United States District Court, E.D. New York
February 27, 2004.
JOESPH TETA, Plaintiff, -against- JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Joseph Teta ("Teta" 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 benefits to him. Both
parties move for judgment on the pleadings pursuant to Rule 12(c) of the
of Civil Procedure. ("Fed.R. Civ. P.").
A. Procedural History
On May 28, 1999 Teta filed an application for social security
disability insurance benefits, alleging an inability to work since
November 23, 1998. After his application was denied initially and on
reconsideration, he requested a hearing before an administrative law
judge. On January 10, 2000, a hearing was held before Administrative Law
Judge Sy Raynor (the "ALJ"). At the hearing, the plaintiff was
represented by an attorney. In a decision dated January 28, 2000, the ALJ
found that Teta was not disabled within the meaning of the Act and was
therefore not entitled to disability insurance. Subsequently, Teta filed
a request for review with the Appeals Council. On October 11, 2002, the
Appeals Council declined to review the claim, making the ALJ's decision
the final administrative determination. This appeal followed.
On January 11, 2001, the plaintiff filed a subsequent application for
disability benefits. This application alleged an onset date of January
29, 2000, the day after the ALJ denied the above mentioned application by
the plaintiff. This subsequent application was granted on September 1,
1. Teta's Testimony at the Hearing
At the January 10, 2000 hearing, the plaintiff indicated that he was
born on March 17, 1955, making him 41 years of age at the time of the
administrative hearing. The plaintiff
is about 6' 1" and weighs approximately 250 pounds. Teta is a high
The plaintiff testified that from 1976 to 1986, he worked as a stock
person in a supermarket where he was required to load and unload trucks
and stock shelves. This occupation required the plaintiff to stand and
walk eight hours a day with no sitting. He was also required to lift
fifty pounds on a regular basis. Following that job, from May, 1986 until
November, 1998, Teta worked in the construction business as an asphalt
paver/laborer. There, he was responsible for shoveling asphalt, digging
ditches and was required to stand all day and lift and carry objects
between fifty and one hundred pounds. This job also involved constant
The plaintiff further testified that on November 23, 1998, he injured
his back while shoveling at work. Immediately thereafter, Teta had
difficulty walking and had swelling in his leg. The plaintiff was
initially treated at the hospital with medication and epidural
injections. On January 13, 1999, the plaintiff underwent back surgery.
Teta also stated that his orthopedic surgeon, Dr. Vincent J. Leone
("Dr. Leone"), treated him about every eight weeks. Teta also
participated in physical therapy which caused him to feel, "a litter bit
better." However, three to four months prior to the January 10, 2000
hearing, he reached a plateau in his physical therapy and continued to
experience low back and bilateral leg pain. He also reported that unless
he consciously lifted his heel first, his foot dragged while walking.
Teta testified that by the end of February, 1999, he
was able to walk independently without a walker.
At time of the hearing, the plaintiff indicated that he had constant
numbness and tingling in his right foot which becomes painful when
walking more than four or five blocks.
With regard to his personal activities, Teta testified that he dresses
his three year old son, prepares breakfast for his son and six year old
daughter, drives the children to and from school, does light household
shopping, makes his own bed, bathes and showers himself, eats at
restaurants with friends and drives to the barber. The plaintiff also
stated that he could walk four or five blocks, sit between twenty and
twenty five minutes at one time, and lift between ten to fifteen pounds
but had not tried lifting his three year old daughter.
The plaintiff's June 22, 1999 written statement, indicated that his
current activities were walking, socializing, watching television,
reading and driving locally which includes driving to physical therapy
three times per week but he did not do household chores. The plaintiff
claimed that his medication failed to relieve his pain and that the pain
rendered him unable to work, walk, sit or stand for any length of time.
2. The Treating Physicians
a. Dr. Vincent J. Leone
Beginning in June, 1997, the plaintiff was treated by Dr. Leone for
lumbar spinal stenosis. From that time until the plaintiff's injury on
November 23, 1998, the plaintiff received epidural injections, physical
therapy and medication.
On November 25, 1998, two days after the plaintiff's injury, he was
treated by Dr. Leone. At that time, the plaintiff complained of sharp mid
and low back pain which radiated into his buttocks and thighs. The
plaintiff also complained of occasional numbness and tingling in his
right toes. Dr. Leone's records indicate that the plaintiff had a limited
range of flexion, extension, rotation and lateral tilting but that motor
strength, sensation and reflexes were intact and he made a diagnosis of a
lumbar herniated disc with radiculpathy. He advised the plaintiff to
continue taking pain medication. Dr. Leone reported that the plaintiff
was totally disabled and should remain out of work until further notice.
Dr. Leone further requested Workers' Compensation authorization for
physical therapy and a lumbar spine MRI.
On November 30, 1998, the plaintiff called Dr. Leone and complained of
back and leg symptoms. During the telephone conversation, Teta stated
that his medication was helping. Because the plaintiff did not have any
new neurological symptoms at that time Dr. Leone believed that an
emergency admission was not justified. Dr. Leone instructed the plaintiff
to return for treatment as previously scheduled.
On December 31, 1998, the plaintiff returned to Dr. Leone complaining
of increasing back pain radiating down his right leg of approximately two
weeks duration. The plaintiff was unable to dorsiflex his right toe or
foot and had a drop foot with significant edema. Dr. Leone diagnosed
acute drop foot, ruled out a herniated disc and prescribed steroid
On January 1, 1999, the plaintiff was admitted to North Shore
University Hospital at Glen Cove (the "Hospital") on an emergency basis.
Upon admission, he had back pain and difficulty moving his right foot in
dorsiflexion with some swelling. The plaintiff was noted to have a
history of herniated nucleus pulposis and spinal stenosis since 1997 with
an exacerbation on November 23, 1998, which was the date of his injury.
On January 13, 1999, Dr. Leone performed a complete lumbar bilateral
laminectomy at L4 with foramintomy and facetectomies at L3 through L5 at
the Hospital. Teta remained in the hospital until January 28, 1999. His
discharge diagnoses were herniated nucleus pulposus and spinal stenosis,
with neuropathy down the right leg and a right foot drop. Dr. Leone
advised the plaintiff to avoid heavy lifting.
On February 10, 1999, Dr. Leone reported that, although the plaintiff
continued to have a right foot drop in terms of weakness, he had some
return of neurological functioning to the foot. Dr. Leone noted that the
plaintiff had a well healed midline surgical scar and was
otherwise neurogically intact with good range of motion to the lumbar
spine. Dr. Leone diagnosed lumbar herniated disc and stenosis with a foot
drop requiring urgent decompression. He prescribed Vicodin and sought
authorization for physical therapy and an MRI. He opined that the
plaintiff was "totally disabled."
On March 24, 1999, the plaintiff returned to Dr. Leone for a follow up
continued to have a slight drop foot but was able to dorsiflex
against resistance. Dr. Leone indicated that there was some tenderness to
palpitation, but no severe spasms in his back. Dr. Leone noted that the
plaintiff had difficulty with a "slapping" of his foot while walking. Dr.
Leone prescribed aquatic and physical therapy in addition to Vicodin.
From March 31, 1999 to June 16, 1999, Teta engaged in regular physical
On March 3, 1999, Dr. Leone discharged the plaintiff from aquatic
therapy because the plaintiff's symptoms had "greatly improved" and he
demonstrated increased trunk mobility, flexibility and leg strength.
On May 12, 1999, Dr. Leone reported that the plaintiff's symptoms had
further improved but he still had right leg spasms.
On May 19, 1999, Dr. Leone's records indicate that the plaintiff was
"doing well" status post lumbar decompressive laminectomy. Although the
plaintiff's drop foot had resolved to the point where he had some
residual weakness, he was able to walk. Dr. Leone recommended continued
physical therapy and again opined that the plaintiff was totally
On September 22, 1999, Dr. Leone reported that the plaintiff continued
to have difficulty with back pain and weakness of the foot and believed
that the plaintiff had plateaued in physical therapy. Dr. Leone
considered the plaintiff to be totally disabled regarding heavy
duty work and prescribed three more weeks of physical therapy.
On November 17, 1999, the plaintiff returned to Dr. Leone with
continued complaints of back pain radiating down his leg with weakness
and a drop foot of the right lower extremity. Dr. Leone opined that the
plaintiff was totally disabled and prescribed physical therapy. Dr. Leone
also indicated that he would try to obtain authorization for the patient
for job retraining.
On December 28, 1999, Dr. Leone completed a residual functional
capacity questionnaire which covered the time period since November 25,
1998. Dr. Leone indicated that the plaintiff had an abnormal gait,
sensory loss, reflex changes, tenderness, swelling, muscle spasm, muscle
atrophy and muscle weakness. MRI studies were positive and an EMG was
positive for nerve damage in the right leg. The plaintiff's impairments
were reasonably consistent with his symptoms and limitations and that his
symptoms were constantly severe enough to interfere with attention and
concentration. The plaintiff had a poor prognosis for full recovery.
Dr. Leone further opined that the plaintiff could walk only one block
without rest, sit continuously for thirty minutes, stand continuously for
ten minutes, for less than two hours a day, and lift ten pounds
occasionally and less than ten pounds frequently. In Dr. Leone's view,
the plaintiff would have to take unscheduled breaks during an eight hour
work day and had to use a cane or other assistive device while engaged in
occasional standing or walking. Teta could occasionally reach, feel and
handle, but could not bend, stoop, crawl, push, pull,
climb, kneel or squat.
On March 8, 2000, after the ALJ had already denied the plaintiff's
claim, Dr. Leone submitted a letter to clarify his opinion regarding the
plaintiff's medical condition and specifically address the decision of
the ALJ. Pursuant to an October 11, 2002 Order of the Appeals Council,
this letter was made a part of the record. Dr. Leone reported that the
plaintiff's back pain and leg symptoms exacerbated in November, 1998 and
that Teta's back problems became so severe that in December, 1998, the
plaintiff began experiencing neurological difficulties in his right leg.
Dr. Leone further indicated that he reported to an emergency call on
January 1, 1999 that the plaintiff was unable to move his right foot. The
plaintiff was admitted to the Hospital where testing was performed and
there was a neurological consultation with an EMG showing nerve damage to
the foot originating in his back. The plaintiff underwent a surgical
procedure to decompress the nerves in his back which were causing nerve
damage to the foot. Dr. Leone concluded that the plaintiff's foot
function was not normal and that he had permanent nerve damage limiting
his ability to walk more than fifteen minutes.
Dr. Leone opined that although the plaintiff reached a plateau in
physical therapy, he sustained a permanent injury to the nerves and might
never regain normal foot functioning again. Dr. Leone also indicated that
if the plaintiff walked for more than fifteen minutes he could fall due
to permanent nerve damage documented by EMG testing performed during
the plaintiff's hospitalization. Dr. Leone further noted that Teta
could not sit for more than four hours because any type of position
without a break would kink the blood supply to the spinal cord and place
his nerves at further risk for damage and that the limitations he placed
on the plaintiff's ability to sit and walk were "generous." Dr. Leone did
not believe that the plaintiff would be able to sustain two hours of
standing or walking without significant interruptions and breaks.
b. Dr. Dennis E. Wolf
On December 29, 1998, Dr. Dennis E. Wolf ("Dr. Wolf"), an anesthesia
pain management specialist, examined the plaintiff at Dr. Leone's
request. Dr. Wolf reported the plaintiff to be somewhat obese, walked
with a walker and was in mild to moderate distress with pain. Dr. Wolf
noted a history of a prior back injury in March, 1997 which was treated
with a series of three epidural injections which allowed him to return to
work. The plaintiff continued to work until he was injured on November
23, 1998. The plaintiff complained of weakness and numbness in his right
leg and feet with swelling of both ankles. The plaintiff's pain worsened
at night which interfered with his ability to sleep and it was "rare"
when he was not in pain.
Dr. Wolf noted that the plaintiff had no tenderness of the spinous
processes, paravertebral muscles, or sacroiliac joints. The plaintiff was
unable to dorsiflex his right foot. Right ankle and knee jerks were
absent and were two plus on the left ankle. Knee
extension was four plus on the right and five on the left. Knee and
plantar flexion were normal. The straight leg raising test was performed
to seventy degrees and the plaintiff had one to two plus pitting edema in
Dr. Wolf reviewed the MRI and diagnosed the plaintiff with lumbar
somewhat complicated radiculopahy with the recent onset of weakness and
footdrop in the right leg to be of increased concern. Dr. Wolf prescribed
Pamelor and discussed the possibility of epidural steroid injections.
c. Dr. Divack
Dr. Divack, an internist, treated the plaintiff on December 31, 1998.
Dr. Divack opined that the plaintiff had poorly controlled diabetes
mellitus. Dr. Divack opined that the plaintiff had not taken Glucophage
for five months, had peripheral edema and erythma in his extremities
which was indicative of acute gouty arthritis. Dr. Divack prescribed
Glucophage and Lasix and advised the plaintiff to elevate his extremities
and to follow a strict diet.
On February 11, 1999, Dr. Divack made a diagnoses of diabetes mellitus,
hypertension and high cholesterol. On March 18, 1999, the plaintiff
returned for a follow up visit.
On April 29, 1999, Dr. Divack recorded the plaintiff's blood pressure
to be 110/70 and glucose reading was 83. Dr. Divack opined that the
plaintiff had an "excellent" response to the treatment plan.
On August 26, 1999, Dr. Divack reported that there had been no change
in the plaintiff's blood pressure or diabetes.
d. Dr. Vitale
On January 6, 1999, Dr. Vitale, a neurologist, examined the plaintiff
at Dr. Leone's request in anticipation of surgery. Physical examination
revealed one plus edema of the dorsum of the right foot and right ankle
with moderate right foot drop. There was diminished vibratory sensation
in both feet which is consistent with neuropathy. Dr. Vitale diagnosed
(1) chronic low back syndrome with right foot drop (2) peripheral
neuropathy of both feet secondary to diabetes mellitus, and (3) mild to
moderate tibial vessel occlusive disease. Dr. Vitale concluded that the
plaintiff's symptoms appeared to be predominately radicular and secondary
to disc disease, but he ordered studies to rule out an arterial problem.
A sonogram performed on January 7, 1999 showed no evidence of deep vein
d. Dr. Bruce P. Meinhard
From November, 1997 through January 1998, Dr. Bruce P. Meinhard, an
orthopedic surgeon, treated the plaintiff for right foot pain. Dr.
Meinhard diagnosed possible degenerative joint disease of the subtalar
joint which was confirmed by an MRI. Dr. Meinhard prescribed Voltaren.
3. The Consulting Physicians
a. Dr. J. Wright Barry
On March 30, 1999, after his surgery, the plaintiff was seen by Dr. J.
Wright Barry ("Dr. Barry"), an internist, at the request of the Social
Security Administration. Dr. Barry obtained a history of back pain, drop
foot, diabetes mellitus, and hypertension and noted that the plaintiff
was a well developed, well nourished male who walked with
a normal gait and appeared to be in no distress on ordinary movements.
The plaintiff indicated that although the surgery improved his pain and
functioning, he still suffered from lower back pain radiating to both
lower extremities with numbness, tingling, and weakness of the right
foot. Dr. Barry's findings were normal except for pain in the hamstrings.
Dr. Barry further noted a well healed recent laminectomy scar
in the lumbar area and forward flexion of the spine was limited to sixty
degrees. The plaintiff had slightly diminished dorsiflexion of the right
foot. Dr. Barry diagnosed status post lumbar laminectomy for multiple
herniated discs and opined that the plaintiff could not perform work
requiring strenuous exertion, active bending or heavy lifting and that
the plaintiff could further improve with physical therapy. Dr. Barry
recommended an orthopedic evaluation.
b. Dr. C. Ladopoulous
On July 14, 1999, a Department of Social Services ("DSS") medical
examiner, performed a functional capacity assessment. Dr. Ladopoulous
indicated that the plaintiff was capable of frequently lifting ten pounds
and occasionally lifting twenty pounds, can sit for about six hours in an
eight hour day and stand and/or walk for about six hours a day and had
an unlimited ability to push and pull. In support of this
assessment, Dr. Ladopoulous indicated that the plaintiff was status post
laminectomy for multiple herniations except for slightly diminished
dorsiflexion. Dr. Ladopoulous referred to the report of Dr. Barry and
indicated that he reviewed the treating physician's functional capacity
assessment. Dr. Ladopoulous concluded that the plaintiff retained the
residual functional capacity to engage in light work. A Dr. McDermott
subsequently affirmed this assessment.
4. The Diagnostic Tests
An MRI performed on June 10, 1998 showed severe spinal canal stenosis
at L3-4 and a mild to moderate sized central herniated disc and moderate
A December 11, 1998 magnetic resonance test ("MRI") taken of the lumbar
spine revealed (1) moderate spinal stenosis at L2-3 due to facet
hypertrophy superimposed on a congenitally small canal, (2) severe spinal
stenosis at L3-4, a mild to moderate sized central herniated disc and
moderate facet arthritis superimposed on the narrow canal, (3) moderate
to marked spinal stenosis at L4-5, with marked left sided recess and
foraminal encroachment, left posterolateral osteophyte formation and
facet arthritis superimposed on the narrow canal, and (4) moderate
bilateral recess stenosis at L5-S1 due to reversed spondylolostheseis,
posterior osteophyte formation and facet arthritis.
A January 4, 1999 MRI revealed (1) a mildly narrowed spinal canal with
spinal stenosis at L3-4 due to a small disc bulge and hypertrophy; (2)
osteophyte formation and
hypertrophy at L4-5 resulting in an impression on the ventral
thecal sac, with spinal canal narrowing and narrowing of the left
neuroforamen; and (3) and a moderate to large sized disc bulge/herniation
at L5-S1, with narrowing of the spinal canal and neuroforamina.
B. The ALJ's Findings
The ALJ denied Teta's May 28, 1999 disability claim. The ALJ opined,
based on all the evidence that Teta was severely impaired by lumbar
stenosis with a right foot drop, status post surgery precluding the
plaintiff from performing his previous work which was heavy in terms of
exertional demands. The ALJ further concluded that Teta was not disabled
under the Act because the plaintiff retained the residual functional
capacity compatible with the performance of light work. Such light work,
during the course of an eight hour workday, entails standing/walking for
up to six hours and lifting up to twenty pounds occasionally. Thus, the
ALJ determined that the plaintiff was not disabled under the Act.
The ALJ noted that the plaintiff's diabetes mellitus and high blood
pressure were under control and there were no functional restrictions
precluding work activity.
The ALJ concluded that the opinions of treating physician Dr. Leone and
consulting physician Dr. J. Wright Barry supported the ALJ's conclusion
that the plaintiff can perform light work. In particular, the ALJ
indicated that based upon Dr. Leone's September 22, 1999 record which
characterized Teta as disabled regarding only heavy duty work and Dr.
Leone's November 17, 1999 recommendation that plaintiff undergo job
retraining, it was "implicit . . . that the [plaintiff] retained the
ability to perform less exertionally taxing work."
Moreover, the ALJ stated that because, Dr. Barry, among other things,
indicated that the plaintiff was incapable of work requiring strenuous
exertion, active bending or heavy lifting, "in essence Dr. Barry
furnished a profile consistent with light work." The ALJ indicated that
Dr. Barry's opinion was given "some weight" because in his view, it was
consistent with the clinical and diagnostic evidence in the record.
The ALJ also believed there to be inconsistencies in Dr. Leone's
records. In particular, the ALJ found that Dr. Leone's November 17, 1999
recommendation that the plaintiff undergo job retraining was inconsistent
with his answers on the subsequent December 28, 1999 residual functional
capacity questionnaire which stated that the plaintiff had sensory loss,
abnormal gait, spasm and muscle weakness and that the claimant could sit
less than four hours, stand/walk less than two hours and lift/carry ten
pounds occasionally. In the ALJ's view, because Dr. Leone failed to
explain Teta's apparent decrease in work function since November 17,
1999, the ALJ's above mentioned conclusion that the plaintiff can perform
less "exertionally taxing work" was given "greater weight" by the ALJ.
The ALJ also noted that the DSS medical examiner Dr. Ladopoulous, who
did not actually examine the plaintiff but rather reviewed the file, also
concluded that the plaintiff retained the ability to do light work. The
ALJ gave Dr. Ladopoulous' opinion "some weight"
because "it [was] consistent with the clinical and diagnostic
record as a whole."
The ALJ also opined that Teta's subjective symptomatology was
unsubstantiated by the medical evidence and could not be characterized as
debilitating. Furthermore, the ALJ opined that the plaintiff's daily
activities do not comport with a finding of complete disability. The ALJ
also noted that the claimant's workers compensation award was reduced
based on medical improvement.
The ALJ acknowledged that the claimant's lumbar stenosis status post
surgery constituted a severe impairment because it limited his ability to
perform some work related activities. Because the plaintiff established
an inability to perform his past relevant work, the burden shifted to the
Commissioner to demonstrate that other work exists in significant numbers
in the national economy that the claimant can perform. The ALJ opined
that the Social Security Regulations mandated a finding of "not disabled
for a younger high school graduate despite an unskilled work background."
Thus, in the opinion of the ALJ, the claimant was not disabled within the
meaning of the Act.
A. The Legal Standard
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. 206 (1938), and 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 Commissioner's 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.
Remand of a disability claim for further administrative procedures is
an appropriate remedy where, among other things, (1) "there are gaps in
the administrative record or the ALJ has applied an improper legal
standard . . .", Rosa v. Callahan, 168 F.3d 72, 82-83, or (2)
new, material evidence is adduced that was not produced before the
agency. See Raitport v. Callahan, 183 F.3d 101, 104 (2d Cir.
1999) (citation omitted)
1. The Treating Physician Rule
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 the
claimant's treating physician [be] 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 (3d Cir. 1993).
If the opinion of the treating physician as to the nature and severity
of the impairment is not giving controlling weight, the Commissioner must
apply various factors to decide how much weight to give the opinion.
See Shaw, 221 F.3d at 134; Clark, 143 F.3d at 118.
These factors include: (i) the frequency of examination and the length,
nature, and extent of the treatment relationship; (ii) the evidence in
support of the opinion; (iii) the opinion's consistency with the record
as a whole; (iv) whether the opinion is from a specialist; and (v) other
relevant factors. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2); see
Clark, 143 F.3d at 118. When the Commissioner chooses not to give
the treating physician's opinion controlling weight, he must "give good
reasons in his notice of determination or decision for the weight he
gives [the claimant's] treating source's opinion." Clark, 143
F.3d at 118 (quoting C.F.R. § 404.1527(d)(2); 416.927(d)(2)).
Here, the ALJ identifies Dr. Divack and Dr. Leone as the plaintiff's
treating physicians. In addition to failing to acknowledge Dr. Wolf and
Dr. Vitale, who were also treating physicians, the ALJ failed to state
what weight he accorded to the opinion of Dr. Leone, the plaintiff's
orthopedist. After multiple examinations, Dr. Leone consistently reported
that the plaintiff suffered from drop foot, numbness in the lower
extremities, a herniated disc and other neurological symptoms. However,
the ALJ failed to indicate the weight, if any, that he accorded to these
aspects of Dr. Leone's opinion. See Schisler v. Sullivan,
3 F.3d 563, 567 (2d Cir. 1993) (holding that the ALJ is required to articulate
the weight that is given to treating doctor's conclusions). The ALJ also
failed to provide sufficient reasons as to why controlling weight was not
given to Dr. Leone's conclusions that the plaintiff was disabled. See
Clark, 143 F.3d at 118 (When the Commissioner chooses not to give
the treating physician's opinion controlling weight, he must "give good
reasons in his notice of determination or decision for the weight he
gives [the claimant's] treating source's opinion."); see also
Baybrook v. Chater, 940 F. Supp. 668, 674 (D. Vt. 1996) ("Because
the ALJ failed to apply the [C.F.R. § 1527(d)(2)] factors properly, it is
impossible to assess whether the treating physician's opinion was
properly rejected. In light of this failure, and because the record
contains evidence supporting the findings of either disability or no
disability, the case must be remanded for application of the correct
legal standard for assessing the weight to accord the treating
physician's opinion." (citation omitted)).
2. The ALJ's Assessment of the Medical Evidence
As stated above, the ALJ concluded that the opinions of treating
physician Dr. Leone and consulting physician Dr. Barry supported the
ALJ's conclusion that the plaintiff can perform light work. The ALJ based
his conclusion on (1) Dr. Leone's September 22, 1999 records which
characterized Teta as disabled regarding only heavy duty work; (2) Dr.
Leone's November 17, 1999 recommendation that the plaintiff begin job
retraining; (3) Dr. Barry's statement that the plaintiff was incapable of
work requiring strenuous exertion, active bending or heavy lifting; and
(4) Dr. Ladopoulous' conclusion that the plaintiff retained the residual
functional capacity to engage in light work.
In the Court's view, the fact that Dr. Leone and Dr. Barry indicated
that the plaintiff was disabled and incapable of performing heavy work,
without more, does not necessarily give rise to the inference that the
plaintiff is therefore able to do light work. Furthermore, the conclusion
of Dr. Ladopoulous, a non treating physician, that the plaintiff
is capable of doing light work is not conclusive. In fact, the ALJ's
conclusion is contradicted by, among other things, the December 28, 1999
functional capacity questionnaire in which Dr. Leone opined that could
walk only one block without rest, sit continuously for thirty minutes,
stand continuously for ten minutes, for less than two hours a day, and
lift ten pounds occasionally and less than ten pounds frequently and Dr.
Leone's continued references that the plaintiff is disabled. The Court is
also mindful that the plaintiff, in addition to this serious back
condition, also suffers from diabetes mellitus.
Here, the ALJ concluded that the plaintiff was able to perform a
reduced range of light work which, during the course of an eight hour
workday, entails standing/walking for up to six hours and lifting up to
twenty pounds occasionally. However, if the ALJ had more seriously
considered the treating physician's opinion in more depth, he might have
found that Teta did not retain the capacity to perform work under these
standards. Of particular concern is Dr. Leone's March 8, 2000 letter,
which was not before the ALJ, but made part of the record, that
indicated, among other things, that (1) if the plaintiff walked for more
than fifteen minutes he could fall due to permanent nerve damage; (2)
Teta could not sit for more than four hours because any type of position
without a break would kink the blood supply to the spinal cord and place
his nerves at further risk for damage; and (3) that the plaintiff would
be able to sustain two hours of standing or walking without significant
interruptions and breaks.
Accordingly, the ALJ's failure to credit the treating physicians'
findings 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 for remand.");
see also 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 claimants ability to sit for more than one to two hours at
The ALJ also determined that Dr. Leone's November 17, 1999 medical
record which states that the plaintiff was ready for job retraining was
inconsistent with his answers on the December 28, 1999 residual
functional capacity questionnaire. In the ALJ's view, because Dr. Leone
failed to explain these inconsistencies, the ALJ accorded "greater
weight" to Dr. Leone's indication that the plaintiff was ready for job
However, the ALJ erred by rejecting the treating physicians' diagnosis
without first attempting to fill any perceived gaps in the administrative
record. See Schaal, 134 F.3d at 505 ("[E]ven if the clinical
findings were inadequate, it was the ALJ's duty to seek additional
information from [the treating physician] sua sponte."); see
also Hartnett v. Apfel, 21 F. Supp.2d 217, 221 (E.D.N.Y. 1998)
("[I]f an ALJ perceives inconsistencies in a treating physician's
reports, the ALJ bears an affirmative duty to seek out more information
from the treating physician and to develop the record accordingly.")
"The ALJ generally has an affirmative obligation to develop the
administrative record. This duty exists even [when] the claimant is
represented by counsel." Perez, 77 F.3d at 47. Such is the case
because "even if the clinical findings were inadequate, it was the ALJ's
duty to seek additional information from the treating physician['s]
sua sponte." See 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.").
In the Court's view, the Commissioner failed to properly evaluate the
plaintiff's subjective complaints of pain. Here, the ALJ concluded that
because the "plaintiff's" alleged symptomatology and subjective
restrictions stemming therefrom are largely unsubstantiated by the
medical evidence, such symtomatology cannot be characterized as
debilitating." Not only do the treating physician's reports completely
refute this conclusion, but the ALJ failed to set forth his rationale
"with sufficient specificity to enable [this Court] to decide whether
[this] determination is supported by substantial evidence." Ferraris
v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Finally, the Court notes in passing that a subsequent application for
disability benefits, filed on January 11, 2001, which alleged an onset
date of January 29, 2000, the day after the ALJ denied the May 28, 1999
application, was subsequently granted.
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 Teta'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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