United States District Court, E.D. New York
March 25, 2004.
PAUL CASERTO, Plaintiff, -against- JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Paul Caserto ("Caserto" 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 Federal Rules of Civil Procedure. ("Fed.R. Civ. P.").
A. Procedural History
On March 7, 2000, Caserto filed an application for social security
disability insurance benefits, alleging an inability to work since August
3, 1998. After his application was denied initially and on
reconsideration, he requested a hearing before an administrative law
judge. On May 16, 2001, 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 June 12, 2001, the ALJ found that Caserto failed to
sustain his burden of proving that he was prevented by his impairment
from performing past relevant light work as an automobile salesman or
service manager. Therefore, the ALJ concluded, Caserto was not disabled
within the meaning of the Act and was therefore not entitled to
disability insurance benefits. Subsequently, Teta filed a request for
review with the Appeals Council. On September 13, 2002, the Appeals
Council declined to review the claim, making the ALJ's decision the final
administrative determination. This appeal followed.
1. Caserto's Testimony at the Hearing
The plaintiff was born on June 1, 1961 and has a 10th
grade education. From approximately 1992 to February, 1997, the plaintiff
worked as an auto repair shop service
manager. Caserto's back pain began on January 11, 1996, when he
slipped and fell on a wet cement floor. He was seen by Charles J.
Mascioli, M.D. The plaintiff testified that as a result of this accident
he suffered from disc damage to his lower back and cervical spine which
caused muscle spasms, numbness and tingling in his hands, and constant
pain in his neck, back and left leg. The plaintiff also injured his right
shoulder and right wrist in that accident. As a result of the injuries
caused by the fall, the plaintiff could no longer work as an auto repair
shop service manager. In February, 1997, the plaintiff left that
In November, 1997, the plaintiff commenced work as an automobile
salesman. On February 8, 2000, the plaintiff completed a Disability
Report in which he indicated that this position required him to walk five
hours, stand five hours, sit five hours during the course of the workday,
bend, kneel, crouch and crawl. The plaintiff testified that was not able
to concentrate, had to lie down for four to five hours a day, had
constant tingling in his hands and constant pain in his neck, back, left
leg and right wrist. As a result, on or about August 3, 1998, the
plaintiff left this job.
On July 18, 1999, the plaintiff was struck by a car while filling his
motorcycle with gas at a gas station. The plaintiff indicated that from
the time the he left his employment as an automobile salesperson he rode
his motorcycle only about three to four times so that he could keep the
battery charged. The plaintiff testified that he was filling his
motorcycle with gas so that a prospective purchaser could test drive it
and that the gas station was a mile and
a half from his house.
The plaintiff testified that he received trigger point and Botox
injections, but did not have surgery. The plaintiff is separated from his
wife and has visited his children in Florida one time and occasionally
visits friends. The plaintiff indicated that he cared for his personal
needs and dressed himself, but stated that he had difficulty putting on
clothes because he could not bend or move. He paid bills, wrote checks
and did his own banking. He drove as tolerated, including to the hearing
and to physical therapy five times per week. The plaintiff testified that
he could walk one and one half blocks at a time, could sit for twenty
minutes at a time and lift ten to fifteen pounds. He has difficulty going
up and down stairs. He makes his bed and tries to do chores but does not
cook or grocery shop. The plaintiff's father assists him with these
tasks. The plaintiff also has difficulty climbing stairs. He also read,
listened to the radio and watched television.
2. The Treating Physicians
a. Dr. Shafi Wani
Shafi Wani, M.D. ("Dr. Wani"), a neurologist, treated the plaintiff on
a monthly basis from April 4, 1998 through April 19, 1999. On April 4,
1998, Dr. Wani reported that the plaintiff's condition was normal but
noted bilateral neck muscle stiffness and tenderness. On June 8, 1998,
Dr. Wani indicated that the plaintiff's condition had not changed and
that he was still experiencing stiffness and tenderness of the right
cervical shoulder and arm muscles.
In November, 1998 and in January and February 1999, Dr. Wani found
sensory deficits in the plaintiff's upper extremities. From August to
October 1998 and in April 1999, sensation was grossly intact.
During the time that Dr. Wani treated the plaintiff, lumbar flexion
ranged from 45 to 60 degrees out of ninety, and extension and lateral
flexion were generally possible to fifteen degrees out of forty-five. The
straight leg-raising test was generally negative when performed in a
seated position and was to sixty degrees out of ninety while supine.
Cervical extension and right rotation were forty-five degrees out of
ninety on one occasion and cervical extension and left rotation were once
full. On two occasions, lumbar flexion was thirty degrees out of
forty-five on the right. Lasegue's sign was either negative or could not
be evaluated. Dr. Wani also found cervical, lumbar and extremity
stiffness and tenderness. He continued to recommend exercises and massage
In a February, 1999 Workers Compensation report, Dr. Wani opined that
the plaintiff had a permanent, partial disability since January, 1996.
b. Dr. Charles E. Argoff
Charles E. Argoff, M.D. ("Dr. Argoff"), a pain management specialist,
treated the plaintiff from September 1998 to April 2001. On September 25,
1998, Dr. Argoff found paracervical trigger points and pain on
palpatation of the paralumbar, sacroiliac and sciatic regions. He noted
post-traumatic cervical and lumbar myofascial and radicular complaints
since 1996. Dr. Argoff found pain on palpatation of his paralumbar
region at L3-4 and L4-5 bilaterally, decreased motion in the cervical
spine and the back with paraspinal tenderness. Forward flexion of the
lumbar spine was possible to sixty degrees. The plaintiff was alert and
oriented and cranial nerve examination was unremarkable. Motor
examination revealed a normal gait and normal heel, toe and tandem
walking. Strength was full in the extremities with no abnormal sensation.
Deep tendon reflexes were normal and symmetrically active. Dr. Argoff
recommended a twelve week pain rehabilitation program, lumbar epidural
steroid injections and, possibly, myofascial trigger point injections.
On July 30, 1999, Dr. Argoff noted that motor examination was normal,
deep tendon reflexes were normally active, and strength was full. There
was significant muscle spasm and cervical, upper extremity and lumbar
myofascial trigger points. Dr. Argoff prescribed Zanaflex to reduce
muscle spasm and Vioxx, an anti-inflammatory medicine.
On August 13, 1999, Dr. Argoff noted that the plaintiff indicated that
his medications had provided little relief. On September 17, 1999, the
plaintiff was ready to participate in the comprehensive pain management
program consisting of physical therapy and behavior therapy and noted
that the plaintiff was not likely to have complete pain relief. On
September 29, 1999 the plaintiff's muscles were less tense and felt
On October 27, 1999 the plaintiff reported that he was benefitting from
the pain management behavioral sessions. He had extremely painful trigger
points in the suboccipital
and paracervical regions. Dr. Argoff gave the plaintiff muscular
injections and stated that the plaintiff could not return to work at that
time. Dr. Argoff prescribed a Liboderm patch.
On November 3, 1999, the plaintiff reported a solid week of pain relief
following his trigger point injections. On November 10, 1999, Dr. Argoff
reported that the plaintiff strained his lower back and neck and had
painful muscle spasms in the lower right thoracolumbar area and in the
right paracervical region. The plaintiff received trigger point
injections which helped relieve this pain.
On December 1, 1999, the plaintiff was doing well and was more
comfortable for almost ten days after the last injection. On December 15,
1999, Dr. Argoff found myofascial trigger points. On December 29, 1999,
the plaintiff was doing relatively well and was managing with his current
medications and benefiting from the injections.
On January 12, 2000, the plaintiff had active trigger points and severe
paracervical discomfort but the injections had helped the plaintiff
significantly. On January 28, 2000, February 4, 2000 and March 3, 2000
the plaintiff had muscle spasms, pain and trigger points.
On September 25, 2000, the plaintiff reported that his medication
regime made him more comfortable but complained of neck pain and had
active trigger points. On October 23, 2000 the plaintiff also complained
of range of motion limitations. On November 27,
2000, Dr. Argoff noted that his medications had helped the
plaintiff to function "much more comfortably."
On January 8, 2001, the plaintiff had noticeable tingling in his
fingers, negative Tinel's and Hoffman's signs and intact reflexes and
sensation. He had some weakness in his left triceps but not his wrists.
Dr. Argoff treated him with Botox injections. On February 12, 2001, as a
result of the Botox injections, the plaintiff reported slight movement
and was much more comfortable. His spasms, which increased in cold
weather had been reduced by medication. On March 12, 2001, Dr. Argoff
noted that Botox had produced an excellent response. On April 23, 2001,
Dr. Argoff found active trigger points but noted that the plaintiff had
very good pain control except for localized pain and spasm in the
c. Dr. Jonathan Dashiff
On July 28, 1999 the plaintiff was seen by Jonathan Dashiff, M.D. ("Dr.
Dashiff") after he was struck by a motor vehicle while fueling his
motorcycle ten days earlier. The plaintiff had tenderness, a laceration
and ecchymotic changes in his left leg. The plaintiff had pain while
performing straight leg raising to seventy degrees. Deep tendon reflexes
were symmetrical and intact. Plaintiff had mild paravertebral muscle
spasm, pain on palpation of the lumbar spine and on forward flexion and
rotation of the cervical spine. Cervical extension was full but the
plaintiff had pain on forward flexion and left rotation of the cervical
spine. X-rays of the lumbrosacral spine, ribs and shoulders were
negative. Dr. Dashiff noted significant tenderness over the junction of
the middle and distal third of the left tibia/fibula and the presence of
a small foreign body. Dr. Dashiff noted that the plaintiff also had
pre-existing disc pathology which was complicating his condition. Dr.
Dashiff recommended physical therapy, anti-inflammatory medication and
Vicodin. Dr. Dashiff recommended that the plaintiff continue physical
On August 19, 1999, Dr. Dashiff noted that the plaintiff was only
minimally improved and that his neck and lower back continued to be
"significantly symptomatic." Dr. Dashiff also noted that the MRI of the
cervical spine conducted post-accident significantly differed from the
previous MRI. In particular, Dr. Dashiff indicated that the new MRI
revealed bulging discs at C4-C5 and C5-C6 where the original MRI only
revealed a bulge at C6-C7.
On September 9, 1999, Dr. Dashiff reported that the patient's MRI
revealed "significant disc pathology" and that his improvement since that
MRI had been "negligible to say the least."
On September 13, 1999, Dr. Dashiff reported, among other things, that
the plaintiff's "pre-existing discal pathology" in both the cervical and
lumbosacral spine was complicating the plaintiff's condition.
d. Deer Park Medical Office Dr. Rodriguez and Dr.
On July 30, 1999, the plaintiff saw Fidel Rodriguez, M.D. ("Dr.
physical medicine and rehabilitation specialist. Dr. Rodriguez
found that his cervical range of motion was restricted and there was
tenderness and spasm over the trapezius. His strength was five out of
five, his sensation was intact and his upper extremity reflexes were
symmetrical. Dr. Rodriguez noted that the plaintiff's chest wall was
tender and he had an abrasion and tenderness in his left leg with full
range of ankle motion. Dr. Rodriguez opined that the plaintiff had rib
and ankle sprains and was status pose shin laceration and status post
traumatic vertebral derangement, with instability in the cervical
paraspinal muscles and ligaments and possible radiculopathy, as well as
prior cervical disc herniation. Physical therapy was recommended.
On September 1, 1999, the plaintiff had a restricted cervical range of
motion, cervical and trapezius tenderness, a full range of motion in his
elbow, a negative Tinel's sign and a swollen and tender left ankle. Dr.
Rodriguez diagnosed status post left ankle sprain and persistent cervical
pain symptoms and dysfunction, with disc herniation and bulges, and
possible cervical radiculpathies and ulnar neuropathy. He continued the
physical therapy program.
On October 7, 1999, Dr. Rodriguez reported that the plaintiff had
cervical and trapezius tenderness and a reduced rang of cervical spine
On December 2, 1999, Robin Bash, M.D. ("Dr. Bash") indicated that an
MRI showed a C 4-5 and C5-6 posterior disc bulge with C6-7 posterior
the plaintiff ambulated into the office in no acute distress. He
had mild to moderate cervical, rhomboid and trapezius tightness and
tenderness. Cervical rotation was decreased, but extension and flexion
were full. Upper extremity motor strength and grasp were normal except it
was five minus out of five strength in the triceps. Sensation was intact
and reflexes were 2-3 and symmetric. He could heel and toe walk without
difficulty and had five minus out of five strength of the ankle invertors
On January 2, 2000, the plaintiff had decreased cervical lateral
rotation, with moderate spasm, tenderness and upper extremity muscle
tightness. Left ankle strength was normal, except for five minus out of
five strength in the invertors. Dr. Bash recommended reduced physical
therapy, home exercise and a TENS unit. On January 10, 2000, Dr. Bash
opined that the July, 1999 accident caused a disc herniation at C6-7.
On February 17, 2000 the plaintiff's condition was unchanged. He had
cervical and trapezius tightness and lumbar tightness and tenderness.
Straight leg raising was negative on the right, but elicited pain on the
left. Dr. Bash recommended acupuncture and physical therapy.
3. The Consulting Physicians
a. Dr. S. Gowd
On May 26, 2000, New York State agency medical consultant, Dr. S. Gowd
("Dr. Gowd"), an internist, completed a "Physical Residual Functional
Capacity Assessment." Dr.
Gowd opined that the plaintiff could lift up to ten pounds
frequently and twenty pounds occasionally, stand and/or walk for about
six hours a day and sit for about six hours a day in an eight hour
workday. Dr. Gowd concluded that the plaintiff had an unlimited ability
to push and pull and could occasionally perform postural activities. He
had no manipulative limitations. The evidence that Dr. Gowd cited to
support this assessment, included findings of normal gait, intact
manipulative ability, absence of atrophy and muscle weakness and an
ability to heel and toe walk. Dr. Gowd also checked a box indicating that
there are no treating or examining source statements regarding the
claimants physical capacity on file. On June 28, 2000, a Dr. C.
Ladapoulos confirmed this assessment.
b. Dr. Rashed Ayyub
On May 2, 2000, At the request of the Social Security Administration,
Caserto was evaluated by Rashed Ayyub, M.D. ("Dr. Ayyub"), a specialist
in emergency medicine. Dr. Ayyub noted that the plaintiff had a normal
gait and station, could walk on his heels and toes and could get on and
off of the examining table. He had a lot of cervical spine spasm and
tenderness. He could flex his cervical spine to thirty degrees, extend to
ten degrees, laterally flex to fifteen degrees and rotate to twenty-five
degrees. He had pain and tingling in his upper extremities. His reflexes
were 2, with no weakness or atrophy. Caserto could touch his thumb to
his fingers, make a fist, manipulate objects, write, button, open a cap
and zip a zipper. Grip strength was five out of five. Tinel's sign was
negative. Daily activities included
watching television, reading newspaper, and taking short walks.
Dr. Ayyub noted herniated intervertebral discs in the cervical and
lumbosacral regions and found "a lot of" tenderness and muscle spasm in
the cervical and lumbosacral spines with diminished motion. Plaintiff
flexed and extended his lumbosacral spine to thirty-five degrees and
laterally flexed to ten degrees. He flexed his hips to forty-five
degrees, extended to ten degrees and rotated, abducted and adducted
without pain. Plaintiff's knees were moderately swollen and there were
clicks on flexion and extension, which were possible to 110 degrees.
Reflexes were 2 and there was no muscle atrophy. The plaintiff had
tingling in inner side of both extremities and no muscular weakening.
Dr. Ayyub's diagnostic impressions included post concussion syndrome,
herniated cervical and lumbosacral discs, brachial plexus neuralgia,
sciatica and ligamentous and cartilaginous knee injuries. Dr. Ayyub
concluded that the plaintiff was moderately impaired for sitting and
standing continuously for more than a few hours uninterrupted and for
walking more than a few blocks uninterrupted. He also was moderately
impaired in his ability to lift more than a few pounds.
b. Dr. Craig Rosenberg
On December 4, 2000, Mr. Caserto was examined by Craig H. Rosenberg,
M.D. ("Dr. Rosenberg"), a doctor of physical medicine and rehabilitation
at the plaintiff's request. Dr. Rosenberg diagnosed chronic pain syndrome
with myofascial pain and MRI findings
consistent with herniated discs in the cervical and lumbar regions.
The plaintiff could dress and move on the examining table independently.
There was no spinal scoliosis or kyphosis and no signs of atrophy. He
noted positive findings, including flattening of the normal lumbar
lordotic curvature, moderately protracted shoulders, observable shaking
of both hands occurring intermittently, limited trunk motion and muscle
spasms in the bilateral rhomboid muscles. Sensation was intact, the
straight leg raising test was negative while seated and performed to
seventy degrees while supine. Patrick-Fabere's test showed tightness of
the hips. There was mildly reduced inter-segmental mobility of the lumbar
spine and evidence of rhomboid muscle spasm. Plaintiff had mild
limitations in his cervical spine range of motion and a full range of
extremity and shoulder motion. Trunk flexion was possible to forty
degrees, extension to twenty degrees and bending to thirty degrees.
Dr. Rosenberg indicated that the plaintiff could stand for three hours,
for thirty minutes at a time, sit for three hours, for twenty to thirty
minutes at a time and lift ten pounds occasionally. He also needed to lie
down during the day. He could not do postural activities and his
impairments affected his ability to reach, handle, push, feel and
concentrate. Dr. Rosenberg indicated that the objective findings conform
to and substantiate subjective complaints. Dr. Rosenberg indicated that
prognosis for recovery is poor considering the length of time the
plaintiff has been disabled.
4. The Diagnostic Tests
An MRI performed on April 11, 1996 demonstrated central herniation at
L4-5 and L5-S1, and an annular tear at L4-5.
An MRI scan performed on February 1, 1998, predating the alleged onset
date in this case, showed a minimal bulging disc at C6-7. An MRI scan of
the cervical spine on August 10, 1999 demonstrated cervical kyphosis with
reflex muscle spasm, a herniated disc at C6-7 and bulging discs at C4-5
Electro-diagnostic studies in May 1998 were negative. However, an EMG
was performed on September 7, 1999 and demonstrated findings consistent
with bilateral C6-7 radiculopathies, on the left greater than right.
B. The ALJ's Decision
The ALJ made the following findings in his decision denying the
plaintiff's request for SSI benefits.
First, he found that the plaintiff met the special earnings
requirements of Title II of the Social Security Act on August 3, 1998 and
has continued to meet them through December, 2003. Second, the ALJ
determined that the plaintiff had not engaged in substantial gainful
activity since August 3, 1998. Third, he found that the plaintiff had the
following severe impairments: chronic cervical and lumbosacral spine
strains/sprains and noted that these medical findings do not meet or
equal in severity the clinical criteria of any impairment listed in
Appendix I, Subpart P, Part 404 of the Regulations. Fourth, he concluded
plaintiff's testimony concerning his conditions and limitations was
not supported by objective clinical examination findings and "was
inconsistent with his description of a broad range daily activities which
included driving a car, going to the barber, bathing and dressing
himself, making his bed, going to the bank and ATM and riding a
motorcycle after his alleged onset date. . . . " Fifth, the ALJ concluded
that the claimant, despite his impairment(s) remains capable, in an eight
hour workday of sitting six hours, standing/walking about six hours and
of lifting/carrying up to twenty pounds occasionally and ten pounds
Finally, the ALJ concluded that the plaintiff had failed to sustain his
burden of proving that he is prevented by his impairments from performing
past relevant light work as an automobile salesman or service manager.
Accordingly, the ALJ concluded that the plaintiff was not disabled under
Title II 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
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 given 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. Dashiff and Dr. Argoff as the plaintiff's
treating physicians. In addition to failing to acknowledge Dr. Wani and
Drs. Rodriguez and Bash
from Deer Park Medical Office, who were also treating physicians,
the ALJ failed to state what weight he accorded to the opinion of Dr.
Dashiff, and Dr. Argoff. 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).
On several occasions, Dr. Dashiff indicated that the plaintiff has
discal pathology and bulging dics. Dr. Dashiff also noted that the July
18, 1999 accident aggravated his previous condition. In his analysis of
Dr. Dashiff's treatment, ALJ merely "question[ed] how the claimant, with
all his previous complaints of injuries, was able to drive his
motor[cycle] after his alleged onset date." However, during his
testimony, the plaintiff indicated that he no longer rode his motorcycle
and was preparing the motorcycle to be sold when he was hit by a car.
With respect to Dr. Argoff, who examined the patient more than fifteen
times from September, 1998 to April, 2001, the ALJ failed to address Dr.
Argoff's diagnoses that the plaintiff had post-traumatic cervical and
lumbar myofascial as well as radicular complaints, significant muscle
spasm and myofascial trigger points present throughout his back muscles.
Moreover, the ALJ failed to acknowledge Dr. Argoff's October 27, 1999
conclusion that the plaintiff was not able to return to work at that
time. See Clark, 143 F.3d at 118. The ALJ also failed to
indicate the weight given to Dr. Argoff's opinion. (When the Commissioner
chooses not to give the treating physician's opinion controlling weight,
"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)).
Accordingly, the ALJ's failure to credit the 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 a time).
Moreover, Dr. Rosenberg's conclusion that the plaintiff could stand for
three hours, for thirty minutes at a time, sit for three hours, for
twenty to thirty minutes at a time and lift ten pounds occasionally is in
direct conflict with Dr. Gowd's conclusion that the plaintiff could lift
up to ten pounds frequently and twenty pounds occasionally, stand and/or
walk for about six hours a day and sit for about six hours a day in an
eight hour workday. The ALJ failed to
reconcile this discrepancy and failed to specify why the conclusion
of Dr. Gowd was entitled to more weight than that of Dr. Rosenberg.
Furthermore, the objective diagnostic tests performed on the plaintiff
revealed central herniation at L4-5 and L5-S1, an annular tear at L4-5,
cervical kyphosis with reflex muscle spasm, a herniated disc at C6-7,
bulging discs at C4-5 and C5-6, and bilateral C6-7 radiculopathies. These
tests coupled with the fact that Dr. Ayyub, a State Agency medical
consultant who examined the plaintiff, stated that the plaintiff has
"moderate impairment in sitting and standing continuously for more than a
few hours . . . [and] in lifting more than a few pounds . . . " support
the conclusion that Caserto did not retain the capacity to perform his
2. The ALJ's Assessment of the Subjective Complaints of
In the Court's view, the Commissioner failed to properly evaluate the
plaintiff's subjective complaints of pain. Here, the ALJ found that the
"[plaintiff's] testimony concerning his conditions and limitations was
not supported by objective clinical examination findings of an impairment
. . . and was inconsistent with his description of broad range of daily
activities which include driving a car, going to the barber, bathing and
dressing himself, making his bed, going to the bank and ATM and riding
his motorcycle." However, the plaintiff's testimony at the hearing
coupled with subjective complaints of pain made to his
treating physicians reveal that his daily activities were extremely
limited. Furthermore, the plaintiff testified that he rode his motorcycle
approximately three times since he stopped working in August, 1998 until
he was injured in July, 1999 for the limited purpose of maintaining the
bike so that it could be sold.
Here, the ALJ concluded that although the plaintiff is impaired by
chronic cervical and lumbosacral spine sprains/strains, the plaintiff
failed to sustain his burden of proving that he is prevented by his
impairments from performing his former light work as an automobile sales
manager. However, the ALJ failed to set forth his conclusions "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). In the Court's view, had
the ALJ more seriously considered the treating physicians' opinions in
more depth, he might have found that Caserto did not retain the capacity
to perform his former employment.
Based on the foregoing, it is hereby
ORDERED, that the Commissioner's cross-motion for judgment on
the pleadings is DENIED; and it is further
ORDERED, that Caserto'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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