and brace. The ALJ also stated that there is no indication that
the cane is even medically necessary. The ALJ found Rooney's
testimony to be inconsistent with the medical evidence, because
Rooney complained of swelling, buckling, and pain in his left
knee; however, swelling was only seen only once in a clinical
examination, and instability was never noted.
The ALJ held that the only opinion that supported Rooney's
testimony was that of Dr. Ayyub, whom the ALJ said had opined
that Rooney "could sit up to four hours, stand up to ninety
minutes, walk up to five blocks, and lift and carry up to
fifteen pounds." The ALJ found that although Dr. Ayyub did not
specifically identify the type of work Rooney could and could
not perform, the doctor's opinion regarding Rooney's functional
capacity effectively precluded Rooney from performing a "wide
range of sedentary work." The ALJ accorded Dr. Ayyub's opinion
limited weight, because it was based on a single examination of
Rooney and contradicted the opinion of the treating specialist,
the medical findings, the conclusions of other experts, and the
course of treatment. The ALJ did not explain how Dr. Ayyub's
opinion contradicted that of the treating physician. The ALJ
further held that even if he accorded the opinion considerable
weight, "it would not outweigh the combined impact of the
[other] medical opinions."
In light of the foregoing and based on Rooney's age and
education, the ALJ concluded that Rooney's impairment did not
direct a finding that he was disabled under Table 1 of Appendix
2, Subpart P, Part 404 of the Regulations. 20 C.F.R.Pt. 404,
Subpt. P, App. 1 (Listing of Impairments).
A. Legal Standard
This Court reviews the Commissioner's decision to determine
whether (1) the Commissioner applied the correct legal standard,
see Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); and (2)
the decision is supported by substantial evidence, see
42 U.S.C. § 405(g); Brown v. Apfel, 174 F.3d 59, 61-62 (2d Cir.
1999). Substantial evidence is "more than a mere scintilla."
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. 126 (1938)). It means
"`such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Brown, 174 F.3d at 62-63.
"To determine whether the findings are supported by substantial
evidence, the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which
conflicting inferences can be drawn." Id. at 62 (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per
The Court also must "keep in mind that it is up to the
agency, and not this court, to weigh the conflicting evidence in
the record." Clark v. Commissioner of Social Security,
143 F.3d 115, 118 (2d Cir. 1998). Indeed, in evaluating the
evidence, "the court may not substitute its own judgment for
that of the Secretary, even if it might justifiably have reached
a different result upon de novo review." 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)).
B. Availability of Benefits
Federal disability insurance benefits are available to those
individuals who are "disabled" within the meaning of the Act.
See 42 U.S.C. § 423(a), (d). To be eligible for disability
benefits under the Act, Rooney
must establish his "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment . . . 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). The impairment must be 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).
The Commissioner has promulgated a five-step analysis for
evaluating disability claims. See 20 C.F.R. § 404.1520,
416.920. As the Second Circuit recently explained:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in
Appendix 1 of the Regulations. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to
perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he 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 the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)
(quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982)); see also Balsamo v. Chater, 142 F.3d 75, 79-80 (2d
Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
The claimant bears the burden of proof as to the first four
steps, while the Commissioner bears the burden of proof as to
the fifth step. See Schaal 134 F.3d at 501 (citing Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996); 20 C.F.R. § 404.1520,
To meet his burden of proof on the fifth step, the
Commissioner may rely on the medical vocational guidelines
contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly
referred to as "the grids." The grids
take into account the claimant's residual functional
capacity in conjunction with the claimant's age,
education and work experience. Based on these
factors, the grids indicate whether the claimant can
engage in any other substantial gainful work which
exists in the national economy. Generally the result
listed in the grids is dispositive on the issue of
disability. However, the grids are not dispositive
where they do not accurately represent a claimant's
limitations that significantly diminish her capacity
Rodriguez v. Apfel, 1998 WL 150981 (S.D.N.Y. 1998) (citations
omitted). There are five levels of exertion which are derived
from the grids: sedentary, light, medium, heavy, and very heavy.
See 20 C.F.R.Pt. 404, Subpt. P, App. 2, §§ 200.00-204.00.
These criteria are used to determine what level of exertion a
claimant is capable of performing in an occupational setting.
Proceeding through the five-step analysis, the Commissioner
must consider the complete record, including any objective
medical evidence, as well as the claimant's subjective
statements concerning his impairments, restrictions, daily
activities and any other relevant statements. See Bluvband v.
Heckler, 730 F.2d 886, 891 (2d Cir. 1984). However, and
significantly, the Commissioner must accord special evidentiary
weight to the opinion of the treating physician. See Clark v.
Commissioner of Soc. Sec., 143 F.3d 115, 119 (2d Cir. 1998).
The "treating physician rule," as it is known, "mandates that
the medical opinion of a claimant's treating physician is given
controlling weight if it is well supported by the medical
findings and not inconsistent with other substantial record
evidence." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000);
see Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Clark,
143 F.3d at 119; Schisler v. Sullivan, 3 F.3d 563, 567 (2d
Cir. 1993). The rule, as set forth in the regulations, provides:
Generally, we give more weight to opinions by your
treating sources. . . . If we find that a treating
source's opinion on the issue(s) of the nature and
severity of your impairment(s) is well supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record,
we will give it controlling weight.
20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). In analyzing a
treating physician's report, "the ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion."
Rosa, 168 F.3d at 79; see Balsamo v. Chater,