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October 23, 1998

JOHN J. HARTNETT, Plaintiff, against KENNETH S. APFEL, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: GLEESON


 JOHN GLEESON, United States District Judge:

 Plaintiff John J. Hartnett brings this action pursuant to 42 U.S.C. § 405(g) to review a final determination of the Commissioner of the Social Security Administration ("the Commissioner"), denying him disability insurance benefits under the Social Security Act. The defendant has moved for a remand, acknowledging that the Administrative Law Judge may have improperly rejected the opinion of plaintiff's treating physician. Plaintiff has moved pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings directing an award of benefits. In the alternative, plaintiff requests that the matter be assigned to a different Administrative Law Judge on remand.

 Oral argument was held on October 23, 1998. For the reasons set forth below, the case is remanded and shall be transferred by the Commissioner to another Administrative Law Judge.


 John Hartnett is a forty-six year old male who has completed two years of college. (Tr. 48, 79.) *fn1" For over twenty years prior to his retirement, Hartnett was employed as an officer of the New York City Police Department, where he reached the rank of Detective Sergeant in the Manhattan robbery squad. (Tr. 39-40, 79.)

 While on duty on March 18, 1993, Hartnett slipped on ice and landed on his back. (Tr. 41, 90.) Hartnett was evaluated at the Beth Israel Medical Center on the same day. (Tr. 145-49.) He was prescribed a pain killer to be taken as needed, and was told to arrange a follow up appointment with a private physician. (Tr. 145-47, 149.)

 On April 14, 1993, Hartnett met with and was examined by an orthopedist named Dr. Francis J. Lanzone. (Tr. 149.) Dr. Lanzone's examination revealed that Hartnett suffered a lower back disorder and experienced severe pain that traveled from his lower back down both legs. (Tr. 149.) After taking X-rays of Hartnett's back, Dr. Lanzone determined that Hartnett had Grade II spondylolisthesis, *fn2" and that this condition appeared to be traumatic. (Tr. 149.) A subsequent magnetic resonance imaging ("MRI") scan confirmed the occurrence of spondylolisthesis, as well as the existence of two herniated discs, one of which may have impinged upon nerve roots. (Tr. 149, 151.)

 Upon the recommendation of Dr. Lanzone, Hartnett obtained a neurosurgical evaluation from Dr. Paul R. Cooper of the New York University Medical Center on June 3, 1993. (Tr. 149.) After examining Hartnett and reviewing his MRI scan, Dr. Cooper recommended that Hartnett undergo surgery in which he would receive a lumbar laminectomy *fn3" and an L5-S1 fusion. *fn4" (Tr. 153.) However, Hartnett expressed to Dr. Lanzone his fears of undergoing surgery, and elected to undertake physical therapy instead. (Tr. 149.) Dr. Lanzone noted that Hartnett was not improving during physical therapy, and recommended that Hartnett undergo the operation because he would likely deteriorate otherwise. (Tr. 150.) Hartnett still declined surgery. (Tr. 150.)

 In July of 1993, Hartnett returned to work for the police department in a limited capacity, taking on a desk job in which he primarily filled out paper work. (Tr. 45, 75.) During this period of time, Hartnett frequently attended physical therapy and missed days of work. (Tr. 45, 75.) On May 27, 1994, Hartnett retired from the police department. (Tr. 35, 45, 48,79.)

 Hartnett filed an application for disability insurance benefits on March 29, 1995. (Tr. 16, 48.) The Social Security Administration ("SSA") denied the application on August 4, 1995, and after Hartnett requested reconsideration, the claim was again denied. (Tr. 60-66.) Following these denials, Hartnett requested a hearing. (Tr. 67-69.) On July 30, 1996, a hearing was held before Administrative Law Judge Jonathan Jacobs (the "ALJ").

 In a decision issued on August 27, 1996, the ALJ determined that Hartnett had not engaged in any substantial activity since his medical condition caused him to stop working, that Hartnett suffered from a severe impairment, and that there was no indication that Hartnett's impairment equaled the severity of any disabling condition listed in Appendix 1 of the regulations. (Tr. 17.) The ALJ next found that Hartnett's statements regarding his impairment were "not entirely credible," and concluded that Hartnett "overstates the difficulties posed by his back impairment." (Tr. 18.) The ALJ also rejected the opinion of Dr. Lanzone, Hartnett's treating physician, who had stated in reports dated May 31, 1995 and July 5, 1996 that Hartnett was "totally disabled from any gainful employment." (Tr. 163; see also Tr. 171.) In justifying his rejection of Dr. Lanzone's opinions, the ALJ explained that Dr. Lanzone's conclusion of total disability was "not consistent with his earlier statements or with the record as a whole." (Tr. 19.)

 The ALJ then turned to the issue of whether Hartnett possessed the residual functional capacity to perform other work. Based on Hartnett's own statements in the record and the results of a consultative examination undertaken by Dr. C. Sharma, a neurologist, the ALJ found that Hartnett could perform sedentary work activity. (Tr. 20-21.) Applying the Medical-Vocation Guidelines of Appendix 2 of the regulations, the ALJ concluded that Hartnett is not disabled. (Tr. 21.)

 On December 4, 1997, the Appeals Council denied Hartnett's request for review of the ALJ's ...

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