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January 12, 1983


The opinion of the court was delivered by: LASKER


 Nikrouz Ghazibayat filed an application on July 22, 1980 for a period of disability and disability insurance benefits, Sections 216(i) and 223 of Title II of the Social Security Act ("the Act"), as amended, 42 U.S.C. §§ 416 and 423. Ghazibayat also filed for supplementary security income ("SSI") benefits, Section 1602 of the Act, 42 U.S.C. § 1381a, on February 20, 1981. Following initial denial and denial on reconsideration of both applications, Ghazibayat requested a hearing before an Administrative Law Judge ("ALJ") to review both determinations. The ALJ's decision denying benefits to Ghazibayat was approved by the Appeals Council, and the ALJ's decision thus became the final decision of the Secretary of Health and Human Services ("the Secretary"). Ghazibayat subsequently sought review in this Court, and both parties moved pursuant to Fed. R. Civ. Pr. 12(c) for judgment on the pleadings. We referred the motion to Honorable Leonard Bernikow, United States Magistrate, for report and recommendation. Magistrate Bernikow filed his report on October 19, 1982, concluding that the ALJ's finding that Ghazibayat is not disabled was not supported by substantial evidence, and recommending that the ALJ's determination be reversed and the case remanded to the Secretary for computation of benefits. The Secretary filed objections to Magistrate Bernikow's report and requested affirmance of the Secretary's decision as represented by the ALJ's findings.


 Magistrate Bernikow's report reflects a thorough consideration of the evidence presented to the ALJ, the parties' contentions, and the applicable legal standards. We agree with the Magistrate's reasoning and conclusions, and add the following comments in order to respond to the Secretary's objections. Familiarity with Magistrate Bernikow's report, included as Appendix 1 to this opinion, is assumed.

 The Secretary contends that the Magistrate failed to apply correct standards in evaluating the ALJ's findings. In particular, the Secretary takes issue with the Magistrate's allocation of the burdens of proof, and with his failure to discuss each of the five sequential steps which, pursuant to regulations promulgated by the Secretary in 1980, are applicable in evaluating disability claims, see 20 CFR §§ 404.1520, 416.920 (1982). *fn1" These contentions are unpersuasive. The Magistrate noted that once the claimant has met his burden under 42 U.S.C. § 423(d) of showing that his physical impairment is severe enough to preclude a return to his former employment, the burden shifts to the Secretary to show the existence of "alternative substantial gainful work" consistent with plaintiff's physical capability, age, education, experience and training. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The latter burden has two requirements: first, to establish that "the claimant's impairment is of a kind that still permits certain types of activity, such as lifting or walking, necessary for other occupations, and that the claimant's experience involves skills transferable to other work;" and second, to present evidence demonstrating "the existence of specific types of jobs, available in the national economy, suitable for a claimant with these capabilities and skills." Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981); see also Campbell v. Secretary of the Department of H.H.S., 665 F.2d 48, 53 (2d Cir. 1981), cert. granted, 457 U.S. 1131, 73 L. Ed. 2d 1348, 102 S. Ct. 2956, (1982).

 This analysis of the relative burdens of proof is correct. The five-step analysis adopted in the 1980 regulations did not supplant the standards cited by the Magistrate, as the Secretary implies, but merely provided a more detailed model for applying those standards. *fn2" This five-step sequence has been summarized as follows:

"[1] First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. [2] If he is not, the Secretary next considers whether the claimant has a 'severe impairment' which significantly limits his physical or mental ability to do basic work activities. [3] If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. [4] Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. [5] Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one."

 Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 20 CFR §§ 404.1520, 416.920 (1982). As a comparison of this five-step analysis with the analysis cited by the Magistrate shows, the Secretary's burden -- that of proving that a claimant who is unable to return to his past work can perform other available work -- is the same under both analyses. Since the ALJ simply focused upon this latter issue in his decision, it is clear, despite the absence of specific findings on the first four steps described above, *fn3" that the ALJ answered the second inquiry of the five in the affirmative and the first, third and fourth in the negative. *fn4" Although the Magistrate's focus upon whether the Secretary sustained his burden of showing Ghazibayat capable of at least sedentary work was thus appropriate, our review of the evidence shows that the ALJ's decision must also be reversed on the additional ground that Ghazibayat's impairments meet the standards set forth in Appendix 1 of the regulations (Step 3 of the five-step sequence described above), an issue which the Magistrate did not discuss. Thus, in ratifying the Magistrate's conclusion that the ALJ's decision was unsupported by substantial evidence, we address both the question of whether Ghazibayat's impairments meet the standards set forth in Appendix 1 of the regulations, and the question of whether the evidence warranted the ALJ's conclusion that Ghazibayat was capable of sedentary work.

 The standards relating to Ghazibayat's claim of disability based on his back injury are set forth in Part A of Appendix 1 to 20 CFR § 404, Subpart P, § 1.05(C), which is reproduced in the margin. *fn5" Although there is no need to reiterate the Magistrate's discussion of the evidence presented, a few points are emphasized below in order to respond to the Secretary's arguments. First, as the Magistrate correctly noted, the expert opinion of a claimant's treating physician is binding upon the Secretary absent substantial contradicting evidence, see Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). The findings of Drs. Claude Carmichael and Stanley Rabinowitz, upon which the ALJ relied, do not provide substantial evidence contradicting the findings of Ghazibayat's primary treating physician, Dr. Carl Rothschild, and of another treating physician, Dr. David Rosenbaum. Dr. Rabinowitz, who examined Ghazibayat once at the request of the Social Security Administration, simply made no general finding as to the level of disability attributable to Ghazibayat's back condition. (Tr. 106-108). *fn6" As for Dr. Carmichael, a treating physician, it is true that his report reflected some scepticism as to the amount of pain Ghazibayat was experiencing. *fn7" (Tr. 115-117). However, Dr. Carmichael stated in his report that he could not provide a conclusion as to Ghazibayat's capacity for standing, walking, sitting, and similar functions. (Tr. 104). His tentative conclusion that Ghazibayat was "probably able" to perform sedentary work, but that he could not determine whether Ghazibayat's incapacity was real without a myelogram (which Dr. Carmichael never performed) does not amount to substantial evidence contradicting Dr. Rothschild's firm conclusion, based on his extended treatment of Ghazibayat over a period of more than a year, that he was totally disabled on account of a discogenic disorder. (Tr. 104, 118). Dr. Rothschild's conclusion, of course, does not stand alone in the record, but is buttressed by the opinion of Dr. Rosenbaum *fn8" and by the results of various clinical tests performed by several different doctors (Tr. 119, 126, 129, 132-33).

 As to the question whether Ghazibayat's impairment meets the standards set forth in Appendix 1, *fn9" the Secretary inexplicably argues that "none of the physicians who submitted reports included in the record found that plaintiff had muscle spasms or significant motor loss with muscle weakness and sensory and reflex loss." (Memorandum in Support of Defendant's Objections at 11.) In fact, Dr. Rothschild, in a report dated July 14, 1981, noted "bilateral vertebral muscle spasms," *fn10" stated that "straight leg raising is limited to 15 degrees bilaterally," and reported "considerable constriction of motion" (Tr. at 104). He reported that Ghazibayat was severely limited in his ability to sit, stand and walk, and was unable to lift, carry, bend, squat or stoop. Dr. Rothschild noted similar findings, along with muscle weakness, in another report (Tr. at 118), while Dr. Rabinowitz, the physician consulted by the SSA, noted "decreased sensation and mild decreased strength in the left lower extremity." (Tr. 107). The ALJ noted findings of muscle spasm in his opinion (Tr. 13, 14); thus, the Secretary's statement that no physicians reported such findings is clearly incorrect.

 In sum, the evidence before the ALJ, in view of the legal requirement that a treating physician's findings cannot be rejected in the absence of substantial contradictory evidence, compelled the conclusion that Ghazibayat was disabled, on account of his back condition alone, according to the requirements of Appendix 1 of the regulations. The conclusion of disability is further supported in light of the requirement that Ghazibayat's claim be considered with reference not only to his back condition but also with regard to the evidence of "moderately severe hypertension" (Tr. 14, 130) from which he suffers, see 20 CFR § 416.922 (1982); Kolodnay v. Schweiker, 680 F.2d 878 slip op. at 2728-29 (2d Cir. 1982). *fn11"


 Even if Ghazibayat's impairments did not meet the requirements of Appendix 1 of the regulations, however, reversal of the ALJ's decision would be necessary because his conclusion that Ghazibayat was capable of performing sedentary work *fn12" is unsupported by substantial evidence. Since Ghazibayat established that he was unable to return to his former employment, the Secretary bore the burden of showing that Ghazibayat could perform at least sedentary work, see Decker v. Harris, supra, 647 F.2d at 294. The ALJ concluded that Ghazibayat's testimony, together with the conclusions of Dr. Carmichael and Dr. Rabinowitz, were "entirely consistent with the requirements of sedentary work" (Tr. at 15), and found that "although the claimant experiences pain, this pain is not constant, severe or disabling." (Tr. 16). As noted previously, neither Dr. Carmichael nor Dr. Rabinowitz came to definite conclusions about the level of impairment caused by Ghazibayat's back condition. Indeed, Dr. Carmichael specifically noted his inability to come to a conclusion as to Ghazibayat's functional capacities. (Tr. 117). The bland assertion that the findings of Dr. Carmichael and Dr. Rabinowitz are "consistent with" the requirements of sedentary work simply glosses over the lack of specific findings by these physicians on the issue.

 Moreover, the ALJ's statement that Ghazibayat's testimony was also consistent with the requirements for sedentary work is entirely unsupported. Ghazibayat testified that he could not sit or stand for more than a few minutes at a time, could not walk more than a few blocks, was unable to take public transportation, and had to spend most of each day lying on the couch (Tr. 48, 49, 52, 54). He stated that he had ceased performing any household chores or engaging in any activities, including going to church, because of his back pain. (Tr. 56-58, 61). Ghazibayat's specific testimony on his work capabilities was as follows:

[by ALJ]
"Q. Have you looked for a job in the past year?
A. I couldn't. I can't work, sir, so how --
Q. Why can't you do your former job as a manager in a restaurant or a taxi driver?
A. I can't even sit for five minutes, sir, how can I --
Q. Do you think you could do a job where you could sit or stand for 6 to 8 hours a day?
A. I can't even sit for five minutes, sir.
Q. How about working on objects on a table in front of you. Do you think you could work on small objects on a table in front of you?
A. I can't sit, sir.
Q. Could you do a job if you didn't have to lift more ...

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