United States District Court, S.D. New York
May 3, 2005.
JEAN HOGUE Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Plaintiff Jean Hogue brings this action pursuant to section
205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g)
to challenge the final decision of defendant Jo Anne B. Barnhart,
Commissioner of Social Security, denying plaintiffs' claim for
Social Security disability insurance ("SSDI") benefits. The
Commissioner and Hogue have cross-moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). For
the reasons set forth below, the Commissioner's motion is denied,
Hogue's motion is granted, and this case is remanded for further
I. Procedural History
Hogue applied for Social Security disability benefits on
February 21, 2000, alleging an inability to work since April 26,
1999. (R. 67).*fn1 The claim was initially denied and Hogue
requested a hearing before an Administrative Law Judge ("ALJ").
(R. 61, 64). On December 4, 2002, Hogue appeared with counsel at
the hearing held before ALJ Kenneth Levin. (R. 25-29). After
consideration of the case de novo, Judge Levin issued a
decision finding Hogue not disabled because she was capable of performing her past relevant
work of a social service aide. The Appeals Council denied Hogue's
request for review on April 29, 2003, rendering the ALJ's January
22, 2003 decision the final decision. (R. 3-5).
II. Factual Background
A. Non-medical Evidence
Hogue, who was fifty-one years old at the time of the hearing,
lives with her two adult children. (R. 41, 67). She has a year of
college education, (R. 42) and her most recent employment, which
she held from July 1994 to April 1999, was as a home health aide.
(R. 28, 76). Hogue reported that her job as a home health aide
involved assisting patients with dressing and meals, escorting
them to appointments, and cleaning. (R. 29, 32, 76). Prior to
that, from 1987 to 1991, Hogue worked as a peacekeeper supervisor
(referred to by the ALJ as a "social service aide" position) in a
family homeless shelter. (R. 29-30, 76). Hogue reported that her
activities as a peacekeeper supervisor included writing reports,
monitoring the building, and supervising residents. (R. 30-31).
Additionally, Hogue reported that the peacekeeper job
occasionally involved assisting her co-workers in breaking up
fights between residents. (R. 31).
1. Plaintiff's Testimony
At the hearing before Judge Levin, Hogue testified that she
stopped working after she injured her back while pushing a
wheelchair and started having back spasms. (R. 32). Hogue
testified to having pain and stiffness in her lower back on the
right side. (R. 33). She reported that the pain does not radiate
to other parts of her body. (Id.). She also testified that she
suffered daily from heart palpitations and chest pain. (R.
34-35). She referred to the chest pains as "angina pains," and
described them as "catches" in her chest that make it feel like
she needs to belch. (R. 34). She testified that belching does not relieve the
symptom, but that she was taking potassium and other medication
to relieve the pain. (R. 35). She testified that she feels the
pain under her heart when she is upset or stressed, but that it
does not radiate to other parts of her body. (R. 34).
Hogue also testified that she experiences daily asthma attacks.
(R. 35). She reported that the asthma causes a tightening in her
chest, but also testified that she could not tell the difference
between chest pains associated with the asthma and chest pains
associated with angina. (R. 35-36). She reported that she uses a
nebulizer to treat the pain associated with her asthma. (R. 35).
Hogue testified that to treat the attacks she uses her inhaler,
and when that does not work, she uses a nebulizer. (R. 36-37).
She testified that she uses the nebulizer two to three times a
day, for approximately forty-five minutes each time. (R. 37, 56).
Hogue testified that she smokes cigarettes, but that she was down
to three cigarettes a day. (R. 46).
Hogue also testified that she suffers from sleep apnea, and
because the sleep apnea makes her unable to sleep through the
night, she falls asleep two or three times during the day for
forty-five minutes to one hour, sometimes without realizing that
she has fallen asleep. (R. 36-37). To treat the sleep apnea, she
uses a continuous positive airway pressure ("CPAP") machine about
three times per week, but testified that she could not use it
more often because she suffers from panic attacks when she wakes
up with the CPAP mask on. (R. 36). In addition, Hogue testified
that she suffered from a gynecological problem that results in
abnormal bleeding and pain, that she has a peptic ulcer, and that
she was once diagnosed with gout. (R. 38, 40). She testified that
she takes Nexium for the ulcer, and that it helps provide relief.
(R. 39). Finally, she testified to having tendonitis in both
shoulders that causes pain and makes it difficult for her to
raise her arms. (R. 39). She testified at the hearing that she was
currently experiencing pain in the left shoulder, but that
earlier in the year she had been troubled by the right shoulder.
With respect to physical limitations, Hogue testified that she
could sit for forty-five minutes to one hour at a time before
feeling stiffness in her lower back. (R. 39). She reported that
she could stand for one hour, and for up to two hours if nothing
touches her knee. (R. 40). She testified that she could walk for
about an hour before she experiences chest and knee pain. (Id.)
Hogue testified that she could lift and carry five or ten pounds.
(R. 42). Hogue reported that she does not do any of the cooking,
cleaning and other household chores at home. (R. 42). She
testified that she generally spends her day watching television,
writing, reading and napping, and she goes to church once or
twice a month. For exercise, she walks and does home exercises
prescribed by her orthopedist. (R. 43-44).
2. Vocational Expert's Testimony
Mark Rammauth, a vocational expert who testified at the
hearing, stated Hogue's prior work as a home health attendant was
classified as medium work, and her work as a peacekeeper
supervisor, (referred to by Rammauth as a "social service aide"),
was considered "light work." (R. 53-54).*fn2 He stated that
breaking up fights was not an essential part of a social service
aide job as it is typically performed. (R. 45). On examination by
Hogue's attorney, Rammauth testified that if a person had to use
a nebulizer two to three times a day, for thirty-five to
forty-five minutes each time, or had to lie down during the day
for forty-five minutes to an hour each time, she would not be
able to perform her past relevant work or any of the jobs
discussed as hypothetically available light work. (R. 56). B. Medical Evidence
1. Treatment Prior to the Alleged Onset of Disability
Records from Beth Israel Medical Center show that on February
25, 1999, Hogue underwent surgery for the removal of a benign
mass from her left breast. (R. 205-20). Test results prior to
surgery showed a normal electrocardiogram ("EKG"), and records
reveal that Hogue's asthma and hypertension were stable, and a
chest x-ray was negative. (R. 207-213). A physical examination
showed that Hogue's lungs were clear, her heart rhythm was
regular, and she had normal musculoskeletal findings. (R. 208).
At a follow-up examination two months later, Hogue's condition
stable. (R. 252).
Hogue was examined by her primary physician, Dr. Eduardo
Pignanelli, on March 25, 1999. (R. 249). Dr. Pignanelli reported
that Hogue's blood pressure was at 110/80, and stable on
medication. (Id.). Her lungs were clear, and her asthma was
also stable. (Id.). Hogue reported lower back pain, with some
radiation to her legs, however, no clear motor or sensory
deficits were observed. (Id.). Dr. Pignanelli instructed Hogue
to obtain magnetic resonance imaging ("MRI") of the lumbrosacral
spine. (Id.). An MRI taken on April 14, 1999 revealed annular
disc bulging with degenerative disc disease at the L5-S1 level of
the lumbrosacral spine. (R. 134, 194, 227, 250). Hogue was
examined by Dr. Pignanelli again on April 24, 1999 for
hypertension, bronchial asthma and low back pain. (R. 251). Dr.
Pignanelli noted that Hogue continued to complain of low back
pain. (Id.). He discussed the MRI results with Hogue, and
referred her to physical therapy and to an orthopedist. (Id.).
Dr. Pignanelli diagnosed low back pain syndrome, and recommended
Hogue perform only light duty, with no bending or lifting for the
next three months. (R. 89). During the August 24, 1999
examination, Dr. Pignanelli also reported Hogue's blood pressure as 150/105, and noted that her
asthma was stable. (R. 251). He instructed her to comply with her
prescribed medication and diet. (Id.)
2. Medical Treatment During the Relevant Period
a. Musculoskeletal Impairments
Following the alleged onset of disability, Hogue received
treatment from a variety of sources for her lower back, left
shoulder, right shoulder and right knee. That treatment is
The first record of treatment subsequent to the alleged onset
disability is of an examination by orthopedist Dr. Ely Bryk at
Beth Israel Medical Associates. (R. 229-31). On May 6, 1999, Dr.
Bryk reported Hogue's complaints of pain in her lower back and
right side. (R. 226-247). Dr. Bryk diagnosed lumbar strain with
lumbar radiculitis, for which he prescribed range of motion,
strengthening and pain reduction exercises. (R. 231). In a note
dated June 8, 1999, Dr. Bryk stated that he had diagnosed Hogue
with lumbar strain, and that Hogue would not be able to return to
work until July 28, 1999. (R 235). In a report dated August 10,
1999, Dr. Bryk again recommended that plaintiff not work. (R.
238). In an August 11, 1999 letter, Dr. Byrk reported that Hogue
had been attending physical therapy, but continued to report
severe pain radiating down her right leg. (R. 239). Dr. Bryk's
examination revealed tenderness in her right leg, and he
requested electromyography ("EMG") testing to determine the
extent of nerve damage. (Id.). The report from the EMG test of
Hogue's lower extremities, dated August 25, 1999, revealed normal
findings, and showed no signs of lumbar radiculopathy. (R.
240-42). A physical examination revealed that Hogue's lower
extremity strength, sensation and reflexes were normal. (Id.). On a form dated September 2, 1999, Dr. Bryk reported his
primary diagnosis as lumbar radiculitis, and a secondary
diagnosis of lumbar strain. (R. 245-46). Dr. Bryk prescribed
continued physical therapy. (R. 244). Dr. Bryk noted the negative
EMG test results, and reported that upon physical examination,
Hogue complained of tenderness on palpitation. (R. 245-46). Dr.
Bryk reported that plaintiff's lumbar sprain and lumbar
radiculitis had retrogressed, and that plaintiff was "totally
disabled" and had an "inability to function in almost all areas."
(Id.). Dr. Bryk did not estimate how long the limitations would
last, instead noting that a further evaluation was scheduled for
October 5, 1999. (Id.) On October 5, 1999, Dr. Bryk reported
that Hogue could return to work on November 1, 1999. (R. 91,
Hogue's problem with her left shoulder was first recorded in a
report of an August 23, 1999, visit to Dr. Pignanelli. (R. 253).
During the visit, Hogue reported low back pain and left shoulder
pain with decreased range of motion. (Id.). Dr. Pignanelli
prescribed Celebrex, and referred Hogue for a shoulder x-ray.
(Id.). An x-ray dated October 4, 1999 showed degenerative
changes at the acromioclavicular joint but was otherwise normal.
(R. 95, 222, 254).
Hogue's left shoulder was examined by Dr. Peter McCann, an
orthopedist, on October 7, 1999. (R. 93-95). Dr. McCann's notes
indicate that an x-ray of the shoulder was negative, and he
reported his diagnosis as left shoulder impingement and possible
degenerative joint disease of the acromioclavicular joint. (R.
92-94). Dr. McCann referred Hogue to physical therapy for range
of motion and strengthening exercises. (R. 94, 225).
The next record of treatment for the lower back and left
shoulder are of an examination by Dr. Pignanelli on April 30,
2001. (R. 259). Dr. Pignanelli reported Hogue's complaints of
back pain and difficulty breathing through her nose. (Id.). For
her lower back pain and left shoulder impingement, Dr. Pignanelli
ordered bone density testing, and again ordered physical therapy. (Id.). An x-ray of the lumbar spine taken on May 4,
2001 revealed degenerative spurring at multiple levels of the
lumbar spine and a slight rightward curvature. (R. 135, 195,
261-62). Bone density testing conducted on June 26, 2001,
revealed normal bone density. (R. 264). On March 8, 2002 in an
examination by Dr. Pignanelli, Hogue's lower back condition and
left shoulder were described as stable. (R. 278).
In 2001, Hogue reported pain in her right shoulder. On June 14,
2001, Hogue was evaluated by orthopedist, Dr. Paul Hobeika. (R.
187-89). Dr. Hobeika noted that Hogue had complained of pain in
her right shoulder lasting for two months. (R. 189).*fn3
Hogue also reported pain in her lower lumbar spine continuing
since 1996, with no leg pain. (Id.). However, Dr. Hobeika noted
that Houge stated she could walk fifteen to twenty blocks. (R.
187, 189). Dr. Hobeika also noted that Hogue felt stiff in the
morning, but that she started feeling better after moving. (R.
189). On examination, Hogue was neurologically intact but had
"all the signs of an impingement syndrome of her right shoulder."
(Id.). Dr. Hobeika diagnosed Hogue with osteoarthritis of her
lumbar spine. (Id.). Dr. Hobeika gave Hogue an injection to
treat her shoulder and recommended physical therapy and
stretching of her lumbar spine. (Id.).
At a follow-up visit with Dr. Hobeika on December 10, 2001,
Hogue reported that the injection had helped with the pain for
five months. (R. 191). An MRI of the right shoulder dated
December 14, 2001 revealed degenerative arthritic changes in the
acromioclavicular joint, and noted a diagnosis of chronic
tendonitis with a small partial tear of the supraspinatus tendon.
On July 13, 2001, Hogue was treated in the Columbia
Presbyterian Medical Center ("CPMC") emergency room for
complaints of right knee pain that had started two days earlier. (R. 126-32). Hogue reported that she had a history of gout. (R.
127). On examination, the emergency room physician reported that
Hogue walked with a limp, but that her right knee had a full
range of motion with pain and no signs of effusion or laxity.
(Id.). An x-ray of the right knee revealed mild degenerative
changes, but no fracture or effusion. (R. 127, 129). The
examining physician diagnosed Hogue with right knee pain likely
due to arthritis, or possibly gout. (R. 132). Hogue was
prescribed medication and a knee brace. (Id.).
Hogue received physical therapy for her lumbar sprain, right
shoulder pain and right knee pain from July 2001 through December
2001. (R. 164-70). The reports indicate that Hogue consistently
tolerated the treatment well, and indicate generally that she
made progress in terms of decreased lower back pain. (Id.).
b. Other Impairments
Hogue has also received treatment from various sources during
the relevant period for hypertension, asthma, sleep apnea, chest
pain, and various other problems. That treatment is detailed
On August 23, 1999, Dr. Pignanelli reported Hogue's blood
pressure at 130/100, and described her lungs as stable. (R. 253).
Dr. Pignanelli urged Hogue to comply with her blood pressure
medication. (Id.). Hogue returned to Dr. Pignanelli for an
examination on January 13, 2000, seeking treatment for a sore
throat and cough. (R. 255). On examination, Dr. Pignanelli found
that her throat was congested, and she had mild expiratory
rhonchi*fn4 bilaterally. (Id.). Her blood pressure was
130/100. (Id.). Dr. Pignanelli noted that Hogue had lost her
Hogue next visited Dr. Pignanelli on February 15, 2001. (R.
256). Dr. Pignanelli noted that it was the first time he had seen
her since January 2000. Hogue reported feeling fine, and that she wanted to refill her medications. (Id.). Dr.
Pignanelli reported her blood pressure at 130/80 and that her
lungs were clear. Tests revealed that Hogue's potassium level was
low and her cholesterol was elevated. (R. 257). Hogue was advised
to modify her diet. (R. 258). In a subsequent examination on
April 30, 2001, Hogue complained of back pain and difficulty
breathing through her nose. (R. 259). Dr. Pignanelli reported
that her lungs were clear and her blood pressure was 140/100. He
recommended that plaintiff comply with a low sodium and low fat
diet, and ordered a pulmonary and cardio consult. (Id.). Hogue
visited Dr. Pignanelli again on October 25, 2001, at which time
Dr. Pignanelli reported that her blood pressure was "very good"
at 110/70. (R. 274). Dr. Pignanelli renewed her medications and
emphasized her diet. (Id.). In a March 5, 2002 visit to Dr.
Pignanelli, Hogue's blood pressure was 130/90, and her asthma and
sleep apnea were stable. (R. 278). During her next visit to Dr.
Pignanelli on June 18, 2002, Hogue reported feeling better. (R.
282). Her blood pressure was 135/80 and her lungs were clear.
(Id.). Tests showed her cholesterol level was elevated and she
was advised to follow a low cholesterol diet. (R. 282-83). A
chest x-ray requested by Dr. Pignanelli, dated August 21, 2002
showed chronic obstructive pulmonary disease. (R. 305).
On November 23, 2001, a nocturnal polysomnography ("NPSG") test
revealed mild obstructive sleep apnea. (R. 158-59, 275-76). The
testing physician recommended that Hogue use a continuous
positive airway pressure titration mask. (R. 158). On December 7,
2001, Dr. Robert Lebovics, who treated Hogue for gastroesophogeal
reflux disease and sleep apnea, reported on Hogue's physical
functioning. (R. 147-49). He assessed plaintiff as capable of
sitting for four hours continuously, and able to stand or walk
continuously for one hour each. He reported that she was able to
lift up to fifty pounds and carry up to twenty pounds. (R. 147).
Dr. Lebovics opined that Hogue could use her hands for grasping,
pushing, pulling and fine manipulations, and that she was able to bend, squat, climb and
reach continuously, but he indicated he could not assess to what
degree she could crawl, stoop, crouch or kneel. (R. 148). Dr.
Lebovics recommended that Hogue should avoid frequent exposure to
noise and occasional exposure to dust, fumes and gases. (R. 149).
Dr. Lebovics indicated that there were no objective signs of
pain. (Id.). In a handwritten note on the report, Dr. Lebovics
noted that Hogue has mild obstructive sleep apnea, and that he
had "limited direct knowledge." (Id.).*fn5
Hogue was evaluated by Dr. C. Redington Barrett, a pulmonary
specialist, on June 12, 2001. (R. 299). In a report dated July
24, 2001, Dr. Barrett described Hogue's history of asthma, which
Hogue reported had required several visits to emergency rooms and
hospitalizations for wheezing. (Id.). Hogue reported using
inhalers and an Albuterol nebulizer to treat the asthma, and that
she had undergone a five-day course of Prednisone a few months
earlier. (Id.). Hogue also reported that she had been seen in
the emergency room for palpitations, shortness of breath and
anxiety, and she reported her twenty-five year smoking habit.
(Id.). Hogue's then current symptoms included shortness of
breath after five blocks, nocturnal wheezing, and coughing.
(Id.). Upon examination, Dr. Barrett reported that Hogue's
lungs were clear, her heart was not enlarged, and no murmur was
audible. (Id.). Her blood pressure was at 130/100. Dr. Barrett
noted that pulmonary function studies conducted on June 16, 2001
revealed mild obstructive airways disease responsive to
bronchodilators, and a mildly reduced diffusion capacity.
(Id.). A chest x-ray done on June 12, 2001 showed only mild,
non-specific peribroncial cuffing, a finding that Dr. Barrett noted could be
seen in asthma patients. (Id.). Dr. Barrett reported his
diagnosis as bronchial asthma, hypertension, panic disorder with
palpitations, and, as noted above, a partially frozen right
shoulder, and prescribed the medication Flovent. (Id.).
On December 4, 2001, Dr. Barrett reported that plaintiff's
blood pressure was 120/72 and her lungs were clear. (R. 301).
Hogue reported that she continued to smoke, and that she wanted
to quit. (Id.). Dr. Barrett prescribed a nicotine patch.
(Id.). One month later, on January 9, 2002, Dr. Barrett
examined Hogue for complaints of a fever and a productive cough.
(R. 301). Dr. Barrett reported that Hogue's chest was clear and
noted no wheezing. (Id.). Hogue's blood pressure was 110/80 and
her heart had a normal rhythm. Dr. Barrett diagnosed acute
bronchitis, and prescribed Zithromax and Flonase. (Id.). Hogue
was next seen by Dr. Barrett again on June 5, 2002. (R. 302). Dr.
Barrett's handwritten notes indicate that Hogue reported wheezing
and coughing, and reported using a proventil inhaler and a
nebulizer at night when the proventil did not work. (Id.).
Hogue also reported that she had run out of nicotine patches and
was still smoking twelve cigarettes a day. (Id.). Dr. Barrett
reported that Hogue had not been using the CPAP machine, and had
not followed up on sleep studies. (Id.). He prescribed an
increase in Flovent. (Id.).
In August 2002, Hogue was referred to Dr. Barrett again for
re-evaluation of pulmonary studies. (R. 304). Dr. Barrett
examined plaintiff, finding her blood pressure to be 120/80 and
her chest to be clear. (R. 304). He noted that the sleep study
conducted on June 23, 2000 was positive for "OSA" (obstructive
sleep apnea). (Id.). Dr. Barrett reported that plaintiff had
used the CPAP machine, but complained that the face mask caused
panic attacks. Dr. Barrett's impression was stable asthma,
questionable "COPD" (chronic obstructive pulmonary disease). sleep apnea, and hypertension. (Id.). Dr. Barrett recommended a
pulmonary consultation and a chest scan. (Id.). The scan
conducted on September 25, 2002, revealed mild emphysema with air
trapping, and two small right lung lower lobe nodules and
recommended further evaluation in six months. (R. 306-07).
Dr. Barrett examined Hogue again on October 2, 2002 and
reported that she had complained of wheezing for the past two
weeks. (R. 308). Dr. Barrett indicated that Hogue's asthma was
"poorly controlled." (Id.). He noted that she had been wheezing
in the mornings for the past two weeks, and that she was using
albuterol several times a day. (Id.). On examination Dr.
Barrett reported that her lungs were clear, and he prescribed new
medication. (Id.). He also noted the results of the September
25, 2002 chest scan and recommended follow-up in six months.
Hogue was examined by cardiologist Dr. Eliscer Guzman in May
2001. (R. 138). Dr. Guzman reported in a May 22, 2001 letter to
Dr. Pignanelli that she had examined Hogue for complaints of
chest pain. (Id.). The physical examination revealed Hogue's
blood pressure to be at 150/90, but Dr. Guzman reported that the
rest of the examination was "unremarkable." (Id.). Dr. Guzman
noted that an EKG conducted at the time was normal. (Id.). An
echocardiogram showed concentric left ventricular hypertrophy
with normal functioning. (R. 138, 174-77).
A subsequent EKG ordered by Dr. Guzman, dated March 2002,
showed abnormal changes possibly due to myocardial ischemia. (R.
176). A follow-up thallium stress test performed on March 8, 2002
indicated mild to intermediate reversible ischemia. (R. 279). A
Holter monitor test conducted in May 2002 revealed an improper
heart rhythm and continued hypertension. (R. 178-79). In a questionnaire dated October 14, 2002, Dr. Guzman reported
Hogue's diagnosis as angina pectoris and chronic obstructive
pulmonary disease. (R. 309). In regard to Hogue's functioning,
Dr. Guzman opined that Hogue could sit for only forty-five
minutes continuously, stand and/or walk for five minutes
continuously and sit, stand, or walk for only a total of two
hours each day. (R. 310-11). Dr. Guzman reported that Hogue could
lift and carry less than ten pounds, and was limited in respect
to repetitive reaching and handling. (R. 311). Finally, Dr.
Guzman reported that Hogue should avoid all exposure to
environmental and pulmonary irritants. (R. 312).
During the period when Hogue did not have insurance, she sought
treatment at emergency room facilities. On December 16, 1999,
Hogue sought treatment at the CPMC emergency room for a fever and
cough. (R. 105). Hogue sought treatment at the CPMC emergency
room again on March 29, 2000 with complaints of heart
palpitations. (R. 106-118). Hogue reported that when she was out
shopping, she began to feel her heart "racing," and that she had
never experienced that symptom before. (R. 106-107). The
examining report notes Hogue's history of smoking. On
examination, Hogue's heart rate was reported as in the low 100s
and her heart rhythm was described as regular. An
electrocardiogram revealed sinus tachycardia*fn6 but was
otherwise normal, and a ventilation perfusion scan of the lungs
was normal. (R. 109-118). Hogue was diagnosed with palpitations
and a panic attack. At the end of the examination, Hogue reported
feeling well, and was discharged with the instruction to return
if her symptoms worsened. (R. 118).
On October 25, 2000, Hogue sought treatment at the emergency
room of Bladen County Hospital in North Carolina, for a cough,
dizziness, weakness, and vomiting blood. (R. 182). The report
noted that Hogue smoked one pack of cigarettes per day. (Id.).
On examination, plaintiff's neck was tender, and her heart had a regular rhythm and rate. The
examining physician reported hearing rhonchi, but no wheezing.
Hogue was diagnosed with bronchitis with a cough, and a history
of asthma. (Id.).
On June 23, 2001, Hogue went to the CPMC emergency room with
complaints of spitting up blood. (R. 123-25). Hogue was diagnosed
with bleeding from her nose and constipation. Her condition on
discharge was described as stable. (Id.).
3. Consultative Physician's Examination
On July 3, 2001, Hogue was examined by consulting physician,
Dr. Howard Finger. (R. 139-46). Hogue reported her history of
bronchial asthma and chronic lower back pain that sometimes
radiated to below her right knee. (R. 139). Hogue reported having
difficulty bending, lifting and carrying, and that she had taken
various analgesics to treat her pain and was awaiting physical
therapy. (Id.). In connection with her asthma, Hogue reported
daily shortness of breath and frequent coughing and wheezing, for
which she uses Proventil and Flovent inhalers. Hogue noted that
she was sensitive to chemicals and detergents that exacerbate her
asthma. (Id.). Hogue also reported that she was scheduled for
laser surgery on her right eye to repair a partial tear of the
Upon examination, Dr. Finger reported that Hogue's blood
pressure was 100/70, and her heart had a regular rhythm with
distant heart sounds, and no murmurs or rubs. (R. 140). Hogue's
breath sounds were mildly diminished, but were without wheezing.
(Id.). Dr. Finger reported that Hogue's straight leg raising
was negative to sixty degrees bilaterally, and she was able to
flex forward to sixty degrees, with mild to moderate diffused
lower back pain. (Id.). Dr. Finger reported no paravertebral
muscle spasm, and normal side bending and extension of the
lumbrosacral spine. (Id.). He observed that Hogue's gait was
slow and moderately stiff, but that she walked without a cane, and she was able to get on and off the
examining table slowly without assistance. (Id.). Dr. Finger
reported her flexion in both knees at 150 degrees with full
extension in each knee; he noted mild crepitus*fn7 at the
knee but no gross swelling. (Id.). Dr. Finger reported that
pulmonary studies suggested mild chest restriction. (R. 140,
142-45), and a chest x-ray was negative. (R. 140, 146). Dr.
Finger's impressions were of chronic lower back disorder, and
chronic bronchial asthma with mild symptoms and signs. (R. 140).
He also noted Hogue's complaints of "floaters" in her eye,
apparently due to the tear of her right retina. (Id.). Dr.
Finger described Hogue's overall prognosis as "fair." (Id.). In
regard to physical functioning, Dr. Finger opined that Hogue was
mildly limited in the time she is able to sit, stand and walk,
and was mildly to moderately limited in her ability to lift or
carry. (R. 140).
4. Testifying Medical Expert's Opinion
Dr. Charles Plotz, an internist, reviewed Hogue's medical
record and testified at the administrative hearing as a medical
expert. (R. 45-53). Dr. Plotz noted Hogue's history of asthmatic
bronchitis, and noted that it has been controlled by medication.
(R. 46). Dr. Plotz noted that in Dr. Barrett's July 24, 2001
letter to Dr. Pignanelli, that Dr. Barrett had "basically found
nothing," only mild obstructive airway disease. (R. 47). He noted
that her pulmonary function testing was normal, but that x-rays
and an MRI of Hogue's chest revealed mild emphysema. (Id.). Dr.
Plotz opined that this was probably related to Hogue's history of
smoking. (Id.). Dr. Plotz noted that an MRI of Hogue's lumbar
spine showed no disc problems, and an electromyography of the
lower extremities was normal. (Id.). Dr. Plotz testified that
Hogue has some osteoarthritis of the acromioclavicular joint of
the shoulder, and possibly mild impingement syndrome. (Id.).
Dr. Plotz noted he was referring to the left shoulder, stating
that "[t]he only thing I have is the left shoulder." (Id.). In regard to Hogue's complaints of angina pains, Dr. Plotz
testified that the symptoms Hogue described were likely not
cardiac related. (R. 46-47). Dr. Plotz testified that Hogue has a
history of esophagitis, and opined that that might explain her
chest pains. (Id.). He noted that although tests revealed signs
of mild to intermediate reversible ischemia, there were no clear
signs in the medical record suggesting angina. (R. 47). Dr. Plotz
noted particularly that Hogue was not taking any anginal
medication, and that Dr. Hobeika had reported that she could walk
"over 20 blocks." (Id.). Dr. Plotz testified that Hogue had
borderline hypertension. (Id.).
While Dr. Plotz did not object to the treatment provided by Dr.
Guzman, he testified that Dr. Guzman's opinion regarding Hogue's
functional capacity was "absurd." (R. 47, 53). Dr. Plotz
testified that there was no support for Dr. Guzman's conclusions
regarding functioning in Dr. Guzman's own records. (Id.). Dr.
Plotz acknowledged that the mild ischemia revealed on the
thallium stress test could lead to stress angina, but noted that
the medical record did not support a finding of angina. (R. 48).
Moreover, Dr. Plotz testified that abnormalities on the thallium
stress test would not, without more, indicate functional
As for Hogue's physical limitations, Dr. Plotz opined that
Hogue could perform light work. (R. 48-49). Specifically, Dr.
Plotz testified that Hogue could sit without limitation. He
testified that she could stand and walk for between four and six
hours per day, clarifying on follow up that it would be closer to
six hours per day. (Id.). He further testified that Hogue could
lift and carry up to twenty pounds, but would have some
difficulty reaching overhead. (Id.). Dr. Plotz testified that
in light of her asthma, Hogue should avoid airborne pathogens.
(R. 49). Dr. Plotz testified that her shoulder pain which he
described as alternating from one shoulder to another should
not limit her other than sometimes restricting her ability to
reach overhead. (Id.). Dr. Plotz disagreed with the assessment
of Dr. Lebovics that Hogue could stand or walk continuously for only one hour, noting that nothing in Dr.
Lebovics' notes, which reported mild gastroesophageal reflux
disease with some dysphagia,*fn8 would indicate any
restrictions on standing or walking. (R. 50). Dr. Lebovics had
also treated Hogue for sleep apnea, and Dr. Plotz testified that
while "severe" sleep apnea might result in non-exertional
limitations, there was no indication of severe sleep apnea in the
record. (R. 53).
I. Standard of Review
This Court may reverse the Commissioner's decision "only if the
factual findings are not supported by `substantial evidence' or
if the decision is based on legal error." Shaw v. Carter,
221 F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 405(g));
accord Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial
evidence is defined as "`more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Richardson v. Perales,
402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229,
59 S. Ct. 206, 83 L. Ed. 126 (1938)); accord Shaw, 221 F.3d at 131;
Rosa, 168 F.3d at 77.
In determining whether substantial evidence supports the
Commissioner's decision, "the Court [must] carefully consider?
the whole record, examining evidence from both sides." Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citing Quinones v.
Carter, 117 F.3d 29, 33 (2d Cir. 1997). However, it "`may 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 and Human Servs.,
733 F.2d 1037, 1041 (2d Cir. 1984); accord Rosa, 168 F.3d at 77
If the Court finds substantial evidence supporting the Commissioner's decision, the decision will be
upheld even if there is also substantial evidence supporting
plaintiff's claim. See DeChirico v. Callahan, 134 F.3d 1177
(2d Cir. 1998); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
II. The Definition of Disability
A person is disabled for purposes of the Social Security Act
when she 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); Rosa, 168 F.3d at 77. The impairment must be
demonstrated "by medically acceptable clinical and laboratory
diagnostic techniques," 42 U.S.C. § 423(d)(3), and must be "of
such severity that [the claimant] is not only unable to do h[er]
previous work but cannot, considering h[er] age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy."
42 U.S.C. § 423(d)(2)(A).
The Commissioner has established a five-step sequential
analysis for considering disability claims, see
20 C.F.R. §§ 404.1520, 416.920, which the Second Circuit has articulated as
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the
claimant has a `severe impairment' which limits his
or her mental or physical ability to do basic work
3. If the claimant has a `severe impairment,' the
Commissioner must ask whether, based solely on
medical evidence, claimant has an impairment listed
in Appendix 1 of the regulations. If the claimant has
one of these enumerated impairments, the Commissioner
will automatically consider him disabled, without
considering vocational factors such as age,
education, and work experience. 4. If the impairment is not `listed' in the
regulations, the Commissioner then asks whether,
despite the claimant's severe impairment, he or she
has residual functional capacity to perform his or
her past work.
5. If the claimant is unable to perform his or her
past work, the Commissioner then determines whether
there is other work which the claimant could perform.
Shaw, 221 F.3d at 132 (citing DeChirico v. Callahan,
134 F.3d 1177, 1179-80 (2d Cir. 1998)). The claimant bears the burden of
proof on the first four steps; only if the claimant meets her
burden in showing she cannot perform her past work does the
burden then shift to the Commissioner on the fifth step to
demonstrate that there is alternative substantial gainful work in
the national economy that the claimant can perform. Id. If a
claimant has multiple impairments, the Commissioner "must
evaluate their combined impact on a claimant's ability to work,
regardless of whether every impairment is severe." Dixon v.
Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995).
III. The Administrative Law Judge's Decision
In his written decision, the ALJ followed the above five-step
evaluation process in determining whether Hogue was disabled. The
ALJ first determined that Hogue had not worked since the alleged
onset of disability. (R. 17). He next found that she suffered
from a combination of "severe" impairments, including mild
controlled hypertension, mild controlled asthma, mild
degenerative changes of both shoulders, and chronic lumbrosacral
strain. However, the ALJ found that these impairments did not
meet or equal one of the listed impairments in Appendix 1 of 20
C.F.R. Part 404, Subpart P. (Id.). The ALJ was then required
"to determine whether [Hogue] has the residual functional
capacity to perform work she had done in the past." Diaz v.
Shalala, 59 F.3d 307, 312 (2d Cir. 1995). Based on the record evidence, the ALJ found that Hogue had the
capacity to lift up to 20 pounds, stand or walk for up to six
hours with customary rest periods, and an unlimited capacity to
sit. (R. 17). The ALJ also found that Hogue was required to avoid
exposure to substantial environmental irritants. (Id.). Finding
that Hogue's past relevant work as a social service aide did not
require performance of activities precluded by Hogue's residual
functional capacity, the ALJ concluded that Hogue had not met her
burden of establishing that she was unable to perform her past
relevant work, and thus she was not disabled for purposes of the
Act at any time from the alleged onset of disability through the
date of the decision. (R. 18). Because he found that Hogue was
not disabled, the ALJ did not evaluate under step five of the
analysis whether there was other work which she could perform.
In reaching his conclusions regarding Hogue's functional
capacity, the ALJ credited the testimony of the testifying
expert, Dr. Plotz. (R. 16). The ALJ noted that among Hogue's
treating physicians, only Dr. Guzman and Dr. Lebovics had
commented on Hogue's functional limitations. (Id.). The ALJ
found that neither of those assessments were supported by the
record. The ALJ explained that Dr. Guzman's assessment of total
disability was premised on the assumption that Hogue suffers from
angina, but the ALJ concluded based on Dr. Plotz's testimony and
other record evidence that Hogue did not have angina, and that
the mild ischemia revealed in the records would not cause further
functional limitation beyond what Dr. Plotz described. (Id.).
The ALJ discounted Dr. Lebovics' rating of Hogue's standing and
walking limitations, noting that Dr. Lebovics' knowledge of
Hogue's condition was limited, and that the limitations were not
related to the conditions of GERD and dysphagia for which Dr.
Lebovics had treated Hogue. (Id.). The ALJ found that neither Hogue's musculoskeletal problems,
nor her mild asthma would restrict her from performing light
work. (R.16). The ALJ found that Hogue's testimony regarding her
limitations was not entirely credible, and he concluded that the
record did not support Hogue's claimed restrictions due to her
sleep apnea. (R. 17).
Hogue contends that the ALJ failed to apply the correct legal
standards in weighing the opinions of the various medical sources
and improperly failed to seek additional information before
discounting the opinions of her treating physicians. Hogue also
argues that the ALJ's decision is not supported by substantial
evidence. The Court addresses each argument in turn.
IV. The Treating Physician Rule
Hogue claims that the ALJ applied an incorrect legal standard
in rejecting the opinions of her treating physicians, Drs.
Lebovics and Guzman, and instead crediting the opinion of the
nonexamining physician, Dr. Plotz.
The Commissioner has promulgated regulations providing that the
opinion of a claimant's treating physician will be given
controlling weight where it "is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record." 20 C.F.R. § 404.1527(d)(2); Schaal v. Apfel,
134 F.3d 496, 503 (2d Cir. 1998). However, the general rule requiring
deference to a treating physician's opinion does not apply where
"the treating physician issued opinions that are not consistent
with 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); accord Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002). Thus, the rule "permit[s] the opinions
of nonexamining sources to override treating sources' opinions,
provided they are supported by evidence in the record." Schisler v. Sullivan, 3 F.3d 563, 568-69 (2d Cir. 1994)
("Schisler III"); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir.
Where an ALJ does not give controlling weight to a treating
physician's opinion, he must consider the following factors to
determine how much weight to give the opinion: "(i) the frequency
of examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support of the
opinion; (iii) the opinion's consistency with the record as a
whole; (iv) whether the opinion is from a specialist; and (v)
other relevant factors." Schaal, 134 F.3d at 503-04; see
20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). The ALJ's written
decision must include "`good reasons'" for the weight given the
treating physician's opinion. Schaal, 134 F.3d at 503-04
(quoting 20 C.F.R. § 404.1527(d)(2)); accord Halloran,
362 F.3d at 32.
A. Opinions of Hogue's Treating Physicians
The ALJ properly considered the factors set forth in the
regulations in refusing to give controlling weight to Dr.
Guzman's opinion regarding Hogue's functional limitations. The
ALJ reflected that Dr. Guzman had seen Hogue on only two
occasions, and had apparently not done a physical examination or
recorded Hogue's subjective complaints. (R. 14). The ALJ
determined that Dr. Guzman's opinion was predicated on the
assumption that Hogue has angina, but he concluded that was not
supported by the record. (R. 16). The ALJ considered the results
of tests ordered by Dr. Guzman, including one electrocardiogram
that was normal, another electrocardiogram that showed possible
ischemia, a myocardial perfusion study that showed mild to
intermediate reversible ischemia, and a Holter monitor that
appeared normal. However, the ALJ credited the opinion of Dr.
Plotz who testified that neither Dr. Guzman's diagnosis of angina
nor Guzman's assessment of Hogue's functional limitations was
supported by the medical evidence. (Id.). Dr. Plotz noted that
although there was evidence of mild ischemia in the test results, Hogue had not been prescribed any anginal medication,
and her subjective description of the chest pains did not comport
with pains of an anginal nature. (R. 16, 47). Dr. Plotz further
testified that the mild ischemia indicated by the test results
would not cause the physical limitations reported by Dr. Guzman.
Moreover, Hogue's own testimony provided further evidence
supporting the ALJ's rejection of Dr. Guzman's conclusions
regarding her functional limitations. While Dr. Guzman opined
that Hogue was unable to walk or stand for more than five minutes
at a time, (R. 310), Hogue testified that she walked for exercise
and was able to stand for up to two hours and walk for up to an
hour. (R. 40). She had previously reported to Dr. Hobeika that
she could walk for up to twenty blocks. (R. 187, 189).
After considering the relevant factors in determining whether
to give controlling weight to Dr. Guzman's opinion, it was not
error for the ALJ to resolve an apparent conflict in the medical
opinions of Drs. Guzman and Plotz in favor of Dr. Plotz's reading
of the medical evidence. See Aponte, 728 F.2d at 591 (citing
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
28 L.Ed. 2d 842 (1971)) ("genuine conflicts in the medical evidence,"
are appropriately resolved by the ALJ); accord Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Hogue contends that the ALJ further erred in rejecting the
opinion of Dr. Lebovics who reported that Hogue could stand or
walk for only one hour continuously. However, here again, the ALJ
considered the relevant factors and gave reasons for deciding not
to give controlling weight to Dr. Lebovics' opinion regarding
Hogue's ability to walk or stand. The ALJ considered the fact
that Dr. Lebovics had had limited contact with Hogue, and in a
very limited area of her medical complaints. (R. 16). The ALJ
also relied on Dr. Plotz's medical opinion that there was no
support in Dr. Lebovics' treatment notes for the functional
limitations that he reported, and the conditions he treated her for had no relation to her capacity
for walking or standing. (Id.). Dr. Lebovics himself indicated
on the functional assessment form that he had only "limited
direct knowledge" of Hogue's functioning. (R. 149). Thus, the ALJ
had good reason for not giving his opinion regarding her ability
to stand or walk controlling weight.
The ALJ did not specify what weight he otherwise gave to Dr.
Lebovics' opinion, but the Court notes that the ALJ's remaining
conclusions regarding Hogue's residual functional capacity were
otherwise consistent with the opinion of Dr. Lebovics who
similarly opined that Hogue was able to lift or carry up to
twenty pounds, and should avoid exposure to environmental
irritants. (R. 147). Moreover, while Dr. Lebovics opined that
Hogue was limited to one hour of continuous walking or standing,
he did not indicate how many hours total she would be able to
stand or walk in a given day. (Id.). The ALJ described Hogue as
being able to stand or walk for up to six hours with customary
rest periods. (R. 17)
B. The ALJ's Duty to Develop the Record
Hogue argues, alternatively, that the ALJ should have sought
further information and explanation from Drs. Guzman and Lebovics
before rejecting their assessments of her physical restrictions.
Hogue correctly urges that an "ALJ generally has an affirmative
obligation to develop the administrative record," Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v.
Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.
1982)), and remand is appropriate where an ALJ fails to seek
further information in spite of the existence of gaps or
deficiencies in the administrative record. See Rosa,
168 F.3d at 76. Thus, if records from a treating physician cover only a
small number of the total visits by the plaintiff to that
physician, see Id., or if a treating physician fails to explain the basis for her opinion,
remand may be appropriate. See Clark v. Comm'r of Social
Security, 143 F.3d 115, 118 (2d Cir. 1998).
Here, however, the ALJ did not err in failing to request
further information from Dr. Guzman or Dr. Lebovics. There is no
indication of any gap in the records provided by Dr. Guzman or
Dr. Lebovics, both of whom had limited contact with Hogue.
Moreover, the ALJ did not reject Dr. Guzman's opinion for failure
to explain his reasoning; rather, he rejected it based on the
medical opinion of Dr. Plotz who reviewed the relevant medical
evidence and disagreed with Dr. Guzman's assessment of functional
capacity and with Dr. Lebovics' opinion regarding Hogue's
capacity for continuous standing or walking. (R. 16). An ALJ need
not seek further explanation from treating physicians each time
there is an inconsistency in medical opinions. See Rebull v.
Massanari, 240 F. Supp. 2d 265, 273 (S.D.N.Y. 2002). As the
court in Rebull noted, the ALJ's function of resolving
conflicts in the medical record, "would be rendered nugatory if,
whenever a treating physician's stated opinion is found to be
unsupported by the record, the ALJ were required to summon that
physician to conform his opinion to the evidence." Id.
C. Opinion of the Testifying Expert
Hogue also challenges the weight given to Dr. Plotz's opinion,
urging that the ALJ should not have given Dr. Plotz's opinion
greater weight than the opinions of her treating physicians
because he had never examined her and his testimony was
incomplete and contained inherent contradictions. However, as
noted above, the regulations allow "the opinions of nonexamining
sources to override treating sources' opinions, provided they are
supported by evidence in the record." Schisler v. Sullivan,
3 F.3d 563, 568-69 (2d Cir. 1994) ("Schisler III"); see also
Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). A review of the record reveals that Dr. Plotz's opinion
regarding Hogue's residual functional capacity with which the
ALJ agreed entirely was supported by substantial evidence.
Reports from Drs. Bryk and Finger support the conclusion that
Hogue has the functional capacity to return to work, and is only
mildly limited by her impairments, a conclusion that is
consistent with Dr. Plotz's opinion.
Although Dr. Bryk who diagnosed Hogue with lumbar strain with
lumbar radiculitis reported in September 1999 that Hogue's
condition had retrogressed, and that she was "totally disabled,"
(R. 245-46), by October 1999, Dr. Bryk reported that Hogue could
return to work on November 1, 1999. (R. 91, 247).*fn9 Also,
an August 1999 EMG of Hogue's lower extremities ordered by Dr.
Bryk revealed normal findings, and showed no signs of lumbar
radiculopathy. (R. 240-42). Reports from the physical therapist
also indicate that Hogue's lower back problem was progressing
with treatment. (R. 164-70).
Noting Hogue's chronic lower back disorder, and chronic
bronchial asthma with mild symptoms and signs, Dr. Finger
described Hogue's overall prognosis as "fair," and opined that
Hogue was only mildly limited in the time she is able to sit,
stand and walk, and was mildly to moderately limited in her
ability to lift or carry. (R. 139-140).*fn10 Also, while the record does reveal signs of impingement
syndrome in both shoulders, (R. 92-94, 198), that is not
inconsistent with the ALJ's decision. He noted that Hogue "does
have some degenerative disease in each shoulder," but concluded
based on the evidence that it was mild. (R. 16). He agreed with
Dr. Plotz that she may occasionally have difficulty reaching
overhead. (Id.). This conclusion is supported by a report from
Dr. Hobeika that indicates that Hogue's right shoulder pain was
treated with medication, (R. 191), and by Dr. Pignanelli's notes
from March 2002 that described Hogue's lower back condition and
left shoulder as stable. (R. 278).
The only record of an impairment in Hogue's right knee is in
the report from her visit to the emergency room in July 2001. At
that time, an x-ray revealed mild degenerative changes, but no
fracture or effusion. (R. 127, 129). Shortly before that visit to
the emergency room, Dr. Finger had examined Hogue and reported
that she had full extension in both knees, and noted mild
crepitus, but no gross swelling. (R. 140).
Thus, substantial evidence supports the conclusion that Hogue's
musculoskeletal impairments would not cause further functional
Substantial evidence also supports the conclusion that Hogue's
other impairments did not cause further restrictions on Hogue's
functional capacity. While the record reveals one incident of
Hogue being treated for heart palpitations and a panic attack,
during the examination, Hogue's heart rate was reported as in the
low 100s and her heart rhythm was described as regular. (R.
109-118). Moreover, Dr. Pignanelli's reports show that Hogue's
blood pressure readings were generally stable. (R. 253, 255, 256,
Hogue does have a well documented history of bronchial asthma;
however, the record supports the conclusion that it is treated
with medication. An August 2002 chest x-ray did show chronic obstructive pulmonary disease, (R. 305), and a scan
conducted on September 25, 2002, revealed mild emphysema with air
trapping, and two small right lung lower lobe nodules and
recommended further evaluation in six months. (R. 306-07).
Additionally, Dr. Barrett's handwritten notes in 2002 describe
her asthma as "poorly controlled." (R. 302, 308). However, Dr.
Barrett's and Dr. Pignanelli's notes regularly describe Hogue's
lungs as "clear." (R. 253, 255, 256, 274, 282, 299, 301, 308),
and Dr. Barrett's notes indicate that Hogue was using her inhaler
and nebulizer as necessary to treat her asthma. (R. 301, 302,
Finally, although Hogue's testimony at the hearing contradicted
the ALJ's findings and Dr. Plotz's conclusions, the ALJ did not
err in discounting Hogue's subjective complaints of knee and
chest pain that she claimed limited her ability to walk and stand
continuously. In discrediting Hogue's claims, the ALJ noted that
Hogue paused before answering questions pertaining to her
symptoms, but answered promptly and easily when asked "simpler or
less `freighted' questions." (R. 13). The ALJ did not discount
Hogue's testimony entirely, as he relied on her testimony that
she could walk for up to an hour as support for his decision to
reject Dr. Guzman's functional assessments. "`It is clearly the
function of the Secretary, not [the reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant,'" Aponte v. Sec'y of Health &
Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quoting Carroll
v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1982)), and if the "findings are supported by substantial
evidence, the court must uphold the ALJ's decision to discount a
claimant's subjective complaints of pain." Id. (citations
omitted). Thus, courts note that the ALJ's determination as to
the credibility of a claimant's subjective complaints must be
accepted "unless it is clearly erroneous." See e.g., Arreaga
v. Barnhart, No. 01 Civ. 4051, 2002 WL 31526546, at *9 (S.D.N.Y.
Nov. 14, 2002) (citing Aponte, 728 F.2d at 591); Centano v. Apfel, 73 F. Supp. 2d 333, 338 (S.D.N.Y. 1999)
(same). As discussed above, there was substantial evidence
supporting the ALJ's findings, and the ALJ's conclusions
regarding Hogue's credibility are not clearly erroneous.
Because there was substantial evidence supporting Dr. Plotz's
opinion regarding Hogue's residual functioning capacity, the ALJ
did not err in accepting Dr. Plotz's opinion over that offered by
the treating physicians. See Schisler, 3 F.3d at 568-69;
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
V. Substantial Evidence
A. Exertional Limitations
Hogue contends that the decision was not based on substantial
evidence because the ALJ relied on Dr. Plotz's testimony, and Dr.
Plotz failed to consider the entire medical record. This argument
is unavailing, however, because while the ALJ relied heavily on
Dr. Plotz's opinion, his decision reveals that he also
independently considered the medical records and other testimony
provided at the hearing in making his findings. (R. 14-16).
Moreover, as the Court addressed in detail above, there is
substantial evidence in the record to support Dr. Plotz's
conclusions regarding Hogue's exertional limitations, with which
the ALJ agreed entirely.
B. Non-exertional Limitations
Hogue raises a more difficult question as to whether
substantial evidence supported the ALJ's conclusion that her
asthmatic condition caused no non-exertional limitations that
would preclude her from performing her past relevant work. Hogue
contends that because neither the ALJ nor Dr. Plotz commented
upon or discounted her allegations regarding non-exertional
limitations attributable to her sleep apnea and the daily use of
her nebulizer, there was no basis on which the ALJ could
determine that she could perform her past relevant work. Hogue testified at the hearing that she had to use her
nebulizer two to three times a day, for periods of 35-45 minutes
each to treat her asthma, and that she fell asleep two to three
times a day due to her sleep apnea. Hogue urges that when these
non-exertional impairments are factored in, the vocational
expert's testimony establishes that she could not perform her
past relevant work. She notes that vocational expert Rammauth
testified that if a person had to lie down two to three times per
day, or use a nebulizer two to three times per day for
approximately 45 minutes, she would not be able to perform any of
the light work discussed as work hypothetically available to
Hogue. (R. 56).
As noted above, it is clearly the function of the ALJ to make
credibility findings concerning the claimant, and those findings
must be accepted where they are not clearly erroneous. See
Aponte, 728 F.2d at 591 (2d Cir. 1984); accord Tejada v.
Apfel, 167 F.3d 770, 775-76 (2d Cir. 1999). Where an ALJ rejects
a claimant's subjective complaints, however, he must set forth
the reasons with "`sufficient specificity to enable [the district
court] to decide whether the determination is supported by
substantial evidence.'" Toro v. Chater, 937 F. Supp. 1083, 1086
(S.D.N.Y. 1996) (quoting Ferraris v. Heckler, 728 F.2d 582, 587
(2d Cir. 1987)); accord Rosato v. Barnhart,
352 F. Supp. 2d 386, 398 (E.D.N.Y. 2005).
Contrary to Hogue's claim, the ALJ did expressly find that
Hogue's "alleged substantial restrictions from sleep apnea," were
not credible, (R. 17), and that finding is supported by
substantial evidence. In 2001, the nocturnal polysomnography test
revealed mild obstructive sleep apnea, (R. 158-59, 275-76), and
in March 2002, Dr. Pignanelli described her sleep apnea as
"stable." (R. 278). Upon review of the medical record, Dr. Plotz
acknowledged that while "severe" sleep apnea might result in
non-exertional limitations, there was no indication of severe
sleep apnea in the record. (R. 53). While Hogue testified that
she was unable to use the CPAP mask to treat the condition as often as was recommended, Dr.
Barrett's notes indicate, consistent with her testimony, that she
was able to use it on occasion. (R. 304). Because the ALJ's
decision to discount Hogue's testimony regarding limitations
caused by sleep apnea was supported by substantial evidence, and
not clearly erroneous, it must be accepted by this Court. See
Aponte, 728 F.2d at 591.
In contrast to the ALJ's express finding regarding Hogue's
claimed limitations due to sleep apnea, the decision is absent of
any direct finding regarding Hogue's testimony that daily
nebulizer treatments are required to treat her asthma. The ALJ
did describe Hogue's asthma as "very mild and seldom active," and
found that it would "[c]ertainly," not cause further limitations,
other than limiting her from exposure to environmental irritants.
(R. 16). As noted, the ALJ relied heavily on Dr. Plotz's opinion
of Hogue's functioning capacity in reaching his conclusions.
While Dr. Plotz noted Hogue's history of asthmatic bronchitis,
and noted that it has been controlled by medication, (R. 46), he
did not comment on whether or not the use of the nebulizer was an
essential part of Hogue's asthma treatment.
Hogue urges that the record does not reflect that either the
ALJ or Dr. Plotz considered the more recent reports from her
pulmonary specialist, Dr. Barrett, that suggest a worsening of
her asthma condition. Dr. Plotz did note that in a July 2001
letter to Dr. Pignanelli, Dr. Barrett had "basically found
nothing," only mild obstructive airway disease. (R. 47). The ALJ
notes in the decision that Dr. Barrett's reports reflect
treatment through 2002, (R. 15); however, there was no discussion
of the findings in Dr. Barrett's more recent reports, either in
the testimony or in the ALJ's written decision.
Hogue's use of her nebulizer was reflected in the first report
from Dr. Barrett, (R. 299), and while his October 2002 report
described her lungs as clear, he noted that Hogue had been wheezing in the mornings for the past two weeks, and that she was
using albuterol several times a day, and he recommended a
follow-up in six months. (Id.). There was no indication from
either Dr. Barrett or Dr. Pignanelli that use of the nebulizer
was not required to adequately treat Hogue's asthma.
Assuming that the ALJ did consider and reject Hogue's claim
regarding the need for daily nebulizer treatments, the decision
fails to set forth with sufficient specificity the basis for
rejecting that claim. After an independent review of the record,
and particularly in light of the medical reports from Dr. Barrett
that appear to support Hogue's claimed non-exertional limitation,
the Court cannot conclude that substantial evidence supports the
ALJ's decision to discount Hogue's testimony regarding
limitations caused by her asthma.
Thus, this case is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) to evaluate the credibility
of Hogue's claim that her necessary asthma treatments impose
non-exertional limitations that preclude her from performing her
past relevant work.
For the foregoing reasons, the Commissioner's motion for
judgment on the pleadings is denied, and Hogue's motion for
judgment on the pleadings is granted. The final decision of the
Commissioner is vacated and this case is remanded to the
Commissioner pursuant to the fourth sentence of
42 U.S.C. § 405(g), for further administrative proceedings in accordance with