pain. (R. at 45-46.) At the time of the hearing before the Administrative Law Judge ("ALJ") on May 21, 1993, Gray's knee problems had necessitated seven surgeries, (R. at 43), had resulted in numerous emergency visits to the hospital, (R. at 8, 148, 207, 230, 237, 240), and had continued to cause Gray constant pain. (R. at 45.) The ALJ who conducted the hearing concluded that Gray has a "severe musculoskeletal impairment." (R. at 20.) In detailing Gray's "long history of disorders of his left knee," the ALJ noted that Gray had undergone, among other surgeries, a partial meniscectomy to the left knee in 1982, a transarthroscopic synovectomy in 1983, a left tibia tubricle elevation with left iliac graft in 1988, and exploration of the left patellar tendon with reefing of the patellar tendon mechanism in September 1992. (Id.) The ALJ also observed that Gray has chronic instability of the left patella with patellofemoral arthritis and a disruption of the left quadriceps patellar mechanism, that Gray has been diagnosed as having patellofemoral chondromalacia of the right knee, and that an MRI revealed inflammation of the patellar tendon at the distal aspect of the patella. (Id.)
After completing high school, Gray served in the Navy until he was discharged because of his knee problems. (R. at 39-40.) Following his discharge, Gray was employed continuously at various jobs from 1984 until May 1992. (R. at 103.) Most recently, Gray owned a pet store. (R. at 40.) Prior to that, he had been, among other things, a retail manager in various stores and a laborer. (R. at 41, 104-07.) As with his prior jobs, Gray was forced to stop working at the pet store because of problems with his knees. (R. at 42, 110.)
Gray filed an application for SSDI benefits on June 17, 1992. (R. at 112-19.) Gray's application was denied both initially, (R. at 66-69), and upon reconsideration. (R. at 80-83.) Gray also filed an application for SSI benefits on May 14, 1992, (R. at 84-88), which also was denied initially, (R. at 90-93), and upon reconsideration. (R. at 95-98). Gray then requested a hearing, which was held on May 21, 1993. (R. at 33-50.) At the hearing the ALJ found that Gray was not disabled and, therefore, that he was not entitled to a period of disability or to SSDI benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i), 423, and that he was not eligible for SSI benefits under Sections 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1381a, 1382c(a)(3)(A). (R. at 25.) When the Appeals Council denied Gray's request for review on November 23, 1993, (R. at 11-12), the ALJ's decision became the final decision of the Commissioner.
Gray now appeals to this Court from this decision.
Gray contends that the Commissioner's decision that he is not disabled because he has the Residual Functional Capacity ("RFC")
to perform a full range of sedentary work activity is not supported by substantial evidence. He argues that: (1) his impairment, as described by a physician examining him for purposes of determining his entitlement to Workers' Compensation benefits, renders him unable to perform a full range of sedentary work according to the Commissioner's own definition of sedentary work; (2) the Commissioner did not properly consider the effect of pain on his RFC; (3) the Commissioner improperly considered his attempts to find work as an indication that he could perform a full range of sedentary work; and (4) the testimony of a vocational expert was necessary for the Commissioner to sustain her burden of proof.
The standards governing entitlement to disability benefits and supplemental security income benefits are well settled. A claimant seeking social security benefits is considered disabled if the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner, which set forth a five-step inquiry. See 20 C.F.R. §§ 404.1520, 416.920. As the Court of Appeals has explained:
The first step in the sequential process is a decision whether the claimant is engaged in 'substantial gainful activity.' If so, benefits are denied. If not, the second step is a decision whether the claimant's medical condition or impairment is 'severe.' If not, benefits are denied. If the impairment is 'severe,' the third step is a decision whether the claimant's impairments meet or equal the 'Listing of Impairments' set forth in subpart P, app. 1, of the social security regulations. These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments do not satisfy the 'Listing of Impairments,' the fourth step is assessment of the individual's 'residual functional capacity,' i.e., his capacity to engage in basic work activities, and a decision whether the claimant's residual functional capacity permits him to engage in his prior work. If the residual functional capacity is consistent with prior employment, benefits are denied. If not, the fifth and final step is a decision whether a claimant, in light of his residual functional capacity, age, education, and work experience, has the capacity to perform 'alternative occupations available in the national economy.'
Dixon v. Heckler, 785 F.2d 1102, 1103 (2d Cir. 1986) (citations omitted), vacated on other grounds sub nom. Bowen v. Dixon, 482 U.S. 922, 96 L. Ed. 2d 690, 107 S. Ct. 3203 (1987); see also Diaz v. Shalala, 59 F.3d 307, 312 n.2 (2d Cir. 1995); Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
The initial burden is on the claimant to prove that he is disabled within the meaning of the Act. 42 U.S.C. § 423(d)(5); see also Reyes v. Secretary of Health and Human Servs., 807 F. Supp. 293, 298 (S.D.N.Y. 1992) (Motley, J.). This burden encompasses the first four steps described above. Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). Once the claimant carries the burden of proving disability by showing that his impairment prevents his return to his prior employment, he has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step--that there exists alternative substantial gainful employment in the national economy that the claimant can perform considering not only his physical capacity but also his age, education, experience, and training. Id. 717 F.2d at 722-23; see also Reyes, 807 F. Supp. at 298; Crean v. Sullivan, 1992 U.S. Dist. LEXIS 10734, No. 91 Civ. 7038, 1992 WL 183421, at *4 (S.D.N.Y. July 22, 1992) (Leisure, J.).
In determining whether a claimant is disabled, the Commissioner must consider: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) the claimant's subjective evidence of pain and physical incapacity as testified to by himself and others who observed him; and (4) the claimant's age, educational background, and work history. Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Moreover, the opinion of a treating physician is entitled to considerable weight and is, in the absence of contradictory evidence, binding on the Commissioner. Id.
In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid".
The Grid takes into account the claimant's RFC in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Crean, 1992 U.S. Dist. LEXIS 10734, 1992 WL 183421, at *4.
Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant's particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 U.S. Dist. LEXIS 10734, 1992 WL 183421, at *4. Where there are discrepancies between the claimant's profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986). For example, sole reliance on the Grid may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 U.S. Dist. LEXIS 10734, 1992 WL 183421, at *4-*5.
This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989) (individual assessment required where there is insufficient proof that a claimant can perform a full range sedentary work).
In the present case, the ALJ performed the five-step evaluation process in determining that Gray is not entitled to benefits. He concluded that since May 1992, Gray had not been engaged in substantial gainful activity because of his knee problems and that he had a severe impairment that did not meet or equal the level of severity of a listed impairment. (R. at 20-21.) He then determined, based both on Gray's testimony and the medical evidence, that Gray could not perform his past relevant work. (R. at 21.) Finally, based on the doctors' reports, the medical evidence, Gray's testimony about his symptoms and limitations, and the fact that Gray had applied for sedentary jobs and intended to go to college, the ALJ determined that Gray retained an RFC that enabled him to perform a full range of sedentary work. (R. at 22-24.) Consulting the Grid, the ALJ concluded that Gray was not disabled. (R. at 24.)
A court may set aside a determination by the Commissioner only if it is based on legal error or is not supported by substantial evidence in the record. 42 U.S.C. §§ 405(g), 1383(c)(3); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981). Substantial evidence is "more than a mere scintilla"; it is "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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).
Here, Gray sustained his burden of proving that his impairment prevents him from performing his past relevant work. Both the record and the ALJ's decision support this conclusion. Therefore, the burden shifted to the Commissioner to prove, with specific reference to the medical evidence, that Gray can perform alternative substantial gainful employment that exists in the national economy. See, e.g., White v. Secretary of Health and Servs., 910 F.2d 64, 65 (2d Cir. 1990).
Gray complains about three aspects of the ALJ's determination that he retains the RFC to perform a full range of sedentary work. First, Gray argues that the very evidence upon which the ALJ relied demonstrates that he cannot perform a full range of sedentary work under the Commissioner's definition of sedentary work. Second, he argues that the ALJ failed to consider properly the effect of pain on his RFC. Third, he argues that the ALJ improperly considered his testimony that he had applied for sedentary jobs and that he intends to go to college. In addition, Gray argues that because he cannot perform the full range of sedentary work, the ALJ was required to introduce the testimony of a vocational expert. The plaintiff's first three arguments are particularized aspects of his contention that the Commissioner's decision that he possesses an RFC that enables him to perform a full range of sedentary work is not supported by substantial evidence. A careful review of the evidence demonstrates that the plaintiff is correct, and therefore the Commissioner's decision should be reversed and remanded for the calculation of benefits.
In concluding that Gray retained the RFC to perform a full range of sedentary work activity, the ALJ relied heavily on the fact that Dr. Jones, who examined the claimant on two occasions in connection with determining whether Gray was eligible for Workers' Compensation benefits, found that while Gray is unable to stand for prolonged periods, he can perform sedentary work. (R. at 22.)
In the regulations, the Commissioner defines sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.