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Corretjer v. Barhnhart Judge Baer Corretjer v. Barhnhart – Plaintiff has moved for a judgment on the pleadings, and defendant has cross-moved for remand to the Commissioner of the Social Security Administration. For the following reasons, plaintiff’s motion is granted and defendant’s cross-motion is denied. I. Background A. Procedural history Blanca Corretjer (“Plaintiff” or “Ms. Corretjer”) first applied for Supplemental Security Income (“SSI”) from the Social Security Administration (“SSA”) on June 24, 1997. See Transcript of Record of Proceedings Relating to Blanca Corretjer [hereinafter "Tr."] 66-78. This request was denied initially, but subsequently she was granted a hearing, which was held on May 19, 1998, before Administrative Law Judge (“ALJ”) Michael P. Friedman. The ALJ denied her request in a report dated July 30, 1998, see Tr. 43-57, and the Appeals Council denied her request for review. See Tr. 7-9. Ms. Corretjer again applied for SSI on February 26, 1999, see Tr. 547-59, and she was deemed to be disabled as of March 1, 1999, in a decision dated March 29, 2000. See Tr. 26-40. In the case at bar, Ms. Corretjer contends that the denial of her first application was in error and now seeks benefits for the period between her first and second applications. In particular, she contends that ALJ Friedman failed to properly credit the opinion of Ms. Corretjer’s treating physician. That information provided a psychological diagnosis and discussed the materiality of her substance abuse as it related to her psychological impairments. According to Ms. Corretjer, the ALJ instead relied on his own lay opinion about her substance abuse and concluded it was material to her disability and therefore she was ineligible for SSI. She also contends that the Commissioner has the burden of proof on the issue of materiality and failed to carry it. The Commissioner contends that the ALJ correctly declined to grant controlling weight to the opinion of Ms. Corretjer’s treating physician and that the Commissioner need not shoulder the burden of proof with respect to materiality. However, the Commissioner concedes that it was error for the ALJ to rely on the medical-vocational guidelines (or “grids”), 20 C.F.R. Part 404, Subpart P., App. 2, in this instance because Ms. Corretjer had both exertional and non-exertional limitations, B. Standard of Review/Jurisdiction The Court is authorized pursuant to 42 U.S.C. §05(g) to set aside a final determination of the Commissioner of Social Security only if that determination “is based upon legal error or is not supported by substantial evidence.” See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)). “A district court may reverse the Commissioner’s finding and award benefits only if application of the correct legal standard could lead to only one conclusion.” Molina v. Barnhart, No. 00 Civ. 9522, 2002 WL 377529, at *6 (S.D.N.Y. Mar. 11, 2002) (citations and internal quotations and alterations omitted). A court may also remand to the Commissioner for additional proceedings if “there is new evidence which is material and . . . there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” See 42 U.S.C. §405(g). Remand is inappropriate when “the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.” See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). II. Discussion A. The Plaintiff’s Background Ms. Corretjer was born in Puerto Rico on February 14, 1950, and practically from birth has had a life filled with significant trauma. She was raised in an abusive and dysfunctional family, in which her parents never expressed or showed any affection towards her. She was sexually molested at the age of 5 by a 15-year-old cousin. She attempted suicide in 1976 while still living in Puerto Rico and again in 1980. She was married at 16, had two children, and was divorced at 25. She came to the United States in 1976 and in 1988 witnessed the murder of her boyfriend. Ms. Corretjer also has a long history of substance dependence, interspersed with efforts at detoxification. She had been on methadone since 1990, and she was treated at Hempstead Hospital for drug and alcohol detoxification in November 1996. See Tr. 146-168. Between October 1997 and April 1998, she was hospitalized on three occasions for psychiatric treatment and detoxification. Threatening to shoot herself, she was admitted to Mt. Sinai Medical Center on October 31, 1997. See Tr. 238, 251, 266. Her admitting diagnoses included major depression, dysthymia, and post-traumatic stress disorder (“PTSD”), and she was treated for drug and alcohol detoxification. See Tr. 256, 261, 269. After this hospitalization, she was enrolled in Mt. Sinai’s Mentally Ill Chemically Addicted Day Treatment Program (“MICA DTP”) and Transitional Employment Plan (“TEP”). See Tr. 273, 278, 282. Her diagnosis upon enrollment was major depressive episode, recurrent; PTSD; and polysubstance dependence. See Tr. 452. She continued in this intensive program 5 days a week 4 hours per day until June 1998. While enrolled at the MICA DTP, she was treated by, among others, Dr. Anthony Giovanniello. See Tr. 226. She was hospitalized for a second time at Mt. Sinai in late December 1997 due to alcohol and drug relapse and suicidal ideation and depressed mood. See Tr. 391, 440-41. The primary diagnosis on admission was recurrent depression, severe, and the secondary diagnoses included alcohol and cocaine dependence and prolonged PTSD. See Tr. 383. At discharge, her summary listed polysubstance dependence, major depression disorder, and PTSD. See Tr. 390. Her third hospitalization at Mt. Sinai was in early March 1998 and she presented similarly. Ms. Corretjer was brought to the hospital by her sister, after she had cut her wrists. Her discharge record listed alcohol and cocaine dependence and substance induced mood disorder. See Tr. 311. B. The ALJ’s determination The ALJ had before him allegations that Ms. Corretjer was disabled due to a back injury and to a mental disability. The ALJ concluded that under the five-step test for evaluating disability claims, The ALJ concluded that Ms. Corretjer’s substance abuse was material to her psychological limitations despite a letter from her treating psychiatrist at Mt. Sinai and on an out-patient basis that her psychological disabilities predated and existed independently of her substance abuse. See Tr. 226-27. The ALJ also discounted her treating doctor Dr. Giovanniello’s opinion that she would be unable to function at any job because of her suicidal tendencies and the symptoms of her PTSD; the ALJ based his conclusion on a finding that the physician’s treatment occurred during “periods of exacerbation or relapses.” See Tr. 54. Parenthetically, from a review of her history it seems hard to find another time. The ALJ did however credit the findings of the two psychiatrists and two internists who conducted consultative exams during the summer of 1997. See Tr. 52-54. On June 24, 1997 – the same day she applied for SSI – she was seen by an internist and a psychiatrist, each of whom assessed her prognosis based on these examinations. On July 15, 1997, she underwent a second set of consultative examinations, again by a psychiatrist and an internist. The first psychiatrist, Dr. Lewis Fox, diagnosed her with dysthymia and polysubstance abuse in remission, and assessed her prognosis as “fair.” C. Decision on the pleadings Plaintiff argues that the ALJ’s denial of her application was based on an incorrectly applied law – namely that the ALJ failed to accord the opinion of her treating physician the appropriate weight (either controlling or substantial deference According to SSA regulations, the opinion of a treating physician on the nature and severity of an impairment is entitled to controlling weight provided that it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and it is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§404.1527(d)(2), 416.927(d)(2); see also Rosa, 168 F.3d at 78-79. In addition, “the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” Rosa, 168 F.3d at 79 (quoting McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)). Further, the Second Circuit “has refused to uphold an ALJ’s decision to reject a treating physician’s diagnosis merely on the basis that other examining doctors reported no similar findings.” Id. at 81 (citing Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)). As indicated above, Dr. Giovanniello concluded that her mental limitations rendered her incapable of work and therefore disabled for purposes of SSI and that her psychological diagnoses existed independently of her substance abuse. See Tr. 227. Specifically, he stated: Ms. Corretjer’s clinical presentation is rather typical of a MICA patient in that she has a long history of untreated severe depression. It appears that her condition has been present since childhood as a result of significant abuse and neglect which she experienced in a dysfunctional family . . . . Based on her history and our observations since her admission, it is clear that the patient’s psychiatric diagnoses, Major Depression (Recurrent)(296.3), Post Traumatic Stress Disorder (309.81) and Borderline Personality Disorder (301.83) exist independently of her substance abuse. The patients signs and symptoms persist despite her abstinence from substances. Tr. 226-27. As her treating physician, his opinion should have been controlling on this issue of materiality unless it was not supported and was inconsistent with other substantial evidence. (The Commissioner does not dispute that Dr. Giovanniello was her treating physician, for purposes of 20 C.F.R. §§404.1527(d)(2) and 416.927(d)(2).) It is abundantly clear that Dr. Giovanniello’s opinion was well supported. He treated her for the 6 months of her enrollment in the intensive 5-day per week, 4-hour per day program and for her 3 hospitalizations. It is beyond peradventure that he had ample opportunity to see and evaluate her and to reach an informed and supported conclusion about materiality – indeed the Commissioner essentially concedes the point but agrees with the ALJ that his observations of her were during a period of exacerbation or relapses. Although Ms. Corretjer was hospitalized three times during those six months, Dr. Giovanniello also observed the patient frequently as an out-patient in the MICA program. Indeed, in his letter to the ALJ, Dr. Giovanniello states “[t]he two month sobriety period [Ms. Corretjer] has achieved has been sufficient time for the Mount Sinai team to reach a diagnostic formulation of the patient’s presentation within a reasonable degree of medical certainty.” Tr. 227. Further, neither the ALJ nor the Commissioner explains how the fact that he observed her during a relapse would interfere with Dr. Giovanniello’s ability to diagnose materiality. It is also clear that Dr. Giovanniello’s opinion was not inconsistent with other substantive evidence. Indeed, Dr. Giovanniello was the only one to expressly render an opinion on the materiality of her substance abuse. This Circuit has made it clear that the ALJ cannot reject a treating physician’s opinion merely because other doctors who examine the claimant report no similar findings, yet this is precisely what the ALJ did. See Rosa, 168 F.3d at 81; Carroll, 705 F.2d at 643. The bulk of the ALJ’s analysis about materiality centered on the diagnoses and prognoses of the two psychiatrists who performed consultative exams, Drs. King and Fox. Since Dr. Giovanniello’s opinion was well-supported and was not inconsistent with other substantial evidence, the ALJ was required to give his opinion on materiality controlling weight. Had the ALJ credited the treating physician’s opinion on materiality, as he was required to do, he would have found Ms. Corretjer disabled. Because a reversal of the ALJ’s conclusion about the materiality of her substance abuse is determinative of whether Ms. Corretjer was disabled, this case is remanded to the Commissioner solely for a determination of the amount of benefits to be paid plaintiff. III. Conclusion For the foregoing reasons, plaintiff’s motion for judgment on the pleadings is granted. Because this decision on the plaintiff’s motion is dispositive, it is not necessary to consider defendant’s cross-motion. The matter is remanded to the Commissioner for a determination of benefits owed Ms. Corretjer between June 24, 1997, and February 28, 1999, pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of the Court is ordered to close this case and any pending motions and remove the matter from my docket. IT IS So Ordered. FootNotes: See 20 C.F.R. §416.969a(d); Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999); Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir. 1986). The Second Circuit explained in Rosa:[E]xclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant’s physical limitations. In particular, “sole reliance on the grids may be precluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform.” In these circumstances, the Commissioner must “introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.”Rosa, 168 F.3d at 78 (citations, alterations in original, and footnote omitted). Sentence four of 405(g) provides: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” See 20 C.F.R. §404.1520; see also Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). These five steps are 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.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The Social Security Act bars a finding of disability if alcohol or substance abuse is a “contributing factor material” to the determination of disability. See 42 U.S.C. §423(d)(2)(c), 1382(a)(3)(J). Dr. Fox further stated: “[T]he findings of the interview are consistent with the allegations. The claimant has a limited ability to understand, remember, and carry out instructions. Her ability to cope with the pressures of the work place and interact with colleagues is at this time somewhat limited by depression.” Tr. 172. The allegations were that she was depressed all her life. See Tr. 171. If the treating physician’s opinion is not accorded controlling weight, the weight it is given is determined by the following factors: the length of the treatment relationship and the frequency of the examination, the nature and extent to of the treatment relationship, the amount of relevant evidence used to support the opinion, the consistency of the opinion, whether the opinion is from a specialist, and a catch-all. 20 C.F.R. §§404.1527(d)(2), 416.927(d)(2).

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