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
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
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
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.)
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
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
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
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
"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
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
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
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.
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."
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
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
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.
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
noted severe restriction in the range of motion of Plaintiff's
cervical spine and lumbosacral spine. (See id. at
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.
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
bilateral lower extremities." (Id. at 488.)
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
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
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
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);
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.
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.
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,
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
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
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
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
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).
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
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
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
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.
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
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.
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
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
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
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,
(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
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
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
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.
For the reasons stated above, Defendant's motion for judgment
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.