council denied Plaintiff's request for review. Plaintiff then brought this action in federal court, contending that the ALJ erred by not finding her disabled for the approximately seven months prior to her fiftieth birthday. Both parties move for judgment on the pleadings. For the following reasons, Plaintiff's alternative request for a remand is granted, both motions are denied in all other respects, and we reverse the Commissioner's decision and remand for further proceedings.

I. Standard of Review

The Social Security Act defines "disability" as the "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). Plaintiff has the burden of demonstrating disability by "evidence obtained by medically acceptable clinical laboratory techniques." 42 U.S.C. §§ 423(d)(1), 423(d)(3).

In evaluating disability claims, the Commissioner is required to follow a five-step process. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). "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, 77 (2d Cir. 1999) (citation omitted).

A district court's review of an SSI determination involves two levels of inquiry.

First, the court determines whether the Commissioner applied the correct legal principles. Tejada, 167 F.3d at 773. Next, the court examines the record to determine whether the Commissioner's decision is supported by substantial evidence. Id. Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Pursuant to the fourth sentence of 42 U.S.C. § 405(g), this Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Remand for further proceedings is the usual remedy when the record is incomplete or the ALJ has committed legal error. Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000); McClain v. Barnhart, 299 F. Supp. 2d 309, 329 (S.D.N.Y. 2004).

II. Discussion

The ALJ found Plaintiff not disabled until May 21, 2005 (approximately seven months after her application date) after completing the five-step sequential analysis. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 22, 2004. (Tr. at 25.*fn1 ) At step two, the ALJ found that Plaintiff's morbid obesity and degenerative disc and bone disease of the lumbrosacral spine were severe impairments, but declined to find that Plaintiff had any severe psychological impairment despite a June 7, 2005 diagnosis of major depressive disorder. (Tr. at 25.) At step three, the ALJ found that none of Plaintiff's impairments, individually or in combination, met or medically equaled an impairment in the Commissioner's Listing of Impairments. (Tr. at 25.) At step four, the ALJ found that Plaintiff had the residual functional capacity to sit for up to six hours, stand or walk for up to two hours, and occasionally carry objects weighing up to ten pounds; as to Plaintiff's "non-exertional limitations" (such as mental functional limitations), the ALJ found that the Plaintiff either had no non-exertional limitations or had the functional capacity to perform simple, routine, low stress work requiring low levels of concentration. (Tr. at 25.) The ALJ also found that Plaintiff had no past relevant work. (Tr. at 25.) At step five, the ALJ relied on the testimony of a vocational expert to find that there were jobs in the national economy that Plaintiff could perform. (Tr. at 25-26); see 20 C.F.R. §§ 416.920(a)(4)(i)-(v).

Plaintiff was forty-nine years of age when she applied for benefits. While the ALJ found Plaintiff not disabled at age forty-nine, he applied the Medical-Vocational Guidelines (the "Grids") to determine that Plaintiff became disabled upon reaching age fifty.*fn2 (Tr. at 26.) "Unlike a person in the age 45-49 category, according to Medical-Vocational Rule 201.09, a person who is age 50-54, is limited to sedentary work, has limited or less education, and has only unskilled or no prior work experience, should be found to be disabled." Corbin v. Astrue, No. 07 Civ. 2241 (EFB), 2009 WL 799268, at *11 (E.D. Cal. Mar. 23, 2009) (citing 20 C.F.R. Pt. 404, subpt. P, app. 2, tbl.1).

a. Weight of Treating Physician's Opinion

Plaintiff argues that the ALJ committed legal error by failing to assign controlling weight to the opinion of Dr. Leung, who diagnosed Plaintiff with major depressive disorder on June 7, 2005. (Tr. 147-49.) As part of his diagnosis, Dr. Leung rated Plaintiff on the 0-100 Global Assessment of Functioning (GAF) scale. The GAF is "a scale used by clinicians for reporting an individual's overall level of psychological functioning." De Roman v. Barnhart, No. 03 Civ. 75 (RCC) (AJP), 2003 WL 21511160, at *3 n.11 (S.D.N.Y. July 2, 2003). When a GAF score is rendered, "[t]he first number indicates the patient's current GAF, while the second number indicates the highest score reported in the previous year." Mobley v. Astrue, No. 09 Civ. 0662, 2010 WL 2025080, at *2 n.1 (W.D. La. Apr. 19, 2010) (citing AMERICAN PSYCHOLOGICAL ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, TEXT REVISED, 32-34 (4th ed. 2000) ("DSM-IV-TR")). Dr. Leung found that Plaintiff had a current GAF score of 50, and had attained a maximum GAF score of 55 for the previous year. (Tr. at 149.) "A GAF score of 41 to 50 indicates 'serious symptoms OR any serious impairment in social, occupation, or school functioning.'" Guptill v. Astrue, No. 08 Civ. 77 (NAM), 2010 WL 1948199, at *3 n.6 (N.D.N.Y. Apr. 28, 2010) (quoting DSM-IV-TR, 34.) "A GAF in the range of 51-60 indicates moderate symptoms (such as flat affect and circumstantial speech or occasional panic attacks) or moderate difficulty in social, occupational, or school functioning." Rojas v. Astrue, No. 09 Civ. 6698 (DLC), 2010 WL 1047626, at *1 n.2 (S.D.N.Y. Mar. 22, 2010) (citing DSM-IV-TR, 34). Dr. Leung's diagnosis also noted that Plaintiff had been "depressed [for] 2 years." (Tr. at 149.)

The ALJ stated that "luckily," he did not need to reach "any firm conclusions about the claimant's mental impairments(s)" that existed after reaching age fifty because the Grids dictated that Plaintiff was already disabled at the time she claimed to have a mental impairment and was diagnosed with major depressive disorder. (Tr. at 24.) He explained that he was "lucky" to avoid rendering any such decision because the "treating records . . . are of rather poor quality" and the testimony of Dr. Gitelle, the testifying psychological expert, was "so unhelpful." (Tr. at 24.) For the period before Plaintiff's fiftieth birthday, the ALJ found that Plaintiff did not have any severe mental impairment. (Tr. at 24.) Because Plaintiff was not "receiving or seeking any mental health treatment, but was affirmatively denying that she had any 'severe' mental impairment or depression[,] . . . [any mental impairment] did not exist before [Plaintiff reached age fifty.]" (Tr. at 24.)

A treating physician's opinion "will be accorded controlling weight when it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence."*fn3 Diaz v. Shalala, 59 F.3d 307, 309 (2d Cir. 1995) (internal citations and quotations omitted). The ALJ must provide "good reasons" for the weight he assigns the treating physician's opinion. 20 C.F.R. § 404.1527(d)(2). "[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). The Court of Appeals for the Second Circuit has stated that "[w]e do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician's opinion and we will continue ...

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