walk or ride in a car for very long periods (T. 37-38). She also testified that she had pain in her arm and neck due to tendinitis and nerve blockage (T. 39-40). She took 30 mg of Tylenol with codeine four times a day, which helped the pain somewhat (T. 40-41). She prepared morning meals and made sandwiches for her three children, but could not sweep, mop, vacuum, make the beds or do heavy loads of laundry (T. 41). The pain in her arm made it difficult to dress herself or to raise a coffee cup (T. 42-43). She was able to walk one block (T. 44). She could not bend at the waist to pick up an object (T. 44-45). She could not sit for more than five minutes at a time. She could lift a gallon of milk and carry it across the room. She could raise her hands above her head, pull a door open and push it closed, and climb one flight of stairs four times a day (T. 45).
In a decision dated August 17, 1992, ALJ Mowrer found that plaintiff was not disabled within the meaning of the Act (T. 16-22). According to the ALJ, the medical evidence showed that she was hospitalized in February, 1989, with complaints of severe right sciatic pain. A myelogram and CT scan did not reveal any abnormalities (T. 17). Upon release, she was treated by Dr. Scott, who attributed her pain to lumbar disc disease. Dr. Scott treated plaintiff's low back pain conservatively. In August, 1991, she underwent an MRI scan which showed disc herniation and bulging (T. 17).
The ALJ noted that plaintiff was seen by Dr. Armbrust in March, 1992, for evaluation of her complaints of pain related to her neck and right upper extremity. Dr. Armbrust recommended conservative treatment. The ALJ also noted that plaintiff was seen by Dr. Britton in April, 1992, and that Dr. Britton was unable to correlate plaintiff's symptoms of neck pain with the results of an MRI scan of her cervical spine. According to the ALJ, "later contact with Dr. Britton revealed his opinion that the claimant was not disabled" (T. 18). The ALJ also acknowledged Dr. Scott's July 13, 1992 letter reporting on plaintiff's degenerative lumbar and cervical disc disease (id.).
Based on his review of this evidence, the ALJ concluded that plaintiff was capable of performing the full range of sedentary work,
and was therefore not disabled at any time through the date of his decision. The ALJ found that, while plaintiff's complaints of back and neck pain were substantiated by the medical evidence, there was also evidence indicating that the pain was not disabling. He noted Dr. Scott's reports indicating some improvement of her condition through physical therapy. He also noted that "at least one physician, Dr. Britton, has declared that she is not disabled at this time" (T. 19). He further noted that, while Dr. Scott's reports indicate plaintiff's inability to do repeated bending or lifting, these reports did not specify that she was incapable of sedentary activities (id.).
The ALJ's decision became the final determination of the Secretary when the Appeals Council denied plaintiff's request for review on April 7, 1993 (T. 3-6). Plaintiff filed this action on June 2, 1993.
The Social Security Act states that, upon review of the Secretary's decision by the district court, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g)(1991). Substantial evidence is defined as evidence which a "'reasonable mind might accept as adequate to support a conclusion'". Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under these standards, the scope of judicial review of the Secretary's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Secretary. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Secretary. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
The Secretary's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
Plaintiff argues that the ALJ improperly disregarded substantial evidence of plaintiff's disability provided in the several reports of Dr. Scott, her treating physician, and instead gave undue weight to the note from Dr. Britton's office indicating his belief that plaintiff was not disabled. I completely agree.
The Secretary's regulations, binding on this court, see Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993), provide in pertinent part as follows:
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. When we do not give the treating source's opinion controlling weight, we apply [several factors] in determining the weight to give the opinion. We always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.