suffering from incontinence, and he scheduled an emergency MRI.
Id. On October 31, 1995, Dr. Elstein noted that Plaintiff's MRI
was normal. Id. Plaintiff continued her treatments on November
14, 1995 and December 15, 1995. Id.
On January 31, 1996, Dr. Elstein noted that Plaintiff was
falling frequently. Id. On February 23, 1996, Dr. Elstein
reported that a third MRI of Plaintiff's spine was performed on
February 5, 1996, and that the results were again normal. Tr.
131, 158. Dr. Elstein also noted that Plaintiff was suffering
from incontinence, and he referred her to a neurologist. Tr. 131.
On June 17, 1996, Dr. Elstein ordered that Plaintiff undergo a
radionuclide bone scan. Tr. 178. The results were normal. Id.
Throughout his treatment of Plaintiff, Dr. Elstein noted
Plaintiff's repeated complaints of severe pain in her lower back
and left leg, and he found her to be totally disabled.
3. Vincent V. Sportelli, M.D.
Dr. Sportelli, a chiropractor, first saw Plaintiff on December
2, 1994. Tr. 121. On December 8, 1994, the results of imaging of
Plaintiff's thoracic and lumbosacral areas were found to be
normal. Tr. 127. On December 11, 1995, Dr. Sportelli submitted a
medical report to the New York State Department of Social
Services and diagnosed Plaintiff with sciatica, thoracic
intersegmental dysfunction, lumbar intersegmental dysfunction,
and lumbosacral strain/sprain. Tr. 121. Dr. Sportelli found,
however, that Plaintiff was capable of performing sedentary work.
4. Community General Hospital
Since the date of her injury, Plaintiff has also sought
treatment for pain in the Emergency Room of Community General
Hospital.*fn3 On May 22, 1995, Plaintiff's attending physician
noted that she complained of pain, moved with discomfort, and had
tenderness and muscle spasms in her lower lumbar spine. Tr. 111.
However, Plaintiff denied having any urinary difficulties. Id.
After determining that no x-rays or other diagnostic tests were
warranted, the attending physician issued Plaintiff prescriptions
for her normal pain medications. Id. On June 20, 1996,
Plaintiff was again admitted for pain, numbness, dizziness, and
incontinence. Tr. 162. The attending physician diagnosed
Plaintiff with left sciatica. Tr. 172.
5. Consultative Examinations
Finally, Plaintiff submitted to two consultative examinations
at the request of the Social Security Administration. On May 6,
1996, Plaintiff was diagnosed with left sciatica and lower back
pain. Tr. 45-54. The examiner found that objective medical
findings were normal and did not indicate the need for Plaintiff
to use either a cane or a walker to assist her. Tr. 47. Further,
the examiner determined that Plaintiff had the functional
capacity to work, subject to the following limitations: (a)
Plaintiff could occasionally lift a maximum of 20 pounds; (b)
Plaintiff could frequently lift a maximum of 10 pounds; (c)
Plaintiff could stand/walk about six hours in an eight-hour
workday; (d) Plaintiff could sit about six hours in an eight-hour
workday; (e) Plaintiff's ability to push or pull was unlimited;
and (f) Plaintiff had some postural and environmental
limitations. Tr. 47-50. On August 1, 1996, Plaintiff submitted to
a second examination. Tr. 61-68. This time, Plaintiff was
diagnosed with chronic lumbosacral sprain and left leg weakness.
Tr. 61. As with the first consultative examination, this second
examiner also noted that objective examinations of Plaintiff had
yielded normal results and determined that Plaintiff's capacity
to work was subject to similar limitations. Tr. 62-65.*fn4
B. The ALJ's Determination
Applying the five-step analysis outlined above, the ALJ found
that (1) Plaintiff has not engaged in substantial gainful
activity since the alleged onset of her disability on November
29, 1994; (2) Plaintiff has severe physical impairments;*fn5 (3)
Plaintiff's impairments are not listed in, or medically equal to,
any impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1;
(4) Plaintiff cannot perform her past relevant work; but (5)
Plaintiff has the residual functional capacity to perform a broad
range of sedentary work. Tr. 14-15.
With respect to Plaintiff's physical disabilities, the ALJ
found that Plaintiff has an underlying medically determinable
impairment that could reasonably cause the symptoms, including
pain, about which she complains. Tr. 12. The ALJ found, however,
that this impairment was not so severe as to preclude all work
activity. Id. In making this determination, the ALJ agreed with
the conclusions of Drs. Donelson and Sportelli and rejected Dr.
Elstein's opinion that Plaintiff was completely disabled. Tr.
11-12. The ALJ found that Dr. Elstein's opinion was not entitled
to controlling weight because, first, it was not supported by
objective medical findings and, second, it was inconsistent with
other evidence in the record. Tr. 12-13. Further, the ALJ found
that Plaintiff's subjective complaints of pain were not supported
by the evidence, her medical records, or her medical treatment.
Tr. 12. Thus, the ALJ found that Plaintiff was not disabled
within the meaning of the Act.
A. The Treating Source Rule
In 1991, the Secretary of Health and Human Services issued its
"Standards for Consultative Examinations and Existing Medical
Evidence," 56 Fed.Reg. 36,932 (1991), which modified the
"treating physician rule" that was then applied by the Second
Circuit. Pursuant to these standards, the ALJ must give
"controlling weight" to a treating physician's opinion if it is
"well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant's] case record. . . ."
20 C.F.R. § 404.1527(d)(2). If the ALJ finds that the treating
physician's opinion is not entitled to controlling weight, he
must evaluate all medical opinions, regardless of their source,
by considering the following factors: (1) the length of the
treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship; (3) the
supportability of the physician's opinion; (4) the consistency of
the physician's opinion with the record as a whole; (5) the
degree to which the physician is specialized in the area in which
he or she has rendered an opinion; and (6) other relevant
factors. Id. In every case,
the ALJ must give "good reasons" in his decision for the weight
that he has accorded to a treating physician's opinion. Id.
In the present case, Plaintiff argues that the Commissioner's
refusal to accord controlling weight to Dr. Elstein's opinion is
not supported by substantial evidence. The Court disagrees.
First, as the ALJ noted, Dr. Elstein's opinion is not based upon
objective medical evidence and appears, rather, to be based
largely upon Plaintiff's own complaints. Tr. 12-13. Although Dr.
Elstein disagreed with Dr. Donelson's interpretation of
Plaintiff's first MRI and found that the MRI indicated that
Plaintiff suffered from spinal stenosis, two subsequent MRIs
ordered by Dr. Elstein were interpreted as normal. Id. It thus
appears that Dr. Elstein's interpretation of Plaintiff's first
MRI was incorrect. Second, as the ALJ noted, Dr. Elstein's
opinion that Plaintiff is disabled is inconsistent with other
evidence in the record, i.e., the results of objective tests and
the opinions of Drs. Donelson and Sportelli. Id. The Court thus
finds that there is substantial evidence to support the ALJ's
decision that Dr. Elstein's opinion is not entitled to
controlling weight and accordingly recommends that this portion
of the Commissioner's decision be affirmed.
However, the Court finds that there is not substantial evidence
to indicate what weight the ALJ assigned to Dr. Elstein's opinion
or to the opinions of the other physicians who treated or
examined Plaintiff. In his decision, the ALJ did not mention, let
alone discuss, the opinions of the attending physicians at
Community General Hospital and the two consultative examiners.
More critically, the ALJ did not recite or apply any of the
factors set forth at 20 C.F.R. § 404.1527(d)(2) in evaluating
each physician's opinion. Without the benefit of such analysis,
it is impossible to determine whether the ALJ's decision is
supported by substantial evidence. Accordingly, the Court
recommends that this portion of the ALJ's decision be reversed
and remanded for further proceedings consistent with this report.
B. Assessment of Plaintiff's Residual Functional Capacity
Plaintiff argues that the ALJ's rejection of her statements
regarding the extent of her pain is not supported by substantial
evidence. The Court agrees.
In order to determine whether a claimant possesses the RFC to
perform some less demanding but gainful work that is available in
the national economy, the Commissioner must consider all
available relevant evidence. Social Security Ruling 96-8p, 61
Fed.Reg. 34474, 34477 (Jul. 2, 1996). Factors to be considered
include the following: (1) the claimant's medical history; (2)
medical signs and laboratory findings; (3) the effects of
treatment; (4) the claimant's reports of daily activities; (5)
lay evidence; (6) recorded observations; (7) statements from the
claimant's medical sources; (8) the effects of symptoms,
including pain, that are reasonably attributed to a medically
determinable impairment; (9) evidence from the claimant's
attempts to work; (10) the claimant's need for a structured
living environment; and (11) any available work evaluations.
Id. Because a symptom may cause exertional and/or
non-exertional limitations, it may functionally limit the
claimant's ability to work. Social Security Ruling 96-4p, 61
Fed.Reg. 34488, 34489 (Jul. 2, 1996). Thus, the ALJ's
consideration of a claimant's symptoms, such as pain, is an
important step in the determination of the claimant's RFC.
20 C.F.R. § 404.1545(a).
The regulations of the Commissioner clearly state how a
claimant's complaints of pain are to be evaluated. This
evaluation includes an assessment of all evidence in the record,
including objective medical evidence, as well as a claimant's
subjective statements. See Social Security Ruling 96-7p, 61
Fed.Reg. 34483, 34484 (Jul. 2, 1996) ("Because symptoms, such as
pain, sometimes suggest a greater severity of impairment than can
be shown by objective
medical evidence alone, the adjudicator must carefully consider
the individual's statements about symptoms with the rest of the
relevant evidence in the case record. . . ."). At the hearing
level, an ALJ must make a finding about the credibility of the
claimant's statements regarding the extent and effects of pain.
Id. at 34485. This finding must be based upon consideration of
the following factors: (1) the claimant's daily activities; (2)
the location, duration, frequency, and intensity of the
claimant's pain; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness, and side effects of any
medications that the claimant is taking or has taken to alleviate
the pain; (5) any treatments, other than medication, that the
claimant is receiving or has received for relief from pain; (6)
any other measures that the claimant uses or has used to relieve
the pain; and (7) any other factors concerning the claimant's
functional limitations and restrictions due to pain.
20 C.F.R. § 404.1529(c)(4); Social Security Ruling 96-7p at 34485.
The ALJ must discuss his resolution of the claimant's
credibility regarding pain in a narrative discussion that
provides specific reasons for the weight that he assigned to the
claimant's statements; he may not merely conclude that the
claimant's statements are not credible. Social Security Ruling
96-8p at 34478; Social Security Ruling 96-7p at 34485-86.
Furthermore, a claimant's subjective complaints of pain may not
be rejected solely because the available objective evidence does
not substantiate the complaints. 20 C.F.R. § 404.1529(c)(2);
Social Security Ruling 96-7p at 34487.
Once the ALJ has resolved a claimant's complaints of pain, he
can then evaluate limitations that affect the claimant's ability
to sit, stand, walk, lift, carry, push, and pull, as well as any
non-exertional limitations that the claimant may have. Social
Security Ruling 96-4p at 34489; Social Security Ruling 96-8p at
34477. In making this determination, each exertional and
non-exertional function must be considered separately. Id. Only
after the ALJ has completed this assessment can he determine
whether the claimant possesses the RFC to perform some less
demanding but gainful work that is available in the national
In the present case, the ALJ found that Plaintiff's subjective
statements were not "fully credible" in light of the objective
evidence in the record and that her symptoms "are not of such
severity, persistence, or intensity as to preclude all work
activity." Tr. 12. This conclusory determination falls far short
of the standards outlined above. Nowhere does the ALJ discuss the
factors to be considered in analyzing Plaintiff's complaints of
pain, nor does he provide a "narrative discussion" of the weight
that he accorded to Plaintiff's statements. Further, the ALJ has
not provided his own determinations of Plaintiff's functional and
non-functional limitations, and he has utterly failed to discuss
or apply any of the factors set forth at Social Security Ruling
96-8p prior to arriving at his conclusion that Plaintiff
possesses the RFC to perform sedentary work. Without the benefit
of the ALJ's analysis, it is impossible for the Court to
determine whether substantial evidence supports his conclusion
that Plaintiff is not disabled.*fn6 Accordingly, the Court
recommends that this portion of the Commissioner's decision be
reversed and remanded for further proceedings consistent with
For the reasons set forth above, it is hereby
RECOMMENDED that the case be REMANDED, pursuant to
42 U.S.C. § 405(g) sentence four, for a re-evaluation of all medical opinions
received and for a re-evaluation of whether Plaintiff's pain
renders her disabled.
IT IS HEREBY ORDERED that the Clerk of the Court serve a copy
of this Report and Recommendation, by regular mail, upon the
parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
written objections to the foregoing report. Such objections shall
be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT AND RECOMMENDATION WITHIN TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993); Small v. Secretary of Health & Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72,
March 30, 1999.