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finding the ALJ's decision to not give controlling weight to opinions of treating physician was not properly explained and was based in part on assumptions by the ALJ that were not supported in the record
Summary of this case from Thomas v. BerryhillOpinion
02-CV-6169 CJS
June 3, 2003
Charles E. Binder, Esq., Binder and Binder, P.C., New York, New York, for Plaintiff.
Michael A. Battle, Esq., United States Attorney for the Western District of New York, Brian M. McCarthy, Esq., Assistant United States Attorney, Rochester, New York, For the Defendant.
DECISION AND ORDER
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") which denied plaintiff's application for disability benefits. Now before the Court is plaintiff's motion for judgment on the pleadings [#4] and defendant's cross-motion for judgment on the pleadings [#9]. For the reasons stated below, the Commissioner's decision is reversed and the matter is remanded for a new hearing.
PROCEDURAL BACKGROUND
Plaintiff filed her current application for disability and SSI benefits on March 23, 1999, claiming that she has been unable to work since August 4, 1994. (R. 120). She was denied on July 30, 1999, and on reconsideration on May 3, 2000. (R. 91, 99). On June 6, 2000, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held on January 4, 2001. (R. 103). At the hearing before the ALJ, plaintiff appeared with her attorney and was the only witness to testify. (R. 36-73). On April 12, 2001, the ALJ issued his decision, finding that plaintiff was not entitled to disability benefits. On or about April 17, 2001, plaintiff filed an appeal with the Appeals Council. (R. 14). On January 30, 2002, the Appeals Council denied plaintiff's request for review. (R. 9). The ALJ's decision thus became the final decision of the Secretary.
Plaintiff filed two previous applications. On December 20, 1994, she applied for SSI benefits. The application was denied on March 16, 1995, and plaintiff did not appeal. She applied for disability benefits October 22, 1997. The Social Security Administration denied the application initially on July 23, 1998, and again on reconsideration, on October 27, 1998. (R. 81, 88). Again, she did not appeal.
Unless otherwise noted, references ("R.__") are to the administrative record.
Plaintiff commenced this action on March 27, 2002. On August 21, 2002, she filed her motion for judgment on the pleadings. She contends that the ALJ's decision is erroneous and must be reversed, because it: 1) failed to properly apply the treating physician rule; and 2) incorrectly evaluated her credibility. On October 4, 2002, defendant filed her cross-motion for judgment on the pleadings, asserting that the ALJ's determination is correct and supported by substantial evidence. The Court scheduled oral argument of those motions for November 8, 2002. However, counsel for both parties subsequently agreed to submit the matter on the papers. The Court has thoroughly considered the parties' submissions and the entire record.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
For purposes of the Social Security Act, disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
The SSA has promulgated administrative regulations for determining when a claimant meets this definition. First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities. If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work. Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work." Schaal, 134 F.3d at 501 (Citations omitted). At step five of the five-step analysis above, the defendant may carry her burden by resorting to the Medical Vocational Guidelines or "grids" found at 20 C.F.R. Pt. 404, Subpart P, Appendix 2. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996) (citation omitted); see also, SSR 83-10 (Noting that in the grids, "the only impairment-caused limitations considered in each rule are exertional limitations.") However, if a claimant has nonexertional impairments which "significantly limit the range of work permitted by his exertional limitations," then defendant cannot rely upon the grids, and instead "must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform." Id. at 39; see also, 20 C.F.R. § 416.969a(d).
"Exertional limitations" are those which affect an applicant's ability to meet the strength demands of jobs, such as sitting, standing, walking, lifting, carrying, pushing, and pulling. "Non-exertional limitations" are those which affect an applicant's ability to meet job demands other than strength demands, such as anxiety, depression, inability to concentrate, inability to understand, inability to remember, inability to tolerate dust or fumes, as well as manipulative or postural limitations, such as the inability to reach, handle, stoop, climb, crawl, or crouch. 20 C.F.R. § 416.969a.
20 C.F.R. § 416.927(d) provides, in relevant part, that, "[w]hen the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect your ability to meet both the strength [exertional] and demands of jobs other than the strength demands [nonexertional], we consider that you have a combination of exertional and nonexertional limitations or restrictions. . . . [W]e will not directly apply the rules in appendix 2 [the grids] unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations; otherwise the rule provides a framework to guide our decision."
FACTUAL BACKGROUND
The facts of this case are set forth at length in the parties' submissions and in the Decision of the Administrative Law Judge ("ALJ"), and, unless otherwise indicated below, are not in dispute. It is sufficient to note the following facts. At the time of the hearing, plaintiff was 47 years old, with a high school education. She stated that she was placed in special education classes during high school. (R. 39). She testified that she can read a newspaper, but has difficulty with comprehension, and that she can do basic multiplication and division. (R. 40-41). She worked as a cosmetologist for a short time, as a cashier in a convenience store part-time on and off for approximately twenty years (R. 138), as a cashier at an airport for approximately two years, and as a dog control officer for one year. As a cashier at the airport, plaintiff worked in a booth and had the option of sitting or standing. (R. 45).Plaintiff claims to be disabled due to a variety of ailments including pain, diabetes, chronic obstructive pulmonary disease ("COPD"), obesity, and depression. She testified she has pain in her legs, left hip, back and left side 24 hours per day. (R. 46-47). She also indicated she experiences "prickly pain" in her left hand "a couple times a day." (R. 49). A heavy cigarette smoker, she has difficulty breathing, and uses two inhalers and a nebulizer. (R. 51). She stated she experiences depression daily, cries a lot, and wonders if she should "keep going." (R. 53). She indicated that her medications, Relafin, Darvocet, and Flexeril, cause her to feel tired. She also stated that she sleeps in periods, a couple of hours during the day and a few hours at night. (R. 57).
Plaintiff lives with her husband and her 7 year old grandson. She stated that her typical day involved sitting and talking with her husband before he left for work, getting school clothes for her grandson, zipping up his coat and putting on his hat, talking on the telephone, tidying up the house by picking up glasses and taking them to the kitchen, playing with her pets, cleaning the house with help from her daughter, playing with another grandson who is two years old, accompanying her older grandson to his wrestling practice, and going to the store with her husband. (R. 58-59). She indicated she can walk 200 yards at a time, then needs to rest due to pain and shortness of breath. (R. 52). She said she can stand approximately 15 to 20 minutes before she feels pain in her legs and left side and needs to sit down. (R. 52). She indicated she can sit in a chair for approximately 40 minutes to an hour and then needs to stand up and walk. (R. 64). She testified she'll "sometimes go to the sink and try to wash dishes, and then . . . start hurting" after 15 to 20 minutes. (R. 52). She said she doesn't "do much cooking," and indicated that he daughter usually cooked dinner for the family. (R. 49, 59). She stated she does some vacuuming, and that her daughter does the laundry. (R. 60). She indicated she can take care of her own grooming, although she needs assistance getting in and out of a bathtub. (R. 63). She further stated that she does hobbies such as crochet and cross-stitch. Id. She said she watches television for approximately two hours per day. In summer, she indicated that she will go outside and watch her grandson and other children playing in a pool. (R. 61). She stated she is interested in adopting her seven year old grandson. (R. 63).
Plaintiff submitted all of her relevant medical records to the ALJ. However, "[r]ather than recount every detail of [plaintiff's medical record, the Court] instead will briefly summarize their contents." Pratts v. Chater, 94 F.3d at 36. In general, the records indicate that she suffers from a variety of ailments, including morbid obesity, pain in her neck, back, and extremities, COPD secondary to tobacco addiction, diabetes mellitus, recurring cellulitis of her left axilla or armpit, diverticulitis, and mild depression. X-rays and MRIs reveal multiple perineural cysts along her spine. Plaintiff had breast cancer and a mastectomy of her left breast. Her history of breast cancer does not appear to restrict her ability to work or her daily activities, however she does experience periodic bouts of cellulitis in her left axilla, near where she had a silicone breast implant as part of her reconstructive surgery following the mastectomy. Plaintiff has also suffered periodically from abdominal tenderness and abscesses. She has at times complained of chest pain and shortness of breath, although tests have not revealed any problems with her heart. Plaintiff's treating physician since 1989 has been Dr. Joseph DePra ("DePra"). During that period, plaintiff has had regular appointments with DePra approximately every three months. (R. 428). On those occasions, she would most often see DePra's physician's assistant, Anita Eck ("Eck"), who would call in DePra when needed. (R. 54). However, most, if not all, of plaintiff's medical records from DePra's office are signed by both DePra and Eck.
On April 5, 1994, DePra noted that plaintiff was complaining of chronic back pain, and needed refills of Naprosyn and Flexeril for pain. (R. 508). On September 15, 1994, DePra noted that plaintiff was complaining of left lower back pain and muscle spasm, as well as sinus pressure and pain. He wrote: "Continued sinusitis and muscle spasm most due to overweight, cigarette smoking and deconditioning." (R. 511).
On May 14, 1996, DePra examined plaintiff at Noyes Memorial Hospital in Dansville, New York, where she had been admitted after complaining of pain in her abdomen and left axilla. (R. 196-211). The abdominal pain was apparently caused by appendicitis, and a Dr. Cho performed an appendectomy. DePra attributed her axilla pain to cellulitis near the site of her left breast implant which she had received following a mastectomy in 1983. DePra drained the abscess and put plaintiff on antibiotics. A chest x-ray was normal, and DePra noted that she had no wheezing. However, he did note that her blood oxygen remained at 85% on room air, and he "wonder[ed] if this [was] not her usual COPD." (R. 198). His impression, in relevant part, was abscessed left axilla, COPD, hypoxia [oxygen deficiency], diabetes mellitus, and moderate obesity. (R. 196).
On May 14, 1996, plaintiff was transferred from Noyes Hospital to Rochester General Hospital, where Timothy O'Connor, M.D., treated her for her axilla abscess, which had not improved with antibiotics. (R. 212-224). Exploratory surgery indicated that her breast implant was not infected. (R. 213). Her condition subsequently improved and she was discharged on May 20, 1996.
On October 9, 1997, plaintiff was admitted to Noyes Hospital, after complaining of shortness of breath and chest tightness. (R. 248-58). A physical examination indicated that she was obese, but in no acute distress, with regular pulse and breathing. She indicated that she smoked "between 1[.5] and 3 packs of cigarettes per day." (R. 250). Chest views indicated plaintiff's heart was normal. (R. 255).
On October 29, 1997, DePra completed a residual functional capacity assessment for the New York State Department of Social Services. (R. 236-37). He indicated that plaintiff suffered from diabetes, obesity, recurrent cellulitis, tobacco abuse, chest pain, and chronic back pain. He noted that she was "very limited" in her ability to stand, lift, carry, push, pull, bend, and climb. He stated she was "moderately limited" in her ability to walk and to function in a work setting at a consistent pace. He reported she had "no evidence of limitations" on her ability to sit, see, hear, speak, use hands, understand and remember instructions, carry out instructions, maintain attention/concentration, make simple decisions, interact appropriately with others, maintain socially appropriate behavior, or maintain her grooming. (R. 236). Depra noted that plaintiff has "poor mental capabilities." (R. 237). He indicated that because of these problems, she should not work at jobs involving standing, lifting, or a fast pace. Id.
On November 21, 1997, Michael Cunningham ("Cunningham"), a cardiac specialist, examined plaintiff upon a referral from DePra. (R. 266-67). On examination, Cunningham found plaintiff to be a "medium-framed, obese female in no acute distress," with normal pulse and respiration. Her lungs were clear, her heart was essentially normal, and she had equal strength in all extremities. Because of her previous complaints of chest pain, Cunningham ordered further diagnostic studies and "strongly recommended" that she quit smoking. (R. 267).
On April 15, 1998, Cunningham had further cardiac studies performed, which were "suggestive of mild ischemia." (R. 269). On April 27, 1998, Cunningham wrote to DePra: "I was delighted to find that despite the very concerning thallium test, her left ventricular function was entirely normal and the coronaries were entirely free of disease. This was obviously good news for Ms. Riechel." (R. 274).
On January 7, 1998, DePra completed a report, noting that plaintiff began to suffer neck pain in 1990, and complained of chronic low back pain and spasm. He noted she was taking Naprosyn and Tylenol for pain. His examination indicated that plaintiff ambulated slowly and had difficulty changing positions due to back pain. She had difficulty getting on and off the examination table, walking heel to toe, and rising from a squatting position. (R. 279). He reported that plaintiff had 5/5 grip strength in her right hand, and 3/5 strength in her left hand, could perform fine manipulations with her hands, although experiencing more difficulty with her left hand, and could reach and perform gross manipulations with both hands. (R. 282).
On May 20, 1998, plaintiff was examined by Samuel Balderman ("Balderman"),
an agency physician. (R. 286-95). Balderman noted that plaintiff's chief complaints were diabetes, back and neck pain, infected cysts, and chest pain. (R. 286). Plaintiff indicated that she could walk one block, sit and stand for one hour at alternating intervals, and lift and carry up to 15 pounds. (R. 286). She indicated that climbing stairs was painful for her. Id. She indicated her daily activities included some driving, shopping, cleaning, cooking, going out with friends and caring for her grandson. She stated she could bathe and dress herself. On examination, Balderman found that plaintiff needed no help getting on and off the examination table, had a normal gait and could walk heel to toe. He noted plaintiff had a full range of movement in her cervical spine, with "some paracervical pain." (R. 287). He also found a full range of motion in the upper extremities, and full strength bilaterally. As for plaintiff's lumbosacral spine, Balderman found no spinal tenderness or spasm. X-rays taken that day of plaintiff's cervical and lumbosacral spine were normal, with "no obvious degenerative changes present." (R. 289). Balderman further found plaintiff had a full range of movement in her hips, knees, and ankles, with no instability. He conducted pulmonary function tests which were "consistent with mild restrictive pulmonary disease." (R. 288). His impression was obesity, depression, minimal cervical spine disease, and diabetes, with a stable prognosis. Overall, Balderman found that plaintiff had a minimal limitation in the use of her upper extremities for pushing and pulling, no limitation in the use of her hands for fine or coarse motor work, minimal limitation in walking, standing, and sitting, mild limitation in kneeling, bending, climbing stairs, and walking up inclines, and mild limitation in lifting and carrying. He also indicated she should not work from heights or operate heavy machinery. (R. 288).
On May 19, 1998, plaintiff underwent a pulmonary function test, which indicated "moderately severe restrictive change, some obstructive change (Fed 25-75 reduced to 39%) small airway obstructive change, no change on bronchodilation." (R. 343).
On May 20, 1998, plaintiff was also given a psychiatric examination by John Thomassen, Ph.D. ("Thomasen"), an agency psychologist. (R. 296-98). Thomassen noted that she "presented with mild evidence of attention and concentration difficulties as well as short term memory problems." (R. 297). Thomassen diagnosed "depressive order" and stated:
Ms. Reichel presents with mild symptoms of depression from [sic] which she is currently receiving antidepressant medication. It may be that her symptoms are due to going through menopause as she reports symptoms consistent with this. She is likely to be able to do work requiring simple decision making. . . ."
(R. 298).
On September 2, 1998, DePra completed another evaluation of plaintiff. (R. 331-35). He indicated she was uncomfortable and cried out with movement and during her physical exam. He further stated plaintiff "would not likely be able to fulfill any work requirements due to enormous med/social limitations." (R. 333). He reported that plaintiff complained of left hand weakness and shoulder pain, and could lift a maximum of ten pounds, could occasionally lift ten pounds or less, and frequently lift less than five pounds. He stated that she had difficulty rising up and sitting down, with decreased range of movement in her hips, that she could stand for a total of three hours per day, and that she could stand for less than one hour at a time. He also indicated that she had low back pain with tenderness to touch, and could sit a total of four hours per day, but less than one hour at a time. (R. 334). He stated that because of her morbid obesity and restricted range of movement, she should never climb, stoop, crouch, kneel, crawl, and that her ability to reach, handle, push, and pull was adversely affected. (R. 335).
Finally, he reported that because of her "moderately severe" breathing problems, she should avoid heights, moving machinery, temperature extremes, chemicals, dust, fumes, humidity, and vibrations. (R. 335).
On October 22, 1998, agency review physicians Dr. Ivan Fras ("Fras") and Dr. H. Berlis ("Berlis"), completed a psychiatric review, finding that plaintiff had an "affective disorder" characterized by a "pervasive loss of interest in almost all activities" and "difficulty concentrating or thinking." (R. 313). They opined that she would "seldom" have deficiencies of concentration, persistence, or pace which would result in a failure to complete tasks in a work setting. (R. 317). Fras and Berlis also completed a residual functional capacity assessment, indicating that plaintiff was "moderately limited" in her ability to "remember locations and work-like procedures," "to understand and remember detailed instructions," "to carry out detailed instructions," and "to maintain attention and concentration for extended periods." (R. 319-22).
On March 27, 1999, plaintiff had MRI studies done of her cervical, thoracic and lumbar spine. (R. 346-47). The cervical spine was normal. The thoracic spine showed lesions or cysts "within the neural foramina at T4[-T8]." (R. 346). There was also "minor lateral disc bulging or ostephyte formation without any significant spinal canal stenosis or neural foraminal narrowing." Id. The lumbosacral spine showed "facet hypertrophy [increased bulk] without any significant spinal canal stenosis or neural foraminal narrowing." (R. 347). On April 15, 1999, plaintiff had a follow up MRI of her thoracic spine, to more closely examine the cysts/lesions. (R. 349-50). The radiologist noted "multiple rounded well defined smooth contoured foci . . . within the neural foramina of the mid thoracic spine from T4-5 to T8-9 level. A few lesions are also seen along the anterior aspects of the ribs at T4, T5, T7 and T8 levels. The largest lesion measures 1.5 cm in diameter." (R. 349).
On May 27, 1999, DePra completed another residual functional capacity assessment. (R. 356-72). He stated that plaintiff had moderately severe restrictive disease and chronic obstructive pulmonary disease, decreased grip strength, limited range of motion in her hips due to obesity, and was easily frustrated and agitated, with limited mental abilities. (R. 368). He indicated she could lift up to ten pounds, stand or walk for two hours per day, and sit less than six hours per day. (R. 368). He stated she had no limitation on her ability to understand or remember, or to work with sustained concentration and persistence. However, he reported that she was easily frustrated, with poor compliance, and was limited in her ability to adapt due to obesity and back problems. (R. 369). He wrote: "Pt is very sporadic with compliance. Unlikely to improve due to [illegible] med. prob [and] social limitations. Would be limited to # of hrs worked, functions [and] freq[uent] absences. Pt would not likely be able to fulfill any work requirements due to enormous med/social limitations." (R. 370).
On June 29, 1999, plaintiff was examined by Dr. David Batt ("Batt"), an agency physician. (R. 383-88). Batt found plaintiff walked with a normal gait, could walk heel to toe, and did not need assistance to get on or off the examining table. He noted she had tenderness in her cervical spine, but no spasm. She had a full range of motion in her upper extremities and full grip strength. Batt noted no abnormalities of plaintiff's spine or lower extremities, and found an x-ray of her lumbosacral spine taken that day to be normal. (R. 386). Nonetheless, he indicated that she had "moderate back syndrome," "moderate cervical spine arthritis," and "tendinitis of her left shoulder and left elbow."
With regard to her lumbar spine, he noted that her ability to walk was "moderately" limited," and that she could "walk in from the parking lot, mailbox and to the corner." (R. 387). As for her cervical spine, he stated that while she had tenderness, there was no limitation in her ability to move. Id.
On July 28, 1999, Dr. Robert Supinski ("Supinski"), who apparently specializes in orthopedics and sports medicine, examined plaintiff at the request of Eck. Supinski noted that an MRI showed "some degenerative changes in the lower lumbar spine with facet hypertrophy at the L4-L5 level. There is no significant canal stenosis or foraminal narrowing." (R. 438). He opined that plaintiff was not a surgical candidate at that time, and recommended that she begin a walking program and lose weight.
On August 2, 1999, plaintiff was examined by physical therapist Cindy L. Wilson ("Wilson"), upon a referral from Supinski. Wilson examined plaintiff, and noted that she had tenderness to palpation along her spine, moderately restricted range of motion in the lumbar spine, and complaints of pain in both hips. She found plaintiff's lower extremity strength was diminished on the left side, and that her straight leg raising test was positive on the left side. Wilson noted that plaintiff had poor posture sitting and standing, with rounded shoulders and forward head. She wrote: "This patient presents with signs and symptoms of DJD [degenerative joint disease] of the lumbosacral spine. Pain is not changed with position or activity and can come on at any time." (R. 486).
On February 3, 2000, DePra completed another residual functional capacity assessment. (R. 404-407). He indicated plaintiff suffered from chronic back pain, chronic depression, and elevated blood sugar. (R. 404). For clinical findings, he noted plaintiff had tenderness to palpation of her back and ribs and pain on flexion, as well as a wet cough with wheezes/rhonchi. (R. 405). He opined that she could lift ten pounds, stand or walk for less than two hours per day, and sit for up to six hours. He stated that she was limited in her ability to push and pull, and unable to tolerate extremes of temperature, dust, and fumes. (R. 407).
On March 28, 2000, plaintiff was seen at the Noyes Hospital emergency room complaining of chest pain, without shortness of breath. Doctors attributed the episode to possible nicotine overdose, as plaintiff had been using a nicotine patch, but had continued to smoke. (R. 498).
On April 6, 2000, plaintiff was examined by Dr. Sampath Neerukonda ("Neerukonda"), an agency physician. Plaintiff testified that Neerukonda met with her for only ten minutes. (R. 53). He noted that her mood was depressed, and that her affect was constricted. She acknowledged feelings of hopelessness, helplessness, and worthlessness. Neerukonda found plaintiff's speech coherent, logical, and relevant, with no evidence of psychosis, with good judgment and insight. He stated that he did "not see psychiatrically speaking any problems interfering in her personal and social adjustment," although he recommended that she pursue psychotherapy. (R. 409-410).
On May 1, 2000, Thomas Harding, Ph.D. ("Harding"), an agency review physician, completed a psychiatric review form, indicating that plaintiff had an affective disorder evidenced by depression. He opined that she would have moderate difficulty maintaining her social functioning (R. 416), and a moderately limited ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace." (R. 419).
On July 13, 2000, at the request of plaintiff's attorney, DePra prepared a narrative report and another residual functional capacity assessment. (R. 428-36). He indicated that he had been treating plaintiff since 1989, a period of eleven years, and had seen her "on a regular basis every three months and periodically as need for treatment regulation.") (R. 428). As an aside, the Court notes that the frequency of plaintiff's visits to DePra's office is demonstrated by the extensive collection of office notes contained in the record. (R. 508-78). DePra noted that plaintiff had a long history of non-compliance with his medical directions, but that during the past year, she had been significantly more interested in controlling her diabetes, although she continued to smoke and was obese. He opined that plaintiff's "prognosis for recovery is poor due to her inability to lose weight and her inability to exercise due to both her chronic lung disease and her pain. It is our [DePra's and Eck's] opinion that this will likely exceed 12 months in duration." (R. 429). For clinical findings, he noted morbid obesity, decreased range of movement in the back and neck, and decreased grip strength bilaterally. (R. 430). For laboratory and diagnostic tests, he noted that an MRI of plaintiff's thoracic spine showed "peroneal [sic] cysts". (R. 428). For plaintiff's symptoms, he listed back and neck pain, fatigue, shortness of breath, and poor exercise tolerance, and indicated that plaintiff's symptoms and functional limitations were consistent with her impairments. (R. 431). He noted that she had "constant dull ache worsened with prolonged sitting/standing," in her back, neck, and hips, on a daily basis. (R. 431-32). He opined that plaintiff could sit for two hours in an eight hour day, and stand or walk for one hour or less, and that she could lift and carry up to five pounds frequently, occasionally lift and carry up to twenty pounds, and never lift or carry more than twenty pounds. (R. 432-33). He further stated that she is limited in her ability to push, pull, and kneel, and should avoid fumes, gases, humidity, dust, temperature extremes. (R. 436). He noted she would have minimal difficulty grasping objects and using her fingers, but moderate "(Significantly limited but not completely precluded)" limitation using her arms for reaching. (R. 433-34). He stated that plaintiff's symptoms would likely increase if she were placed in a competitive work environment, and that she could not perform a full-time job requiring activity on a sustained basis. He indicated that because of her health problems, she would likely miss more than three days of work per month. (R. 436). Finally, he indicated plaintiff had emotional factors limiting her ability to work, including mood swings and a low tolerance level for stress. (R. 435).
Based upon the record, the Court believes that DePra meant "perineural cysts."
ALJ'S DECISION
As discussed earlier, the ALJ found that plaintiff was not disabled. At step one of the five-step analysis discussed above, the ALJ found that plaintiff was not performing substantial gainful work. Next, the ALJ found that plaintiff was alleging the following impairments: 1) back pain; 2) obesity; 3) depression; 4) COPD; 5) diabetes; 6) diverticulosis; 7) plantar fasciitis; and 8) learning impairment. At step two, the ALJ analyzed these impairments separately, and found that only the back pain and obesity were severe impairments. (R. 20-22). At step three, the ALJ found that neither plaintiff's back pain nor her obesity met or equaled an impairment listed in Appendix 1, Subpart P, of the regulations. (R. 23). Finally, at step four, the ALJ found that plaintiff possessed the residual functional capacity to perform the full range of light work, and that she could therefore perform her past relevant work as a cashier. (R. 25).
The Commissioner's regulations define "light work" as follows: "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 404.1567(b).
ANALYSIS
As discussed earlier, in this action plaintiff contends that the ALJ's decision is erroneous and must be reversed because it: 1) failed to properly apply the treating physician rule; and 2) incorrectly evaluated her credibility. Under the regulations, a treating physician's opinion is entitled to controlling weight, provided that it is well-supported in the record:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 416.927(d)(2); 20 C.F.R. § 404.1527(d)(2). However, "[w]hen other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(d)(4)).
Thus, where a treating physician's opinions are inconsistent with other substantial evidence in the record, his opinion is not entitled to controlling weight. Snell v. Apfel, 177 F.3d at 133. In such a case, the ALJ not only must decide what, if any, lesser weight to assign to the treating physician's opinion, but must also explain that decision. Id. ("Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.") (citation omitted). The Commissioner's regulations state that, "[u]nless we give a treating source's opinion controlling weight . . . we consider all of the following factors in deciding the weight we give to any medical opinion. (1) Examining relationship. . . . (2) Treatment relationship. . . . (3) Supportability. . . . (4) Consistency. . . . (5) Specialization. . . . (6) Other factors." 20 C.F.R. § 416.927(d)(2); see also, 20 C.F.R. § 404.1527(d); Schaal v. Apfel, 134 F.3d at 504 (Finding that the ALJ did not properly apply the treating physician rule, in part, because he "failed to consider all of the factors cited in the regulations."). If the ALJ fails to properly weigh evidence, the court cannot do so; instead, the matter must be remanded. See, Schaal v. Apfel, 134 F.3d at 504 ("It is for the SSA, and not this court, to weigh the conflicting evidence in the record.") (citation omitted); accord, Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Moreover, the ALJ should not reject a treating physician's opinion as being unsupported, without first attempting to develop the record. See, Schaal v. Apfel, 134 F.3d at 505 ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the physician] sua sponte."); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) ("The ALJ has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings, regardless of whether the claimant is represented by counsel."); Rosa v. Apfel, 1998 WL 437172 at *4 (S.D.N.Y. Jul. 31, 1998) ("A simple follow-up request from the ALJ could have resulted in an assessment of the claimant's residual functional capacity from his treating physician.").
With regard to evaluating a claimant's credibility,
[t]he regulations set forth a two-step process to evaluate a claimant's testimony regarding her symptoms. First, the ALJ must consider whether the claimant has a medically determinable impairment which could reasonably be expected to produce the pain or symptoms alleged by the claimant. Second, if the ALJ determines that the claimant is impaired, he then must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms. If the claimant's statements about her symptoms are not substantiated by objective medical evidence, the ALJ must make a finding as to the claimant's credibility. Such an evaluation of a claimant's credibility is entitled to great deference if it is supported by substantial evidence.
In assessing the claimant's credibility, the ALJ must consider all of the evidence in the record and give specific reasons for the weight accorded to the claimant's testimony. The regulations require the ALJ to consider not only the objective medical evidence, but also:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms . . .; and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Murphy v. Barnhart, No. 00Civ.9621(JSR)(FM), 2003 WL 470572 at *10-11 (S.D.N.Y. Jan. 21, 2003) (citing 20 C.F.R. § 404.1529(c)) (other citations and internal quotations omitted).
Applying the foregoing principles to the facts of this case, the Court finds that this matter must be remanded for a new hearing. First, the Court finds that the ALJ did not properly apply the treating physician rule. Clearly, DePra is plaintiff's treating physician, and he and his physician's assistant, Eck, saw plaintiff approximately every three months over a period of eleven years. Nonetheless, the ALJ gave little, and in some cases, no weight to DePra's opinions, without following the procedures required by 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.927. For example, the ALJ indicated that he was giving less weight to DePra's opinions than he otherwise would, because "[i]t appears that the opinions set forth under Dr. DePra's signature are essentially those of RPAC Eck, who is not considered to be a medical source under the Rulings and Regulations." (R. 25). The Court finds this conclusion to be erroneous. As the ALJ noted, DePra signed the statements to which he is referring. Obviously, then, the opinions were those of DePra as well as those of Eck. If the ALJ had any doubts in that regard, he should have developed the record by seeking clarification from DePra.
Similarly, the ALJ cites a statement by DePra that plaintiff "has never been particularly limited in what she can and cannot do." (R. 24). However, that single statement, taken out of context, is inconsistent with most of DePra's reports, which indicate that there are many things that plaintiff cannot do. If the ALJ wishes to place more weight on the single statement noted above than on DePra's residual functional capacity assessments, he will have to explain how he resolved this inconsistency in the decision. See, Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
The ALJ also gave no weight to DePra's opinion that plaintiff "is limited in her ability for social interaction because she is easily frustrated," because DePra is not a psychiatric specialist. (R. 22). The ALJ cited no authority for this finding. As discussed earlier a treating physician's area of specialization is merely one of factors which the ALJ must consider when deciding what weight to assign to his opinions. On the other hand, the ALJ gave much more weight to the opinion of Keerukonda, an examining consulting physician, who examined plaintiff for only ten minutes, according to plaintiff. Neerukonda opined that he did "not see psychiatrically speaking any problems interfering in her personal and social adjustment." However, Neerukonda's opinion in that regard stands alone, and is inconsistent with most of the other evidence. For example, Balderman noted plaintiff's depression; Thomasen noted problems with her attention, concentration, and short-term memory; Fras and Berlis noted an affective disorder, a pervasive loss of interest in almost all activities, as well as a limited ability to remember and carry out instructions; and Harding opined that she would have moderate difficulty maintaining her social functioning and completing a normal workday. The Court further finds that the ALJ erred by failing to consider all relevant evidence, and by selectively relying upon evidence weighing against a finding of disability. As to that, it is settled that An ALJ may not pick and choose only that evidence which favors a finding that the claimant is not disabled. See, Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) ("Although we do not require that, in rejecting a claim of disability, an ALJ must reconcile explicitly every conflicting shred of medical testimony, we cannot accept an unreasoned rejection of all the medical evidence in a claimant's favor.") (citation omitted). Here, for example, the ALJ gave a surprising amount of weight to a report by Batt, an consulting physician who examined plaintiff once on June 29, 1999. (R. 383-87). The ALJ generally indicated that Batt's examination was negative, although he did mention that Batt found plaintiff to have "moderate pain on palpation of the lower spine." (R. 20). Furthermore, the ALJ did not mention Batt's conclusion that plaintiff had "moderate back syndrome," or that her ability to walk was also moderately limited. (R. 387)("Her walking is limited only moderately. She can walk in from the parking lot, mailbox and to the corner.") Moreover, although Batt diagnosed plaintiff as having "moderate" cervical spine arthritis, the ALJ dismissed that diagnosis, stating that Batt had not documented that finding "beyond his finding of some tenderness without any range of motion limitations." (R. 20). Thus, the ALJ accepted only the portions of Batt's report that were detrimental to plaintiff's claim, and either failed to mention or rejected those portions which would have supported a finding of disability. Additionally, although the ALJ mentioned that plaintiff was examined by Supinski, an orthopedic specialist, he did not mention Supinski's statement that plaintiff's MRI showed "some degenerative changes in the lower lumbar spine with facet hypertrophy at the L4-L5 level." (R. 438).
Although the ALJ indicates that Neerukonda is a "mental health specialist," the record does not indicate that Neerukonda, identified only as an "M.D.," has any medical specialty. (R. 408).
However, even Neerukonda noted plaintiff's "depressed mood and a constricted affect," and recommended that she pursue psychotherapy. (R. 410)("Patient . . . presents with signs and symptoms of depression for the last 4-5 years. She however needs psychotherapy. . . . ").
As for plaintiff's COPD, the ALJ discussed Balderman's finding that plaintiff had "mild restrictive pulmonary disease" (R. 21, 288), but does not mention that another doctor, Dr. Sureshi, reviewed plaintiff's pulmonary function test results and noted "[m]oderately severe restrictive change[;] Some obstructive change (Fef 25-75 reduced to 39%)[;] small airway obstructive change. No change on bronchodilation." (R. 343) (emphasis added). The ALJ also purportedly gave "significant weight" to a "program psychologist" who found that plaintiff had "no significant mental limitations except for a moderate limitation on [her] ability to complete a workday and a workweek without interruptions from psychologically based symptoms." (R. 24) (emphasis added). Clearly, this statement indicates that plaintiff does in fact have a significant mental limitation, i.e. the ability to work without interruption from mental problems. However, the ALJ granted no weight to that portion of the program psychologist's report which found plaintiff had "moderate limitations." (R. 25).
The Court also finds that the ALJ erred in his evaluation of certain medical evidence and plaintiff's credibility. For example, the ALJ found that plaintiff suffered from "mild" chronic obstructive pulmonary disease ("COPD"). It is undisputed that plaintiff has smoked at least one, and as many as two, packs of cigarettes per day for over twenty years, and has some "trouble breathing." Moreover, examining physicians have concluded that plaintiff suffers from COPD. (R. 288). Nonetheless, the ALJ stated:
However, she continues to smoke cigarettes and Dr. DePra has diagnosed her as having tobacco abuse. The medical evidence documents little in the way of symptoms of [COPD]. In addition there is little in the way of treatment except for occasional sinus problems. Her continuing cigarette use despite medical advice is read by the undersigned as an indication that her COPD symptoms are mild. It is concluded that the claimant's COPD is not `severe' within the meaning of the Regulations.
(R. 21) (citations omitted). The Court finds this analysis is erroneous. First, the ALJ did not discuss the pulmonary function test results in the record (R. 292-95, 343), or indicate whether or not those results met or equaled an impairment listed in Appendix 1, Subpart P, of the regulations. As for the ALJ's finding that there was "little in the way of treatment," the Court notes that plaintiff's doctors have for years prescribed various inhalers. It is unclear from the record what additional treatment the ALJ believes is available, other than having plaintiff stop smoking. As to that, it was also erroneous for the ALJ to find that plaintiff's failure to stop smoking means that her symptoms are mild.
Many people with disabling COPD nonetheless continue to smoke because of their addiction to nicotine:
Given the addictive nature of smoking, the failure to quit is as likely attributable to factors unrelated to the effect of smoking on a person's health. One does not need to look far to see persons with emphysema or lung cancer — directly caused by smoking — who continue to smoke, not because they do not suffer gravely from the disease, but because other factors such as the addictive nature of the products impacts their ability to stop. This is an unreliable basis on which to rest a credibility determination.
Shramek v. Apfel, 226 F.3d 809, 812-13 (7th Cir. 2000). Moreover, if the ALJ was tacitly relying upon 20 C.F.R. § 404.1530(a) , he failed to cite any evidence in the record indicating that plaintiff's condition would improve or that her ability to work would increase if she were to stop smoking. See, Shramek v. Apfel, 226 F.3d at 812-13 ("Essential to a denial of benefits pursuant to section 404.1530 is a finding that if the claimant followed her prescribed treatment she could return to work.") (citation omitted).
20 C.F.R. § 404.1530(a) (b) state, in relevant part: "In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work. . . . If you do not follow the prescribed treatment without a good reason, we will not find you disabled or, if you are already receiving benefits, we will stop paying you benefits."
The ALJ also indicated that plaintiff was obese and non-compliant with recommendations that she lose weight. However, he did not discuss Dr. DePra's opinion that she was hindered in this regard by her other health problems. (R. 428)("She has been instructed to attempt to lose weight and do exercises to improve her weight; however she is again very limited as a result of her other medical problems as well as her non-compliance."); (R. 429)("Mrs. Riechl's prognosis for recovery is poor due to her inability to lose weight and her inability to exercise due to both her chronic lung disease and her pain.").
As for plaintiff's complaints of pain, and particularly neck and back pain, the ALJ stated that he found "little in the way of evidence to support all of these complaints." (R. 20). Nonetheless, he acknowledges that MRI results establish that plaintiff has "perineural cysts from T4-8." Although he found that plaintiff's perineural cysts were "severe impairments," in assessing her residual functional capacity he essentially found her complaints of pain not credible: "[C]laimant's subjective complaints outweigh the objective evidence of record. For example, although she complains of significant low back pain, there are few clinical findings, such as range of motion limitations or problems with walking, which substantiate her complaints." (R. 23). The ALJ apparently assumed that perineural cysts would not cause the painful symptoms of which plaintiff complains, unless they also adversely affected her range of motion and ability to walk.
However, and surprisingly, there is nothing in the record describing the nature of perineural cysts, or whether or not they could be expected to cause the level of pain alleged by plaintiff. The Court finds that the ALJ should have developed the record in this regard. In this case, the Court believes that it would be appropriate to obtain the opinion of a doctor specializing in spinal neurosurgery.
Apparently such perineural cysts can cause severe pain. For example, "Tarlov's Cysts," although usually found in the sacral spine, can apparently develop elsewhere along the spine and can be symptomatic. See, http://www.tarlovcyst.net/article12.htm, referring to J. Neurosurg 2001 Jul; 95 (1 Suppl):25-32 (ISSN: 0022-3085) J.M. Voyadzis, et al., Dept of Neurosurgery and Pathology, Georgetown Univ. Med. Ctr. ("Tarlov or perineurial cysts are lesions of the nerve root most often found in the sacral region.") (emphasis added); "synovial cysts," "found most frequently at L4-5," "can compress the dorsal nerve roots and cause radicular symptoms." John R. Hesselink, MD, FACR, "Degenerative Spine Disease," http://spinwarp.ucsd.edu/NeuroWeb/Text/sp-700.htm. The record must be developed to determine whether or not the cysts within the neural foramina along plaintiff's thoracic spine could account for her complaints of pain.
The Court also concludes that the ALJ's findings regarding plaintiff's residual functional capacity are not supported by substantial evidence. The ALJ stated:
[T]he claimant's ability to perform a wide range of daily activities also undermine her credibility. [She] testified that her typical day consists of getting up at 6:30 AM; gets her husband off to work and her 7 year old son [sic] off to school; talks on the phone with friends; picks up around the house; plays with various household animals; visits with her daughter and her child; goes to wrestling practice for her son [sic] twice a week; does some cooking; washes dishes; does some vacuuming; reads; crochets; goes shopping with her daughter; watches the birds outside; and watches children in the pool in the summer. This sounds like the day of a person who has no or few physical limitations and can at least perform sedentary [sic] work, but is not totally disabled.
(R. 24). The Court disagrees. It is well settled that "[t]o qualify for disability benefits under the Social Security Act, the claimant must be unable to perform his previous work or any other kind of substantial work. The claimant need not demonstrate that he is completely helpless or totally disabled." Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983) (Citations omitted). Applying that principle here, the Court fails to see the significance of the fact that plaintiff may rise at 6:30 AM. Moreover, there is no indication that plaintiff's husband needs any assistance "getting off to work." Also, the fact that plaintiff watches her grandson's wrestling practices appears to have little bearing on her physical ability to perform work on a sustained basis. Similarly, even someone severely disabled could talk on the telephone, read, crochet, and watch children and birds. As for her ability to cook and wash dishes, plaintiff testified that she did not cook much, and that her daughter cooked many of the family's meals, and that she could only stand to wash dishes for approximately 15 minutes before experiencing pain. As for her ability perform "some" vacuuming, the record is not sufficiently developed to indicate the level of physical exertion involved.
The ALJ further stated: "It is noted that the claimant is attempting to adopt the grandchild who currently lives with her and her husband. The undersigned reads this as an indication that the claimant's symptoms are not as disabling as alleged since she would not be able to otherwise care for the grandchild, who is under 5 years of age." (R. 24). This is incorrect, as the grandchild whom the plaintiff wants to adopt was "seven and a half" at the time of the hearing. (R. 58). The ALJ has confused this grandchild with another of plaintiff's grandchildren, age two years, with whom she does not live. (R. 59, 63).
Reports from agency physicians also provide little in the way of substantial evidence to support the ALJ's findings. For example, in finding that plaintiff retained the residual functional capacity to perform "the full range of light work" (R. 24), the ALJ relied on residual functional capacity assessments by "State Agency program physicians." Specifically, he was apparently referring to two physical residual functional capacity assessment forms that were completed by Agatino DiBella, M.D., and affirmed by Sury Putcha, M.D. (R. 389-403). Both reports are dated July 29, 1999, although one of the forms was not completed, and the questions regarding plaintiff's postural, manipulative, visual, communicative, and environmental limitations are left blank. (R. 392-94). Neither DiBella nor Putcha are treating or examining physicians, and neither indicated a particular medical specialty. Although both reports were purportedly completed on the same date by the same doctor, DiBella, one indicates that plaintiff can stand and/or walk "about 6 hours in an 8-hour workday" (R. 390), while the other indicates she can only stand or walk only "at least 2 hours in an 8-hour workday." (R. 398). The ALJ did not mention, and hence did not resolve, this inconsistency.
It appears that both reports were originally written on July 29, 1999. For unknown reasons, both have later dates also written on them. (R. 396, 403).
Instead, he found that plaintiff could stand and/or walk for 6 hours in an 8-hour workday. (R. 25). The ALJ also favorably cited a report completed by Dr. William Musser ("Musser"), who examined plaintiff once, as indicating that plaintiff's exam was "completely normal." (R. 20, 373-82). Although Musser completed a residual functional capacity assessment, it does not indicate what tests, if any, he performed. Moreover, Musser did not complete the range of motion chart sent to him by the Commissioner. (R. 381-82). Musser's report also does not indicate that he has any particular medical specialty. The record contains other residual functional capacity assessments from several non-treating, non-examining agency review physicians, however they are generally of very little value, since they do not clearly indicate what records the doctors reviewed in arriving at their opinions. (See, e.g., R. 301-308 [Reid, Finley]; 324-27[Tuller]).
Finally, the Court also finds that this action must be remanded since it is unclear whether or not the ALJ complied with 42 U.S.C. § 423(d)(2)(B), which states:
In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Commissioner . . . does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.42 U.S.C. § 423(d)(2)(B). Here, the ALJ referred in passing to a "combination of impairments." (R. 20). However, he actually analyzed each of plaintiff's claimed impairments separately, and concluded that each of the individual impairments, with the exception of plaintiff's pain and obesity, were not severe. (R. 20-23). The ALJ did not discuss the combined effect of plaintiff's impairments.
CONCLUSION
For all of the foregoing reasons, this matter is remanded for a new hearing pursuant to the fourth sentence of 42 U.S.C. § 405(g).
So Ordered.