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February 17, 1995

NISA SHARIEFF, Plaintiff, against DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

FREDERIC BLOCK, United States District Judge

The opinion of the court was delivered by: FREDERIC BLOCK

BLOCK, District Judge:

 Plaintiff Nisa Sharieff ("Sharieff") has brought this action pursuant to 42 U.S.C. § 405(g) to review a final determination of the Secretary of Health and Human Services (the "Secretary") denying Sharieff's application for disability insurance benefits under Title II of the Social Security Act (the "Act"). The Secretary has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court reverses the Secretary's decision denying Sharieff benefits because the administrative law judge ("ALJ") adjudicating the matter applied an erroneous legal standard regarding the weight to be accorded the opinions of Sharieff's treating physicians, and accordingly remands the action for further proceedings consistent with this memorandum and order.



 On May 12, 1990, Sharieff stopped work as a Licensed Practical Nurse ("LPN") due to injuries allegedly resulting from a car accident occurring on that day. (Tr. 25.) *fn1" The next day, Sharieff filed an application for disability insurance benefits alleging that she was unable to perform her job due to pain in her neck, back, hip, arm, shoulder and leg. Sharieff sought treatment from her physician, Dr. Alfred Malinov, who thereafter saw her on a monthly basis and eventually concluded that she was "disabled." On June 19, 1991, Dr. Seo, a "consulting physician" whom the government hired to examine Sharieff pursuant to 20 C.F.R. § 404.1517, also examined Sharieff. Dr. Seo opined that Sharieff "probably . . . does not have any problem except her complaint" of pain in various parts of her body. (Tr. 86.)

 On July 11, 1991, despite Sharieff's alleged claims, the Department of Health and Human Services ("HHS") denied Sharieff the benefits she requested, stating that her "condition was not severe enough to keep [her] from working." (Tr. 53.) On September 6, 1991, Sharieff filed an application for "reconsideration" of the denial of benefits pursuant to 20 C.F.R. § 404.909, which was denied on October 28, 1991. (Tr. 53-54, 56-58.)

 On July 26, 1991, approximately one and one-half months prior to filing her reconsideration petition, Sharieff suffered another car accident allegedly aggravating her pre-existing injuries. Sharieff thereafter began treatment with Dr. Martin Lehman, an orthopedic surgeon, and Dr. Mark Gudesblatt, a neurologist, both of whom subsequently opined that Sharieff was "disabled" not only as of the second car accident but also as of the first car accident.

 On October 15, 1992, Sharieff filed pursuant to 20 C.F.R. § 404.967 an application to the Appeals Council, which reviews ALJs decisions. On November 4, 1992, the Appeals Council denied hearing the case, concluding that there existed no basis for granting the request for review, thereby rendering the ALJ's determination the final decision of the Secretary. (Tr. 3.) This appeal followed.



 In reviewing the ALJ's determination, the Court must determine "whether the Secretary's conclusions are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citing 42 U.S.C. §§ 405(g)); see also Frerks v. Shalala, 848 F. Supp. 340, 348 (E.D.N.Y. 1994). Substantial evidence is "'more than a mere scintilla. It means such relevant evidence as 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)). To evaluate disability claims, the Secretary uses the following five-step analysis:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. 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. 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. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe ...

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