D. Assessment of the Physicians' Reports
In summary, Dr. Grossman, the consulting physician, concluded
that plaintiff was not disabled. Dr. Small, the treating
physician, concluded plaintiff was disabled but did not address
plaintiff's ability to do work-related activities. The ALJ found
that Dr. Small's opinion that plaintiff was "disabled" was not
supported by clinical findings or diagnostic studies. Tr. at
23. Furthermore, the ALJ discounted Dr. Small's findings because
plaintiff only saw him "occasionally" and his actual treatment
had been limited. Id.
A. Standard of Review
In reviewing a denial of disability benefits, a district court
may reverse a finding of the Commissioner only if that finding is
not supported by substantial evidence in the record. See
42 U.S.C. § 405(g) ("the findings of the [Commissioner] as to any
fact, if supported by substantial evidence, shall be
conclusive."); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999). Within this context, the term "substantial evidence" has
been 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, 28 L.Ed.2d 842 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed.
Accordingly, the Court's task is limited to determining whether
the ALJ's decision is based on correct legal principles and
supported by substantial evidence in the record. See, e.g.,
Rosa, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998). This Court may not substitute its own judgment for
that of the ALJ, even if it might have reached a different result
upon a de novo review. See, e.g., Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)); Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990).
In deciding disability claims, there is a five-step process
that must be followed. See 20 C.F.R. § 404.1520; Rosa, 168
F.3d at 77. First, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity.
Second, if the claimant is not so engaged, the Commissioner
must determine whether the claimant has a "severe impairment"
which significantly limits his ability to work. Third, if the
claimant does suffer such an impairment, the Commissioner must
determine whether it corresponds with one of the conditions
presumed to be a disability by the Social Security Commission. If
it does, no further inquiry is made as to age, education, or
experience, and the claimant is presumed to be disabled.
Fourth, if the claimant does not have a listed impairment, the
Commissioner must determine whether, despite the impairment, the
claimant has the residual functional capacity to perform his past
work. Finally, if the claimant is unable to perform his past
work, the Commissioner then determines whether there is other
work which claimant could perform. See, e.g., Rosa, 168 F.3d at
77; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
Here, the ALJ first determined that plaintiff had not engaged
in any substantial gainful activity since December 18, 1989, the
date plaintiff claimed he became unable to work due to back pain
and hypertension. Tr. at 21. Second, the ALJ determined that
plaintiff's impairments, consisting of a degenerative disc
disease of the lumbosacral spine and hypertension, were not
severe. Id. The ALJ then concluded that plaintiff did not have
an impairment or combination of impairments that rose to the
level of severity set out in the list of impairments. See
20 C.F.R. Part 404, Subpt. P, App. 1; Tr. at 22. In the fourth
step of the evaluation, the ALJ did not credit plaintiff's
the severity of his pain and functional limitations, and held
that plaintiff's symptoms "were not of such intensity, frequency
or duration as to preclude all work activity." Tr. at 23.
Although the ALJ found that plaintiff was unable to perform his
past work as a fire fighter, he determined that he had the
residual capacity to perform medium work.*fn5 Id. In the fifth
step, the ALJ determined that there are positions in the national
economy that fit plaintiff's qualifications. Id. at 24-25.
Therefore, plaintiff was found not to be disabled. Id.
B. The Treating Physician Rule
The Social Security regulations give special evidentiary weight
to the opinion of a treating physician when diagnosing the nature
and severity of a plaintiff's condition. See Clark v.
Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). The
regulations state that a treating physician's opinion will be
given controlling weight if that opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic
techniques not inconsistent with other substantial evidence. . .
." 20 C.F.R. § 404.1527(d)(2). In this case, the diagnosis of the
treating physician, Dr. Small, indicates a disabling impairment
but this diagnosis is not supported by objective medical
evidence. Dr. Small finds plaintiff to be disabled but does not
assess plaintiff's ability to work. He simply makes a conclusory
finding that plaintiff is "disabled" without supporting this
finding with objective medical evidence.*fn6 Tr. at 173.
C. Development of the Record
When the opinion submitted by a treating physician is not
adequately supported by clinical findings, the ALJ must attempt,
sua sponte, to develop the record further by contacting the
treating physician to determine whether the required information
is available. See 20 C.F.R. § 404.1512(e); see also Schaal v.
Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[e]ven if the clinical
findings were inadequate, it was the ALJ's duty to seek
additional information from [the treating physician] sua
sponte." (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996))); Cruz v. Sullivan, 912 F.2d 8, 9 (2d Cir. 1990) (the
ALJ is obligated to further develop the record where the treating
physician submitted a statement of only a few lines concluding
that plaintiff is unable to work); Hankerson v. Harris,
636 F.2d 893, 894 (2d Cir. 1980) (same as to a six-line statement of
disability). The ALJ's affirmative obligation to develop the
record exists even when the claimant is represented by counsel.
See Perez, 77 F.3d at 47; Rosa, 168 F.3d at 79. Here, the ALJ
made no attempt to develop the record. Rather, the ALJ discounted
Dr. Small's findings and relied on the consulting physician's
assessment that plaintiff was able to work. Tr. at 23. The ALJ
was obligated to make further inquiry of the treating physician.
Before he can make a final determination as to plaintiff's
disability, the ALJ must obtain a more complete report from the
plaintiff's treating physician. Upon remand, the ALJ is directed
to obtain a more complete report from Dr. Small. Specifically,
the ALJ must determine whether Dr. Small's opinion is supported
by any clinical or laboratory diagnostic evidence. The ALJ should
also ascertain what effect, if any, plaintiff's impairments have
on his ability to perform any or all work-related activities.
The Commissioner's motion for judgment on the pleadings is
therefore denied, his decision denying SSI benefits is reversed,
and the case is remanded so that the ALJ can further develop the
record regarding the treating physician's report. This remand is
pursuant to sentence four of 42 U.S.C. § 405(g). See Nivar v.
Apfel, 98 Civ. 3390, 1999 WL 163397,*5 (S.D.N.Y. Mar. 23, 1999);
Gracia v. Apfel, 97 Civ. 4035, 1998 WL 599714,*7 (S.D.N Y
Sept. 10, 1998). The Clerk of the Court is directed to close this