United States District Court, S.D. New York
March 9, 2004.
FRANCISCA VALOY, Plaintiff, -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
Plaintiff Francisca Valoy (hereinafter "plaintiff' or "Valoy") brings
this action pursuant to § 205(g) of the Social Security Act ("the
Act"), 42 U.S.C § 205(g), challenging the final determination of the
Commissioner of Social Security ("Commissioner" or "defendant"), denying
Valoy Supplemental Security Income ("SSI"). Valoy and the Commissioner
cross-' move for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure ("Fed, R. Civ. P.") 12(c). For the foregoing reasons,
plaintiff's motion to remand for further proceedings is granted and
defendant's cross-motion for judgment on the pleadings, affirming the
Commissioner's decision, is consequently denied.
A. Factual Background and Medical Evidence/Testimony
1. Plaintiff's Background and Subjective Testimony
Valoy was born in the Dominican Republic on December 31, 1958. While in
the Dominican Republic, Valoy was educated through the Seventh grade.
In 1992, she moved from the Dominican Republic to the United States. She
"once started to go to school to learn English, but  had to leave it
because [she] couldn't learn anything." Transcript ("Tr.") at 45 (11/7/00
Hearing). While her education in the Dominican Republic has enabled her
to read and write Spanish "a little bit", she only knows "certain little
things, but not very much" with respect to English. Tr. at 35, 37, 67.
Valoy has four children the eldest two reside in the Dominican
Republic and the younger two (ages nine and six) live with her in New
York. Tr. at 36. Valoy receives assistance
from her neighbor in caring for her children and performing
household chores, but does some chores herself, such as the laundry. Tr.
at 44. Valoy's neighbor traveled with her to the hearing on the subway.
Valoy testified that she did not socialize very much, and even when she
did, only spent time with her neighbors. Valoy explained that she is
"[a]lmost always" "feeling [so] bad [that she doesn't] want anything,
nothing nothing." Tr. at 46.
Valoy's last occupation was as a hair stylist at a beauty parlor in the
Dominican Republic. She stopped working because of skin complications
(exzema) and arthritis in her hands. Tr. at 38. Valoy also complains of
lost strength, cramps, and rigidity in her hands, which sometimes causes
her to drop objects. Tr. at 41. Valoy had medication for her hand
conditions. Valoy also experienced stomach pain, which physicians
diagnosed as related to menopause. Despite these physical conditions,
Valoy "emphasized that her main reasons for not working were
psychological, including forgetfulness, nervousness, and Mots of
anxiety." Plaintiff's Memorandum ("Pl. Mem.") at 7, citing Tr. at 38. Valoy
testified that she was often "very sad" and cried frequently. Tr. at 39.
Because her appetite has suffered, she has lost seven pounds in the past
year. Tr. at 35-36. Valoy also complained of difficulty sleeping and
hallucinations of people calling her. Tr. at 40.
Valoy testified that she could walk approximately twenty-five blocks
"more or less but very slowly . . . I stop and get tired, I can stop and
continue." Tr. at 43. She also testified that she could only stand for
half an hour, after which time her legs would swell. She estimated that
she could lift or carry less than ten pounds. Tr. at 44. Sitting,
however, she testified was not a problem for her. Tr. at 44.
2. Evidence From Treating Physicians
a. Dr. Bernado Martinez
Valoy has been receiving treatment from Dr. Bernado Martinez
("Martinez") at the Upper Manhattan Mental Health Center since February
23, 1998, on which day she presented with complaints of depression,
nervousness, anxiety, insomnia, irritability, and anhedonia. Tr. at 175.
After examining Valoy, Martinez reported that she was tearful, had
constricted affect, depressed mood, anxiety, "simple" auditory
hallucinations, poor concentration, and limited insight and judgment. Tr.
at 175-77. Martinez diagnosed Valoy as having an adjustment disorder with
mixed emotion, a generalized anxiety disorder, and a Global Assessment of
Functioning ("GAP") score in the range of 60-70*fn1. Martinez
suggested psychotherapy and prescribe1d Serzone for her depression and
Vistaril for her anxiety. Tr. at 177.
Over a year later, while Valoy was in psychotherapy, Martinez diagnosed
her with general anxiety disorder due to her anxiety, mild depression,
auditory hallucinations, and limited insight and judgment Tr. at 178-79.
When Martinez examined Valoy in September 1999, he noted her continued
depression, and renewed her medications. Tr. at 190. Throughout the fall
and winter of 1999, Valoy reported depression, lack of appetite, constant
worrying, anxiety, hallucinations, and poor sleep. Tr. at 190-93. In
January 2000, Martinez again renewed Valoy's medication, and at some time
thereafter, also prescribed Paxil, a drug indicated for the treatment of
major depression, obsessive-compulsive disorder, panic disorder, social
anxiety disorder, generalized anxiety disorder, and post-traumatic stress
disorder. Pl. Mem. at 4.
b. M. Perez, C.S.W.
As per Martinez' suggestion, Valoy began psychotherapy with M. Perez,
C.S.W. ("Perez") on December 15, 1998. On December 22, 1998, Perez noted
that Valoy was "unstable, apprehensive and [in] low sprits and was
"constantly crying." Tr. at 180. When Valoy complained of pain and
auditory hallucinations on January 26, 1999, Perez reported that she
"appeared nervous and somewhat depressed." Tr. at 181. On March 16, 1999,
Valoy complained of poor sleep and a reduced appetite, which resulted in
her losing ten pounds. Tr. at 182. Perez noted on March 30, 1999 that
Valoy continued to be apprehensive and had diminished self-esteem due to
hair loss. Tr. at 183. Valoy continued to complain of sleep and appetite
problems on April 13, 1999, and Perez noted depression on April 27, 1999.
Tr. at 184.
In May 1999, Perez found Valoy to be "very nervous and apprehensive."
Tr. at 185. While Valoy seemed better in the beginning of June, by the
end of the month, she reported feeling "overwhelmed and depressed." Tr.
at 186. For the remainder of June and July, Valoy reported depression,
cessation of energy, and frequent crying. Tr. at 187. At this time, Perez
treated Valoy for an adjustment disorder with mixed emotions. Her
treatment consisted of continued psychotherapy with regular doses of
Serzone and Zyprexa, a medication utilized for the treatment of
schizophrenia. Throughout August 1999, while Valoy reported improvement,
she complained of persistent headaches, disturbed sleep, and memory
lapses. Tr. at 188-89.
In the winter of 2000, Perez noted that Valoy remained apprehensive and
in low spirits. In the spring, Valoy's condition was complicated by her
mother's illness and her son's suicidal thoughts. Tr. at 194-95.
Throughout the season, Valoy remained fearful, worried, nervous, and
apprehensive. Tr. at 196-97.
c. Hospitalizations for Physical Ailments
On October 13, 1998, Valoy visited the emergency room at New York
Presbyterian Hospital because of prolonged weakness and abdominal pain.
At the time, she was already taking Rocephin, a medication utilized for
the treatment of infection. The hospital physician proscribed Antivert, a
medication utilized to treat nausea, vomiting, dizziness, and vertigo. Pl.
Mem. at 4. In December of the same year, Valoy visited the emergency room
at Harlem Hospital with headaches arid chest pains. She returned to the
hospital the next day because of abdominal pain, dizziness, and weakness.
Tr. at 97-98, 104, 213. In June, she again reported to Harlem Hospital
with stomach pain and was proscribed Pepcid, a medication used for
heartburn. Tr. at 109; Pl. Mem. at 4. That same summer, she was diagnosed
as post-menopausal. In November 1999, her stomach pain was found to be
caused by uterine fibroids. Tr. at 114-15.
3. Evidence From Consulting and Non-Consulting Physicians and
a. Richard King, M.D.
Dr. King ("King"), who was consulted in May 1999, noted that Valoy had
been psychiatrically hospitalized for several days in 1996 and again in
1998 due to anxiety attacks. King, after examining Valoy, noted euthymic
mood, without severe depression or anxiety, and with well-modulated
affect and no abnormal thought processes. Tr. at 129. King reported that
Valoy had a "satisfactory" ability to comprehend and follow instructions
and to function appropriately with supervision and the pressures of a
work environment. He diagnosed her with a mild to moderate generalized
anxiety disorder and found that she "might benefit" from psychiatric
treatment. Tr. at 130.
b. Antonio DeLeon, M.D.
Valoy was also examined by consultative internist Antonio DeLeon, M.D.
("DeLeon") in May 1999. DeLeon noted hyperpigmentation of both of Valoy's
hands, slight difficulty squatting, and 4/5 grip strength. Tr. at 125-26.
He also noted that Valoy was anxious and cried.
Tr. at 126. DeLeon diagnosed Valoy as having a history of anxiety,
nervousness, depression, hypertension, exzema of the hands, and possibly
Raynaud's, a condition causing finger numbness. Tr. at 127; Pl. Mem. at
c. Non-Examining Consultants
Two non-examining physical consultants reviewed the medical evidence
and concluded that Valoy could lift twenty pounds occasionally, stand
arid walk for a total of six hours, and sit for six hours during a
workday. Dr. P. Mason ("Mason"), a non-examining medical consultant,
after reviewing the record, "opined that plaintiff could perform simple
work." Def. Mem. at 6, citing Tr. at 161-63. Another non-examining
psychiatric consultant determined that Valoy was "moderately limited for
understanding, remembering, and carrying out detailed instructions,
maintaining attention and concentration for extended periods, accepting
instructions and responding appropriately to criticism from supervisors."
Pl. Mem. at 6, citing Tr. at 1 39-40. The consultant also found that she
"often" suffered from problems with concentration, persistence, or pace.
Tr. at 150.
d. Dr. Jaseno
Dr. Jaseno ("Jaseno"), a medical expert, testified at the hearing that
Valoy suffered from a dysthymic disorder with anxiety not-otherwise
specified. Tr. at 47. He noted that her response to drug treatment had
been "good." Tr. at 47-48. He explained that her GAF score revealed a
high level of functioning, but cautioned reliance on the number because
"a lot of people don't know how to do a GAF, so they just write a number
and they don't have an idea  how to rate them." Tr. at 48. Jaseno
advised that Valoy did not `have a listing-level impairment, suffered
"moderate" limitations, and would be able to perform simple, low-stress
jobs. Tr. at 48.
e. Ms. Faas
Ms. Faas, a vocational expert, testified at the hearing that in lieu of
Valoy's history, her perform the following jobs: (1) small product
assembly (1,830 jobs locally and 324,000 nationally), (2) carder (5,300
jobs locally and 329,000 nationally), and (3) auto packer (1,500 jobs
locally and 90,000 nationally).
B. Procedural Posture
Valoy applied for SSI on March 30, 1999. On June 8, 1999, her
application was denied. Valoy's request for reconsideration was also
denied on August 9, 1999. Valoy then requested an administrative hearing
on August 31, 1999. She appeared pro se for her hearing before
Administrative Law Judge Kenneth G. Levin ("ALJ" or "Levin") on November
7, 2000. On November 15, 2000, the ALJ found that Valoy was not disabled
within the meaning of the Act and therefore denied her SSI benefits.
Valoy requested a review of the ALJ's decision on December 18, 2000. The
Appeals Council denied her request on July 19, 2002.*fn2 Valoy now
requests that this Court remand the case back to the Commissioner for
further proceedings and the Commissioner cross-moves for an affirmance
of the ALJ's decision.
A. Standard of Review
A district court may reverse the Commissioner's denial of benefits only
if the denial "is based upon legal error or is not supported by
substantial evidence." Luna de Medina v. Apfel, 99 Civ.
4149, 2000 WL 964937, at *3 (S.D.N.Y. July 12, 2000) quoting Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "[T]he findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." 42 U.S.C. § 405(g).
See also Richardson v. Perales, 402 U.S. 389, 401 (1971);
Donate v. Sec'y of Health and Human Servs., 721 F.2d 414, 418
419 (2d Cir. 1983). A fact is supported by substantial evidence
when the supporting evidence is such that "a reasonable mind might accept
[it] as adequate to support a conclusion." Quinones v. Chater,
117 F.3d 29, 33 (2d Cir. 1997) citing Richardson, 402 U.S. at
401. Inferences and conclusions made by the ALJ are afforded similar
weight when supported by substantial evidence. See Rodriguez v.
Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977). Therefore, this
Court's role is solely to determine whether the ALJ's decision is
supported by substantial evidence and based on the correct legal
standards. It is not a District Court's role to determine whether it
would have reached a different result if reviewing the case de
novo. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)
B. Heightened Burden With Pro Se
1. Notice of Right to Counsel
Plaintiff asserts that the Commissioner is required to provide
disability claimants with written notice of their right to retain
counsel, and then argues that Commissioner failed to comply with this
requirement. Notably, the Commissioner must:
notify each claimant in writing, together with the
notice to such claimant of an adverse
determination, of the options for obtaining
attorneys to represent individuals in presenting
their cases before the Commissioner of Social
Security. Such notification shall also advise the
claimant of the availability to qualifying
claimants of legal service organizations which
provide legal services free of charge.
42 U.S.C. § 406(c), 1383(d)(2)(b); see also
20 C.F.R. § 404.1706, 416.1506 (requiring the dissemination of information
explaining the existence of free legal services). In the instant case,
the Commissioner complied with the above provisions by sending Valoy
literature that discussed her right to counsel. This letter explained,
among other things, that:
You may choose to be represented by a lawyer or
other person. A representative can help you get
evidence, prepare for the hearing, and present
your case at the hearing. If you decide to have a
representative, you should find one immediately so
that he or she can start preparing your case.
* * * *
Some private lawyers charge a fee only if you
receive benefits. Some organizations may be able
to represent you free of charge. Your
representative may not charge or receive any fee
unless we approve it.
The letter even "enclosed [both] the leaflet "Social Security and
Your Right to Representation5 and a list of groups that can help you find
a representative." Tr. at 29-30 (2/3/00 Letter on Hearing Process).
Closer to the date of her hearing, Valoy received a Notice of Hearing,
which included this additional learning on the topic of representation:
If you want to have a representative, please get
one right away. You should show this notice to
anyone you may appoint. You or that person should
also call this office to give us his or her name,
address, and telephone number.
Id. at 25 (10/3/00 Notice of Hearing).
Despite this written notification, Valoy asserts that defendant's
notice was insufficient, and therefore that her waiver of her right to
counsel was not voluntary and knowing because (1) the above literature
was not in Spanish, and (2) the ALJ failed adequately to explain the
counsel on the record at the hearing. While I agree that it would
have been easier for Valoy to comprehend the materials had they been in
Spanish*fn3, and certainly valuable to the thousands of Spanish speaking
men and women that come in contact with the system, the Act fails to
require bilingual dissemination.
However, plaintiff's assertion that the ALJ failed to probe into Valoy's
understanding of her right to counsel and of the role that counsel could
play in the proceedings warrants discussion. At the outset of the
hearing, the ALJ began to elicit whether Valoy's waiver of counsel was
knowing and voluntary by stating the "preliminary things that we all say
all the time." These "preliminary things" included the following brief
ALJ: When you asked for this hearing, we sent you
[a] letter which told you that if you wanted to
bring a lawyer or a non-lawyer representative, you
could [do] so. Did you receive that?
ALJ: And I believe you don't have a
representative, is that correct?
VALOY: No, it's very difficult to get one.
ALJ: So I assume you will be representing yourself
While Valoy's answers suggest that she understood that she was
permitted to retain counsel and even that she may have attempted to do
so, her answers also reveal that her failure to do so was unlikely the
result of her lack of interest. Rather, it appears that Valoy either did
not comprehend the literature about how and where to retain free or
contingent representation, or else was not able, in the time allotted, to
secure representation from such sources. Therefore, in order to discharge
his duty, the ALJ should have inquired as to whether Valoy understood the
material and whether she desired additional time to secure
representation. See Losco v. Heckler, 604 F. Supp. 1014, 1020
(S.D.N.Y. 1985) ("Nor did the ALJ adequately ensure that plaintiff fully
and knowingly waived his right to counsel or appreciated the role that
legal representation would play at that stage of the proceedings.");
Alvarez v. Bowen, 704 F. Supp. 49, 52 (S.D.N.Y. 1989) ("A more
thorough inquiry by the ALJ could have revealed [plaintiff's] desire to
with counsel, and allowed the ALJ to inform [plaintiff] of the
possibility of adjourning the hearing until he obtained counsel.").
While I find the ALJ's behavior less than adequate, I may remand only
when the absence of counsel prejudiced the plaintiff. See Infante v.
Apfel 97 Civ. 7689, 2001 WL 536930, at *10 (S.D.N.Y. May 21, 2001).
Therefore, if the ALJ fully developed the record and based his final
determination on substantial evidence, any. deficiency in plaintiff's
waiver would be immaterial for purposes of remand. See Santiago v.
Apfel 98 Civ. 9042, 2000 WL 488467, at *5 (S.D.N.Y. April 25, 2000).
Let's then turn to the record.
2. Fully Developed Record
Even when a plaintiff validly waives the right to counsel, because
benefit proceedings are non-adversarial in nature, the ALJ must
affirmatively develop the record. See Tejada v. Apfel,
167 F.3d 770, 774 (2d Cir. 1999) (citations omitted). And, the ALJ has an even
greater responsibility to develop the record where claimants proceed
pro se. See e.g. Lopez v. Sec'y of Dept. of Health and
Human Servs., 728 F.2d 148, 149-150 (2d Cir. 1984). In such cases,
and particularly when the pro se plaintiff is also handicapped
by poor health and limited language skills, the ALJ must "make a
searching investigation of the record" (Cruz v. Sullivan,
912 F.2d 8, 10 (2d Cir. 1990) in order "to fill any clear gaps in the
administrative record" (Rosa v. Callahan, 168 F.3d 72, 79 (2d
Cir. 1999) (internal citations omitted)). In such cases, "the ALJ is
under a heightened duty Ho scrupulously and conscientiously probe into,
inquire of, and explore for all the relevant facts.'" Losco,
604 F. Supp. at 1020, citing Echevarria v. Sec'y of Health and Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982) (citations omitted). If the
clinical records are "inadequate," the ALJ has a duty to seek additional
information. Losco, 604 F. Supp. at 1020.
While the ALJ must supplement the record through his own initiatives
when the record is incomplete or inadequate, this burden does not attach
when the record is ample. It is undisputed that the ALJ at least partly
discharged this duty by subpoenaing Valoy's medical records from (1)
Harlem Hospital Center, "including Emergency Room and inpatient and (if
any) outpatient [records], November 1998 to present. . . . and ALL
PSYCHIATRIC RECORDS." Tr. at 94 (7/3/00 Harlem Hospital Center Subpoena);
(2) Upper Manhattan Mental Health Center, including "copies of ALL
treatment/therapy notes, test results, treatment plans/updates,
and ALL other mental health/psychiatric records of above claimant
whatsoever, September 1998 to
present." Id. at 174 (7/3/00 Upper Manhattan Mental Health
Center Subpoena); and (3) New York Presbyterian Hospital Center,
including "copies of all treatment notes, test results and other medical
records, INCLUDING FROM MAIN FACILITY AND AUDUBON A.C.N.C., November 1998
to present." (7/3/00 New York Presbyterian Hospital Center Subpoena).
Whether these subpoenas folly discharged the ALJ's duty is a subject of
dispute between the parties. Valoy contends both that the ALJ failed to
subpoena records from additional facilities at which Valoy had sought
care during the relevant time-period and also that the ALJ failed to
request opinion reports from Valoy's treating physicians as to Valoy's
fitness and capacity. I will address each of these contentions
The ALJ's responsibility to assist a claimant has particular import in
light of the well-established treating physician rule, which requires an
ALJ to grant significant weight to the opinions of the treating
physicians.*fn5 "The duty to develop a full record and to assist a
pro se plaintiff compels the ALJ . . . to obtain from a treating
source expert opinions as to the nature and severity of the claimed
disability" and to "make every reasonable effort to obtain pot merely
the medical records of the treating physician but also a report that
sets  forth the opinion of that treating physician as to the
existence, the nature, and the severity of the claimed disability . . ."
Jimenez v. Massanari, 00 Civ. 8957, 2001 U.S. Dist. LEXIS 11952,
at *36 (S.D.N.Y. Aug. 16, 2001). See also Connor v.
Barnhart, 02 Civ. 2156, 2003 U.S. Dist. LEXIS 14291, at * 17
(S.D.N.Y. Aug. 14, 2003) ("the ALJ must obtain the treating physician's
opinion regarding the claimant's alleged disability; `raw data' or even
complete medical records are insufficient by themselves to fulfill the
ALJ's duty."); Encarnacion v. Barnhart, 00 Civ. 6597, 2003 U.S.
Dist. LEXIS 3884, at * 11 (March 18, 2003) ("the ALJ did not have [the
treating physician's] opinion, but formed a medical judgment on the
basis of [the treating physician's] treatment notes alone. The ALJ's
interpretation of [the treating physician's] opinion evidences a[n] Q
determination."); Vaughn v. Apfel, 98 Civ. 0025, 1998 U.S.
Dist. LEXIS 19156, at *20 (S.D.N.Y. Dec. 10.1998) ("a remand is
appropriate since the ALJ did not specifically request [the treating
physician's] opinion as to the plaintiff's claimed disabilities.");
Mejias v. Apfel, 96 Civ. 9680, 1998 U.S. Dist. LEXIS 14886, at *6
(S.D.N.Y. Sept. 23, 1998) (ALJ should have instructed the claimant to
request additional detailed opinions from the treating physicians);
Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990) (remanding
because the ALJ "fail[ed] to advise [the plaintiff], a pro se claimant,
that he should obtain a more detailed statement from [his treating
physician]"). In the medical subpoenas, the ALJ failed to request that
the treating physicians submit reports on Valoy's asserted disability and
in particular, their perspective as to her fitness for employment. As a
result, the treating physicians did not include such information. Rather,
consultative physicians and medical experts, who had no prior history
with Valoy, reviewed the medical records and speculated as to what the
treating physicians would have concluded about Valoy's fitness (had they
been requested to present their opinions). However, the consultative
physicians' deductions may not replace the true opinions of the treating
Defendant argues that because the ALJ subpoenaed all available medical
records from most of Valoy's treating physicians, the record was
"complete", and therefore no further duty to supplement the record
attached. However, in light of the importance of the treating physician's
opinion about the claimant's functional capacity, as demonstrated by the
above cases, defendant's definition of "complete" is misguided.*fn7 The
ALJ could simply have added to the
language of the subpoena, a request that the physicians either
comment on the claimant's asserted disability and in particular her
functional capacity, or else demand that the physician complete an
attached questionnaire (functional or psychiatric capacity assessment),
similar or better yet, identical to the one completed by the consulting
As to plaintiff's second argument, that the ALJ failed to subpoena all
of Valoy's medical records, I find that because the missing records
involve physical ailments, which are less critical in this case, and are
from providers that were not brought to the ALJ's attention in a timely
fashion, their absence would not likely warrant a remand. However,
because remand is already warranted from the absence of the treating
physicians' opinions, if Valoy provides necessary information as to the
whereabouts of these additional facilities, the records should be
C. ALJ's Decision Was Supported By Substantial Evidence
A plaintiff seeking benefits must prove that he suffers from a
disability by showing that "his physical or mental impairment or
impairments are 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) (emphasis added). This inability to engage in
gainful work, not just the debilitating medical condition, must continue
for at least twelve months. See Barnhart v. Walton, 122 S.Ct. 1265,
1268 (2002). The Second Circuit has adopted a five-step test for assessing
First, the Secretary considers whether the
claimant is currently engaged in substantial
gainful activity. If he is not, the Secretary 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 Secretary will consider him
disabled without considering vocational factors
such as age, education, and work experience; the
Secretary presumes that a claimant who is
afflicted with a "listed" impairment is unable to
perform substaintial 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 Secretary then determines whether
there is other work which the claimant could
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The
claimant has the burden of proof at the first four steps, and assuming
success, the burden shifts to the Secretary at step five. See Brown
v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), quoting Perez v.
Chater, 77 F.3d 41, 45 (2d Cir. 1996).
As explained supra, the Commissioner's Regulations inform
courts to assign great strength to treating physicians' opinions, noting
in particular that:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most able
to provide a detailed, longitudinal picture of
your medical impairments) and may bring a unique
perspective to the medical evidence that cannot be
obtained from objective medical findings alone or
from reports of individual examinations, such as
consultative examinations or brief
20 C.F.R. § 416.927(d)(2); see also Shaw v. Chater,
221 F.3d 126
, 131-134 (2d Cir. 2000). While the ALJ logically explains
how he concluded at step five that Valoy was not disabled, since the ALJ
failed to elicit the opinions of any of Valoy's treating physicians as to
her functional capacity, it is impossible to determine whether the ALJ's
final determination was supported by substantial evidence. Therefore, I
remand the case for further proceedings consistent with this
For the foregoing reasons, plaintiff's motion for judgment on the
pleadings and to remand the case to the Commissioner for further
proceedings is granted, and defendant's cross-motion for judgment on the
pleadings, and to affirm the Commissioner's denial of benefits, is
denied. The matter is remanded to the Commission pursuant to sentence
four of 42 U.S.C. § 405(g), for a further hearing consistent with
this Opinion. Accordingly, the Clerk is instructed to close this motion
and remove this case from my docket.
IT IS SO ORDERED.