Opinion
CV-02-3654 (SJF)
November 24, 2003
OPINION ORDER
I. Introduction
Michael A. Baize ("Baize" or "plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security's ("the Commissioner") decision that plaintiff is not entitled to disability benefits as provided in Title II of the Social Security Act ("the Act"). The Commissioner has moved for a judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
Plaintiff alleges that he has been disabled since November 18, 1992 due to severe back pain. The Commissioner found that prior to December 31, 1999, the plaintiff's date last insured, plaintiff could perform sedentary work in the national economy. Plaintiff claims that: (1) the medical evidence was not properly analyzed because the Administrative Law Judge ("the ALJ") (a) failed to appropriately weigh the opinion of plaintiff's treating source, Dr. David Green and (b) improperly disregarded the medical opinions of Dr. Ahmed Elemam and the Social Security Administration's ("the SSA") orthopedic consultant, Dr. Michael Katz; (2) the ALJ's finding that Baize was not disabled because he could perform sedentary work in the national economy is not supported by substantial evidence; and (3) that new and material evidence warrants remand for further consideration by the SSA.
The issues are whether the Commissioner's decision is supported by substantial evidence and correct legal standards were applied.
II. Background
A. Procedural History
On April 10, 1999, plaintiff filed an application for disability benefits with the SSA, (Tr. 75-77), which was denied in July 1999, (Tr. 47, 49-52), and again upon reconsideration in August 1999. (Tr. 48, 58-60). Plaintiff's request for a hearing by an Administrative Law Judge was received by the SSA on October 25, 1999. (Tr. 61). According to plaintiff, the SSA's Office of Hearings and Appeals informed him in May 2000 that his file had been lost or misplaced, (Mem. of Law in Opp'n to Def.'s Mot. for J. at 4), and plaintiff filed another ALJ hearing request on June 5, 2000. (Tr. 14). On November 16, 2000, plaintiff appeared pro se, waived his right to counsel, and testified at a hearing held before ALJ Robert J. Lazarus, (Tr. 28-46). ALJ Lazarus issued an eight-page decision on September 28, 2001 denying the claim and finding that plaintiff could perform sedentary work. (Tr. 17-27). On October 10, 2001, plaintiff timely requested a review the ALJ's decision, which was denied by the Appeals Council on April 19, 2002. (Tr. 3-4).
B. Facts
Plaintiff was born on September 17, 1958, (Tr. 75), and was forty-one years old on December 31, 1999, his date last insured. After receiving a degree in electrical engineering in 1982, plaintiff worked as a technician for IBM, which included pushing, lifting, and testing computers. (Tr. 31-33). Plaintiff claims the job was "very strenuous" and involved kneeling, bending, standing, and sitting. (Tr. 33). On November 18, 1992, plaintiff injured his lower back when a large computer fell on him at work, and has not worked since that date. (Tr. 32-33). Plaintiff notes that sitting or walking for more than fifteen to twenty minutes causes pain, and the only way to function is by taking painkillers, which cause him to become nauseous and throw up. (Tr. 34).
C. Medical Evidence Prior to Plaintiff's Date Last Insured
A magnetic resonance imaging (MRI) study of plaintiff's lumbar spine on June 15, 1993 identified no focal disc herniations, mild annular bulges at L3-L4 and L4-L5 that caused mild encroachment upon the inferior aspects of neural foramina at L4-L5, and degenerative changes within the posterior facet joints. There was no evidence of central lumbar spinal canal stenosis. (Tr. 107).
Dr. Zina Turovsky's evaluation, conducted on August 24, 1993, noted that plaintiff complained of back pain and stiffness, which was provoked or aggravated by continued periods of sitting, walking long distances, or bending over. The examination revealed that there was tenderness in the mid-thoracic, lumbar, and sacral spines, painful restriction of lower back movement on anterior flexion, and a positive Lasegue sign bilaterally at sixty degrees. However, plaintiff walked with a normal gait without the assistance of a cane, walker, or crutches. Dr. Turovsky diagnosed plaintiff with mid-thoracic and lumbar spine sprain and strain, but ruled out lumbosacral radiculopathy. (Tr. 114-116).
"Lumbosacral" is defined as "Relating to the lumbar vertebrae and the sacrum." Stedman's Medical Dictionary 1034 (27th ed. 2000).
"Radiculopathy" is defined as "Disorder of the spinal nerve roots," Id. at 1503.
The chiropractor, Dr. David Green, examined plaintiff several times between January 28, 1994 and February 9, 1994. Plaintiff complained of lumbar pain and muscle tightness, was diagnosed with lumbosacral radicular syndrome that required "continued care," and treated with spinal manipulation and supportive therapy. (Tr. 107-110). In a February 8, 1994 letter, Dr. Green opined that plaintiff had a "severe partial disability," was unable to climb stairs, and could only lift, push, or pull fifteen pounds. Moreover, Dr. Green determined that over the course of an eight-hour day, plaintiff could not sit for more than four hours, stand for more than two hours, or walk for more than one hour. (Tr. 130). Dr. Green's February 9, 1994 examination revealed muscle spasms and palpatory tenderness in the lumbosacral region. (Tr. 110). In sum, Dr. Green wrote that plaintiff "is unable to participate in employment that involves extensive physical labor." (Tr. 130). Additionally, plaintiff visited Dr. Green on March 30, April 6, and April 9, 1994. (Tr. 104, 106, 112). On April 9, 1994, Dr. Green noted that plaintiff had a "moderate-severe partial disability" that prohibited employment involving extensive physical labor. (Tr. 113).
On April 11, 1994, plaintiff was examined by New York State Workers' Compensation Board physician Dr. Imperato. Plaintiff had restricted range of motion in the lumbar spine, lumbar muscle spasms, a flattening of the lumbar lordosis, and a one inch atrophy of the right thigh muscle. Toe-heel walking, squatting, and straight leg raising were restricted and painful. Furthermore, plaintiff experienced pain, decreased sensation, and hyperactive reflexes in the left lower extremity. Dr. Imperato diagnosed plaintiff with a permanent partial disability. (Tr. 102).
On May 5, 1999, plaintiff was examined by Dr. Mohammad Khattak, an orthopedist from Diagnostic Health Services. Dr. Khattak noted that plaintiff ambulated without any assistance, had a steady gait, sat and stood normally, and climbed on and off the examination table without any help. The curvature of the cervical and lumbosacral spines were normal, and there were no muscle spasms, tenderness, sensory or motor deficits, or muscle atrophy. Plaintiff's range of motion in his hips, knees and ankle joints were normal, and there was no swelling, effusion or instability in the lower extremities. An x-ray of the lumbosacral spine revealed mild degenerative changes, and plaintiff was diagnosed with a soft tissue injury to this area. In conclusion, Dr. Khattak remarked that plaintiff was able to hear, speak, sit, stand, bend, walk, reach, lift and carry, and did not need assistive devices for ambulation. (Tr. 126-127).
Dr. Anthony Buonocore conducted a physical residual functional capacity assessment of plaintiff on July 6, 1999. The assessment noted that plaintiff could lift and/or carry fifty pounds occasionally and twenty-five pounds frequently, stand and/or walk for about six hours in an eight-hour day, sit (with normal breaks) for about six hours in an eight-hour day, and was unlimited in his upper and lower extremities' push/pulling capabilities. Upon examination, the lumbosacral spine curvature was normal, and plaintiff did not experience any spasms, tenderness, sensory deficits, muscle atrophy or motor deficits. Although an x-ray revealed mild degenerative changes in the lumbosacral spine, Dr. Buonocore concluded that plaintiff was able to perform the full range of medium work. (Tr. 118-125).
Dr. David Green's examination on December 1, 1999 reported marked palpable muscle spasms in the lower lumbar paraspinal regions, limited range of motion, and evidence of lumbar radiculopathy. Additionally, the examination revealed increased degenerative changes in the lumbar spine. Dr. Green opined that plaintiff could lift objects weighing ten pounds, push and pull objects weighing fifteen pounds, sit for two hours in succession, stand for two hours in succession, and walk for one hour in succession, but could not climb stairs. (Tr. 134).
D. Medical Evidence Subsequent to Plaintiff's Date Last Insured
On November 3, 2000, after the plaintiff's date last insured. Dr. Green confirmed these limitations, and noted that plaintiff continues to demonstrate active symptomatology with regard to his lumbar spine that interferes with his ability to reasonably achieve daily activities. Plaintiff, in Dr. Green's opinion, remained disabled and his condition was permanent. (Tr. 135).
Plaintiff was examined by Dr. Ahmed Elemam on March 9, 2001. The right L4-L5 dermatomes felt decreased sensation to light touch and pin prick. Straight leg raising was positive from a seated position, and tenderness was evident over the lumbar paraspinal muscles and both gluteal areas. Muscle spasms were noted in the lower paraspinal muscles and lumbar range of motion was restricted. In all four extremities, muscle power tested 5/5 with no focal weakness. Plaintiff was unable to do toe-heel walking, but his gait was normal. Dr. Elemam's clinical impression was chronic lower back syndrome with underlying discogenic disease, possible lumbar radiculopathy, and gluteal myofascitis. Plaintiff was diagnosed with a permanent lower back injury. (Tr. 141-142).
On May 24, 2001, plaintiff was examined by Dr. Michael Katz, whose report is dated July 5, 2001. Plaintiff's lumbar spine indicated marked paravertebral muscle spasm and limited range of motion (20% of normal), changes considered permanent. Moreover, plaintiff walked with an antalgic gait and used a cane. The straight leg-raising test was positive bilaterally. Sensation in the L3-S1 dermatomes and motor in the lower extremities were intact. Plaintiff was diagnosed with lumbar radiculopathy and deemed incapable of working more than two hours a day at the current time. (Tr. 138-139).
III. Analysis
A. Standard of Review
A district court's review of the denial of social security benefits is confined to a determination whether there is "substantial evidence" to support the Commissioner's decision. 42 U.S.C. § 405(g) ("The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive. . . ."); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) ("[W]e conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied."). Therefore, even if the district court might have ruled differently were it to have made the initial determination, the court must affirm the Commissioner's decision if it is supported by substantial evidence. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). It is important to note that "`the Social Security Act is a remedial statute which must be liberally applied; its intent is inclusion rather than exclusion.'" Id. (quoting Marcus v. Califano, 615 F.2d 23, 29 (2d Cir. 1979)); see also Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988).
In the disability benefits context, substantial evidence has been 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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "In determining whether substantial evidence supports a finding of the [Commissioner], the court must not look at the supporting evidence in isolation, but must view it in light of the other evidence in the record that might detract from such finding, including, any contradictory evidence and evidence from which conflicting inferences may be drawn." Rivera v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991).
However, the "substantial evidence" test applies only to review of the Commissioner's factual determinations. This standard is irrelevant to the Commissioner's legal conclusions, as well as its compliance with applicable procedures mandated by statute or regulation, see Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), which are reviewedde novo. As noted in Jones v. Barnhart:
administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. . . . [A] district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully developed and evaluated to determine whether the Commissioner fully complied with all the relevant regulations.
2002 U.S. Dist. LEXIS 7073, at *9, *14 (S.D.N.Y. Apr. 22, 2002) (citation omitted).
Lastly, regardless of whether the ALT renders a decision on the merits and adheres to all procedures, the district court may still remand if new and material medical evidence surfaces that was not presented at the ALT hearing. See Santiago v. Massanari, No. 00-3847, 2001 U.S. Dist. LEXIS 9881, at *27 (S.D.N.Y. July 16, 2001) ("[T]he ALJ may turn out to be wrong even when he was right at the time the decision was rendered; the administrative proceeding is not quite over even when it's over. Medical reports sent [for the first time] to the Appeals Council, so long as they concern the time period in question, become part of the record for judicial review, even when the Council has denied review.").
B. Determining Disability
Title II of the Social Security Act (SSA) 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) (2000). An individual may be determined to be under a disability "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A).
SSA regulations establish a five-step sequential analysis by which the Commissioner is required to evaluate a claim for disability benefits.See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); 20 C.F.R. § 404.1520. First, the Commissioner must determine whether the claimant is doing substantial gainful work. See 20 C.F.R. § 404.1520(b) (2003). Second, if the claimant is not doing substantial gainful work, the Commissioner must then determine whether he or she has a "severe impairment." See Id. § 404.1520(c). Third, if a severe impairment exists, the Commissioner must next consider medical evidence to determine if the impairment meets the Listings. See Id. § 404.1520(d). Fourth, if the impairment does not meet the Listings, the Commissioner must analyze whether the impairment prevents the claimant from doing his or her past work. See Id. § 404.1520(e). Finally, if the claimant cannot perform past work, the Commissioner must determine whether the impairment prevents him or her from doing any other work. See Id. § 404.1520(f). If so, the Commissioner must find the claimant disabled. See, e.g., Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000); Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 1999). The claimant bears the burden of proof on the first four steps of the aforementioned analysis. However, once the claimant has met his or her burden, the burden on the last step shifts to the SSA. See Shaw, 221 F.3d at 132.
C. Eligibility for Disability Benefits
To be eligible for disability benefits, an applicant must be "insured for disability insurance benefits." 42 U.S.C. § 423(a)(1)(A), 423(c)(1); see also 20 C.F.R. § 404.130, 404.315(a). It is undisputed that plaintiffs insured status ended on December 31, 1999. Therefore, plaintiff must establish that he was disabled on or before that date to qualify for disability benefits. See Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989).
D. Treating Physician Rule
The "treating physician rule" is a standard for evaluating the substantiality of the evidence that gives enhanced weight to the findings and opinions of treating physicians. According to the Federal Code of Regulations:
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(d)(2); see also Kamerling v. Massanari, 295 F.3d 206, 209 n. 5 (2d Cir. 2002).
"When other substantial evidence in the record conflicts with the treating physician's opinion, that opinion will be deemed less than controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Indeed, when controlling weight is not given to a treating physician's opinion (because it is not "well supported" by other medical evidence"), the Court considers the following factors in determining the weight to be given to such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating source's opinion is with the record as a whole; (5) the specialization of the source in contrast to the condition being treated; and (6) any other factors which may be significant. See 20 C.F.R. § 404.1527(d)(2); see also Shaw, 221 F.3d at 134;Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Furthermore, the ALJ is required to explain the weight it applies to the treating physician's medical opinion. See 20 C.F.R. § 404.1527(d)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell, 177 F.3d at 133 (citing Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998)).
Under the regulations, "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s)" 20 C.F.R. § 404.1527(a)(2). Chiropractors are not listed in section 404.1513(a), which lists five categories of "acceptable medical sources." In fact, chiropractors are specifically listed in another section under "other sources" whose "information . . . may also help us to understand how your impairment affects your ability to work."Id. § 404.1513(d)(1). Accordingly, the Second Circuit has held that a chiropractor's opinion is neither a medical opinion nor an "acceptable medical source" for purposes of the treating physician rule.See Diaz v. Shalala, 59 F.3d 307, 313-314 (2d Cir. 1995). The ALJ has "the discretion to determine the appropriate weight to accord the chiropractor's opinion based on all the evidence before him; under no circumstances can the regulations be read to require the ALJ to give controlling weight to a chiropractor's opinion." Id. at 314. Reports from chiropractors may assist an ALJ in determining whether a claimant is disabled, and thus should be not discounted arbitrarily.See id. at 312 n. 4 ("Our decision today . . . does not prevent the secretary from according a chiropractor's opinion significant weight in appropriate circumstances.").
E. The ALJ's Duty to Adequately Develop the Record
When deciding whether the SSA's denial of disability benefits is supported by substantial evidence, the Court must be satisfied that claimant has had "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health. Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). In light of the non-adversarial nature of benefits proceedings, the ALJ must affirmatively develop the record. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). If the claimant appears pro se, as is the case here, courts have "a duty to make a searching investigation of the record to make certain that the claimant's rights have been adequately protected."Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal citations omitted). Hence, to assist in the development of a pro se claimant's case, the ALJ is obligated to search the facts by collecting all relevant medical records and posing questions to the claimant. See Id.
IV. Application of the Five-Step Sequence to Baize's Claim
A. Baize Was Not Engaged in Substantial Gainful Activity
The first step of the analysis is to determine whether plaintiff was engaged in substantial gainful activity after November 18, 1992, the date his alleged disability was incurred. Substantial gainful activity is defined as work that "(a) Involves doing significant and productive physical or mental duties; and (b) Is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. The ALJ's ruling that plaintiff had not engaged in substantial gainful activity since the injury date is undisputed. (Tr. 22, 32).
B. Baize Had a Severe Impairment
The second step is to determine whether plaintiff had a severe physical or mental impairment or combination of impairments that "significantly limit[ed] [his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities means the ability and aptitude "to do most jobs." Id § 404.1521(b). Basic work activities include:
. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . understanding, carry out, and remembering simple instructions . . . use of judgment . . . responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting."Id § 404.1521(b)(1)-(6). Notably, the analysis at this step may not accomplish more than screening out de minimis claims. See Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). If, however, the disability claim rises above the de minimis level, then the analysis must proceed to step three.See id. "Based on the positive signs, symptoms, and laboratory findings," the ALJ found that plaintiff "has a medically determinable impairment in that he has a history of a sever [sic] impairment that has lasted at least 12 consecutive months. The impairment imposes more than a de minimis effect on the claimant's ability to lift, carry, sit, stand or walk." (Tr. 23). Therefore, the ALJ's ruling that plaintiff had a severe impairment advances the analysis to step three.
C. The ALJ's Finding that Baize Did Not Have a Disability Listed in Appendix I of the Regulations Cannot be Affirmed Due to the ALJ's Failure to Develop the Record
Step three is a determination of whether plaintiff had an impairment listed in Appendix I of the Regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon, 54 F.3d at 1022.
Plaintiff alleges that his condition meets or is equal to the spinal impairment delineated in section 1.05(C) of the Listings of Impairments. (Mem. of Law in Opp'n to Def.'s Mot. for J. at 6, 8). As mentioned above, plaintiff bears the burden of proving the existence of a disability listed in Appendix 1. Section 1.05(C) covers vertebrogenic disorders, and provides in pertinent part:
C. Other vertebrogenic disorders . . . with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.05(C).
The ALJ found that the record does not establish any medical findings that "meet or equal" the criteria contained in the Listing of Impairments. (Tr. 23). Dr. Turovsky noted in August 1993 that plaintiff had tenderness in the mid-thoracic, lumbar, and sacral spines, as well as a painful restriction of lower back movement. (Tr. 116). Certainly, Dr. Turovsky's diagnosis satisfies subparagraph 1 of Listing 1.05(C). On the other hand, Dr. Turovsky found that plaintiff could raise both legs sixty degrees while lying horizontally, and ruled out lumbosacral radiculopathy. (Id.) Raising a leg more than half way cannot constitute a "significant motor loss." Additionally, since Dr. Turovsky ruled out lumbosacral radiculopathy, which is a spinal nerve root disorder, there was no sensory loss. Thus, Dr. Turovsky's diagnosis does not satisfy subparagraph 2.
Chiropractor Dr. David Green's early 1994 examinations revealed muscle spasms and palpatory tenderness in the lumbosacral region, and plaintiff was diagnosed with lumbosacral radiculopathy. (Tr. 107-110). In December 1999, Dr. Green opined that plaintiff had marked palpable muscle spasms in the lower lumbar paraspinal regions, limited range of motion, and lumbar radiculopathy. (Tr. 134). While these diagnoses are sufficient to satisfy both subparagraphs of Listing 1.05(C), a chiropractor is not considered an "acceptable medical source" under the Regulations and thus Dr. Green's opinion is not controlling under the treating physician rule. Accordingly, the ALJ was free to determine the appropriate weight to give Dr. Green's opinion in light of all the evidence presented.
Dr. Imperato opined in April 1994 that plaintiff had pain in the left lower extremity, lumbar muscle spasms, and restricted range of motion in the lumbar spine. These conditions satisfy subparagraph 1. Moreover, Dr. Imperato found that toe-heel walking, squatting, and straight leg raising were restricted, evidencing motor loss and muscle weakness. Plaintiff's one inch atrophy of the right thigh muscle and decreased sensation in the lower left extremity are signs of sensory loss. (Tr. 102). Arguably, Dr. Imperato's diagnosis satisfies subparagraph 2.
In May 1999, Dr. Mohammad Khattak concluded that plaintiff did not experience tenderness, muscle spasms, or abnormal range of motion. Furthermore, plaintiff had no sensory or motor deficits nor muscle atrophy, and his cervical and lumbosacral spines were normal. A soft tissue injury to the lumbrosacral spine area was reported. (Tr. 126-127). Clearly, Dr. Khattak's diagnosis does not satisfy either subparagraph of Listing 1.05(C).
Since Dr. Anthony Buonocore's July 1999 examination revealed that plaintiff did not have any tenderness or spasms, subparagraph 1 of Listing 1.05(C) is not satisfied. Furthermore, based on Dr. Buonocore's conclusion that there were no motor or sensory deficits nor muscle atrophy, subparagraph 2 is not satisfied. (Tr. 118-125).
If medical assessments are inconsistent, it is the ALJ's duty to resolve those conflicts. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). While it is not necessary for the ALJ to reconcile every ambiguity and inconsistency of medical testimony,see Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984), the unreasoned rejection of evidence favorable to plaintiff is unacceptable.See Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983). In addressing Dr. Green's opinion, the ALJ stated "The chiropractor failed to submit any corresponding treatment notes, which further diminishes the probative value regarding the claimant's functional capacity." Although this statement refers to the ALJ's analysis of step four, it is reasonable to assume that Dr. Green's failure to submit corresponding treatment notes led the ALJ to accord the chiropractor's opinion less weight when determining if plaintiff was disabled per se under step three. Additionally, the ALJ stated that although Dr. Green labeled the claimant as disabled, "it is not clear that the doctor was familiar with the definition of `disability' contained in the Social Security Act and regulations. Specifically, it is possible that the doctor was referring solely to an inability to perform the claimant's past work, which is inconsistent with the conclusions reached in this decision." (Tr. 25). The rejection of Dr. Green's opinion for these reasons was unreasonable.
Instead of merely noting the lack of supporting documentation and guessing if Dr. Green used the word "disabled" appropriately, the proper course of action would have been for the ALJ to solicit further information from Dr. Green in order to clarify the latter's diagnosis. The Second Circuit has instructed that "where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history. . . ." Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) see also Foster v. Callahan, No. 96-1858, U.S. Dist. LEXIS 22099, at *12-13 (N.D.N.Y. Mar. 3, 1998) ("An ALJ should make every reasonable effort to obtain treating source evidence, and if the treating source provides an incomplete report, the ALJ must request the necessary additional information from the treating source.") (internal citations omitted); 20 C.F.R. § 404.1512(e)(1). Compliance with this obligation should have motivated the ALJ to request corresponding treatment notes from Dr. Green. The ALJ is authorized to issue subpoenas demanding the production of any evidence relating to a deficiency in the record. See 42 U.S.C. § 405 (d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner of Social Security."); Treatwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983). Where, as here, there are gaps in the administrative record, remand to the Commissioner for further development of evidence is appropriate. See Rosa, 168 F.3d at 83; Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997).
On March 9, 2001, after the date last insured, plaintiff was examined by Dr. Ahmed Elemam. Dr. Ahmed noted tenderness and spasms in the lumbar paraspinal muscles and that lumbar range of motion was restricted. Hence, subparagraph 1 is satisfied under this report. Muscle power in all four extremities was 5/5 with no focal weakness. Plaintiff was diagnosed with chronic lower back syndrome with underlying discogenic disease, possible lumbar radiculopathy, and gluteal myofascitis. (Tr. 140-141). It is arguable that this diagnosis is sufficient to satisfy paragraph 2.
In his decision, the ALJ did not make any reference to Dr. Elemam's diagnosis, which was part of Exhibit 8F. In failing to do so, the ALJ did not comply with the appropriate procedure for assessing the opinion of medical sources. According to the Regulations, "Regardless of its source, [the SSA] will evaluate every medical opinion [it] receives." 20 C.F.R. § 416.927(d). The ALJ simply ignored or overlooked Dr. Elemam's diagnosis. While plaintiff was examined and treated subsequent to becoming uninsured, it is not clear whether Dr. Elemam's diagnosis relates back to the insured period or is merely evidence of plaintiffs condition at the time of examination. Dr. Elemam's report states, "At this time I think the patient has a permanent injury to his lower back." (Tr. 142). However, the fact that Dr. Elemam concluded that plaintiff had a lower back injury in March 2001 says nothing about the possibility of a retrospective diagnosis. In Dousewicz v. Harris, 646 F.2d 771 (2d Cir. 1981), the Second Circuit held:
[a] diagnosis of a claimant's condition may properly be made even several years after the actual onset of the impairment. Such a diagnosis must be evaluated in terms of whether it is predicated upon a medically accepted clinical diagnostic technique and whether considered in light of the entire record, it establishes the existence of a physical impairment prior to [the relevant time.]Id at 774. Since Dr. Elemam's report was not addressed in the decision, the ALJ did not properly evaluate the diagnosis to determine whether, in light of the entire record, it established the existence of plaintiff's alleged disability prior to the date last insured.
A July 5, 2001 report from Dr. Michael Katz summarized the results of his May 24, 2001 examination of plaintiff. Dr. Katz found marked paravertebral muscle spasms in plaintiff's lumbar spine and his range of motion of forward flexion was 20% of normal. Although Dr. Katz does not specifically mention any indication of pain, the muscle spasms and significant limitation of plaintiff's spine are sufficient to satisfy subparagraph 1. Sensation in the L3-S1 dermatomes and motor in the lower extremities were intact, though plaintiff walked with an antalgic gait and used a cane. Moreover, Dr. Katz wrote, "Currently he does have signs and symptoms of radiculopathy. . . . He is not capable of working more than 2 hours per day at the current time." (Tr. 138-139). Since plaintiff did not suffer a significant motor and sensory loss, subparagraph 2 of the Listings is not satisfied.
Noting that Dr. Katz's report reflected plaintiff's condition as of July 5, 2001, eighteen months after the date last insured, the ALJ found it "speculative at best to assign any substantial weight, as it is dated well after the expiration of the date last insured." (Tr. 23), However, the ALJ was aware that this report would be dated well after plaintiff's date last insured because he himself instructed plaintiff at the hearing to submit to the orthopedic consultative examination. (Tr. 42) ("So, I'm going to send you for a consultative orthopedic examination, and when the results of that are in, I'll be in the position to make a Determination."). Although a claimant must establish that he was disabled on or before the date last insured, evidence of a claimant's condition after the period for which the he or she seeks disability can be relevant to the question of whether the claimant was disabled prior to the date last insured. See Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989); Gonzalez v. Barnhart, No. 01-7449, 2003 U.S. Dist. LEXIS 8491, at *9 (E.D.N.Y. May 21, 2003).
To the extent that the evidence submitted by Dr. Katz was insufficient for the ALJ to determine its retrospectiveness, the ALJ was bound to request additional evidence. See 20 C.F.R. § 404.1512(e)(1). "Additional evidence should have addressed such matters such as the reliability of the diagnostic tests and techniques after the date last insured as indicators of some enduring, preexisting, or even progressive condition, the permanent or variable nature of [claimant's] diagnoses and ailments, and, perhaps, any potential intervening aggravating factors possibly accounting for some worsening of her condition." Martinez v. Massanari, 242 F. Supp.2d 372, 378 (S.D.N.Y. 2003). The failure to consider the possibility of a retrospective diagnoses based on subsequent tests and treatments was error. A remand of the ALJ's decision is proper when further information and development of the record is needed.See Rosa, 168 F.3d at 79-81; Conway v. Barnhart, No. 00-8148, 2002 U.S. Dist. LEXIS 21436, at *11 (S.D.N.Y. Nov. 6, 2002).
V. Substantial Evidence
The Commissioner contends that the SSA's decision is supported by substantial evidence. (Mem. of Law in Supp. of Commissioner's Mot. for J. at 1). However, even if substantial evidence exists to support the Commissioner's factual findings, a legal error is cause for remand.See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
VI. New and Material Evidence
Plaintiff contents that the Appeals Council erred in failing to review the ALJ's denial of benefits after he supplied the Council with new and material evidence. (Mem. of Law in Opp'n to Def.'s Mot. for J. at 6). However, plaintiff does not specifically note the nature of the new and material evidence. In essence, his Request for Review of Hearing Decision/Order attempts to discount unfavorable evidence and argues that the diagnosis of Dr. Katz should have been given more weight. (Tr. 5-16).
"A claimant is permitted to submit new and material evidence to the Appeals Council when requesting such review, and if the new evidence relates to a period before the ALJ's decision, the Appeals Council `shall evaluate the entire record including the new and material evidence submitted . . . [and] then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of evidence currently of record." Toribio v. Barnhart, No. 02-4929, 2003 U.S. Dist. LEXIS 10367, at *17 (S.D.N.Y. June 16, 2003) (quoting 20 C.F.R. § 404.970(b)).
Plaintiff must show that the proffered evidence is: (1) new and not merely cumulative of what is already in the record and (2) material, in that it is both relevant to the claimant's condition during the time period for which benefits were denied and probative. Moreover, he must show (3) good cause for his failure to present the evidence earlier.See Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). Evidence is "new" if it has not been previously considered during the administrative process. See DelValle v. Apfel, 97 F. Supp.2d 215, 222 (D. Conn. 1999).
Since the ALJ analyzed and considered the diagnoses of Drs. Turvosky and Khattak, plaintiff's attempt to refute those reports is not new evidence. Additionally, while plaintiff uses his Request for Review as an opportunity to champion the report of Dr. Katz, the ALJ considered this report, although, as discussed above, not to the extent that the law demands. Therefore, Dr. Katz's report cannot be deemed new evidence.
Plaintiff also states that the Office of Hearings and Appeals lost his case file. As a result, his hearing before the ALJ was delayed until well after his last insured date, as was the consultative orthopedic examination by Dr. Katz. (Tr. 8); (Mem. of Law in Opp'n to Def.'s Mot. for J, at 4-5). However, since the SSA has been instructed to request additional evidence from Dr. Katz to determine the retrospectiveness of his diagnosis, the administrative delay that prejudiced plaintiff has been sufficiently remedied.
VII. Conclusion
The decision of the Commissioner is vacated and the case is remanded for further proceedings consistent with this Opinion and Order. Remand is required because the ALJ inadequately developed the record with respect to (1) Dr. Green's corresponding treatment notes and (2) the potential retrospectiveness of the diagnoses by (a) Dr. Elemam and (b) Dr. Katz.
IT IS SO ORDERED.