United States District Court, E.D. New York
February 12, 2004.
IVAN JOSEPH, Plaintiff -against- JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Ivan Joseph ("Joseph" or the "plaintiff") commenced this action
pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g),
challenging the final determination of the Commissioner of Social
Security (the "Commissioner") denying disability insurance
benefits to him. Both parties move for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("
A. The Procedural History
On March 24, 1999, Joseph filed an application for social security
disability insurance benefits, claiming disability since September 26,
1997 due to constant back pain. After his application initially and on
reconsideration was denied, he requested a hearing before an
administrative law judge ("ALJ"). On November 1, 2000, a hearing was
conducted in Miami, Florida where the plaintiff was represented by an
attorney. In a decision dated May 16, 2001, the ALJ found that Joseph was
not disabled within the meaning of the Act and was therefore not entitled
to disability insurance. On May 16, 2001, he filed a request for review
with the Appeals Council. On September 27, 2002, the Appeals Counsel
declined to review the claim, making the ALJ's decision the final
administrative determination. This appeal followed.
1. Joseph's Testimony at the Hearing
At the November 1, 2000 hearing, the plaintiff stated that he was born
on April 13, 1964, making him 36 years of age at the time of the
administrative hearing. Joseph graduated from high school. At the time of
the hearing, he lived in Grenada. Before moving
to Grenada, he worked at a Pathmark supermarket in New York on and
off for 17 years and was an assistant produce manager. His duties
included unloading, delivering, and breaking down produce in the
supermarket. Joseph's position also included customer relations duties
and occasionally supervising seven employees in the produce department.
Joseph testified that, on March 20, 1996, he injured his middle to
lower back while he was unloading heavy cartons. As a result, Joseph
stated that he had difficulty reaching, bending, lifting, and sleeping.
The plaintiff stated that he continued to work on and off until September
1997. Although Norflex, a muscle relaxer, was previously prescribed for
him on a date not specified in the transcript, the plaintiff testified
that he was not currently taking any medication. He stated that he was
seeing an orthopedist, Dr. Kester Dragon, about every six weeks. Prior to
seeing Dr. Dragon, Joseph testified that he was seeing Dr. Salvatore
Joseph also testified that for the entire day he could sit for a total
of three hours, stand for a total of three hours, and walk about five
miles or for about 15 minutes. However, he explained that he felt pain
after sitting for about 45 minutes or standing for about 40 minutes. He
also testified that he had trouble sleeping at night and that he had
problems bathing and dressing. Joseph testified that he did some light
cooking and that he attended church for approximately 45 minutes to an
hour every other Sunday. The plaintiff stated that
he played the drums but had not played in a year and a half. The
plaintiff further stated that he spent his days lying down, watching
television, reading, and taking short walks and drives.
Furthermore, Joseph reported that he had been depressed for about 6 to
9 months and was experiencing recurrent crying spells and suicidal
thoughts, but had not received any medical treatment for his depression.
2. The Treating Physicians
a. Dr. Salvatore Inserra
Between December 3, 1997 until May 21, 1999, Dr. Salvatore Inserra, an
orthopedic surgeon, treated the plaintiff. During each of the
examinations, Joseph complained of recurrent pain and stiffness in his
lower back which interfered with his sleeping habits. On January 2, 1998,
Dr. Inserra noted that Joseph was able to ambulate with a normal gait
pattern and that "range of motion of the lumbosacral spine was painful,
but normal." He observed that the plaintiff's deep tendon reflex and his
motor and sensory exam were intact. In addition, based on a December 3,
1997 x-ray of the lumbosacral spine and pelvis, he stated that there was
evidence of degenerative disc disease at L4-L5 and L5-S1.
On March 29, 1998, the plaintiff complained of "residual pain in his
lower back, associated with recurrent spasm, stiffness and generalized
discomfort, aggravated by
prolonged standing and physical activity." Dr. Inserra diagnosed
the plaintiff as suffering from chronic discogenic type pain syndrome of
the lumbosacral spine; osteoarthritis; spondylolysis at L-5; and
herniated disc disease at L5-S1.
Dr. Inserra requested authorization for epidural steroid injections and
recommended exercise at home. In an evaluation conducted on June 26,
1998, Dr. Inserra recommended epidural steroid injections to the
lumbosacral spine and physical therapy three times a week for six weeks.
Dr. Inserra continued to treat the plaintiff at about six week
intervals until May 21, 1999. Examinations showed diffuse tenderness in
the lower back; range of motion was limited about 10 percent with
stiffness and pain; and flexion was possible to 50 degrees and lateral
flexion was possible to 10 degrees. Dr. Inserra repeatedly assessed
degenerative disc disease in the lumbosacral spine with bulging discs at
L4-L5 and L5-S1, chronic myofascial spasm and pain syndrome. Each
examination revealed that straight leg raising, deep tendon reflexes, and
motor and sensory examination were normal. Dr. Inserra noted that Joseph
denied any dysesthesia or radiation of pain to the lower extremities. Dr.
Inserra continued to request authorization for epidural steroid
injections and to recommend home exercises. In workers compensation forms
he completed, Dr. Inserra indicated that Joseph was disabled from any
type of work.
b. Dr. Kester Dragon
On July 10, 1999, Dr. Kester Dragon, an orthopedic surgeon in Grenada,
began treating the plaintiff. His notes indicate a total of five visits
with Joseph from July 10, 1999 through October 2000. At that time, the
plaintiff complained of back pain that disturbed his sleep. An
examination revealed that his lower back had spasm and tenderness. In
undated notes, Dr. Dragon reported that the plaintiff's sensation and
reflexes were intact and that his spinal motion was reduced. Dr. Dragon
ordered x-rays and prescribed Norflex and physical therapy. At the next
visit, he reported that the plaintiff again complained of pain. Dr.
Dragon noted that there was less spasm. He also recommended that the
plaintiff start physical therapy.
In or about October 1999, Dr. Dragon noted that the plaintiff had shown
some improvement with therapy. On June 3, 2000, Dr. Dragon reviewed
x-rays which revealed degenerative changes at L5-S1. In August 2000, Dr.
Dragon completed a Medical Assessment of Ability to do Work Related
Activities form, indicating that, due to the spasm in his lower back, the
plaintiff could lift or carry 15 pounds occasionally or 4 pounds
frequently. According to Dr. Dragon, Joseph could stand and/or walk a
total of 3 hours and sit for a total of 3 hours in an eight-hour workday.
Dr. Dragon stated that the plaintiff could stand and/or walk one hour
without interruption and sit one hour without interruption. He
further opined that Joseph could occasionally climb, crouch, crawl
and stoop and frequently kneel and balance during an eight-hour workday.
Dr. Dragon added that he would need to lie down during the day due to
On October 20, 2000, Dr. Dragon reported that the plaintiff continued
to complain of lower back pain, with cramps down both legs. An
examination revealed that Joseph's gait was normal, but that "spinal
flexion and extension were significantly limited by pain." Dr. Dragon
observed that the plaintiff's reflexes and sensation were intact. He
recommended that the plaintiff avoid frequent and prolonged bending and
lifting. Dr. Dragon opined that constant standing and sitting would
aggravate symptoms. Dr. Dragon further opined that the plaintiff would
not be able to continue his job as a storeroom manager.
3. The Consulting Physicians
a. Dr. S. Gowd
In a report dated June 12, 1999, Dr. S. Gowd, an internist who is a
state agency review physician, evaluated the plaintiff's residual
functional capacity. Dr. Gowd indicated that the plaintiff could lift
and/or carry 20 pounds occasionally, lift and/or carry 10 pounds
frequently, and stand and/or walk and sit for about six hours each in an
eight-hour workday. He also noted that the plaintiff's ability to push
and pull was unlimited. In addition, Dr. Gowd reported that Joseph could
occasionally climb stairs, stoop, kneel, crouch and crawl.
b. Dr. Samir Dutta
On June 28, 1999, Dr. Samir Dutta, a general surgeon, examined Joseph
at the request of the New York State Department of Social Services Office
of Disability Determination. The plaintiff complained of lower back pain
and weakness in his left leg. Joseph disclosed that he was seeing a
chiropractor twice a week. He also reported that he could drive, take
care of his own personal needs, and do light household chores. The
plaintiff also reported that he could sit for two hours, stand for one
and one-half hours, walk one and one-half miles, and carry 15 to 20
Upon examination, Dr. Dutta observed that the plaintiff walked with a
normal gait and was "well developed, well nourished, not in apparent
distress." Dr. Dutta observed that Joseph could stand and walk on toes
and heals and could squat. Dr. Dutta also noted that the plaintiff's
neurological examination was normal and that x-rays of the lumbosacral
spine showed disc space narrowing of L4-L5 and L5-S1. In addition, Dr.
Dutta remarked that there was no evidence of fracture, disclocation, or
destructive lesions. Dr. Dutta indicated that the plaintiff had a
degenerative disc disease and spondylolysis of LS spine and opined that
Joseph's conditions are "chronic in nature, and are unlikely to improve
significantly." Based upon the findings of the examination, Dr. Dutta
concluded that Joseph could sit three
to four hours, stand two to three hours, walk two to three miles,
and carry 30 pounds. Dr. Dutta did not indicate whether these limitations
relate to Joseph's capacity to sit, stand, and walk over an eight-hour
period or for individual periods of time.
4. The Diagnostic Tests
A February 19, 1997 magnetic resonance imaging test ("MRI") taken of
the lumbar spine showed evidence of bulging disc at L4-L5 and L5-S1.
There was no evidence of a herniated disc. The MRI also showed no
evidence of spinal canal stenosis, intraspinal mass lesion, or
spondylolisthesis. The MRI revealed active degenerative disc disease and
bulging disc at L4-L5, as well as spondylolysis.
A July 18, 1996 x-ray showed evidence of a "spondylolysis of the pars
interarticularis at L5." There was no definite spondylolisthesis. The
x-ray also showed evidence of degenerative narrowing of L4-L5 disc. The
posterior elements were intact. As noted above, a December 3, 1997 x-ray
also showed evidence of degenerative disc disease of the lumbosacral
spine at L4-5 and L5-S1 with degenerative spondylolysis. A June 28, 1999
x-ray performed at the request of the State Agency showed disc space
narrowing at L4-5 and L5-S1.
5. The Testimony of Dr. Bernard Gran
Dr. Bernard Gran, a neurologist, testified in the capacity of a medical
expert for the
Commissioner at the November 1, 2000 hearing. Dr. Gran testified
that he had never examined or talked to Joseph but that he had reviewed
Joseph's medical records and listened to his testimony. Dr. Gran noted
that no herniation or compression of neurological structures was observed
in the February 1997 MRI. According to Dr. Gran, the plaintiff's medical
impairments were bulging discs at L4-5 and L5-S1, spondylolysis at L5 and
degenerative disc disease. Dr. Gran explained that, although a bulging
disc can cause some discomfort, it would not be the cause for the
continuous daily pain reported by the plaintiff. In addition, Dr. Gran
testified that the MRI showed degenerative disc disease. Dr. Gran
explained that degenerative disc disease means that the gelatinous
material within the disc loses some of its water content. As a result,
the space between the two vertebrates narrows. Dr. Gran asserted that
degenerative disc disease usually does not cause pain unless the patient
develops reactive arthriti's and herniation of the disc.
Dr. Gran also noted that examinations revealed that the plaintiff was
limited in his movement and experienced spasms, but that he had normal
motor reflexes and sensory findings. Based on the medical evidence and
Joseph's testimony, Dr. Gran opined that Joseph could sit for two hours
at a time for a total of six hours in an eight hour workday, walk for one
hour at a time for a total of three hours in an eight hour day, stand for
one hour at a time for a total of three hours in an eight hour workday,
lift 15 to 20 pounds
occasionally, and lift 10 pounds frequently. In addition, Dr. Gran
assessed that the plaintiff could stoop and kneel occasionally, but not
climb ropes, ladders or scaffolding, crouch or crawl. He reported that
the plaintiff had no restrictions in reaching.
Dr. Gran further noted that there was no reference to depression or
depression-like symptoms in any of Joseph's medical documents. Dr. Gran
testified that there was nothing in the record that would limit Joseph's
functional capacity as a result of his non-exertional, mental
6. The Testimony of Gary Fannin
Gary Fannin, a vocation expert, also testified at the November 1, 2000
hearing. Fannin classified the plaintiff's job as an assistant produce
manager as a semi-skilled level job and in the heavy physical demand
category. Fannin stated that the plaintiff could not work at the
exertional level at the heavy level. Based on Joseph's age, education,
prior work experience, and physical limitations, Fannin testified that
the plaintiff could perform a full range of sedentary work with a
sit/stand option. In particular, Fannin identified assembly jobs, which
includes silver wrapper, plastic assembler, product assembler, folder,
garnisher, and paster.
B. The ALJ's Findings
The ALJ denied Joseph's disability claim. Based on the medical evidence
Josephs subjective complaints, the ALJ concluded that he could sit
six hours (two hours at one time), walk three hours (one hour at one
time), and stand three hours (one hour continuously) in an eight-hour
workday. In addition, the ALJ determined that Joseph was capable of
lifting, carrying, pushing, or pulling 15 to 20 pounds occasionally and
10 pounds frequently. The ALJ also found that he had no nonexertional
restrictions on functions such as reaching, handling, seeing, hearing and
The ALJ stated that spasm was evident on examination and greater
limitations in spinal motion were noticed on isolated examination. The
ALJ found that MRI of the plaintiff's cervical spine demonstrated some
degenerative changes in the lumbosacral spine. In addition, the ALJ found
that there was no evidence of a herniated disc or other spinal condition
that impinged on any neurological structures. The ALJ also noted that
none of the examining doctors found any radicular signs. In addition, the
ALJ stated that Dr. Inserra consistently found that Joseph's motor
function, sensation, and reflexes were intact. The ALJ noted that Dr.
Dragon's neurological examinations also showed intact sensation and
reflexes and that Dr. Dutta found no sensory or motor deficits in the
Although Dr. Inserra's opinion was considered, the ALJ ultimately
concluded that Dr. Inserra's opinion that the plaintiff was totally
disabled was inconsistent with the doctor's limited medical findings. The
ALJ also rejected Dr. Dragon's assessment that the plaintiff
needed to lie down during the day because of fatigue. The ALJ
pointed out that none of Dr. Dragon's progress notes specifically
reference the plaintiff's complaints of fatigue. In addition, the ALJ
pointed out that, although Dr. Dragon appeared to have seen the plaintiff
five times since July 1999, the doctor did not actually examine him on at
least two of these occasions. The ALJ pointed out that the progress notes
contained few objective findings and that they were mainly derived from
Dr. Dragon's initial examination in July 1999 and the last examination in
October 2000. The ALJ found that, despite Dr. Dragon's concerns, Dr. Gran
and Dr. Dutta's assessment were remarkably similar in that they indicated
the Joseph could perform a full range of light work.
The ALJ gave the most weight to Dr. Gran's opinion. The ALJ noted Dr.
Gran's opinion was consistent with Dr. Dutta and Dr. Gowd's opinion that
Joseph could lift or carry 15 to 20 pounds occasionally or 10 pounds
frequently. The ALJ pointed to the plaintiff's own assertion to Dr. Dutta
in June 1999 that he could carry 15 to 20 pounds. The ALJ found no
medical basis for the limitations imposed by Dr. Dragon on reaching and
on the need to lie down during the day. As such, the ALJ gave no weight
to those aspects of Dr. Dragon's opinion.
Furthermore, the ALJ concluded that Joseph's assertions regarding his
depression with suicidal ideation were not credible. The ALJ pointed out
that none of the examining
physicians reported any complaints of depression and that no mental
status abnormalities were noted at any time. The ALJ opined that Joseph's
testimony that he experienced depression was entirely unsupported which
raised concerns about Joseph's credibility in other respects. In
particular, the ALJ determined that Joseph overstated the extent of
recent treatments. Although Joseph asserted that he saw Dr. Dragon every
six weeks, the ALJ pointed out that, based on Dr. Dragon's notes, it
appeared that the doctor saw him only five times from July 1999 through
October 2000 and did not appear to have examined him on at least two
visits. In addition, the ALJ found that Dr. Dragon repeatedly suggested
therapy but that there was no confirmation that Joseph received any
physical therapy. The ALJ also stated that Joseph admitted at the hearing
that he no longer used any prescriptive medications for pain.
In addition, the ALJ noted that the plaintiff admitted that he could
sit three hours (45 minutes at a time), stand three hours (40 minutes
continuously), walk 15 to 20 minutes and lift or carry 15 to 20 pounds.
The ALJ found that these assertions were close to those reports by Dr.
Gran and belied the assertions of total disability. Furthermore, the ALJ
stated that, although the plaintiff denied doing any housework at the
hearing, he told Dr. Dutta in June 1999 that he did light household
chores and admitted that he cooked and cleaned. Because the plaintiff
acknowledged at the hearing that he spent time socializing, reading and
watching television, the ALJ concluded that his activities overall
were not significantly limited.
A. Standard of Review
To review the Commissioner's decision, the Court must 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)
(citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229,
59 S.Ct. 206, 83 L.Ed. 126 (1938)). Rather, substantial evidence requires
enough evidence that a reasonable person "might accept as adequate to
support a conclusion." Brown, 174 F.3d at 62-63.
In determining whether the Commissioners findings are supported by
substantial evidence, the Court's task is "to examine the entire record,
including contradictory evidence and evidence from which conflicting
interferences can be drawn." Id. at 62 (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)
(per curiam)). In addition, the Court is mindful that "it is up to the
agency, and not this court, to weigh the conflicting evidence in the
record." Clark v. Commissioner of Soc. Sec., 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. Analytical Framework
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 qualify for disability
benefits under the Act, the plaintiff 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 federal regulations set forth a five-step analysis that the
must follow in evaluating disability claims:
1. The ALJ must consider whether the claimant is
currently engaged in substantial gainful
2. If not, the ALJ must consider whether the
claimant has a "severe impairment" which limits
her mental or physical ability to do basic work
3. If the claimant has a "severe impairment," the
ALJ must ask whether, based solely on medical
evidence, that limitation is listed in Appendix
1 of the regulations.
4. If the impairment is not "listed" in the
regulations, the ALJ then asks whether she has
residual functional capacity to perform her
past work despite her severe impairment.
5. If she is unable to perform her past work, the
burden shifts to the ALJ to prove that the
claimant retains the residual functional
capacity to perform alternative work.
20 C.F.R. § 404.1520, 416.920; Green-Younger v. Barnhart,
335 F.3d 99
, 106 (2d Cir. 2003) (citing Draegert v. Barnhart,
311 F.3d 468, 472 (2d Cir. 2002)). The claimant bears the burden of proof
as to the first four steps, while the ALJ bears the burden of proof as to
the fifth step. See Shaw v. Chater, 221 F.3d 126
(2d Cir. 2000). In proceeding through the five-step analysis, the
Commissioner must consider four factors: "(1) objective medical facts,
(2) diagnosis or medical opinions based on these facts; (3) subjective
evidence of pain and disability; and (4) the claimant's educational
background, age, and work experience." Mongeur v. Heckler,
722 F.2d 1033
, 1037 (2d Cir. 1983).
In the first step, the ALJ determined that Joseph had "not engaged in
substantial gainful activity since September 26, 1997, his alleged onset
date of disability." At steps two and three, the ALJ concluded that,
although the plaintiff's "back condition is severe," his impairment did
not meet or equal the specifications of severity of any impairment in
Appendix I. In step four, the ALJ found that the plaintiff did not retain
the functional capacity to perform his past relevant work as an assistant
produce manager. At the fifth step, however, the ALJ determined that the
plaintiff was not disabled, as he could perform other work.
The plaintiff concurs with the ALJs findings at steps one through four,
but disagrees with his findings at step five. In particular, Joseph
contends that the ALJ misapplied the treating physician rule by failing
to accord appropriate weight to his treating physicians and argues that
the ALJ misconstrued the record when assessing Joseph's credibility. The
1. The Treating Physician Rule
Where the treating physicians opinion is supported by medically
acceptable techniques, results from frequent examinations, and the
administrative record, the ALJ is required to 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).
treating physician's statement that the claimant is disabled cannot
itself be determinative." Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). When controlling weight is not given to a treating
physician's medical opinion, the ALJ must consider (1) the length of the
treatment relationship and frequency of the examination; (2) the nature
and extent of the treatment relationship; (3) the extent to which the
opinion is supported by medical and laboratory findings; (4) the
physician's consistency with the record as a whole; and (5) whether the
physician is a specialist. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2).
"Failure to provide `good reasons' for not crediting the opinion of a
claimant's treating physician is a ground for remand." Snell,
177 F.3d at 133 (2d Cir. 1999) (citing Schaal v. Apfel,
134 F.3d 496, 505 (2d Cir. 1998)).
Here, Dr. Inserras conclusion that the plaintiff was totally disabled
was not determinative, as the ultimate issue of disability is reserved
for the ALJ. See 20 C.F.R. § 404.1527(e), 416.27(e);
Snell, 177 F.3d at 133 ("[S]ome kinds of findings
including the ultimate finding of whether a claimant is disabled and
cannot work are `reserved to the Commisioner'") (citing
20 C.F.R. § 404.1527(e)(1)); see also Murphy v. Barnhart,
No. 00 Civ. 9621, 2003 U.S. Dist. LEXIS 6988, at *7 (S.D.N.Y. Jan. 21,
2003) ("The ALJ is not required to give controlling wight to a treating
phyisician's opinions as to the ultimate issue of whether the claimant
meets the statutory definition of disability."). "That means that the
Social Security Administration considers the data that physicians
provide but draws its own conclusions as to whether those data indicate
disability." Snell, 177 F.3d at 133.
However, the ALJ failed to give proper deference to the findings by the
plaintiff's treating physicians, Dr. Inserra and Dr. Dragon. The ALJ
stated that he accorded little weight to Dr. Inserra's findings because
such findings were "limited" and "not consistent with the conclusion
offered." This is the only reference in the ALJ's decision as to why he
rejected Dr. Inserra's findings and conclusions. After multiple
examinations, Dr. Inserra consistently reported that there was evidence
of spasm and tenderness at the lower back area. Based on x-rays of the
lumbosacral spine and pelvis, Dr. Inserra assessed degenerative disc
disease, spondylolysis lumbosacral spine with chronic discongenic pain
syndrome and myofascial spasm. There is no doubt that Dr. Inserra
diagnosed Joseph with degenerative disc disease in the lumbosacral spine
with bulging discs at L4-L5 and L5-S1. The ALJ failed to indicate the
weight, if any, that he accorded to these aspects of Dr. Inserra's
opinion. See Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.
1993) (holding that ALJ is required to articulate the weight that is
given to treating doctors' conclusions),
Dr. Dragon also found that the plaintiff had spasm and tenderness in
his lower back. Dr. Dragon's x-rays revealed degenerative changes as
L5-S1. He also stated on October 20, 2000 that the plaintiff's "spinal
flexion and extension were significantly limited by pain."
He recommended that Joseph avoid frequent and prolonged bending and
lifting and opined that constant standing and sitting would aggravate the
plaintiff's pain. In addition, Dr. Dragon reported that Joseph could
stand and/or walk a total of 3 hours and sit for a total of 3 hours in an
eight-hour workday and that the plaintiff could stand and/or walk one
hour without interruption and sit one hour without interruption. Dr.
Dragon concluded that Joseph would not be able to continue his job.
The ALJ determined that Dr. Dragon appeared to have seen the plaintiff
five times between July 1999 and October 2000 and did not actually appear
to have examined him on at least two of those occasions. The ALJ stated
that Dr. Dragon's progress notes contained "few objective findings."
However, the ALJ failed to explain his reluctance to accept Dr. Dragon's
opinion that the plaintiff should avoid frequent and prolonged bending
and lifting and that constant standing and sitting would aggravate the
plaintiff's symptoms. The ALJ also discounted Dr. Dragon's opinion that
Joseph could only sit and walk/stand for three hours each in an
In addition, the ALJ did not consider Dr. Inserra and Dr. Dragon's
assessment of spondylolysis and bulging discs which were also revealed in
the x-rays and MRI. The ALJ failed to set forth any reasons for not
crediting these findings. Nor did the ALJ adequately explain why the
State agency doctors' reports were more credible than those of the
treating physicians. The treating physicians' opinions were
entitled to substantial weight, and the failure of the ALJ to give "good
reasons" for failing to give those opinions any weight constituted legal
error. See, e.g., Ferraris v. Heckler, 728 F.2d 582, 586-87 (2d
Cir. 1984) (case remanded because ALJ failed to consider treating
physician's opinion as to claimant's ability to sit for more than one or
two hours at a time).
In the Courts view, the ALJ's errors cannot be overlooked as harmless.
The ALJ specifically found that the plaintiff was able to perform a
reduced range of light or sedentary work. "Sedentary work is defined as
involving only occasional standing or walking, the lifting of no more
than ten pounds at a time, and the occasional lifting and carrying of
light objects." Schaal v. Apfel, 134 F.3d 496, 501 n.6 (1998).
"Sedentary work also generally involves up to two hours of standing or
walking and six hours of sitting in an eight-hour workday." Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996). The ALJ concluded that Joseph
could sit six hours (two hours at one time), walk three hours (one hour
at one time), and stand three hours (one hour continuously) in an
eight-hour workday. If the ALJ had considered the treating physicians'
opinion, he might have found that Joseph did not retain the capacity to
perform sedentary work under these standards. Thus, the ALJ's failure to
credit the finding's set forth above is cause for remand. See
Snell, 177 F.3d at 133 ("Failure to provide good reasons for
not crediting the opinion of a claimant's treating physician is a ground
Moreover, "even if the clinical findings were inadequate, it was the
ALJ's duty to seek additional information from the treating physician[s]
sua sponte." Schaal, 134 F.3d at 505; see also
Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) ("Where
there are gaps in the administrative record or the ALJ has applied an
improper legal standard, we have, on numerous occasions, remanded to the
Commissioner for further development of the evidence."). Because the ALJ
may not rely on the absence of evidence, he is under an affirmative duty
to fill in any gaps in the record. Schaal, 134 F.3d at 505.
Here, in light of the well-established treating physician rule and
given the findings of disability by Dr. Inserra and Dr. Dragon, the ALJ
should have sought additional information to clarify the treating source
evidence and opinions. Before rejecting the treating physicians'
opinions, the ALJ should have filled any clear gaps in the record.
See Perez, 77 F.3d at 47 ("The ALJ generally has an
affirmative obligation to develop the administrative record. This duty
exists even the claimant is represented by counsel."). Accordingly, the
decision of the Commissioner is vacated, and the case is remanded for
further administrative proceedings.
2. The ALJ's Assessment of Joseph's Credibility
Because the Court remands this case for the reasons described above,
and because Joseph's credibility may be impacted by additional medical
evidence, the Court sees no
reason to address the ALJ's credibility analysis.
Based on the foregoing, it is hereby
ORDERED, that the Commissioner's motion for judgment on the
pleadings is DENIED; and it is further
ORDERED, that Joseph's motion for judgment on the pleadings
is GRANTED; and it is further
ORDERED, that the final decision of the Commissioner is
vacated and this case is remanded to the Commissioner pursuant to the
fourth sentence of 42 U.S.C. § 405(g), for further administrative
proceedings in accordance with this Order; and it is further
ORDERED, that the Clerk of the Court is directed to close
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