United States District Court, S.D. New York
July 20, 2004.
KATHLEEN PIZZO, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: DENNY CHIN, District Judge
Plaintiff Kathleen Pizzo brings this action pursuant to
42 U.S.C. § 405(g), challenging the final determination of defendant
Commissioner of the Social Security Administration (the
"Commissioner") that plaintiff was not entitled to disability
insurance benefits under the Social Security Act (the "Act").
Plaintiff moves for judgment on the pleadings, pursuant to Fed.
R. Civ. P. 12(c). The Commissioner cross-moves for judgment on
the pleadings. For the reasons set forth below, the
Commissioner's determination is remanded for further
administrative proceedings consistent with this decision. Plaintiff's motion is granted to the extent of the remand, and
the Commissioner's cross-motion is denied.
A. Prior Proceedings
Plaintiff filed an initial Title II application for disability
insurance benefits in August 1982 that was denied on November 22,
1982. (Tr. at 86, 106, 16). That application qualified for
reopening under the Stieberger settlement.*fn1
In March 1993, plaintiff requested review of the November 1982
denial. (Id. at 82). Six years later, in March 1999, the Social
Security Administration (the "SSA") contacted plaintiff regarding
her Title II Stieberger claim. (Id. at 76). The period of
time under consideration began on March 27, 1989. (Id. at 82).
Plaintiff's supplemental application was denied in August 1999.
(Id. at 77). The denial was based on the SSA's determination
that plaintiff was able to perform a wide range of light level work during the Stieberger period. (Id. at 78-79,
Plaintiff filed a request for a hearing before an
Administrative Law Judge ("ALJ") and on June 7, 2000, an
administrative hearing was held before ALJ Kenneth Scheer. (Id.
at 91-95, 122-23). Plaintiff, represented by counsel, appeared
and testified at the hearing. (Id. at 26-64). On March 16,
2001, the ALJ denied the application, finding that plaintiff had
not been disabled at any relevant time. (Id. at 16-22). The
decision of the ALJ became the final decision of the Commissioner
when the Appeals Council denied plaintiff's request for review on
July 19, 2003. (Id. at 4-6). This action followed.
B. The Evidence
1. Plaintiff's Age, Education, and Experience
Plaintiff was born on January 10, 1953 and was 48 years old at
the time of the March 16, 2001, ALJ decision. (Id. at 38). Her
onset date of disability was February 9, 1981, and she had not
worked since March 1981. (Id. at 16, 31, 41).
Plaintiff completed twelve years of school and worked for
various employers as a secretary/typist prior to 1979. (Id. at
39, 118). From 1979 until 1981 plaintiff worked for Mobil Oil
Co., first preparing manuals and in the mail room and later as a
record/file clerk. (Id.). According to plaintiff's testimony at
the hearing on March 16, 2001, her job as a record clerk required
her to fill large cartons with files and place them in the center
of the room. (Id. at 40-41). Plaintiff discontinued working in 1981 when she slipped and
fell after exiting an elevator at her place of employment. (Id.
at 30-31, 41-43). At the time of the hearing on June 7, 2000,
plaintiff was living with her sister. (Id. at 38). Plaintiff
testified that she did not do any of the food shopping because
she could not lift anything. (Id. at 48). Her daily activities
included watching television and reading. (Id. at 47-48).
According to plaintiff, she had driven only a few blocks in the
month before the hearing and could drive the car straight but had
difficulty turning. (Id. at 39). She did not use public
transportation. (Id.). Additionally, plaintiff took occasional
trips to a relative's home at the New Jersey Shore. (Id. at
2. Medical Evidence
a. Treating Physicians
i. Dr. Richard Memoli
In March 1981, plaintiff was treated for severe pain in the
emergency room of Westchester Square Hospital by Dr. Richard
Memoli. (Id. at 42-43). Since March 1981, plaintiff has
received her medical treatment from Dr. Memoli for her
work-related injuries. (Id. at 31, 108). The record, however,
does not contain any treatment records or progress notes from Dr.
Memoli. The record only contains for this period the forms that
he submitted to the Workers' Compensation Board, prescription
receipts, and a Medical Assessment of Ability to do Work-Related
Activities form. (See id. at 128-74, 176-82, 184-92, 216-18,
219-32). Documentation of plaintiff's emergency room visit is not in the
record, but the record does contain a form filled out by Dr.
Memoli based on an examination of plaintiff on May 8, 1981.
(Id. at 192). Dr. Memoli's diagnoses included cervical spine
sprain with right radiculopathy, lumbosacral spine sprain,
paraspinal muscle spasm, pain and weakness of the dominant right
arm and hand, and restricted range of motion. (Id. at 128-74,
176-82, 184-92, 216-18, 219-31). Treatment rendered and planned
future treatment mostly included examination, home traction,
keeping plaintiff off duty, and medication. (Id.). In July 1992
Dr. Memoli added that he was requesting hospitalization and
traction, along with a cervical collar. (Id. at 159). From
August 1992 to May 1995, Dr. Memoli also recommended that
plaintiff use hot packs for her neck. (Id. at 145-54). In
October 1996, January 1997, February 2000, and April 2000, Dr.
Memoli noted "positive physical findings" (Id. at 137, 139,
Dr. Memoli classified plaintiff as being totally disabled from
June 1981 through February 1993, and later classified plaintiff
as partially disabled from June 1993 through April 2000. (See
id. at 155-82, 128-54, 184-92, 219-31). There was no
explanation for this change of classification. (Id.). In
December 1998, Dr. Memoli reported that plaintiff used a splint
on her right wrist. (Id. at 128). There is no explanation of
the need for this treatment in his documentation. (Id.). Dr. Memoli referred plaintiff for EMG and nerve conduction
tests in June 1981. (Id. at 175, 191). The results of these
tests, however, are not in the record. (Id. at 46). Dr. Memoli
also referred plaintiff for physical therapy sessions starting in
September 1999. (Id. at 206). Further, Dr. Memoli prescribed
various medications beginning in 1981 including Carisoprodol
(Soma) and Elavil for muscle spasm and Tylenol with Codeine for
pain. (Id. at 116). Beginning in 1995 Dr. Memoli prescribed
Hydroconone/APAP (Vicodin) for plaintiff's pain. (Id.).
Plaintiff took all of these medications on a daily basis.
At the ALJ hearing, plaintiff submitted a Medical Assessment
form completed by Dr. Memoli on June 6, 2000. (Id. at 216-18).
Dr. Memoli estimated that in a regular work setting, plaintiff
could occasionally lift and/or carry a maximum of 5 to 10 pounds.
(Id. at 216). Dr. Memoli also reported that plaintiff could
only stand up to 1 hour, because standing could increase spinal
pressure. (Id. at 216-17). Further, plaintiff could only sit
for up to 2 hours because prolonged sitting could cause increased
stiffness. (Id. at 217). The basis of this assessment was Dr.
Memoli's diagnosis of cervical spine radiculopathy and a chronic
cervical sprain. (Id. at 216). He added that plaintiff had
persistent pain in her neck, radiating pain down her arms,
restricted range of motion, tenderness, and spasm. (Id.). Dr.
Memoli also reported that plaintiff could not lift or carry
without pain, could not stoop, kneel, crouch, or crawl, and could only climb stairs as needed. (Id. at 216,
217). Dr. Memoli characterized plaintiff as totally disabled.
(Id. at 218). He reported that plaintiff required ongoing care,
medication, and use of a cervical collar, pillow, and splint.
ii. Dr. Elias Savitsky
On April 8, 1981, plaintiff was evaluated by a psychiatrist,
Dr. Elias Savitsky. (Id. at 33, 193-95). According to Dr.
Savitsky, plaintiff suffered from persistent post traumatic pain
syndrome, characterized by anxiety and depression. (Id. at
194). He reported that her personality characteristics sometimes
caused predisposition to somatization of feelings of tension.
(Id.). Dr. Savitsky recommended continued orthopedic care and
antidepressant medications, with systematic counseling as an
option if she failed to make clinical progress. (Id. at 195).
His diagnosis was anxiety reaction, depressive features, post
traumatic, and he reported a continued disability, causally
Dr. Savitsky reexamined plaintiff on August 3, 1983. (Id. at
183). Plaintiff reported that that her condition was relatively
static, and she felt she was getting "worse." (Id.). She
complained of persistent pain syndrome involving the neck,
especially on turning, prolonged sitting, and traveling. (Id.).
Radiation to spine and back were also noted, along with numbness
and weakness of the right arm along with a sense of pressure in
the low back. (Id.). There were no gross disturbances in plaintiff's sleep, appetite, digestion, and no undue intake of
tobacco, alcohol, or drugs. (Id.).
Further, Dr. Savitsky reported a high level of persistent
anxiety and depressive moods, especially when plaintiff was in
pain. (Id.). He noted that plaintiff continued to ruminate
about her situation. (Id.). Dr. Savitsky also found no gross
impairment of memory or capacity for concentration. (Id.). Dr.
Savitsky reported that plaintiff continued to show a relatively
static clinical course with anxiety and many somatic features.
(Id.). He affirmed his prior recommendations for treatment and
if there were no response in three months, he advised systematic
psychiatric treatment because of the significant psychoneurotic
aspect to her symptoms. (Id.).
iii. Dr. Barbara Colon
In January 1986, plaintiff was examined by Dr. Barbara Colon, a
physician employed by the Workers' Compensation Board (the
"WCB"). (Id. at 175). In her Report of Medical Examination, Dr.
Colon noted that plaintiff complained of constant pains across
the back and neck; numbness of both hands, especially the right;
difficulty sitting, walking, standing, and lying down; and
limited motion of the neck. (Id.).
Plaintiff removed her cervical collar for examination of her
neck by Dr. Colon, who found tenderness throughout the cervical
spine with marked limitation of all motions of the neck. (Id.).
Dr. Colon also reported tenderness across the upper back and
limitation of motions of the right shoulder joint due to neck and upper back pains. (Id.). Dr. Colon reported that plaintiff
walked slowly and had difficulty dressing, undressing, and
getting on and off the examining table. (Id.).
Additionally, Dr. Colon found tenderness to palpation of the
lumbar muscles and the lumbar spine. (Id.). Motions of the
trunk were markedly restricted due to pain, and straight leg
raising bilaterally was markedly limited. (Id.). Plaintiff
could not lie with the knees extended and flexion of the hips in
supine could not be done because of pain. (Id.). Dr. Colon
found no quadriceps inequality and the reflexes were all
difficult to obtain. (Id.). She classified plaintiff for the
WCB as having a permanent partial disability. (Id.).
iv. Dr. Jeff Levy
Plaintiff was seen several times by Dr. Jeff Levy beginning in
March 1999. (Id. at 235-42). She consistently complained of
frequent and painful urination. (See id. 235-40.). She also
reported low back pain and pain in the right side of the back,
right ear, leg, and right lower quadrant. (Id. at 236, 238,
239). There is no evidence that plaintiff ever reported any
difficulty with her neck or wrists to Dr. Levy. (Id. at
235-42). A thyroid function test was normal, and an ultrasound
study of the thyroid revealed tiny nodules and cystic changes.
(Id. at 240, 243-44). At her hearing before the ALJ, plaintiff
explained that these tests were performed because the MRI of her
cervical spine had revealed an abnormality in the thyroid. (Id.
at 55). At that time she was still undergoing further evaluation of this
condition. (Id. at 57).
b. Consulting Physicians
i. Dr. Antero Sarreal
On August 3, 2000, consulting physician Dr. Antero Sarreal
performed a thirty-minute orthopedic examination on plaintiff.
(Id. at 277-81). Dr. Sarreal noted that since her accident in
February 1981, plaintiff had complained of pain in the neck and
low back, and had been depressed since that time. (Id. at 277).
Plaintiff reported a history of injury on the left knee when she
fell from a bicycle when she was eighteen, for which she
underwent an operation. (Id. at 277, 278). Plaintiff also had a
history of hypertension, not on medication, being followed up on
thyroid condition, mass was noted, and planned biopsy of the
thyroid gland (Id.). She wore a splint on her right hand which
she said she had been doing for three years based on a diagnosis
of carpal tunnel syndrome. (Id. at 277). She also used a soft
cervical collar. (Id.)
Plaintiff reported a strong, pulling pain in her neck radiating
to both upper extremities and to her hands, the right more than
the left. (Id.). She complained of tingling sensations in the
right hand fingers, tenderness on the right wrist and diminished
sensation in her left hand finger. (Id.). She also reported
anterior/inferior pain in her left knee for the past six years,
aggravated by sitting. (Id.). Plaintiff said she had to change
position to relieve pressure in her left foot. (Id.). She also complained of right knee pain. (Id.). Dr.
Sarreal reported tenderness and swelling of the bilateral ankle
with numbness of the bilateral big toe and bilateral second toe.
(Id.). Additionally, plaintiff had back pain with tenderness at
the L5 spinous process described as pulling in character,
radiating upward to the thoracodorsal musculature, and her back
pain radiated to the bilateral posterior thigh and bilateral
posterior leg. (Id.). Plaintiff reported that she was able to
walk a limited distance of one block, and was limited in standing
and sitting and needed to shift and change position after a
couple of minutes. (Id. at 278).
On examination, plaintiff was four feet eleven inches tall and
weighed 234 pounds. (Id.). She walked slowly with a slightly
limping gait avoiding pressure on the back and bilateral knee.
(Id.). Dr. Sarreal noted that plaintiff needed assistance with
her shoes and socks, and could get up from the chair slowly with
some difficulty, could get on the examining table with some
difficulty, and had difficulty getting up from the table to
sitting position. (Id.). Holding and standing on the heels and
toes caused left knee and back pain, and she had difficulty
ambulating on her heels and toes. (Id.). Plaintiff could squat
slowly with 1/3 range guarded, complaining of pain in the low
back and bilateral knee. (Id.). Dr. Sarreal reported that
plaintiff's bilateral shoulder at the end of slow full range
motion caused discomfort to the bilateral trapezius musculature,
and that her bilateral elbow and bilateral forearm supination/pronation and left wrist had a full range of motion.
(Id.). Plaintiff's right wrist had pain at the end of a slow
full range of motion. (Id.).
Dr. Sarreal found weakness in plaintiff's right hand grasp
(4/5) with diminished sensation to touch on the right lateral
posterior arm, right lateral posterior forearm and right third
finger. (Id.). The Tinel sign procedure caused pain to the
right elbow, and the left Tinel sign procedure caused pain to the
left elbow and pain was felt in plaintiff's shoulder. (Id.).
Plaintiff had good control and coordination throughout both upper
extremities, and her biceps, triceps reflexes were present and
equal (2). (Id.). There was no sensation impairment to touch
on the left upper extremity. (Id.). Plaintiff's bilateral hand
had good dexterity and manipulation including grasping, handling,
releasing, and fingering objects, and there was no finger joint
contracture deformity. (Id.).
Dr. Sarreal also reported cervical spine bilateral side
cervical paravertebral musculature tenderness and spasm, left
more than right, tenderness on pressure on the posterior neck,
neck movement done slowly guarded, and pain at the end of neck
motion. (Id. at 278-79). Flexion was to 24 degrees, extension
to 30 degrees, rotation 24 degrees in each direction, and lateral
flexion to the right and left were both 30 degrees. (Id. at
279). Dr. Sarreal reported that in plaintiff's lumbar spine there
was spinous process tenderness of the lumbar vertebrae, trunk
movement was done slowly guarded, and there was flexion to 50 degrees, extension to 18 degrees, and lateral flexion to the
right and left were both 18 degrees. (Id.). Straight leg
raising while in a supine position produced discomfort at 40
degrees causing right knee pain, while in a sitting position
straight leg raising was negative. (Id.).
Additionally, plaintiff's bilateral hips had a full range of
motion. (Id.). Slow full extension of her right knee caused
pain to the right anterior/inferior knee area, and flexion to 90
degrees. (Id.). Left lateral and medial leg pressure caused
pain to the left knee. (Id.). Plaintiff's ankle had a full
range of motion, and her muscle grade was 5/5. (Id.). Left
ankle full range of motion caused discomfort to the left calf.
(Id.). The left thigh was one inch smaller than the right and
the right leg was 3/4 of an inch smaller than the left. (Id.).
Plaintiff had a hyperactive bilateral patella and bilateral
Achilles reflex. (Id.). There was diminished sensation to touch
on the left lateral thigh, left lateral leg, and the left third,
fourth and fifth toes. (Id.). Dr. Sarreal found no sensation
impairment to touch on the right lower extremity. (Id.). Both
lower extremities had good control and coordination. (Id.).
Plaintiff's bilateral posterior tibial artery pulsations were
weak, and her bilateral dorsalis pedis pulsation was good.
An x-ray of the lumbosacral spine revealed only minimal
degenerative changes. (Id. at 279, 281). An x-ray of the left
knee revealed moderate degenerative changes and evidence compatible with Calcium Paraphosphate Deposition Disease ("CPPD
Disease"). (Id.). Dr. Sarreal explained that CPPD Disease is
also referred to as pseudo-gout. (Id. at 287). No x-ray of
plaintiff's cervical spine was taken.
Dr. Sarreal's diagnosis was status-post left knee operation,
history of right carpal tunnel syndrome, neck pain with
radiculopathy right upper extremity, low back pain with
radiculopathy left lower extremity with atrophy of the left thigh
and right leg musculature, history of thyroid disorder, and
history of depression. (Id. at 279).
In Dr. Sarreal's opinion, plaintiff's functional capacity to
perform work-related activities was limited with respect to
lifting and carrying heavy objects, pushing and pulling,
prolonged standing and long distance ambulation. (Id. at 280).
Dr. Sarreal reported that due to a history of depression there
was emotional and mental involvement. (Id.). Despite the
weakness of plaintiff's right hand grasp (4/5) with a history of
right carpal tunnel syndrome, he reported that she had good
bilateral hand dexterity and manipulation including grasping,
releasing, handling and fingering objects. (Id.). He added that
there was frequent limitation in squatting, crouching, bending
and climbing, and occasional limitation in prolonged sitting and
stooping, and minimal limitation in balancing. (Id.).
Dr. Sarreal's prognosis was guarded, and he recommended a
follow-up by plaintiff's attending physician along with analgesic necessary to relieve the pain. (Id.). He also
recommended conditioning and strengthening exercises of the trunk
and upper and lower extremities to increase trunk flexibility and
to prevent muscle atrophy and joint contracture deformity.
According to plaintiff's interrogatories, in response to the
question of whether there was any evidence that plaintiff was
"faking," Dr. Sarreal wrote "Removal of claimant [sic] shoes and
socks assisted by me during the evaluation." (Id. at 289). Also
in plaintiff's interrogatories Dr. Sarreal answered "yes" to the
question of whether he thought a treating orthopedic surgeon that
has managed the patient's orthopedic conditions since 1981 was in
a better position to assess a patient's condition and physical
residual capacity. (Id. at 290).
c. Other Evidence
i. Physical Residual Functional Capacity Assessment Forms
Two Physical Residual Functional Capacity ("RFC") Assessments
of plaintiff were conducted. (See id. at 196-202, 270-76.).
On the assessment form dated August 17, 1999, the medical
consultant reported that plaintiff could occasionally lift and/or
carry a maximum of 20 or 50 pounds, and could frequently lift
and/or carry up to 25 pounds. (Id. at 197). Plaintiff could
stand and/or walk with normal breaks for a total of at least 2
hours in an 8 hour workday, and could sit with normal breaks for
a total of about 6 hours in an 8 hour workday. (Id.).
Plaintiff's ability to push and/or pull, including operation of hand and/or foot controls, was unlimited, other than
as shown for lift and/or carry. (Id.). Plaintiff was found to
occasionally be able to climb, balance, stoop, kneel, crouch, and
crawl. (Id. at 198). This assessment was based on the injury to
plaintiff's cervical spine. (Id. at 197-98). No manipulative,
visual, communicative, or environmental limitations were
established. (Id. at 200-01). There were no treating source
statements regarding plaintiff's physical capacities in file.
(Id. at 201).
On another undated RFC assessment form, the medical consultant
found that plaintiff could occasionally lift/and or carry up to
20 pounds, and could frequently lift and/or carry up to 10
pounds. (Id. at 271). She could stand and/or walk with normal
breaks for about 6 hours in an 8 hour workday, and could sit with
normal breaks for about 6 hours in an 8 hour workday. (Id.).
Plaintiff's ability to push and/or pull was limited in both the
upper and lower extremities to flexion to 20 degrees. (Id. at
271). This assessment was based evidence of plaintiff's neck
pain, low back pain, and left lower extremity with atrophy of
left thigh. (Id. at 271). Plaintiff could occasionally climb,
balance, stoop, kneel, crouch, and crawl, and she had no
manipulative, visual, communicative, or environmental
limitations. (Id. at 273-74).
The medical consultant reported that there were treating source
statements regarding plaintiff's physical capacities in file, and
the medical consultant's conclusions about plaintiff's limitations were not significantly different
from the treating source's findings. (Id. at 276).
The MRI of plaintiff's cervical spine was ordered by Dr. Memoli
and performed on September 13, 1999. (Id. at 245). The MRI
revealed normal alignment, with no fractures or destructive
lesions. (Id. at 245). There was reverse of the normal cervical
curve suggesting muscle spasm, and degenerative disease with
hypertrophic spur formation. (Id.). There were anterior and
posterior osteophytes seen throughout the cervical region.
(Id.). The MRI also yielded evidence of posterior protrusion of
the disc material at C3-C4, C4-C5 and C5-C6 in the midline which
impressed on the thecal sac with the appearance of central disc
bulges. (Id.). No cord compression or spinal stenosis was
found, and the lateral recesses and nerve roots were
unremarkable. (Id.). The cervical spinal cord showed no mass or
syrinx, and the craniovertebral junction was unremarkable.
(Id.). There was suspicion of enlargement of the right lobe of
the thyroid and clinical correlation was suggested. (Id.).
The overall impression from the MRI was muscle spasm, mild
degenerative disease, central disc bulge at C3-C4, C4-C5, and
C5-C6, and suspicion of an enlargement of the right lobe of the
thyroid with a nodular density within it. (Id.). Further
clinical evaluation was recommended. (Id.). iii. Physical Therapy Sessions
Also on September 13, 1999, pursuant to Dr. Memoli's referral,
plaintiff began a program of physical therapy to increase ROM,
decrease pain, and improve function. (Id. at 206). Plaintiff
was scheduled for two sessions a week for six to eight weeks, and
her treatment included moist heat/ice, electric stimulation,
ultrasound, and isometric, isotonic, range or motion, and
postural exercise. (Id.). The record reflects only six sessions
of therapy. (See Id. at 207-15). Plaintiff's last recorded
physical therapy session was on October 13, 1999. (Id. at 215).
iv. Plaintiff's Testimonial Evidence
Plaintiff testified at the June 2000 hearing before the ALJ
that she had pain in her neck that went down her back into the
spine, and she could not turn. (Id. at 45). She testified that
the pain made her arms numb, that she would lose control if she
held anything, and when she would lie down pain would shoot
across her chest. (Id.). Additionally, plaintiff testified that
she had constant pain and spasms in her back, and that she had
difficulty bending, sitting, and lying. (Id.). Plaintiff also
stated that she could only walk to her porch before having to
stop because of arthritis in her knees. (Id. at 48-50). She
said she could sit for 15 minutes before having a problem, and
could only stand for a while before her legs and back began to
hurt. (Id. at 50). Plaintiff testified that she could only lift
up to 5 pounds. (Id.). Plaintiff also testified that she was taking painkillers, muscle relaxers, and Tylenol, which caused
memory loss, mood swings, and general side effects. (Id. at
53). Earlier in the hearing, however, plaintiff stated that she
had a good memory. (Id. at 33). She stated that she could only
sleep for an hour or two before she was awoken by pain in her
neck, back, and legs.
When asked by the ALJ about a brace on her right hand,
plaintiff explained that she had "the beginning of carpal
tunnel," and that she would be receiving a brace for her other
hand by Dr. Memoli. (Id. at 46). Plaintiff also told the ALJ
she was receiving treatment for thyroid disease, which was not
related to her orthopedic problems. (Id. at 54-55).
Additionally, plaintiff recalled that doctors representing Mobile
Oil had conducted independent medical examinations ("IME's") of
her after her injury, but the IME's are not present in the
record. (Id. at 31-32, 49).
A. Applicable Law
1. Standard of Review
A court may set aside the Commissioner's decision to deny
disability benefits only when it is based on legal error or is
not supported by substantial evidence. Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence means "more than
a mere scintilla" it means "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997) (internal quotations and citations omitted). A district court's
review of the Commissioner's determination is therefore limited
to "whether the Commissioner applied the proper legal standards,
whether its factual findings were supported by substantial
evidence, and whether [he] provided a full and fair hearing."
Saul v. Apfel, No. 97 Civ. 1616 (DC), 1998 WL 329275, at *3
(S.D.N.Y. June 22, 1998). The Commissioner's decision is to be
afforded considerable deference; the reviewing court should not
"`substitute its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon
a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d
Cir. 1991) (quoting Valente v. Sec'y of Health & Human Servs.,
733 F.2d 1037, 1041 (2d Cir. 1984)).
2. Disability Determination
A claimant is entitled to disability benefits under the Act if
the claimant is unable "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . 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). The impairment must be of such severity
that the claimant
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,
regardless of whether such work exists in the
immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he
would be hired if he applied for work.
Id. at § 423(d)(2)(A). If a claimant is engaged in substantial
gainful activity, however, he will be found "not disabled
regardless of [his] medical condition or [his] age, education,
and work experience." 20 C.F.R. § 416.920(b).
The Commissioner has promulgated regulations establishing a
five-step procedure for evaluating disability claims. See
20 C.F.R. § 404.1520, 416.920. The Second Circuit has summarized
this procedure as follows:
The first step of this process requires the
[Commissioner] to determine whether the claimant is
presently employed. If the claimant is not employed,
the [Commissioner] then determines whether the
claimant has a "severe impairment" that limits [his]
capacity to work. If the claimant has such an
impairment, the [Commissioner] next considers whether
the claimant has an impairment that is listed in
Appendix 1 of the regulations. When the claimant has
such an impairment, the [Commissioner] will find the
claimant disabled. However, if the claimant does not
have a listed impairment, the [Commissioner] must
determine, under the fourth step, whether the
claimant possesses the residual functional capacity
to perform [his] past relevant work. Finally, if the
claimant is unable to perform [his] past relevant
work, the [Commissioner] determines whether the
claimant is capable of performing any other work.
Brown v. Apfel, 174 F.3d 59
, 62 (2d Cir. 1999) (quoting Perez
v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). The claimant bears
the burden of proof with regard to the first four steps; the
Commissioner bears the burden of proving the last step. Id.
The Commissioner "must consider" the following in determining a
claimant's entitlement to benefits: (1) objective medical facts
and clinical findings; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or
disability; and (4) claimant's educational background, age, and
work experience. Id. (citing Mongeur v. Heckler,
722 F.2d 1033, 1037 (2d Cir. 1983)). Moreover, the Commissioner must
accord the assessment of a treating physician controlling weight
if it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and [it] is not inconsistent
with the other substantial evidence in [the] case record."
20 C.F.R. § 404.1527(d)(2); see Green-Younger v. Barnhart,
335 F.3d 99, 106 (2d Cir. 2003); Clark v. Comm'r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998). The ALJ may not arbitrarily
substitute his own judgment for the treating physician's
competent medical opinion. See Rosa v. Callahan, 168 F.3d 72,
79 (2d Cir. 1999).
The "treating physician rule" does not apply, however, when the
treating physician's opinion is inconsistent with the other
substantial evidence in the record, such as the opinions of other
medical experts. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d
When the treating physician's opinion is not given controlling
weight, the ALJ must consider various "factors" to determine how
much weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2).
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 treating physician's opinion;
(iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the SSA's attention
that tend to support or contradict the opinion. (Id.). The ALJ
must also set forth his reasons for the weight assigned to the
treating physician's opinion. (Id.).
1. ALJ's March 16, 2001, Decision
The ALJ found that plaintiff was not disabled from March 27,
1989, through the date of the hearing. (Tr. at 17). Thus, the ALJ
held, she was not entitled to disability benefits pursuant to the
reopening of her case under the Stieberger settlement. (Id.).
The ALJ applied the five-step sequential evaluation in deciding
whether plaintiff was disabled. (Id.). In the first step, the
ALJ found that plaintiff had not performed substantial gainful
activity beginning March 27, 1989, through March 16, 2001. (Id.
In step two, the ALJ found that as of March 16, 2001, plaintiff
had severe impairments of low back pain, a neck disorder, and
cervical radiculopathy. (Id.). The ALJ explained that these
impairments were "severe" within the meaning of the Act and
Regulations because they imposed more than a slight limitation on
plaintiff's functioning. (Id. (citing 20 C.F.R. § 404.1520(c)).
In step three, the ALJ found that plaintiff did not have
clinical or laboratory findings that met or equaled in severity the clinical criteria of the impairments described in
Appendix 1. (Id.). Consequently, the ALJ assessed plaintiff's
RFC in step four to determine whether she could perform her prior
work or other work existing in significant numbers in the
national and regional economies. (Id.).
The ALJ considered the consultative orthopedic examination by
Dr. Sarreal on August 3, 2000. (Id. at 18). The ALJ pointed out
that plaintiff reported to Dr. Sarreal that she needed assistance
with her shoes and socks, and that she got help from her sister
in cooking, cleaning, and shopping, but that she did "light"
household chores as much as possible. (Id.). An x-ray of
plaintiff's lumbosacral spine revealed only "minimal"
degenerative changes. (Id.). The ALJ also noted that plaintiff
did not begin physical therapy until September 1999, well after
her work-related injury in 1981 and well after her Stieberger
development period began in March 1989. (Id.).
The ALJ evaluated all of the symptoms of plaintiff's
complaints, including but not limited to pain, fatigue, shortness
of breath, and weakness and/or nervousness. (Id. at 19). The
ALJ also considered the nature, location, and intensity of the
pain and other symptoms; any precipitating or aggravating
factors; the effectiveness of medication and other treatment; and
plaintiff's activities. (Id.). The ALJ found that although
plaintiff reported suffering a slip-and-fall accident at work on
February 9, 1981, there was no record of hospitalization or
emergency room treatment for this injury. (Id.). Moreover, the ALJ noted that plaintiff testified that she had undergone an
x-ray in 1981, which showed spasm, but she acknowledged that she
did not undergo an MRI until September 1999 and had never
undergone a CAT scan. (Id.).
The ALJ held that Dr. Memoli's clinical notes lacked objective
clinical findings and accordingly, no weight was accorded to his
reports. (Id.). Further, the ALJ held that the clinical
findings of Dr. Sarreal were entitled to significant weight
because the findings were well supported by medically acceptable
clinical and laboratory diagnostic techniques. (Id.). Based on
Dr. Sarreal's findings and objective clinical evidence in the
record, the ALJ found that plaintiff did not satisfy the fourth
step of the five-step procedure because plaintiff retained the
RFC for sedentary work, which did not preclude her from
performing her past relevant exertionally sedentary work as a
record clerk or secretary.*fn2 (Id. at 21). Consequently,
the ALJ determined that plaintiff was not disabled within the
meaning of the Act. (Id. at 22). 2. Weight Given to Treating Physician's Opinion
I conclude that the ALJ erred in giving Dr. Memoli's opinion no
weight and that the ALJ's decision to deny benefits was not
supported by substantial evidence.
The ALJ chose to "accord no weight" to Dr. Memoli's opinion
purportedly because Dr. Memoli's clinical notes lacked "objective
clinical findings," and were "brief and conclusory and offer[ed]
no insight into [plaintiff's] physical condition." (Tr. at 20).
Dr. Memoli's findings, however, should have been given at least
some weight. Although Dr. Memoli's workers' compensation forms
were brief, he also completed a medical assessment form in June
2000 with specific findings. (Id. at 216-18). In addition, Dr.
Memoli noted "positive physical findings" several times in his
notes on the workers' compensation forms. (Id. at 127, 129,
Moreover, there was at least some objective clinical evidence
that corroborated Dr. Memoli's conclusion that plaintiff could
only perform a narrow range of sedentary work. See Tr. at
216-18. The 1999 MRI of plaintiff's cervical spine revealed
muscle spasm, mild degenerative disease, central disc bulge at
C3-C4, C-4-C5, and C5-C6, and suspicion of an enlargement of the
right lobe of the thyroid with a nodular density within it. (Tr.
at 245). X-rays taken of plaintiff in 2000 revealed minimal
degenerative changes in the lumbosacral spine and degenerative
changes and CPPD Disease in the left knee. (Id. at 279). In addition, it is not clear that Dr. Memoli's conclusions are
inconsistent with the other substantial evidence in the record.
For example, on the undated RFC assessment form, the medical
consultant who completed the form indicated that there were no
treating source conclusions about plaintiff's limitations or
restrictions that were significantly different from the medical
consultant's findings. (Tr. at 276).
The determination by the WCB in 1986 that plaintiff had a
permanent partial disability is also some corroborating evidence
that plaintiff did not have the residual functional capacity to
perform sedentary work. (Tr. at 175). Dr. Colon stated that
plaintiff had difficulty sitting, walking, standing, and lying
down, marked limitation of motion of the neck, tenderness along
the cervical spine and upper back, and tenderness to palpation of
the lumbar muscles and lumbar spine. (Id.). Although there is a
distinction between a partial disability and a total disability,
and an individual may still perform sedentary work while
partially disabled, the findings by Dr. Colon of the WCB at least
arguably corroborate Dr. Memoli's finding that plaintiff did not
have the residual functional capacity to perform sedentary work.
In deciding not to give the treating physician's opinion any
weight, the ALJ failed to adequately consider the various
"factors" to determine how much weight to give, such as the
frequency and length of the treatment, the consistency of the
opinion with the record as a whole, and whether the opinion was from a specialist. 20 C.F.R. § 404.1527(d)(2). Dr. Memoli, an
orthopedic physician, treated plaintiff every two months for 19
years. (Tr. at 43). Further, the corroborating evidence in the
record set forth above lends support to the conclusion that Dr.
Memoli's opinion should have been given some weight by the ALJ.
Thus, the ALJ committed an error of law by not giving Dr.
Memoli's opinion controlling weight, or at least some weight.
Green-Younger, 335 F.3d at 106.
3. Duty to Develop the Record
Further, the ALJ "cannot reject a treating physician's
diagnosis without first attempting to fill any clear gaps in the
administrative record." Rosa v. Callahan, 168 F.3d 72, 79 (2d
Cir. 1999) (internal citations omitted). Although Dr. Memoli
treated plaintiff for approximately 19 years (Tr. at 43), the
record inexplicably contains no progress notes or other notes
made by Dr. Memoli of his examinations. The ALJ simply concluded
that "Dr. Memoli's clinical notes lack[ed] objective clinical
findings," and that his notes were "brief and conclusory and
offer[ed] no insight into the claimant's physical condition."
Surely Dr. Memoli must have taken progress notes or other notes
contemporaneously with his examination of plaintiff. There must
have been records other than the brief workers' compensation
The ALJ should have undertaken to obtain Dr. Memoli's
additional notes because the ALJ concluded that the treating
physician's opinion was not supported by objective evidence. The ALJ "did not have the luxury of terminating his inquiry with the
findings that [the treating physician's] assertion of disability
[was] `totally conclusory' and inconsistent with the impairments
from which [the plaintiff] admittedly suffer[ed]." Morillo v.
Apfel, 150 F. Supp.2d 540, 546 (S.D.N.Y. 2001). Instead, it was
the ALJ's duty to seek additional information from plaintiff's
treating physician sua sponte, "even if the clinical findings
were inadequate." Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998); see Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)
("[T]he ALJ generally has an affirmative obligation to develop
the administrative record. This duty exists even when the
claimant is represented by counsel."); see also Clark v.
Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir.
1998) ("If asked . . . the doctor might have been able to offer
clinical findings in support of his conclusion . . . [and]
failure to include this type of support for the findings . . .
does not mean that such support does not exist."). Likewise, the
record did not contain any records relating to plaintiff's
emergency room visit, the IME's, or the results from EMG and
nerve conduction studies ordered by Dr. Memoli in 1981. (Tr. at
31-32, 45-46, 49). The ALJ should have undertaken to obtain these
reports as well.
4. Weight Given to Consulting Physician's Opinion
Not only did the ALJ commit an error of law by giving no weight
to the treating physican, but he also gave undue weight to the
consulting physician's opinion. Dr. Sarreal answered in
plaintiff's interrogatories that he examined plaintiff for only 30 minutes and did not have plaintiff's past medical records.
(Id. at 286, 290). Dr. Sarreal also responded "yes" to the
question of whether he thought the treating physician was in a
better position to assess plaintiff's condition and physical
residual capacity. (Id. at 290). Further, although the ALJ was
critical of the fact that plaintiff's MRI was conducted in 1999,
he gave controlling weight to the consulting physician's
findings, which were based in part on x-rays conducted even
later, in 2000.
More significantly, although one of plaintiff's primary
complaints was cervical pain, Dr. Sarreal conducted x-rays of the
lumbosacral spine and left knee, and failed to have x-rays taken
of the cervical spine. The treating physician, whose findings
were given no weight by the ALJ, ordered an MRI of plaintiff's
cervical spine in 1999. (Tr. at 245). Hence, it would appear that
the ALJ applied a double standard. That is, the same criticisms
that the ALJ made of the treating physician's findings could also
be made of the consulting physician's findings, and yet the ALJ
gave controlling weight to the consulting physician's
Finally, Dr. Sarreal's specific conclusions were not
significantly different from those of Dr. Memoli. Dr. Sarreal
found that plaintiff was limited in lifting and carrying heavy
objects, pushing and pulling, prolonged standing, and long
distance ambulation. (Id. at 280). He reported weakness in the
right hand grasp at 4/5 but with good bilateral hand dexterity and manipulation, including grasping, releasing, handling, and
fingering objects. (Id.). The ALJ concluded that "[s]uch an
assessment is compatible with sedentary work activity." (Id. at
20). Similarly, in Rosa v. Callahan, the ALJ found that the
consulting physicians' reports, which did not identify any
serious impairments, were consistent with a finding that the
plaintiff could perform sedentary work. 168 F.3d at 81 (2d Cir.
1999). The Court held, however, that "[t]hose reports were
consistent with this conclusion . . . only to the extent that
they were silent on the issue." Id. In addition, there was "no
indication on the reports that the consultants intended anything
by their silence or that they set out to `express [an] opinion on
[the] subject' of [the plaintiff's] sedentary work capacity."
Id. (quoting Carroll v. Secretary of Health and Human Servs.,
705 F.2d 638, 643 (2d Cir. 1983)). Hence, "the Commissioner was
precluded from relying on the consultants' omissions as the
primary evidence supporting its denial of benefits." Id.
Here, the ALJ applied the same reasoning as in Rosa. Based on
the limitations that Dr. Sarreal described, the ALJ concluded
that Dr. Sarreal's findings were consistent with the holding that
plaintiff could perform sedentary work. (Tr. at 20, 280). Dr.
Sarreal made no findings, however, on whether plaintiff retained
the residual functional capacity to perform sedentary work. Thus,
the ALJ should not have relied on Dr. Sarreal's "omissions" to
lead to a finding that plaintiff was not disabled. Accordingly,
the ALJ's holding that plaintiff had not been disabled at any time during the Stieberger development
period and that she could perform sedentary work is based on
legal error and is not supported by substantial evidence.
The case is remanded to the Commissioner for further
administrative proceedings consistent with this decision. For the
reasons set forth above, plaintiff's motion for judgment on the
pleadings is granted to the extent of the remand The
Commissioner's motion for judgment on the pleadings is denied.
The Clerk of the Court shall enter judgment accordingly and close