Brown told the ALJ that she spent most of the day at her mother's home. (T. 46-47). She said that although her mother babysits, Brown herself was not taking care of the children. (T. 59). Instead, she testified that she helped the children color, and took them for walks. (T. 46). Plaintiff testified that she cooked for herself, and cared for her own household, but needed her father's help in doing the laundry - he carried the basket for her. (Id.).
Brown also told the ALJ that although she went to bed at about eleven o'clock, she usually did not fall asleep until three o'clock in the morning. (T. 58). She said: "I hear voices. It's hard to sleep when this earlobe's talking and this earlobe's talking to you, you know?" (T. 58).
Brown tried to explain what was wrong with her and testified that "like I said, the most basic thing about me is my emotional troubles dealing with the schizophrenia. It seems like every job I get on, I just blow up, I - you know, my feelings are hurt very, very easily." (T. 59).
A. The Standard of Review
The issue to be determined by this Court is whether the ALJ's decision that plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). 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." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, 59 S. Ct. 206, 216-17, 83 L. Ed. 126 (1938)). Thus, the determination of the Commissioner is conclusive as long as it is supported by substantial evidence and is not based on legal error. Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir.1989) (citations omitted).
B. The Standard for Finding a Disability
A person is disabled when he or she 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 12 months." 42 U.S.C. § 423(d)(1)(A). Such a disability will be found to exist only if an individual's "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A).
Plaintiff bears the initial burden of showing that her impairment prevents her from returning to her previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). Once this burden has been met, "the burden shifts to the [Commissioner] to prove the existence of alternative substantial gainful work which exists in the national economy and which the [plaintiff] could perform." Id.; see also, Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir.1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980).
In order to determine whether plaintiff suffers from a disability, the ALJ employs a five-step inquiry: (1) whether the plaintiff is currently working; (2) whether the plaintiff suffers from a severe impairment; (3) whether the impairment is listed in Appendix 1 of the relevant regulations; (4) whether the impairment prevents the plaintiff from continuing her past relevant work; and (5) whether there is other work which the plaintiff could perform. 20 C.F.R. § 404.1520; Berry, 675 F.2d at 467. If a claimant is found to be either disabled or not disabled at any step in this sequential inquiry, the ALJ's review ends. 20 C.F.R. § 404.1520(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992).
C. The Parties' Arguments and My Findings
The Commissioner asserts that the ALJ's findings are supported by substantial evidence and must be upheld. Plaintiff disputes the ALJ's determination that she could still perform her previous jobs as a child-care worker and a transportation aide. She also asserts that new and material evidence exists to support her application.
To reach the conclusion that Brown could still perform her past relevant work, the ALJ discounted reports of treating psychiatrist Manzano, who submitted at least four statements that Brown was incapable of working. A treating source's opinion of disability is entitled to some weight in claims for Social Security disability benefits. The Second Circuit Court of Appeals established its treating physician rule in a long series of cases, including Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988) (treating physician's opinion of disability binding unless contradicted by substantial evidence). However, the Commissioner promulgated new regulations in response to these holdings. Although these regulations altered the treating physician rule, the Second Circuit upheld the regulations' validity in Schisler v. Sullivan, 3 F.3d 563, 568-569 (2d Cir. 1993). The present rule has been described in the following manner:
Evaluation of physicians' testimony is governed by the "treating physician rule." As specified in 20 C.F.R. §§ 404.1527(d), 416.927(d), the rule provides that the treating physician's opinion as to the claimant's disability is controlling if it is well supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record. Even if the treating physician's opinion is retrospective, it will be binding unless contradicted by other medical evidence or by "overwhelmingly compelling" non-medical evidence.
Saviano v. Chater, 956 F. Supp. 1061, 1069 (E.D.N.Y. 1997) (citations omitted). In cases in which Social Security determines that a treating source opinion is not well-supported, the regulations require the ALJ to accord the physician's statements some extra weight based upon several factors. 20 C.F.R. § 404.1527(d)(2). The factors cited in the regulations include the length of the treatment relationship, the nature and extent of the relationship, the supportability of the source's opinion, the consistency with other medical evidence in the record, whether the opinion involves the specialty of the physician, and any other factors that might be relevant. Id. See also, Gonzalez v. Callahan, 1997 U.S. Dist. LEXIS 5208, 1997 WL 279870 at *2 (S.D.N.Y. 1997) (although Magistrate Judge erred by applying the Second Circuit's old treating physician's rule in conjunction with the regulations, in the context of the case, there was no significant difference between that rule and the current regulations he should have applied.).
Courts in the Second Circuit identified an additional consideration that was part of the treating physician rule:
A corollary to the Second Circuit Court of Appeals' earlier treating physician rule was that the decision maker had a duty to seek clarification from a treating physician in the event the physician's report was somehow incomplete. Courts have continued to stress this duty even when a claimant is represented by counsel.