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).
A. The Standard of Review
The first issue to be determined by this Court is whether the
Commissioner applied the correct legal standard. See Tejada v.
Apfel, 167 F.3d 770, 773 (2d. Cir. 1999); see also Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (holding that the court
must first review the ALJ's decision for correct legal
principles before applying the substantial evidence standard to
uphold a finding of no disability); see also Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984) ("[f]ailure to apply
the correct legal standards is grounds for reversal").
The only other issue to be determined by the Court is whether
the Commissioner's conclusions are supported by substantial
evidence. See Tounley v. Heckler, 748 F.2d at 112 ("It is not
the function of a reviewing court to determine de novo whether
a claimant is disabled. The [Commissioner's] findings of fact,
if supported by substantial evidence, are binding"). Substantial
evidence is "`more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" See 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)).
B. The Standard for Determining Disability
A person is "disabled" under the Act, and therefore entitled
to benefits, when he or she is unable "to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or 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), 1382c(a)(3). To qualify for benefits,
the disability must be the result of an anatomical,
physiological or psychological abnormality demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques. 42 U.S.C. § 423(d)(3), 1382c(a)(3)(D). Such a
disability will be found to exist only if an individual's
impairment is "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), 1382c(a)(3)(B).
Plaintiff bears the initial burden of showing that his
impairment prevents him from returning to his previous type of
employment. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982). Once this burden has been met, "the burden shifts to the
[Commissioner] to prove the existence of alternative substantial
gainful work which exists in the national economy and which the
[plaintiff] could perform." See Id.; see also Dumas v.
Schweiker, 712 F.2d 1545, 1551 (2d. Cir. 1983); Parker v.
Harris, 626 F.2d 225, 231 (2d Cir. 1980).
The Second Circuit has described the five-step process through
which the Commissioner makes a determination as follows:
First, the Commissioner considers whether the
claimant is currently engaged in substantial gainful
activity. Where the claimant is not, the Commissioner
next considers whether the claimant has a "severe
impairment" that significantly limits her 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 that is listed in
20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant
has a listed impairment, the Commissioner will
consider the claimant 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, she has the residual functional
capacity to perform her past work. Finally, if the
claimant is unable to perform her past work, the
burden then shifts to the Commissioner to determine
whether there is other work which the claimant could
See Tejada v. Apfel, 167 F.3d at 774.
Here, the ALJ found that the plaintiff had not engaged in
substantial gainful activity, and that his obesity constituted a
severe impairment but that his "mild lumbar disc degeneration
[was] not a severe impairment." (Tr. 25.). The ALJ next decided
that plaintiff did not have an impairment or combination of
impairments listed in, or medically equal to one listed in
Appendix 1, Subpart P, Regulations No. 4. (Id.). The ALJ also
found that plaintiff had an RFC to perform work-related
activities except for work involving lifting and carrying more
than 50 pounds, and that plaintiffs past relevant work as a
security guard did not require the performance of work-related
activities precluded by this limitation. (Id.). While I
conclude that the ALJ adhered to the appropriate analytical
framework, I do not find that he applied the correct legal
principles. Even if the ALJ had applied those principles
correctly, the remaining issue in this case would be whether
substantial evidence supported the Commissioner's determination
that plaintiff, despite his impairments, had the RFC to perform
the full range of medium work relating to his previous
employment as a security guard. I do not find substantial
evidence in the record to support the ALJ's determination.
C. The Parties' Arguments and the Court's Findings
Both plaintiff and the Commissioner move, under
42 U.S.C. § 405(g) for remand. In so doing, the Commissioner concedes that
the administrative decision in this case is legally deficient.
Plaintiff, on the other hand, also moves this Court to remand
this case for calculation of benefits only.
The Treating Physician Rule
Zimmerman argues that the ALJ improperly rejected the
conclusions of his treating physicians, Dr. Tahir and Dr.
Lasser. Drs. Tahir and Lasser both appear to have determined
that, because of the effects of Zimmerman's back pain, he is
"totally disabled" and "he is unable to work in any capacity."
(Tr. 202, 300). It has long been recognized that a treating
source's opinion is entitled to some extra weight in claims for
Social Security disability benefits. The opinion of a treating
physician is given controlling weight if it is well supported by
medical findings and not inconsistent with other substantial
evidence. See Rosa v. Callahan, 168 F.3d 72, 78 (2d. Cir.
1999); see also Clark v. Commissioner, 143 F.3d 115, 118 (2d
Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2)*fn3). In
analyzing a treating physician's report, "the ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion," nor can he "set his own expertise against that of a
physician who submitted an opinion or testified before him."
See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) citing
McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795,
799 (2d Cir. 1983); see also Wagner v. Secretary of Health and
Human Servs., 906 F.2d 856, 862 (2d Cir. 1990) ("a
circumstantial critique by [a] non-physician, however thorough
or responsible, must be overwhelmingly compelling" to justify a
denial of benefits).
In cases in which the Commissioner determines that a medical
source opinion is not well-supported, the regulations require
the ALJ to accord the physician's statements some extra weight
based upon several factors. 20 C.F.R. § 404.1527(d)(2),
416.927(d)(2).*fn4 The factors cited in the regulations
include the length of the treatment relationship, the nature and
extent of the relationship, the supportability of the source's
opinion, the consistency with other medical evidence in the
record, whether the opinion involves the speciality of the
physician, and any other factors that might be relevant. See
Id. The ALJ failed to accord the opinions of Drs. Tahir and
Lasser any extra weight based on any of these factors.
In the present case, the ALJ rejected the opinion of
plaintiffs primary physician, Dr. Tahir, finding that his
opinion was unsupported by objective evidence in the record.
(Tr. 23). The ALJ did not recontact Dr. Tahir for any objective
and/or clinical laboratory findings he may have had in support
of his opinion as required by 20 C.F.R. § 404.1512(e) and
416.912(e). An ALJ cannot reject a treating physician's
diagnosis without first attempting to fill any clear gaps in the
administrative record. See 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.,"). The Commissioner
concedes this point. Without such corroborating information, the
ALJ was in no position to reject a primary physician's opinion.
There is nothing "so overwhelmingly compelling" in the ALJ's
critique of Dr. Tahir's findings as to permit the Commissioner
to "overcome" an otherwise valid medical opinion. See Rosa v.
Callahan, 168 F.3d at 79; see also Wagner v. Secretary of
Health and Human Servs., 906 F.2d at 862. As such, the ALJ's
decision to disregard Dr. Tahir's opinion concerning plaintiffs
condition was legal error that requires remand. See Downs v.
Apfel, 9 F. Supp.2d 230, 233 (W.D.N.Y. 1998) (remanding matter
for further proceedings including consideration of treating
Plaintiff argues that the Dr. Tahir's opinion should be given
controlling weight. The record contains evidence from several
other doctors, however, who examined plaintiff and made less
favorable findings. The opinions of plaintiffs treating
physicians are therefore "inconsistent with the other
substantial evidence," 20 C.F.R. § 404.1527(d)(2), and hence not
controlling weight. See Snell v. Apfel, 177 F.3d 128, 133 (2d
The ALJ also failed to assess the opinions of Drs. Lasser and
Canfield. Regulations require an ALJ to evaluate every medical
opinion received. 20 C.F.R. § 404.1527(d) and 416.927(d). This
was clear legal error justifying remand.
In short, I concur with the parties' joint request to remand
this case to the Commissioner for further administrative
proceedings. There needs to be further development of the
evidence before the Commissioner or the Court can determine
whether benefits should be awarded. The delay that such a remand
entails is indeed unfortunate, but until the record is clarified
in a thorough and proper manner, and a proper decision is
rendered on a complete record, no final decision can be made
concerning plaintiffs entitlement to benefits.
With respect to plaintiffs motion to remand merely for
calculation of benefits, the sparse evidence supporting Dr.
Tahir's opinion of plaintiffs health, coupled with disagreement
between the physicians who examined plaintiff, does not persuade
this Court that there is but one conclusion in this matter. Upon
close scrutiny of the present record, this Court cannot say with
certainty that no purpose would be served by remand, or that
plaintiff is clearly entitled to disability benefits. As such,
remand for calculation of benefits is inappropriate at this
For the foregoing reasons, plaintiffs motion for judgment on
the pleadings (Dkt. # 4) is denied. Plaintiffs motion in the
alternative, and the Commissioner's motion to remand under
sentence four of 42 U.S.C. § 405(g) for further development of
the administrative record (Dkt. # 7), is granted.
IT IS SO ORDERED.