The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Penny Bennett, brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for disability benefits ("DIB").
On April 30, 2004, plaintiff filed an application for DIB. (T. 425).*fn1 Plaintiff was 51 years old at the time of the application with past work experience as a nurse's aide and waitress. (T. 442). Plaintiff claimed that she became disabled on May 4, 2002 due to a lumbar spine sprain, bulging discs in her lower back/neck, a heart attack and diabetes. (T. 431). On January 11, 2005, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on December 14, 2005. (T. 407, 693). On January 25, 2006, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 18-28). The Appeals Council denied plaintiff's request for review on May 25, 2007 making the ALJ's decision the final determination of the Commissioner.
(T. 10). This action followed.
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability 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). There is a five-step analysis for evaluating disability claims: "In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
On January 25, 2006, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since her alleged onset date. (T. 19). At step two, the ALJ concluded that plaintiff suffered from degenerative disc disease which qualified as a "severe impairment" within the meaning of the Social Security Regulations (the "Regulations"). (T. 24). At the third step of the analysis, the ALJ determined that plaintiff's impairment did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 24). The ALJ found that plaintiff had the residual functional capacity ("RFC") to, "lift and/or carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk 6 hours in an 8-hour day, sit 6 hours in an 8-hour day, and push and/or pull with limitations in her upper extremities". (T. 26). At step four, the ALJ concluded that plaintiff had the residual functional capacity to perform her past work as a nurse's aide and waitress. (T. 26). At the final step, the ALJ concluded that plaintiff had the ability to do these jobs as they are generally performed in the national economy. (T. 26). Therefore, the ALJ concluded plaintiff was not under a disability as defined by the Social Security Act. (T. 27).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the ALJ failed to properly apply the treating physician rule; (2) the ALJ improperly assigned "greater weight" to the opinions of State agency examining and consultative physicians; 3) the ALJ failed to properly assess plaintiff's credibility; and (4) new and material evidence supports plaintiff's contentions and would have resulted in a favorable decision for plaintiff. (Dkt. No. 16).
A. Treating Physician Rule
Plaintiff argues that the ALJ improperly assigned minimal weight to the opinions of his treating physician, Louis Bonavita, Jr., M.D. Plaintiff contends that Dr. Bonavita's opinions are entitled to great weight as they are supported by objective medical testing and a long period of treatment. (Dkt. No. 15, p. 13). The Commissioner argues that Dr. Bonavita's opinions are: (1) not supported by clinical test results; (2) contrary to the physician's treatment records and other medical evidence; and (3) inconsistent with plaintiff's testimony of her abilities. (Dkt. No. 19, p. 8).
Under the Regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa, 168 F.3d at 78-79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The ALJ is required to accord special evidentiary weight to the opinion of the treating physician, as long as the treating physician's opinion is supported by medically acceptable techniques, results from frequent examinations, and is supported by the administrative record. Schnetzler v. Astrue, 533 F.Supp.2d 272, 285 (E.D.N.Y. 2008). An ALJ may refuse to consider the treating physician's opinion controlling if he is able to set forth good reason for doing so. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y. 1998). "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Peralta v. Barnhart, 2005 WL 1527669, at *10 (E.D.N.Y. 2005) (remanding case where the ALJ failed to explain the weight, if any, assigned to the treating physician's opinions) (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)). The opinion of a treating physician is not afforded controlling weight where the treating physician's opinion contradicts other substantial evidence in the record, such as the opinions of other medical experts. Williams v. Comm'r of Soc. Sec., 236 F.App'x 641, 643-44 (2d Cir. 2007); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R. § 404.1527(d)(2)). The less consistent an opinion is with the record as a whole, the less weight it is to be given. Stevens v. Barnhart, 473 F.Supp.2d 357, 362 (N.D.N.Y. 2007); see also Otts v. Comm'r of Soc. Sec., 249 F.App'x 887, 889 (2d Cir. 2007) (an ALJ may reject such an opinion of a treating physician "upon the identification of good reasons, such as substantial contradictory evidence in the record"). Similarly, an opinion that is not based on clinical findings will not be accorded as much weight as an opinion that is well-supported. 20 C.F.R. §§ 404.1527(d)(3), 416.927 (d)(3); see also Stevens, 473 F.Supp.2d at 362; see also Cruz v. Barnhart, 2006 WL 1228581, at *11 (S.D.N.Y. 2006) (holding that the Commissioner is not required to give controlling weight to a treating physician whose opinion is not supported by treating physician's own records).
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including:
(I) the frequency of the 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 Social Security Administration's attention that tend to support or contradict the opinion.
20 C.F.R. § 404.1527(d)(2).
A treating physician's belief that a plaintiff is "totally disabled" is irrelevant since that determination is reserved for the Commissioner. Taylor v. Barnhart, 83 F.App'x 347, 349 (2d Cir. 2003); Gladden v. Comm'r of Soc. Sec., 337 F.App'x 136, 138 (2d Cir. 2009). While the final responsibility for deciding issues relating to disability is reserved to the Commissioner, the ALJ must still give controlling weight to a treating physician's opinion on the nature and severity of a plaintiff's ...