MICHELLE RUBIN, Plaintiff-Appellant, v. MARTIN O‘MALLEY, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
23-540-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 23, 2024
KEARSE, LYNCH, and NARDINI, Circuit Judges.
August Term, 2023. Submitted: January 12, 2024.
KEARSE, LYNCH, and NARDINI, Circuit Judges.
Plaintiff-Appellant Michelle Rubin filed a claim for Social Security Disability Insurance benefits in 2019 based on her medical condition of major depressive disorder. After a hearing, the administrative law judge denied Rubin‘s claim for benefits because she determined that Rubin was not disabled under the Social Security Act,
On appeal, Rubin argues that the agency‘s determination that she was not disabled during the period covered by her claim was not based on substantial evidence. We agree. Accordingly, we VACATE the district court‘s judgment, and REMAND with instructions to remand to the agency for further proceedings.
Jeffrey Delott, Jericho, NY, for Plaintiff-Appellant.
Leslie A. Ramirez-Fisher, Benjamin H. Torrance, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
In August 2019, Plaintiff-Appellant Michelle Rubin applied for Social Security Disability Insurance benefits, based on her medical condition of major depressive disorder. After a hearing, an administrative law judge (“ALJ“) determined that Rubin was not disabled under the Social Security Act,
Rubin now appeals from the February 15, 2023 judgment of the United States District Court for the Southern District of New York (Paul E. Davison, M.J.), denying Rubin‘s motion for judgment on the pleadings pursuant to
BACKGROUND
I. Statutory and Regulatory Framework
The Social Security Administration (the “SSA“) provides disability benefits, Social Security Disability Insurance and Supplemental Security Income, to applicants whom the Commissioner has determined to be eligible. See generally
At the first step, the Commissioner considers the claimant‘s work activity, if there is any, and determines whether the claimant is engaged in substantial gainful activity.
If the claimant cannot continue her past relevant work, at step five, the Commissioner considers whether she can nevertheless perform other work – taking into account the claimant‘s RFC, age, education, and work experience.
For claims filed on or after March 27, 2017, as is the case here, the Commissioner is required to apply
II. Administrative Proceedings
Rubin‘s background is detailed in the administrative record. Rubin was born in January 1967 and graduated from college in 1988. She began working in 1983, when she was 16 years old. She has worked as a retail buyer, and most recently, as a retail salesperson. The record indicates that her alleged onset date in February 2018 was also her last day of work as a retail salesperson, “due to [her] condition.” Admin R. 262. She also intermittently made and sold clothing online and at “trunk shows,” which involved bringing inventory she had not
On August 5, 2019, Rubin applied for Social Security Disability Insurance benefits, alleging a disability onset date in February 20185 and a date last insured of December 31, 2019. Her application was completed after Rubin spoke with the SSA on September 20, 2019. The SSA denied her application initially and on reconsideration. Rubin requested a hearing before an ALJ, which was held on January 14, 2021. Rubin and a vocational expert testified at the hearing.
A. The Evidence Before the ALJ
1. Rubin‘s Testimony
At the hearing before the ALJ, Rubin testified regarding the effects of her condition during the approximately two-year period from her alleged disability onset date to her date last insured. Rubin described her overall mental health as “not good.” Admin. R. 24. Despite consistently taking her prescribed psychotropic medications, she was prone to panic attacks and “meltdowns.” Id. at 23, 29. Rubin‘s panic attacks, usually brought on by serious triggers like a death in the family, resulted in difficulty breathing and heart attack-like symptoms. Rubin characterized her “meltdowns,” which could be triggered by anything (such as receiving mail addressed to one of her deceased parents), as periods, sometimes lasting hours, during which she would cry uncontrollably. Id. at 29–30.
When asked to explain why she is unable to work on a full-time basis, Rubin stated that she spends much of the day crying; her panic attacks are unforeseeable; her sleep schedule is inconsistent, causing her to sleep during much of the day; she is unable to learn anything new; and she can no longer interact with customers, which she cited as the reason that she was fired from her
Rubin further testified about how her condition has affected her day-to-day life. She explained that she sometimes does not leave her house for weeks at a time, and does so for the most part only to attend medical appointments. She has been a patient at the Karen Horney Clinic, under the care of psychiatrist and clinic executive director Dr. Henry Paul and several therapists, since 2014, including throughout the period at issue and continuing through the date of the hearing. Because the clinic is near her residence, she is able to walk to her appointments. She stated that most activities of daily living overwhelm her, so she relies on others to deliver food to her or she orders food to her house; she does not make the bed; she sends her laundry out; and she often goes days without showering. She relies on a system of post-its to remind her to take her medications and pay her bills. She does not attend holiday events or birthdays, and she struggles to concentrate long enough to even watch the news for more than ten or fifteen minutes.
Two letters submitted on Rubin‘s behalf, one from her brother and one from a friend of thirty-five years, provide a narrative consistent with Rubin‘s testimony. Rubin‘s brother and friend each described Rubin as having had a relatively normal and successful life before the age of thirty. But six days after Rubin‘s thirtieth birthday, her father committed suicide. His death seemed to change the trajectory of Rubin‘s life. She became depressed, anxious, and irritable. Her personal relationships fell apart or became strained. Rubin‘s friend noted that she had been fired from past jobs because of her mental state.
Rubin‘s brother described their mother‘s death on March 12, 2019 as another critical point in Rubin‘s life. It was ultimately Rubin‘s decision to withdraw care after their mother had been placed on a ventilator, an event that her brother described as “horribly traumatizing for her.” Admin. R. 290. At that time, Rubin was reportedly detained by the hospital medical staff because they feared she might be suicidal. After their mother‘s funeral, Rubin‘s brother (who at that time lived abroad) tasked her with calling a company to arrange for their mother‘s house to be cleaned out. He considered this an easy task, as friends had provided them with several recommendations for firms that could do the work.
After returning to his home abroad, Rubin‘s brother contacted her frequently to monitor her condition. He observed that she was spending most of her time alone in her apartment. She was suffering from insomnia, evidenced by her texts to him throughout normal sleeping hours. She expressed feelings of hopelessness and worthlessness in nearly every communication she had with him. In September 2019, Rubin‘s brother began seeking an inpatient psychiatric care facility for Rubin. She was receptive to that idea, but they could not find an affordable facility. Rubin‘s friend described Rubin as living like a “recluse,” and confirmed that she cries constantly and is unable to complete even ordinary household tasks. Id. at 288.
3. Medical Evidence
The medical evidence of record includes treatment notes and medical records from the Karen Horney Clinic documenting Rubin‘s visits with several
The treatment notes produced by Rubin‘s therapists provide an indication of the severity of Rubin‘s major depressive disorder throughout the alleged period of disability. Throughout that period, Rubin attended individual therapy sessions at the clinic approximately every week, first with Danielle Kowalski, Licensed Master Social Worker, and later with Megan Larigan, Mental Health Counselor. The therapy treatment notes consistently describe Rubin as depressed, but oriented to time, place, and persons, and with no obsessions, compulsions, hallucinations, or delusions. From the start of the relevant period, Rubin frequently reported difficulty eating, sleeping, and engaging in other activities of daily living. While Rubin often appeared adequately groomed at her therapy appointments, she also frequently appeared disheveled, unkempt, or malodorous. Rubin often presented as irritable in therapy, and in November 2018, she became irritable and defensive when speaking with Kowalski about a billing issue. The notes explicitly describe that Rubin had difficulty asking others for help and document Rubin‘s distress about her relationships and
During the same period, Dr. Paul prescribed and managed Rubin‘s medications and conducted mental status examinations (“MSEs“). Dr. Paul treated Rubin in March and June 2018, as well as approximately each month from January to November 2019. Throughout the relevant period, the results of the MSEs conducted by Dr. Paul were largely normal. Rubin was cooperative, well-related, had good eye contact, was mood-congruent, demonstrated attention and
On January 17, 2020, Dr. Paul completed a Mental Medical Findings Summary (“MMFS“) questionnaire in connection with her application for disability benefits. Dr. Paul indicated on the MMFS that Rubin‘s treatment at the clinic began in 2014, that her most recent exam with him was in October 2019, and that her most recent session with her therapist was in January 2020. His diagnosis was “Major Depressive Disorder, [r]ecurrent episode, [s]evere” and he opined that this condition prevented Rubin from being able to perform full-time work. Admin. R. 880. He also identified the following objective clinical findings: sleep disturbance, diminished interest in almost all activities, feelings of guilt/worthlessness, appetite disturbance with change in weight, difficulty thinking or concentrating, decreased energy, depressed mood, restlessness, irritability, distractibility, and easily fatigued. In explaining why the objective medical evidence supports his opinion regarding Rubin‘s functional limitations, Dr. Paul stated that Rubin‘s “significant grief,” “sleep difficulties,” “distractability,” concentration issues, and “compromised ability to engage consistently in activities of daily living . . . impede [Rubin‘s] ability to work full-
In the MMFS, Dr. Paul also opined on the criteria relevant to a determination of whether a claimant meets paragraph B or C of Listed Impairment 12.04: depressive, bipolar, and related disorders.6 See
The two state agency consultants who examined the record, Drs. Fassler, and Juriga, opined that there was insufficient evidence in Rubin‘s file to
B. The ALJ‘s Decision
The ALJ issued her decision on May 26, 2021, concluding that Rubin was not disabled under sections 216(i) and 223(d) of the Social Security Act during the relevant period and therefore was not entitled to benefits. Applying the five-step framework, the ALJ found that Rubin had met the first two steps – she had not engaged in substantial gainful activity between her alleged onset date and her date last insured and had a severe impairment, major depressive disorder, during that period.
However, at step three, the ALJ determined that Rubin did not have an impairment that met or medically equaled one of the Listed Impairments. In making this determination, the ALJ considered the paragraph B criteria and concluded that Rubin did not have marked or extreme limitations in any of the four broad areas of functioning identified by the SSA as used in a workplace.
Considering the paragraph C criteria, the ALJ stated that “there is no evidence, as detailed below, of a minimal capacity to adapt to changes in the environment or to demands that are not already part of claimant‘s daily life.” Admin. R. 80. But the ALJ did not provide any additional discussion or support for that determination in the remainder of the step three analysis.
Having determined that Rubin did not meet the requirements of a Listed Impairment, the ALJ then determined that Rubin had the RFC to perform a full range of work, subject to several nonexertional limitations. Rubin could work in a low stress job, with only occasional changes in the work setting, no assembly line work, and no strictly enforced daily production quotas. Further, she could have only occasional interaction with the public, coworkers, and supervisors. The ALJ claimed to have considered the entire record, including Dr. Paul‘s medical opinions and the prior administrative medical findings in assessing Rubin‘s RFC.8 The ALJ found both of the opinions of the agency consultants to be
of [the claimant’s] impairment(s), the existence and severity of [the claimant’s] symptoms, whether [the claimant’s] impairment(s) meets or medically equals the requirements for any impairment listed in appendix 1 to [subpart P], and [the claimant’s] residual functional capacity.”
C. Review of the ALJ’s Decision
Rubin requested administrative review of the ALJ’s decision. The SSA’s Appeals Council denied Rubin’s request for review, making the ALJ’s decision the final decision of the Commissioner.
On June 6, 2022, Rubin commenced this action in the United States District Court for the Southern District of New York. The district court denied Rubin’s motion for judgment on the pleadings, which sought reversal of the Commissioner’s decision that she was not disabled under the Social Security Act, and granted the Commissioner’s cross-motion for judgment on the pleadings, affirming the denial of Rubin’s claim for benefits.
I. Standard of Review
Under
II. The ALJ’s decision was not supported by substantial evidence.
Rubin argues that the ALJ committed a categorical error by denying her application for benefits without a medical opinion to support that decision. As Rubin points out, the record in the present case includes the substantive medical opinions of only one physician, Dr. Paul. In multiple assessments and formal statements referencing Rubin’s lengthy history of treatment at the Karen Horney Clinic, Dr. Paul opined that Rubin met the criteria of Listed Impairment 12.04 and did not have the capacity to perform even low stress work on a consistent basis. While two state agency psychologists also examined the record at the initial and reconsideration levels of the administrative process, they each opined that there was insufficient evidence to adjudicate Rubin’s claim. Because the record therefore does not contain any medical opinion concluding that Rubin was not disabled, Rubin argues that the ALJ’s decision, including both the ALJ’s determination that Rubin did not meet the requirements of Listed Impairment
The ALJ’s error was not categorical. An ALJ’s decision must be supported by substantial evidence – but there is no blanket requirement that such a decision must be supported by a congruous medical opinion for it to meet that evidentiary standard. As discussed,
We focus our discussion on step three of the sequential analysis. At step three, the ALJ determined that Rubin did not meet the requirements of paragraph C of Listed Impairment 12.04. Addressing whether the paragraph C criteria were satisfied, the ALJ summarily stated: “there is no evidence, as detailed below, of a minimal capacity to adapt to changes in the environment or to demands that are not already part of claimant’s daily life.” Admin R. 80. In doing so, the ALJ acknowledged only one of the two necessary paragraph C
In the other portions of her decision, the ALJ highlighted that the record evidence showed that Rubin is college educated, lives alone, is compliant with her medications and goes to therapy regularly, and is “able to handle a business selling handmade clothing” and “to maintain her household.” Admin. R. 79. Without context, those facts might appear to support the ALJ’s paragraph C determination and undercut Dr. Paul’s contrary assertion that Rubin could not
As noted above, the record includes hundreds of pages of notes from Rubin’s sessions with her therapists and Dr. Paul throughout the period that Rubin claims she was disabled and entitled to benefits. From the beginning of the relevant period, the therapy notes indicate that Rubin struggled to complete activities of daily living. In February and March 2018, Rubin’s then-therapist Kowalski consistently reported that Rubin had difficulty functioning, including eating and sleeping. Dr. Paul also assessed Rubin in March 2018, noting that she reported feeling depressed and would be trying a new anti-psychotic medication. Notably, the results of the MSE conducted by Dr. Paul at that appointment were largely normal. Rubin had presented as adequately groomed, cooperative, euthymic, and well-related, with normal speech, thought processes, and concentration.
The ALJ highlighted Dr. Paul’s frequent use of language of this sort as a reason for partially discrediting his overall opinion, suggesting that the opinion was not supported by his treatment notes. But the ALJ appears to have misconstrued both Dr. Paul’s role in Rubin’s care and the evidence that was
Dr. Paul, as Rubin’s psychiatrist, was primarily responsible for her medication management. He examined Rubin less frequently than her therapists, and his treatment notes often took the form of a short note expressing Rubin’s “chief complaint,” followed by any changes in her medication and sometimes the results of a rudimentary MSE. For example, on October 10, 2019, Dr. Paul simply wrote that Rubin was “depressed and somewhat immobilized” and noted an addition to Rubin’s medication regimen. Admin R. 1550. But the records indicate that Dr. Paul and Rubin’s therapists were working as a team to oversee her care. The therapists at times recommended that Rubin work with Dr. Paul to address concerns aired at therapy, like her sleep issues. Dr. Paul also signed off on the treatment plan that Rubin created with Kowalski near the beginning of the relevant period, indicating that he was part of the team that would assist Rubin in working toward the goals set out in that plan. Finally, Dr. Paul clearly drew upon Rubin’s entire medical record at the clinic when making his formal medical
Those notes show a fuller, and much more troubling, picture of Rubin’s condition than Dr. Paul’s own somewhat anodyne account of his shorter and less frequent interactions with Rubin. In April 2018, Kowalski conducted a formal assessment of Rubin. On that assessment, Rubin indicated that she felt tired and had trouble concentrating nearly every day and that she experienced poor appetite or overeating more than half of the days over the prior two weeks. She had also, at times over the prior three months, wished that she were dead or that
In fact, Rubin repeatedly reported that work-related stress and family conflict exacerbated her functional difficulties. In April 2018, Rubin created a treatment plan with Kowalski, which was also signed by Dr. Paul. The treatment plan listed several of Rubin’s identified issues, including problems “related to social environment” and occupational and economic problems. Admin. R. 503. It also noted that “[o]ngoing [m]onitoring . . . [i]ndicates severe depression that would require psychiatric[, that is, medical,] management.” Id.
At the end of April 2018, Rubin appeared disheveled at therapy, and requested a second weekly session in early May. Throughout May 2018, the therapy notes indicate that Rubin reported feeling overwhelmed by the work she
Dr. Paul assessed Rubin in June 2018, again recording largely normal MSE results and making some notes about Rubin’s medications. At about the same time, however the treatment plan prepared by Kowalski in July 2018 stated that Rubin “remain[ed] unable to maintain routines and consistency in [activities of daily living].” Id. at 448.
Throughout the rest of 2018, Rubin continued to sell custom clothing, but the business was not going well, as she also continued to report stress related to that work and her finances. In December 2018, Rubin reported to her therapist that she would need to close her business in the new year. An April 2019
In early 2019, Rubin’s mother passed away. Rubin’s brother explained in his letter that the death was a traumatizing event in Rubin’s life and resulted in her being detained by the hospital staff treating her mother. The therapy notes
The therapy notes indicate that in June 2019, Rubin and Kowalski had discussed increasing the level of care Rubin was receiving. For the remainder of the relevant period, Rubin frequently cried for parts of or throughout her therapy sessions. In August, the therapy notes describe that Rubin had, in the past week, “sat in her car with the garage closed and considered turning the engine on.” Admin. R. 1594. Though Rubin did not report any other incidences of specific suicidal ideation through the rest of the relevant period, she did at times describe a general wish that she would fall asleep and not wake up. At the end of August, Kowalski informed Rubin that she would be leaving the clinic, and therefore would need to transfer Rubin to the care of another therapist at the clinic, Larigan. According to the notes, Rubin was distressed by this change. In a
The treatment notes from August to September 2019 reflect that Rubin had started to repeatedly inquire about a higher level of care. Both Kowalski and Larigan discussed the possibility of in-patient treatment at a “crisis respite” facility with Rubin. The therapy notes indicate that Rubin ultimately decided not to go to such a facility; the letter provided by her brother offered the explanation that it was not financially feasible for Rubin to do so. The therapy notes also show that Larigan discussed the possibility of increasing Rubin’s therapy sessions to twice a week, and that Rubin did attend two sessions a week at times throughout the remainder of the relevant period. Finally, the therapy notes during this period note that Rubin continued to struggle with activities of daily living and sleep.
The non-medical evidence in the record, specifically, Rubin’s own testimony and the letters submitted by her brother and friend, provides an even more vivid description of Rubin’s day-to-day life that closely tracks the treatment
Finally, before turning to her evaluation of Rubin’s RFC, the ALJ did not address, even in a sentence, the other paragraph C criterion, namely whether there is evidence of medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes Rubin’s symptoms and signs of her disorder. See
For the foregoing reasons, we hold that the ALJ’s determination that Rubin did not meet the 12.04 listing criteria is not supported by substantial evidence. The ALJ therefore erred in finding that Rubin failed to establish that she was disabled under the Social Security Act and entitled to benefits at step three of the sequential analysis. We are reluctant, however, to determine that Rubin was in fact disabled, given that the absence of additional medical evidence stems from her failure to appear for a consultative examination. Even assuming that that failure was not willful, and resulted from a communications breakdown, we conclude that the better course is to remand the case to the agency for further proceedings, including a fuller consideration of the existing evidence and the results of a consultative examination. Accordingly, the judgment of the district court is VACATED, and the case is REMANDED to the court with instructions to remand the case to the Commissioner for further proceedings not inconsistent with this opinion.