The opinion of the court was delivered by: Larimer, Chief Judge.
This is an action brought pursuant to 42 U.S.C. § 405(g) and
1383(c)(3) to review the final determination of the Commissioner
of Social Security ("the Commissioner") that plaintiff was not
disabled under the Social Security Act, and therefore, was not
entitled to disability benefits. Plaintiff has moved for
judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or, in
the alternative, to remand the case for a new hearing. The
Commissioner cross-moves for an order remanding the case for
rehearing pursuant to the fourth sentence of 42 U.S.C. § 405(g)
because the Administrative Law Judge ("ALJ") failed to apply the
correct legal standards, failed to assess the opinions of Drs.
Lasser and Canfield, and failed to obtain additional information
from Dr. Tahir. For the reasons outlined below, the Court finds
that the Commissioner's decision was not supported by
substantial evidence and accordingly remands the matter for
further development of the administrative record.
Plaintiff Kimothy Zimmerman ("Zimmerman") applied for Social
Security Disability and SSI benefits on August 6, 1996. (Tr.
98).*fn1 His application was denied initially and on
reconsideration. (Tr. 64, 71). Plaintiff requested a hearing
before an ALJ, and a hearing was held in the case on November
10, 1998. (Tr. 28-49). The ALJ decided that plaintiff was not
entitled to benefits and denied Zimmerman's claim. (Tr. 19-26).
The ALJ's decision became the Commissioner's final decision on
February 16, 2001 when the Appeals Council denied plaintiffs
request for review. (Tr. 7). Plaintiff commenced this action on
April 4, 2001, seeking review of the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g).
Zimmerman was born on August 26, 1962. (Tr. 98). Since
slipping on ice in 1987, he has suffered consistent lower back
pain. (Tr. 198). In 1990, he slipped and fell on his right
shoulder, and has since had a decreased range of motion in the
right arm. (Tr. 243). Zimmerman has a high school education.
(Tr. 128). He formerly worked as a vineyard laborer, auto
mechanic and security guard. (Tr. 133).
The medical records contained in the file delineate
Zimmerman's complaints of back and neck pain, stemming from his
1987 fall. (Tr. 198, 231, 242). Most of Zimmerman's medical care
has been provided by his primary care physician, Azhar Tahir,
M.D. Zimmerman also began treatment with orthopedic surgeon
Steven Lasser, M.D. in March, 1996. (Tr. 201).
Dr. Tahir's office notes indicate that Zimmerman suffers from
osteoarthritis, obesity, gastroesophagel reflux disease
("GERD"), generalized edema and hypertension. (Tr. 267). In
1993, Tahir noted that Zimmerman had problems with prolonged
walking and lifting. (Tr. 208). In 1994, Zimmerman's condition
had deteriorated to "chronic back and knee pain" (Id.), and
since then he has been described as suffering from "continuing
back pain." (Tr. 225, 227, 228). Between December, 1997 and
September, 1998, Tahir noted Zimmerman's ability to lift and
carry dropped from 15 pounds (Tr. 267) to 10 pounds (Tr. 321) to
5 pounds (Tr. 279). He also repeatedly noted that Zimmerman
could walk less than 2 hours per day and was able to sit for
less than 6 hours per day. (Tr. 268, 321, 279). Zimmerman lacks
the normal ability to crouch, squat or climb (Tr. 302, 303,
321), and physical therapy was not recommended because it
increased Zimmerman's pain. (Tr. 279). By July, 1999, Dr. Tahir
was of the opinion that Zimmerman was "totally disabled." (Tr.
In 1996, Dr. Lasser indicated that Zimmerman suffered from
back pain secondary to lumbar disc disease. (Tr. 201). He also
noted diffuse tenderness of the lower back near L5-S1 and a
painful range of back motion. (Id.). An MRI taken in April,
1996 revealed degenerative changes of the T11-12, L4-5 and L5-S1
intervertebral discs with some mild posterior annular tears.
(Id.). Dr. Lasser was of the opinion that "from a practical
standpoint, [Zimmerman] is unable to work in any capacity." (Tr.
A consultative examiner for the Commissioner, Wesley Canfield,
M.D., noted that there was some hypesthesia over the dorsum of
the left foot, and pinprick sensation was diminished compared to
the right foot. (Tr. 244). He also noted that Zimmerman's
greatest impairment appeared to be his morbid obesity, and that
his prognosis was poor, and he probably could not even do
sedentary work.*fn2 (Tr. 245). Two additional consultative
examiners, Frank Norsky, M.D. and David Pulver, M.D., indicated
that "there [were] no objective clinical signs of any
significant disabling condition of the lumbosacral spine" (Tr.
232), and "claimant has a history of discogenic disease of the
lumbar spine without significant findings at this time." (Tr.
199). Finally, the Commissioner retained Joung R. Oh, M.D. and
Sury Putcha, M.D. to make a physical residual function capacity
("RFC") assessment without a physical examination. They opined
that Zimmerman could lift and carry 50 pounds occasionally and
25 pounds frequently, and that he could stand, walk or sit for a
total of about six hours in an eight hour work day. (Tr. 234,
In spite of the assessments of Drs. Tahir, Lesser, and
Canfield, the ALJ denied benefits, noting "the claimant retains
the residual functional capacity to perform a full range of
medium work, which would include his past relevant work . . . as
a security guard, [which] requires a light level of exertion."
(Tr. 21). He also noted that "the conclusions of the claimant's
treating physician are not controlling since they are
unsupported by objective evidence in the record." (Tr. 23).
Finally, the ALJ explained he did not find credible
Zimmerman's allegations of unbearable pain on an unrelenting 24
hour per day basis. (Tr. 24).