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JEFFERSON v. BARNHART

United States District Court, S.D. New York


March 30, 2004.

LINDA JEFFERSON, Plaintiff, -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Linda Jefferson brings this action pursuant to 42 U.S.C. § 405(g), to challenge a final determination of the Commissioner of Social Security ("the Commissioner") finding that Plaintiff was not entitled to Social Security disability benefits under the Social Security Act. Plaintiff has moved, and Defendant has cross-moved, for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, Plaintiff's motion is denied, Defendant's motion is granted in part and denied in part, and the case is remanded to the Commissioner for further proceedings consistent with this decision.*fn1

PROCEDURAL BACKGROUND

  On August 6, 1998 Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") under 42 U.S.C. § 423, alleging that she became disabled on March 17, 1998, due to Page 2 diabetes, stress, and the amputation of two toes on her right foot. (See Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl.'s Mem.") at 1; Mem. of Law in Supp. of Commissioner's Cross-Mot. for J. on the Pleadings ("Def.'s Mem.") at 2.) Her application was denied on December 23, 1998, and denied on reconsideration on May 7, 1999. (See R. at 58-61, 64-66.)*fn2 On May 26, 1999, Plaintiff suffered injuries to her back and neck from an automobile accident. (See id. at 35-36.)

  On November 4, 1999, a hearing was held before an Administrative Law Judge ("ALJ"), at which Plaintiff was represented by counsel. (See id. at 31-55.) The ALJ issued a decision denying benefits on November 8, 1999. (See id. at 10-27.) The ALJ found that (1) Plaintiff met the requirements for disability insured status on March 17, 1998, when the period began, and continued to meet them through December 2003; (2) she had not engaged in substantial gainful activity during the relevant period; (3) Plaintiff's back, neck, and right foot impairments and mental depressive disorder qualify as severe under the Social Security Act ("Act"); (4) although "severe" under the Act, Plaintiff's impairments do not meet the medical criteria contained in 20 C.F.R. Part 404, Appendix 1 to Subpart P; (5) Plaintiff is able to sit for up to seven hours on a sustained basis in a work environment, stand or walk for as long as three hours over the course of an eight-hour Page 3 work day, and to frequently lift and carry objects weighing up to fifteen pounds, but cannot engage in aerobic activities requiring rapid movement; and (6) Plaintiff is able to perform her past relevant work as an eligibility worker. (See id. at 23-24.) The ALJ concluded by finding that Plaintiff had not been under a disability as defined by the Act at any time from March 17, 1998, until the date of the decision, "because (despite her medical problems) [she] can still perform the type of work she used to do or is otherwise able to make an adjustment to work which exists in significant numbers in the national economy. . . ." (Id. at 14; see also id. at 23-24.) Accordingly, the ALJ denied Plaintiff's application for DIB.

  The ALJ's decision became the final decision of the Commissioner on October 29, 2001, when the Appeals Council denied Plaintiff's request for review. (See id. at 5-6.)

  FACTUAL BACKGROUND

 I. Plaintiff's Testimony

  Plaintiff was born on December 22, 1948. She earned a high school degree and completed two years of business school. (See R. at 252.) For twenty-nine years, Plaintiff worked as an Eligibility Specialist at the New York City Human Resources Administration. (See id. at 38, 41.) Her job was primarily clerical, involved "a lot of paperwork," and required Plaintiff to use a computer and a telephone. (Id. at 42.) Plaintiff was also required to travel Page 4 around the city to see clients. (See id. at 41.) A typical day at her job involved three hours of walking and five hours of sitting. (See id. at 86.) Plaintiff's job also required her to bend and reach constantly, and to frequently lift and carry boxes and supplies weighing as much as ten pounds. (See id.)

  Plaintiff, a diabetic since 1990, stopped working on March 17, 1998, which marks the beginning of the period for which she seeks DIB. (See id. at 38.) On March 18, 1998, she was admitted to Montefiore Medical Center with a fever and swelling in her right foot, and complaining of nausea and abdominal pain. (See id. at 171, 183, 228, 248.) She was diagnosed with an infection in her right foot, which required the amputation of her first and second toes. (See id. at 39, 247.) At the hearing, Plaintiff testified that, "the wound is still open somewhat. It closed some, but it still — it bleeds when I walk." (Id. at 39.) Plaintiff tended to her foot with ointment and bandages, and was under the care of a podiatrist. (See id. at 40.)

  On August 6, 1998, Plaintiff submitted a Disability Report, claiming that she could no longer work due to her "diabetes and stress." Plaintiff claimed that, "[m]y sugar is uncontrollable and it becomes high. I am unable to leave home." (Id. at 81.) Further, Plaintiff reported that she was "unable to move as quickly as [her] job require[d]." (Id.) Plaintiff also claimed that she could not work because, "I'm also becoming stressful and can't be Page 5 around crowds." (Id.) In the Disability Report, Plaintiff indicated that she cooked two to three times a week, and was able clean and shop with assistance. (See id. at 84.) Her recreational activities consisted of watching television and reading, and although she was able to use public transportation with a companion, her social visits were confined to her home. (See id.)

  At the hearing, Plaintiff testified that she experiences "a lot of stress," and was currently "going through family problems" as a result of her son's "nervous breakdown" and subsequent hospitalization. (Id. at 47.) Further, she had assumed the role of "payee" on her son's behalf, which "cause [d] [her] a lot of stress." (Id.) Plaintiff, however, has not received any treatment for her mental condition. (See id.) Plaintiff stated that she was uncomfortable talking about her mental condition with her primary care physician, and thus could not obtain a referral to see a psychiatrist. (See id.)

  In addition to Plaintiff's diabetes and stress-related ailments, on May 26, 1999, Plaintiff sustained injuries to her back and neck in an automobile accident. (See id. at 36.) This accident has caused her "back problems . . . and problems with [her] neck," and, as a result, Plaintiff cannot sit for long periods of time. (Id. at 36.) For every hour that she sits, Plaintiff testified that she must take ten minutes to stretch. (See id. at 37.) She also testified that she experiences Page 6 "tremendous pain at night," and has not "had a decent night's sleep since [the automobile accident] happened." (Id. at 36.) Although she was offered prescription pain killer[s], she refused to take them because she currently takes insulin, and does not "want to have too many different drugs in [her] system." (Id. at 36.) Plaintiff also experiences trouble walking, and requires the assistance of a cane to maintain her balance when the weather is cold. (See id. at 39.)

  Lastly, Plaintiff testified that she visits the park and her sister's house. (See id. at 48.) She uses the subway "once in a while," and drive's during the day, but not for more than twenty minutes at a time. (Id. at 43.) Plaintiff further testified that she can read with glasses, although her vision problems have made reading difficult. (See id. at 49.)

 II. Vocational Expert Testimony

  Edna Clark, a vocational expert, also testified at the hearing. (See id. at 44-47, 50-51, 52-54.) Clark testified that Plaintiff's past relevant work as an eligibility specialist, which appears in the Dictionary of Occupational Titles ("DOT") as an eligibility worker, is normally considered sedentary.*fn3 (See id. at Page 7 45.) She concluded that the keyboard skills, record-keeping, report-writing, and interpersonal or communication skills that Plaintiff utilized as an eligibility specialist were transferable to other sedentary jobs. (See id. at 50.) Based on Plaintiff's testimony about her age, education, and work experience, and assuming that Plaintiff could sit for no more than six hours total, stand for no more than two hours total, and could lift no more than ten pounds, Clark found that Plaintiff "could perform her past relevant work as it is typically performed in the national economy." (Id. at 50.) Clark further testified that, although Plaintiff's need to stretch every hour would prevent her from performing the duties of a regular typist, or a data entry worker, she has the capacity to perform the job of clerk typist because that job would allow here "latitude to get up and go and do something else." (See id. at 53.) In response, Plaintiff claimed that she does not have the skills to perform any job where typing is a major component. (See id. at 52.)

 III. Medical Evidence

  A. The Evidence between March 17, 1998 and May 26, 1999

  Plaintiff's medical records indicate that, when she entered Montefiore Medical Center on March 18, 1998, for treatment of the Page 8 infection in her right foot, she had not been compliant with her diabetes medication regimen for the previous eight months, and that she had not been monitoring her glucose levels with the glucomonitor, as she had been instructed. (See id. at 164.) On March 31, 1998, the first and second toes of Plaintiff's right foot were amputated. Plaintiff remained hospitalized until April 8, 1998, for treatment of her foot and diabetic ketoacidosis. (See id. at 164, 171, 222, 434.) Between July 1998 and August 1999, Plaintiff was monitored for these conditions by the New York Medical Group. (See id. at 207, 213, 277-82, 288-99, 361-64, 378-81, 402-07, 411-12, 414-23, 426.)

  On August 20, 1998, Dr. Gabriel Feinstein reported that Plaintiff's surgical site was fully healed, but he also referred Plaintiff to a vascular doctor to determine whether she needed to wear orthopedic shoes. (See R. at 207, 297, 421.) On August 24, 1998. Dr. Steven P. Rivers, a vascular surgeon, examined Plaintiff and determined that her amputation site was healed, but recommended that she use an "amputee block," some tissue, or cloth padding to fill the open space in her right shoe. (Id. at 413.) On April 5, 1999. when Dr. Rivers next saw Plaintiff, he noted "a small shallow ulceration at the base of the transected first toe." (Id. at 401.) Although he found that the area was "clean and granulating and free from surrounding infection," he recommended that Plaintiff seek more frequent podiatric care, and that she obtain orthotic Page 9 footwear. (Id.) He prescribed custom-molded shoes and indicated that he would "support any reimbursement for this preventative care." (Id.) On June 24, 1999, Dr. Rivers again found a "shallow opening on the plantar aspect of the amputation site." (Id. at 395.) When Plaintiff indicated that she would be unable to obtain insurance coverage for orthotic footwear until the following autumn, Dr. Rivers reiterated to Plaintiff the importance of such footwear, and again advised her of the need for more frequent podiatric care to shave off overgrown tissue and keep the area as dry as possible. (See id.)

  On November 20, 1998, Dr. Joseph A. Grossman performed a consultative physical examination of Plaintiff. (See id. at 252-55.) His functional assessment of Plaintiff was that she was "[i]mpaired for prolonged and rapid walking and climbing and for foot controls bilaterally." (Id. at 254.) However, he found "no impairment for bending, stooping, crouching, standing, sitting, lifting, hand controls, pushing, pulling, hearing, speech and travel." (Id.)

  Dr. Alain DeLachapelle, a psychiatrist, conducted a consultative examination of Plaintiff on November 20, 1998. (See id. at 250.) Plaintiff reported to Dr. DeLachapelle that she had been depressed ever since her operation, but she had not seen a psychiatrist and was not taking any psychiatric medication. (See id.) Dr. DeLachapelle opined that Plaintiff "has a satisfactory Page 10 ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (Id. at 251.)

  Dr. Khalil, a non-examining state agency medical consultant, reviewed Plaintiff's medical records, and on December 16, 1998, submitted both a Mental Residual Capacity Assessment and a Residual Physical Functional Capacity Assessment. (See id. at 256-67, 269-76.) With regard to Plaintiff's mental residual capacity, Dr. Khalil opined that, although Plaintiff suffered from a depressive disorder, it did not significantly limit her ability to perform work-related functions. (See id. at 259, 265-67.) Dr. Khalil further opined that Plaintiff's mental impairment slightly restricted her daily activities and caused slight difficulties in her social functioning, but seldom caused deficiencies in concentration, persistence, or pace that would result in a failure to complete tasks in a timely manner. (See id. at 263.) Moreover, the doctor determined that Plaintiff's mental impairment never caused episodes of deterioration or decompensation in work settings. (See id.) Based on these findings, Dr. Khalil concluded that Plaintiff's depressive disorder did not significantly limit her understanding and memory, ability to sustain concentration and persistence, ability to socially interact, or her ability to adapt. (See id. at 265-66.)

  In Dr. Khalil's opinion, Plaintiff could sit for about six Page 11 hours and stand or walk for at least two hours in an eight-hour workday. (See id. at 270.) He further opined that Plaintiff retained the ability to frequently lift and carry ten pounds, and had an unlimited ability to operate hand controls. (See id.) Although Dr. Khalil determined that Plaintiff's postural limitations prevented her from climbing, stooping, kneeling, crouching, or crawling, he did not find any manipulative, visual, communicative, or environmental limitations. (See id. at 271-73.)

  B. The Evidence After May 26, 1999

  On May 26, 1999, the day of Plaintiff's automobile accident, she was examined by Dr. Arguelles, a physician at Park Radiology, P.C., who observed that Plaintiff sustained injuries to her neck, lower back, and left shoulder. (See id. at 333-38.) Dr. Arguelles prescribed Plaintiff pain medication, physical therapy, a cervical collar and pillow, a lumbar cushion, and a thermophore, and also referred Plaintiff for magnetic resonance imaging ("MRI") on her cervical and lumbar spine and her left shoulder, a neurological exam, and a psychiatric evaluation. (See id. at 338.)

  Subsequently, Dr. Intazam Khan, a neurologist at New Bronx Medical, P.C., examined Plaintiff on three occasions and submitted three medical reports dated, June 3, 1999, July 16, 1999, and October 7, 1999. (See id.) In his initial evaluation of Plaintiff, eight days after her accident, Dr. Khan noted that Plaintiff walked with an antalgic gate and had a depressed mood. (See id. at 342-43.) Page 12 He reported that she had tenderness, muscle spasms, and restricted motion in her cervical and lumbar spine. (See id.) He recommended physical therapy and chiropractic treatment, as well as pain medication, and referred Plaintiff to Park Radiology for an MRI of her spine. (See id. at 333, 338-40, 344.) The MRI of Plaintiff's cervical spine revealed that she had muscular spasms, and bulging disks at C4-C5 and C5-C6, and the MRI of her lumbar spine showed a herniated disk at L4-L5, and a straightening of the lumbar curve resulting from muscular spasm. (See id. at 332-33.)

  Dr. Khan again examined Plaintiff on July 16, 1999, at which time he noted that she was "totally disabled." (Id. at 350.) On October 7, 1999, however, Dr. Khan made no indication as to whether he considered Plaintiff disabled. (See id. at 354.)

  On September 17, 1999, Plaintiff was evaluated by Dr. Mihir Bhatt, a physiatrist. (See id. at 476-80.) Plaintiff complained of pain in her head, neck, and back. (See id. at 476.) Dr. Bhatt noted that Plaintiff's neck pain radiated to both shoulders and right arm, and was associated with constant numbness, paraesthesia, and a tingling sensation in the right arm and fingers, particularly in the thumb and index finger. (See id.) Similarly, Dr. Bhatt noted that the pain in Plaintiff's back radiated to both buttocks and right leg and was associated with constant numbness, paraesthesia, and a tingling sensation in her right leg, particularly in her right calf and foot. (See id.) Dr. Bhatt also Page 13 noted severe restriction in the range of motion of Plaintiff's cervical spine and lumbosacral spine. (See id. at 477.)

  Dr. Bhatt's diagnostic impression was that Plaintiff had (1) vertebral derangement; (2) acute traumatic strain/sprain of the cervical and lumbosacral paraspinal muscles and ligaments; (3) myofascitis; (4) R/O cervical and lumbosacral radiculopathy; (5) cervical radiculor syndrome; (6) lumbosacral radicular syndronme; (7) cephalgia vertebrogen; and (8) cervical and lumbar muscles post-traumatic sprain syndrome. (See id. at 479.) Dr. Bhatt recommended oral analgesics, muscle relaxants, physical therapy, and therapeutic equipment for use at home to relieve Plaintiff's pain and muscle spasms. (See id.) His prognosis for Plaintiff was guarded. Dr. Bhatt opined that Plaintiff's cervical and lumbosacral spine limitations would interfere with her ability to work and her activities of daily living. (See id. at 480.)

  On October 10, 1999, Plaintiff underwent a nerve conduction study and electromyograph. (See id. at 481-85.) According to Dr. Bhatt, the tests suggested "right nerve root dysfunction at the level of C6-C7," and "[p]rolonged right Ulnar F-Wave latency." (Id. at 483.)

  Plaintiff was again examined by Dr. Bhatt on November 1, 1999. (See id. at 486-90.) He found that the electrodiagnostic results for Plaintiff were "consistent with right L5-S1 lumbosacral radiculopathy" and "reveal evidence of peripheral neuropathy of Page 14 bilateral lower extremities." (Id. at 488.)

  DISCUSSION

 I. Applicable Legal Principles

  For purposes of Social Security Disability ("SSD") benefit eligibility, a person is deemed disabled when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A). An individual's physical impairment is not disabling unless it is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." Id. § 423(d)(2)(A).

  The applicable regulations promulgated by the Social Security Administration ("SSA") set forth a sequential five-step process for evaluating disability claims. See 20 C.F.R. § 404.1520. The Second Circuit has explained the sequential evaluation process as follows:

  First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities." . . . If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's Page 15 impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work. Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work."

 Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (citing 20 C.F.R. § 404.1520, 416.920) (footnote omitted); see also Barnhart v. Thomas, ___ U.S. ___, 124 S.Ct. 376, 379 (2003); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); DeChirico. v. Callahan, 134 F.3d 1177, 1179 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The claimant has the burden of proof as to the first four steps. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998); Perez, 77 F.3d at 46; Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The burden of proving the fifth step — that the claimant is able to perform alternative substantial gainful activity — falls on the Commissioner. See Balsamo, 142 F.3d at 80 ("if the claimant shows that his impairment renders him unable to perform his past work, the burden then shifts to the [Commissioner] to show there is other gainful work in the national economy which the claimant could perform.") (quoting Carroll, 705 F.2d at 642); Curry, 209 F.3d at 122; Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983). To meet that burden, the Commissioner may procure the testimony of a vocational expert. See 20 C.F.R. § 404.1566 (e); see Page 16 also Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989); Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983).

  In assessing a claim of disability, the Commissioner must consider objective and subjective factors, including: (1) objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or other witnesses; and (4) the claimant's education, age, and work experience. See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir. 1984); Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983).

  The Court may set aside a determination by the Commissioner only if the decision is based on legal error or is not supported by substantial evidence. See 42 U.S.C. § 405(g); Rosa. 168 F.3d at 77; Balsamo, 142 F.3d at 79. "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Schaal, 134 F.3d at 501 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971))(internal quotation marks and citation omitted). To determine whether substantial evidence supports a finding of the Commissioner, the Court must view the supporting evidence in light of the administrative record as a whole, including any contradictory evidence and evidence from which conflicting inferences may be drawn. See Tejada, 167 F.3d at 774; Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997); Williams v. Page 17 Bowen, 859 F.2d 255, 258 (2d Cir. 1988); Molina v. Barnhart, No. 00 Civ. 9522 (DC), 2002 WL 377529, at *5 (S.D.N.Y. Mar. 11, 2002). Review of the Commissioner's factual findings is not de novo, but is instead limited to an assessment of the Commissioner's treatment of the administrative record as a whole. See Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Judicial review of the Commissioner's legal conclusions and application of legal principles is de novo. See Rivera, 923 F.2d at 967. However, the Court may reverse the Commissioner's finding and award Plaintiff benefits "only if . . . `application of the correct legal standard could lead to only one conclusion.'" Luna de Medina v. Apfel, No. 99 Civ. 4149 (SHS), 2000 WL 964937, at *3 (S.D.N.Y. July 12, 2000)(quoting Schaal, 134 F.3d at 504).

 II. The ALJ's Decision

  After considering the evidence of record, the ALJ issued a decision on November 8, 1999, finding that Plaintiff "has not been disabled at any time since March 17, 1998 because (despite her medical problems) the claimant can still perform the type of work she used to do or is otherwise able to make an adjustment to work which exists in significant numbers in the national economy in accordance with SSA Regulations." (R. at 14.)

  In step one of the five-step analysis, the ALJ found that Plaintiff had not engaged in any work activity from March 17, 1998 through the date of the decision. (See id.)

  In step two of the sequential analysis, the ALJ found that, Page 18 since Plaintiff's back, neck, and right foot impairments "would tend to impose more than a minimal or slight limitation on the claimant's ability to perform basic work related activities," they were "severe" under the Act. (Id. at 16.) Although he did not consider Plaintiff's depressive disorder "severe" in isolation, he found that, in combination with her other impairments, "it should be regarded as "severe." (Id.) However, with respect to Plaintiff's alleged vision impairment, the ALJ determined that, since the record contained no specific medical diagnosis, nor functional limitation caused by her vision, and since her neurologist determined that she had normal visual acuity and could read, and because Plaintiff herself testified that she could drive an automobile and read with glasses, the "alleged vision impairment cannot be viewed as `severe' under the Act." (Id.)

  In the third step of the sequential analysis, the ALJ determined that none of Plaintiff's impairments met the requirements listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings"), and held that Plaintiff is not entitled to a presumption of disability. Accordingly, the ALJ proceeded to the fourth step of the sequential analysis process, assessing Plaintiff's residual functional capacity to determine whether she can perform her past relevant work, or any other work that exists in significant numbers in the national or regional economies.

  After considering Plaintiff's "demeanor while testifying and her subjective complaints of pain and other symptoms . . .[the Page 19 ALJ] [] concluded that [Plaintiff's] descriptions of a disabling condition are out of proportion to the impairments established by the medical findings in the record and are not fully supported by the objective clinical findings contained in the record." (Id. at 19.)

  The ALJ determined that the opinion of Plaintiff's treating physician, Dr. Khan, that Plaintiff was "disabled," was not entitled to controlling weight. (See id. at 18-19.) After taking notice of Dr. Khan's clinical findings of Plaintiff's reduced range of motion in her cervical spine, lumbosacral spine, and straight leg raise, the ALJ noted improvement in Plaintiff's condition since her automobile accident. (See id. at 18.) He further noted that "while the treating physician's medical opinion with respect to the nature and severity of the claimant's impairments . . . is often given great weight, a non-medical opinion by a treating physician that a claimant is `disabled' or `unable to work' is not binding on the Commissioner." (Id. at 18-19)(emphasis in original).

  Based on review of the entire record, the ALJ concluded that Plaintiff is physically "able on a sustained basis in a work environment to sit for a total of up to and including 7 hours and stand/walk a total of up to and including 3 hours during the course of an 8-hour workday; and has the ability frequently and occasionally to lift and carry objects weighing up to and including 15 pounds," but she cannot perform aerobic activities that require Page 20 rapid movements.*fn4 (Id.)

  With regard to her alleged mental impairment, the ALJ found no evidence that Plaintiff is "incapable of functioning independently outside the area of her home." (Id. at 22.) "In addition." noted the ALJ, "there is no evidence of a medically documented history of one or more episodes of acute symptoms, signs and functional limitations," nor is there evidence that Plaintiff has required psychological treatment or medication. (Id.)

  The ALJ concluded that Plaintiff possesses the "residual functional capacity for more than the full range of sedentary exertion level work" (id. at 19), and "is mentally capable of performing substantially all jobs." (Id. at 22) (emphasis in original). Accordingly, at the fourth step of the sequential evaluation, the ALJ held that Plaintiff "is able to perform her past relevant work as it is generally performed in the national economy," and is therefore not disabled under the Act, and not entitled to receive DIB. (Id. at 23) (emphasis omitted). Page 21 Alternatively, the ALJ noted that even if Plaintiff "were unable to perform her past relevant work, I would still find her capable of doing other work." (Id.)

  Having determined at the fourth step of the sequential analysis that Plaintiff was capable of performing her past relevant work/ and is therefore considered "not disabled," the ALJ did not reach the fifth step of the five-step analysis.

 III. Review of the ALJ's Decision

  Plaintiff claims that the ALJ's decision "is not based upon a full and fair evaluation of the entire record, and not supported by substantial evidence," and should therefore be reversed. (Pl's Mem. at 5.) Conversely, Defendant argues that "[s]ubstantial evidence supports the Commissioner's decision." (Def.'s Mem. at 11.)

  A. The Period Between March 17, 1998 and May 26, 1996

  The ALJ determined that Plaintiff possessed the residual functional capacity to perform her past relevant work at a sedentary level, as it is performed in the national economy, and was therefore, not disabled and not entitled to DIB. (See R. at 13-24.) With regard to Plaintiff's impairments before she sustained injuries to her back and neck on May 26, 1999, there is substantial evidence to support the ALJ's decision.

  The ALJ concluded that during an eight-hour workday, Plaintiff can sit for up to seven hours, and stand and walk for up to three hours. (See id. at 19.) The ALJ also found that Plaintiff can Page 22 occasionally lift and carry objects weighing up to fifteen pounds, but that she is unable to engage in aerobic activities requiring rapid movements. (See id.) Thus, the ALJ concluded that Plaintiff can perform her past relevant work (see id. at 23), which, according to the vocational expert, is classified as sedentary as it is generally performed in the national economy. (See id. at 50.)

  "[S]edentary work is the least rigorous of the five categories of work recognized by SSA regulations. . . .[B]y its very nature `sedentary' work requires a person to sit for long periods of time even though standing and walking are occasionally required." Curry, 209 F.3d at 123 (internal citations and quotation marks omitted). "Sedentary work . . . generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." Perez, 77 F.3d at 46.

  There is no evidence that Plaintiff's diabetes, foot impairment, visual impairment, or mental impairment prevented her from being able to perform sedentary work. Specifically, there is no medical evidence to indicate that her impairments had any impact on her ability to sit, or lift and carry objects weighing up to ten pounds. Although Plaintiff testified that her reoccurring foot ulcers at her amputation site prohibited her from walking long distances, and required her to use a cane in cold weather (see id. at 39), sedentary work generally does not require walking long distances. See Perez, 77 F.3d at 46. Moreover, Plaintiff's Page 23 treating physicians for her foot impairment, Drs. Feinstein and Rivers, did not indicate that Plaintiff should refrain from standing or walking. (See id. at 207, 297, 401, 423.) In fact, in August 1998, both doctors reported that Plaintiff's amputation site was nearly healed. (See id. at 207, 413.) Dr. Rivers, a vascular surgeon, advised Plaintiff to "simply wear open toed shoes during warm weather or deep box sneakers . . . to avoid developing ulcers on [her] hammer toes." (Id. at 413.)*fn5

  The opinions of both the examining and non-examining consultative physicians support the ALJ's finding that Plaintiff retained the functional capacity to perform sedentary work for the Page 24 period prior to her automobile accident. Dr. Grossman performed a consultative physical examination on Plaintiff and opined that she was "[i] paired for prolonged and rapid walking and climbing and for foot controls bilaterally." (Id. at 254.) However, consistent with the ALJ's findings, he concluded that Plaintiff's "bending, stooping, crouching, standing, sitting, lifting, hand controls, pushing, pulling, hearing, speech and travel" abilities were unimpaired. (Id.)

  The opinion of Dr. Khalil, a state agency medical consultant, further supports the ALJ's finding that Plaintiff could perform her past relevant work. (See id. at 269-76.) Dr. Khalil opined that Plaintiff could sit for up to six hours and stand or walk for at least two hours during an eight-hour workday. (See id. at 270.) Further, he determined that Plaintiff could frequently and occasionally lift and carry up to ten pounds, and push or pull the same weight. (See id.)

  There is substantial evidence to support the ALJ's finding that Plaintiff "is mentally capable of performing substantially all jobs." Plaintiff testified that she had never seen a psychiatrist because she did not feel comfortable talking with her family doctor about her mental health in order to obtain a referral. (See id. at 47.) Consequently, the first time that she was examined by a psychiatrist was on November 20, 1998, when Dr. DeLachapelle conducted a consultative examination. (See id. at 250-51.) Although Dr. DeLachapelle diagnosed Plaintiff with "[d]epression Page 25 due to diabetes," he opined that she retained "a satisfactory ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressure in a work setting." (Id. at 250.)

  After reviewing Plaintiff's psychological records, Dr. Khalil completed a Mental Residual Functional Capacity Assessment. (Id. at 265-67.) Dr. Khalil concurred that Plaintiff suffered from a depressive disorder, but found that she retained the ability to perform work-related functions. Specifically, he concluded that her depressive disorder did not significantly limit her understanding and memory, her ability to sustain concentration and persistence, her ability to socially interact, or her ability to adapt. (See id. at 265-66.) The record contains no evidence to the contrary.

  The ALJ concluded that Plaintiff's vision impairment was not considered "severe" under the Act. In order to be considered "severe," an impairment must "significantly limit[] your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). The ALJ declined to find Plaintiff's vision impairment "severe" because of the absence of "a specific diagnosis of a medical impairment;" Dr. Khan's determination that she had normal visual acuity and could read; and Plaintiff's failure to "set forth any particular functional limitations" caused by her vision, and her testimony that she was able to drive an automobile Page 26 during the day, and read with glasses.*fn6 (Id. at 16.) Based on this evidence, there is no reason to conclude that Plaintiff's vision significantly limited her ability to perform basic work activities. Accordingly, the ALJ's finding that Plaintiff's vision impairment is not "severe" is supported by substantial evidence.

  Accordingly, for the period from March 17, 1998 to May 26, 1999, there is substantial evidence to support the ALJ's determination that Plaintiff was not disabled.

  B. The Period Subsequent to May 26, 1999

  As a result of her automobile accident on May 26, 1999, Plaintiff suffered injuries to her back and neck that the ALJ determined were "severe" impairments under the Act. (R. at 16.) Despite these impairments, the ALJ found that Plaintiff retained the functional capacity to perform her past relevant work as it is typically performed in the national economy, which is at the sedentary level. As discussed, "[s]edentary work . . . generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." Perez, 77 F.3d at 46.

  There is no medical evidence in the record to support the ALJ's finding that, considering her back and neck impairments, Plaintiff retained the functional capacity for sedentary work. The consultative opinions of Drs. Khalil, Grossman, and DeLachapelle were all provided prior to May 26, 1999, when Plaintiff's back and Page 27 neck were injured in an automobile accident. (See R. at 250-76.) The only medical evidence in the record with regard to these injuries comes from Plaintiff's treating physicians, Drs. Khan and Bhatt. (See id. at 341-54, 476-90.)

  The opinions of Plaintiff's treating physicians are entitled to "controlling weight" if they are well supported by medical findings and not inconsistent with other substantial record evidence. See 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2); Halloran v. Barnhart, ___ F.3d ___, No. 03-6094, 2004 WL 423191, at *2 (2d Cir. Mar. 9, 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Schisler v. Sullivan, 3 F.3d 563, 567-68 (2d Cir. 1993). The ALJ may discount the treating source's opinion, but must consider the following factors in doing so:

(i) the frequency of examination and the length, nature, and extent of the treatment relationship;
(ii) the evidence in support of the opinion, i.e., [t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight that opinion is given; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; if it is, it will be accorded greater weight; and (V) other relevant but unspecified factors.
Schisler, 3 F.3d at 567 (discussing 20 C.F.R. § 404.1527 (d)(2)(i), (ii) & (d)(3) — (6)) (alteration in original) (internal quotation marks omitted); see also Halloran, 2004 WL 423191, at *3; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal, 134 F.3d at 503; McLay v. Apfel, No. 99 Civ. 3505 (KMW), 2001 WL 197879, at *2 Page 28 (S.D.N.Y. Feb. 20, 2001). The regulations further require that ALJs "always give good reasons in [their] notice of determination or decision for the weight [they] give to [the] treating source's opinion." 20 C.F.R. § 404.1527(d)(2); see also 56 Fed. Reg. 36932-01 at 36951; Schisler, 3 F.3d at 570.

  Although neither Dr. Khan nor Dr. Bhatt expressed an opinion regarding Plaintiff's functional capacity in terms of the number of hours she could sit, stand, and walk in an eight-hour work day, on July 16, 1999, Dr. Khan opined that Plaintiff was "totally disabled" (id. at 350), and following a September 17, 1999, evaluation of Plaintiff, Dr. Bhatt opined that her back and neck impairments would "interfere with [Plaintiff's] working ability, and in her activity of daily living." (Id. at 480.) Rather than according controlling weight to these findings, the ALJ reasoned,

that while a treating physician's medical opinion with respect to the nature and severity of the claimant's impairments is often given great weight, a non-medical opinion by a treating physician that a claimant is `disabled' or `unable to work' is not binding on the Commissioner . . . and the [ALJ] must review the underlying medical findings and other objective evidence (if any) that support such a conclusion. Such statements are not medical opinions but are opinions on the application of the law, which is a task reserved to the Commissioner."
(Id. at 19)(emphasis in original)(internal citations omitted.)

  The ALJ properly declined to consider the treating physicians' opinions determinative of the ultimate issue of disability. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("[a] treating Page 29 physician's statement that the claimant is disabled cannot itself be determinative"); see also Jones v. Barnhart, No. 02 Civ. 0791 (SHS), 2003 WL 941722, at *10 (S.D.N.Y. Mar. 7, 2003) (" [s]pecial significance is not given to treating source opinions that a claimant is *disabled' or is unable to work as determinations of this kind are strictly reserved to the ALJ"); Murphy v. Barnhart, No. 00 Civ. 9621 (JSR)(FM), 2003 WL 470572, at *7 (S.D.N.Y. Jan. 21, 2003) ("[t]he ALJ is not required to give controlling weight to a treating physician's opinion as to the ultimate issue of whether the claimant meets the statutory definition of disability.")

  While the ALJ need not defer to the treating physician's non-medical opinion, he cannot Substitute his own judgment for competent medical opinion." Rosa, 168 F.3d at 79 (quoting McBrawer v. Sec'y of Health & Human Servs., 712 F.2d 795, 799 (2d Cir. 1983). Here, aside from the non-medical opinions of Drs. Khan and Bhatt, the record contains no evidence on which to base a conclusion concerning Plaintiff's residual functional capacity.

  "[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history." Rosa, 168 F.3d at 79. In this Circuit, "the ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." Tejada, 167 F.3d at 774 (internal citations and alterations omitted).

  The ALJ failed to adequately develop the record with respect Page 30 to Plaintiff's residual functional capacity subsequent to her automobile accident. The ALJ failed to solicit medical opinion from Plaintiff's treating physicians regarding how many hours she could stand, walk or sit in an eight-hour workday, or how much weight she could lift and carry. Nor did he seek to have Plaintiff reexamined by consultative physicians after her car accident. Moreover, with the exception of sitting, he never specifically asked Plaintiff about her ability to perform these functions.*fn7 And, as to her ability to sit, Plaintiff merely testified she would have to stand up for ten minutes after sitting for an hour. She was not questioned about her ability to sit for hours at a time as the day progressed.

  Because there was insufficient evidence to support the ALJ's determination that Plaintiff retained the residual functional capacity to perform her past relevant work subsequent to May 26, 1999, and the record can be more fully developed on this issue, the matter will be remanded for further development of the administrative record with regard to Plaintiff's impairments after May 26, 1999, and reconsideration of her claim for benefits.

  CONCLUSION

  For the reasons stated above, Defendant's motion for judgment Page 31 on the pleadings is granted for the period from March 17, 1998 to May 26, 1999, and is denied for the period subsequent to May 26, 1999. Plaintiff's motion for judgment on the pleadings, seeking the award of benefits, is also denied. The case will be remanded to the Commissioner for further development of the administrative record, consistent with this Report and Recommendation, pursuant to 42 U.S.C. § 405(g).

  The Clerk shall enter judgment accordingly and close this case.

  SO ORDERED.


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