MICHELLE RUBIN, Plaintiff-Appellant, v. MARTIN O‘MALLEY, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
Docket No. 23-540-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 23, 2024
August Term, 2023. Submitted: January 12, 2024
The Clerk of Court is respectfully directed to amend the caption to conform to the above. Kilolo Kijakazi, formerly Acting Commissioner of Social Security, was sued in her official capacity. By operation of
Before: 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
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.
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
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
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 last job. She stated that “new places, things. . . anything new that‘s . . . out of [her] norm” causes her stress. Id. at 29. In the past, she attempted to take an online class but was overwhelmed by tasks and deadlines.
2. Non-Medical Evidence
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. Rubin decided instead to clean the house herself and hold an estate sale. But three months later, her brother returned to the United States and found that Rubin had done almost nothing on the project and that her condition had deteriorated further. She had become prone to outbursts and would cry whenever friends or neighbors expressed any disagreement with her.
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 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 disagreements with romantic partners, her family members, coworkers, and others. While Rubin was no longer working as a retail salesperson during the relevant period, the notes describe her efforts to build a custom clothing business, including taking several trips to Florida in 2018. However, they also reflect that Rubin expressed feeling overwhelmed by increased demand for her merchandise and anxiety about losing customers. By April 2019, Rubin had closed her business, reportedly because she could not financially sustain her work. In August and September 2019, Rubin discussed the possibility of 24-hour support and crisis respite options with her therapists. The therapy notes from June to October 2019 reflect that Rubin was frequently tearful or crying intermittently or throughout the therapy sessions.
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 concentration within normal limits, and her memory was intact. At the end of the relevant period, Dr. Paul noted that Rubin continued to report issues with sleep.
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
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 adjudicate her claim.7 In particular, they found that there was insufficient evidence as to the paragraph B and C criteria of Listed Impairment
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. Specifically, with regard to concentrating, persisting, or maintaining pace, the ALJ found that Rubin had a mild limitation. The ALJ acknowledged Rubin‘s testimony regarding her difficulty with change, learning new things, meeting deadlines, and staying on task for even twenty minutes, but cited the following in support of her determination: Rubin can pay bills, count change, and handle a savings account; she can handle a business selling handmade clothing; she is college educated; she lives alone, can shop by phone and computer, and is able to maintain her household; and she attends therapy, is able to stay on task during her therapy sessions, and is compliant with her medication. The ALJ also noted that Rubin‘s treatment notes indicated that she had coherent thought processes and did not exhibit hallucinations, delusions, or paranoia. As for adapting and managing oneself, the ALJ found a moderate limitation, citing the following as evidence: Rubin generally presented as adequately groomed at her treatment sessions at the Karen Horney Clinic, though her appearance was also sometimes disheveled, unkempt, or malodorous; she is college educated; she is able to handle a business selling handmade clothing and her own finances; she lives alone, can shop by phone and computer, and is able to maintain her household; she is able to ask for help when needed; and she goes to therapy regularly and is compliant with medication.
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
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.”
At the fourth step of the analysis, the ALJ accepted the vocational expert‘s testimony and determined that Rubin could not perform her past relevant work with her assessed RFC. Finally, at the fifth step, the ALJ concluded that there were jobs that existed in significant numbers in the national economy that Rubin could perform including office helper, dining room attendant, and mail sorter.
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.
DISCUSSION
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 12.04 and the assessment of Rubin‘s RFC, is not, and categorically could not be, supported by substantial evidence.
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 criteria, the (C)(2) criterion, and offered no specific support for her conclusion that Rubin did not have a “[m]arginal adjustment” as required by paragraph (C)(2). See
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,
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 available to him as a basis for the opinion he expressed. The therapy notes and other documentation from the Karen Horney Clinic, taken as a whole, clarify Dr. Paul‘s role and his ability to analyze her mental state and level of functioning. The record of her treatment at the clinic fully supports his opinion.
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 statements. When asked to identify Rubin‘s last examination on the MMFS, Dr. Paul wrote both Rubin‘s most recent examination with him and her most recent examination with a therapist at the clinic. Dr. Paul also explicitly mentioned Rubin‘s years-long history at the clinic in writing his first letter about her status and functionality. Thus, while Dr. Paul‘s own notes do not provide extensive descriptions of Rubin‘s state throughout the relevant period, they are not inconsistent with the more detailed therapy treatment notes or with Dr. Paul‘s own formal medical opinions. It is clear that, as Rubin‘s psychiatrist, a member of her care team at the clinic, and the director of that clinic, he relied on the treatment records from all medical providers at the clinic in preparing his formal medical opinions and statements.
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 was doing and continued to present as disheveled at therapy. When her business increased, she found it difficult to feel positively about that increase “when she [was] struggling to function at home” and having “difficulty finding time to sleep and eat regularly.” Id. at 477. She also reported that she was unable to manage activities of daily living and her work when her mother had cataract surgery that month and needed help from Rubin – a short-term change from Rubin‘s routine. Although by the end of May 2018 Rubin was beginning to feel some optimism about her upcoming work trip, when she returned to therapy after the trip in June, she reported continued anxiety about completing work.
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 treatment plan confirmed that Rubin had closed her business “since last quarter,” id. at 1563, and none of the 2019 treatment notes reference any work activity. In short, the treatment records as a whole demonstrate that, far from being able to conduct a successful business, Rubin – despite diligent efforts to remain productively employed – was unable to handle the stress of managing a
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 from March 2019 confirm that; Kowalski noted the death and reported that she spoke with Rubin about “vague [suicidal ideation] comments made while [Rubin was] in [the] hospital with [her] mother.” Admin. R. 1643. In April 2019, Rubin reported feeling fearful, isolated, and concerned about her “financial and emotional future” and frustrated with friends. Id. at 1639. She cried throughout one of her sessions that month and repeatedly reported difficulty engaging in activities of daily living and inability to sleep.
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 transfer form, Kowalski noted that Rubin reported “being in crisis and feeling unsafe due to lack of social support.” Id. at 1569.
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
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
CONCLUSION
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