Opinion
99 Civ. 9339 (RWS)
December 21, 2000.
WENDY DRILL, ESQ., Attorney for Plaintiff
MARY JO WHITE, United States Attorney for the Southern District of New York, Attorney for Defendant.
SUSAN D. BAIRD, ESQ., Assistant US Attorney., Of Counsel.
OPINION
Plaintiff Bertha Stancel ("Stancel") brought this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of defendant Kenneth S. Apfel, the Commissioner of the Social Security Administration (the "Commissioner"), denying Stancel's request for disability insurance benefits. Both Stancel and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and Stancel has moved in the alternative for remand to the agency for further proceedings. For the reasons set forth below, Stancel's Rule 12(c) motion is denied as is the Commissioner's cross-motion, and Stancel's motion for remand for further proceedings is granted.
Background
Stancel filed an application for disability insurance benefits on June 10, 1994, alleging that she had been disabled since 1992 as a result of a brain aneurysm and a back impairment. The application was denied initially and on reconsideration. Stancel filed another application for disability insurance benefits on August 24, 1995, which was also denied initially and on reconsideration. Stancel returned to work in September 1997, according to her because her condition improved, and therefore seeks a closed period of benefits.
At a hearing held on May 21, 1997, Administrative Law Judge Sean P. Walsh (the "ALJ"), before whom Stancel appeared, considered the case de novo and on August 21, 1997, found that Stancel was not under a disability. The decision of the ALJ became the final decision of the Commissioner when the Social Security Administration Appeals Council ("Appeals Council") denied Stancel's request for review on June 30, 1999.
This action was initiated by Stancel by the filing of a complaint on August 31, 1999. Stancel filed her Rule 12(c) motion on May 26, 2000, the Commissioner filed his cross-motion on July 7, 2000, and submissions were received through August 24, 2000, at which time the matter was deemed fully submitted.
Stancel was born on June 3, 1949, graduated from high school and is able to read and write in English. At the time of the administrative hearing, she had last worked as a staff manager for the New York Telephone Company from March 1992 until December 11, 1992. From January 1968 until March 1992, she worked as a secretary and a clerk for the same company. Stancel stopped working when her job wad "downsized." She tried to work as a telemarketer for six weeks in May 1995, but according to Stancel, stopped working at that job because she had difficulty sitting. She traveled to the job by bus.
In 1985, Stancel had a brain aneurysm and a stroke which caused left side paralysis. Although the paralysis improved, Stancel has complained of continued pain and weakness in her left side and claimed that she had little muscle power in her left hand and that she could not lift anything with her left hand. She took Tylenol with codeine, which gave her some relief from pain but made her sleepy. She has suffered from asthma since 1995 for which she has used a pump. She had not been treated in an emergency room for asthma.
During the period for which she seeks disability benefits, Stancel went to church by taxi twice a week. In addition, in 1996 she traveled to Virginia to visit relatives for three or four days. Furthermore, her daily life activities at home including cooking, dusting, doing the laundry, and taking out the garbage. She went to the grocery store several times a week, buying a few items at a time.
Records from the Norfolk Medical Center indicate that Stancel was hospitalized from September 3 to September 25, 1985 for a subarachnoid hemorrhage and right temporal intracerebral hematoma secondary to a cerebral artery aneurysm, and underwent a right frontal craniotomy during which the aneurysm was clipped and the hematoma was evacuated. Post-operatively, Stancel developed left facial weakness and left hemiparesis due to arteriospasm. She improved after being treated with steroids and increased fluid volume. Her left-sided weakness resolved, and there was partial resolution of her left facial weakness. In a letter dated October 20, 1988, Dr. Saul Kaplan stated that Stancel was status postsurgery for repair of an aneurysm. Subsequent to the surgery, she became extremely sensitive to noise. Stancel was advised to use bus transportation rather than subway.
A report dated July 14, 1989, indicates that x-rays of Stancel's lumbosacral spine, pelvis and left hip were normal. The disc spaces of her spine were well maintained, and the posterior elements all appeared normal.
In an undated note, Dr. Mark E. Pruzansky stated that Stancel should stay out of cold environments and away from cold air and flowers. A computerized tomography ("CT") scan of her lumbosacral spine taken on September 13, 1989, and addressed to Dr. Pruzansky, revealed disc bulges at L5-S1 and L4-L5. The bony canal dimensions were adequate. There were no degenerative changes of any significant degree.
Records from Bactec Back Treatment and Education Center indicate that Stancel underwent eight physical therapy sessions between August 9 and September 18, 1989. The therapy consisted of electrical stimulation, body mechanics, exercises, massage and range of motion activities.
Stancel was examined by several doctors during the period for which she seeks benefits. Dr. Jonathan Z. Charney ("Dr. Charney") conducted a neurological consultation on March 25, 1994 and examined her again on May 9, 1994, and diagnosed her with lumbosacral radiculopathy, a right cerebral artery aneurysm and right temporal intercerebral hematoma (craniotomy performed). Dr. Charney opined that Stancel could not lift, carry, sit or stand for any length of time without exacerbating her symptoms. Dr. Wendy Cohen ("Dr. Cohen") performed a consultative examination on August 19, 1994, noted no abnormalities on examination of Stancel's neck and back, and opined that Stancel had made a good recovery from her ruptured aneurysm and that she had "no work related restrictions."
On July 6, 1995, Dr. Nancy Nealon ("Dr. Nealon"), examined Stancel on one occasion and prepared four reports about that examination stating an impression was "left sided tingling paresthesis and tightness with an odd gait." On July 18, 1995, a CT scan prepared for Dr. Nealon of Stancel's brain showed that she was status post right frontal craniotomy, with aneurysm clips in the region of the right middle cerebral artery bifurcation or trifurcation, there was an encephalomalacia in the right frontal and temporal lobes with volume loss. There was no evidence of hydrocephalus. In a second report, dated October 12, 1995, Dr. Nealon stated Stancel's abilities to lift, carry, stand, walk, sit, push and pull were limited without specifying the nature or degree of the limitations, that she could sit less than six hours in an eight-hour day. In a note dated May 14, 1994, Nealon stated that Stancel was "disabled unable to work from residual brain surgery after rupture surgery on a cerebral aneurysm" and also opined that Stancel was unable to sit, stand or walk for any prolonged period of time.
Dr. Igor Khelemsky ("Dr. Khelemsky") performed a consultative examination on November 13, 19954 and opined that Stancel had a normal ability to pull, push, carry, lift, stand, walk, and perform fine motor movements with her upper extremities and that headaches and left extremity pain may impair her ability to work.
Dr. Michael Polak ("Dr. Polak") performed a consultative examination on May 6, 1996, and opined that Stancel was moderately impaired for activities requiring dexterity, carrying, lifting, pushing or pulling, but that she should have no difficulty bending, sitting, walking or squatting, and recommended that Stancel avoid exposure to dust, chemicals, smoke, noxious inhalants and extremes of cold and heat.
After the hearing on May 21, 1997, Dr. Colleen Edwards ("Dr. Edwards"), identified by Stancel as her treating physician, assessed Stancel. The ALJ had left the record open after the hearing for submission of this evidence. Dr. Edwards did not indicate whether she had ever examined or treated Stancel. Stancel did not list Dr. Edwards as a treating physician on her disability reports, dated September 1994, September 1994, April 1996, or June 1997, but testified at the May 1997 hearing that Dr. Edwards was her treating internist. According to Dr. Edwards, Stancel could lift up to ten pounds, but could not carry any weight, could not climb or crawl, but could bend frequently, and squat occasionally and the doctor further stated that Stancel could use her right hand, but not her left hand, for grasping, pushing, pulling or fine manipulations.
Finally, three non-examining state agency consultants reviewed Stancel's records and rendered opinions as to her disability: on February 6, 1994, Dr. Imam opined that she could return to her usual work; on September 12, 1994, Dr. D. Rosenberg ("Dr. Rosenberg") opined that no manipulative, visual, postural, communicative, or environmental limitations had been established; and on October 3, 1994, Dr. C. Levit ("Dr. Levit"), agreed with the assessment of Dr. Rosenberg.
The Commissioner refers to Dr. Imam erroneously at "Dr. Iman."
Discussion I. Rule 12(c)
In deciding a motion for judgment on the pleadings, the court is generally limited to considering the factual allegations set forth in the complaint and corresponding answer. Fed.R.Civ.P. 12(c). Documents attached to the pleadings are incorporated therein and thus may be considered on such a motion. Fed.R.Civ.P. 10(c). A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law. Juster Assocs. v. Rutland, 901 F.2d 266 (2d Cir. 1990); Adames v. Chater, No. 95 Civ. 9384, 1996 WL 306549 (S.D.N Y 1996); Madonna v. United States, 783 F. Supp. 165 (S.D.N.Y. 1992).
Both Stancel and the Commissioner refer to the transcript of the administrative record in their pleadings, which was attached to the Commissioner's answer and is thus properly considered herein.
II. The Scope of Judicial Review/Standard of Review
In reviewing a denial of disability benefits, a court may reverse a finding of the Commissioner only if that finding is not supported by substantial evidence in the record. 42 U.S.C. § 405 (g) (1991) (made applicable to Social Security cases by 42 U.S.C. § 1383(c)(3) (1992)). Substantial evidence is "more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));accord Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). The substantial evidence test, moreover, applies not only to the Commissioner's findings of fact, but also to the inferences and conclusions of law to be drawn, from such facts. See Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977);accord Murphy v. Secretary of HHS, 62 F. Supp.2d 1104, 1106 (S.D.N Y 1999). The Court is not empowered to make a de nova determination of whether the plaintiff is disabled. See Wagner v. Secretary of HHS, 906 F.2d 856, 860 (2d Cir. 1990); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Rather, the Court's function is limited to assessing whether the Commissioner applied the proper legal standards in making his determination and whether that determination is supported by the substantial evidence on the record as a whole. See 42 U.S.C. § 405 (g), 1383(c)(3); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987);Donato v. Secretary of HHS, 721 F.2d 414, 418 (2d Cir. 1983). The Commissioner's findings of fact, as well as the inferences and conclusions drawn from those findings, are conclusive even where a reviewing court's independent analysis of the evidence may differ from the Commissioner's analysis. See Battle v. Shalala, No. 94 Civ. 2488, 1995 WL 312525, at *6 (S.D.N.Y. May 23, 1995) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)). Although the plaintiff's position may be supported by substantial evidence, the Commissioner's position will be sustained if it is also supported by substantial evidence. See 42 U.S.C. § 405 (g); DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998); Rutherford, 685 F.2d at 62; Battle, 1995 WL 312525, at *6.
In order to establish disability under the Act, Stancel must prove that: (1) she is unable to engage in substantial gainful activity by reason of a physical or mental impairment expected to result in death or which has lasted or could be expected to last for a continuous period of at least twelve months; and (2) the existence of such impairment was demonstrated by medically acceptable clinical and laboratory techniques.See 42 U.S.C. § 1382c (a)(3); see also Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983); Carroll v. Secretary of HHS, 705 F.2d 638, 642 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 230-31 (2d Cir. 1980)
A five-step process has been established for evaluating disability claims, see 20 C.F.R. § 404.1520 and § 416.920, which the Second Circuit Court of Appeals has summarized as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the (Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. . . . [T]he claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord DeChirico, 134 F.3d at 1179-80. The Supreme Court has noted that in determining whether a claimant can perform less strenuous work, the Commissioner must assess each claimant's individual abilities. See Heckler v. Campbell, 461 U.S. 458, 467 (1983). In making these decisions, the Commissioner must consider objective medical evidence, opinions of examining physicians, subjective evidence of pain and disability and a claimant's age, educational background and work history. See Mongeur, 722 F.2d at 1037 (citing Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); Parker, 626 F.2d at 231; Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980);Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978)).
III. The Commissioner's Determination
The ALJ evaluated Stancel's claim pursuant to the sequential evaluation regulation, 20 C.F.R. § 404.1520, and determined that while Stancel had a history of surgery to repair an aneurysm, asthma, and lumbosacral radiculopathy, she did not have an impairment or combination of impairments which meet or equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P. The ALJ found that Stancel met her burden at the fourth step in the sequential evaluation to prove that she was unable to perform her past work as a staff manager, since that work was light in exertional nature. However, the ALJ found that Stancel retained the residual functional capacity to perform sedentary work. Thus, with respect to the fifth step of the sequential evaluation, the ALJ found that given Stancel's residual functional capacity, age, education, and work experience, she could perform other work that existed in significant numbers in the national economy and was therefore not disabled. See 20 C.F.R. § 404.1520 (f).
The regulation defining light work provide in relevant part that such work involves:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.20 C.F.R. § 404.1567(b).
Sedentary work requires lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. 20 C.F.R. § 404.1567(a).
The Commissioner does not challenge the ALJ's finding that Stancel was unable to perform her past work, and there is substantial evidence in the record to support that conclusion. Therefore, the issue is whether the Commissioner carried his burden at the fifth step of the sequential evaluation analysis. Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000)
It is not clear whether the ALJ found that Stancel met her burden at step four based on evidence as to only some of the requisite capacities, or as to all of them. There is, however, substantial evidence for either conclusion. One thing that is clear is that, although the ALJ apparently considered a claim for disability based on Stancel's asthma, in addition to her brain aneurysm and back problems, the ALJ did not base his conclusion at step four on evidence regarding Stancel's asthma. Nor would such a conclusion be supported by substantial evidence. Dr. Polak opined that Stancel's lungs were clear with equal breath sounds and no rales, rhonchi, or wheezes. Dr. Khelemsky noted that Stancel had some secondary shortness of breath secondary to asthma, but that this symptom was relieved by proventil inhaler.
The ALJ determined that Stancel, retained residual functional capacity for a full range of sedentary work based on "the lack of documented regular treatment, inconsistencies in the record and the claimant's extensive activities of daily living, and . . . the claimant's acknowledgment that she can lift ten pounds." Tr. at 22. Only after making this determination did the ALJ acknowledge that the burden of proof had shifted to the Commissioner to show "that there are other jobs existing in significant numbers in the national economy which the claimant could still perform considering the claimant's age, education, vocational history and residual functional capacity." Id. The ALJ then analyzed Stancel's age, education, and vocational history and concluded that these factors in conjunction with her residual functional capacity warranted a conclusion the Commissioner had met its burden to show that there are other jobs existing in significant numbers in the national economy which Stancel could perform.
Page citations are to the transcript of the administrative record filed as part of the Commissioner's answer.
Although the burden is on the claimant to prove that she is disabled, once she establishes that she is unable to perform past relevant work, the law in this circuit is clear that the burden to establish her residual functional capacity to perform work other than her past work falls on the Commissioner. See Curry, 209 F.3d at 123 (discussing Commissioner's failure at step five in sequential evaluation to carry burden to show claimant's ability to perform sedentary work); Garcia v. Apfel, No. 98 Civ. 1370, 1999 WL 1059968, at *5 (S.D.N.Y. Nov. 19, 1999) ("The law clearly establishes that [the claimant] did not have the burden of proving he was totally disabled from any and all work . . . rather, the Commissioner had the burden at this stage of the analysis.").
The error in the ALJ's analysis is that he made a determination as to Stancel's residual functional capacity before applying the rule as to the shifting of the burden of proof to the Commissioner. Thus, the ALJ proceeded as if the step five analysis, and the Commissioner's burden of proof, pertained only to factors such as Stancel's age, education, and vocational history, whereas that burden also applied to the question of Stancel's residual functional capacity to perform sedentary work. Thus, in reaching his determination as to Stancel's residual functional capacity, the ALJ cited, not affirmative evidence offered by the Commissioner as to Stancel's lack of a total disability, but weaknesses in the evidence offered by Stancel.
Although the evidence as to Stancel's activities of daily living might be considered affirmative evidence, the ALJ did not base his determination as to Stancel's residual functional capacity on that evidence only — nor would it support such a finding standing alone.
Earlier in his decision the ALJ did discuss the medical evidence offered by Drs. Khelemsky and Polak, whose conclusions were consistent with a finding that Stancel had residual functional capacity to perform sedentary work. However, Stancel points out that the assessments of those physicians are somewhat lacking in specificity, a point which the Commissioner appears to concede since in response the Commissioner points to the more specific assessments of certain other doctors. See Curry, 209 F.3d at 123 (doctor's opinion that claimant's impairment was "[l]ifting and carry moderate; standing and walking, pushing and pulling and sitting mild" was "so vague as to render it useless in evaluation whether [claimant] can perform sedentary work"). The Commissioner contends that the ALJ did not only rely on the assessments of Drs. Khelemsky and Polak, but that he also relied on the assessments of Dr. Cohen and of three non-examining state agency consultants, i.e., Drs. Rosenberg, Levit, and Imam. However, although the ALJ's decision does discuss Cohen's assessment, that assessment did not address the exertional requirements of sedentary work — in Particularly, the requirements of sedentary work as to standing, walking, sitting, lifting, and carrying — and thus is insufficiently specific. See id. As to the assessments of Drs. Rosenberg, Levit and Iman, while those assessments are arguably more specific, the ALJ did not refer to them anywhere in his decision. Therefore, based on the current record, the Commissioner cannot rely on those assessments in support of its Rule 12(c) motion.
The assessments of Drs. Rosenberg, Levit, and Iman are included in the transcript of the administrative record, and appear to have been completed in connection with earlier steps in the processing of Stancel's claim. However, neither the ALJ nor the Appeals Council referred to these assessments in their decisions. "It is a well-settled rule in the Second Circuit that the Commissioner must affirmatively develop the administrative record due to the essentially non-adversarial nature of a benefits proceeding." Garcia, 1999 WU 1059968, at *5 (citation omitted).
The Commissioner contends that the ALJ's finding as to Stancel's residual functional capacity was supported by the examinations of Doctors Charney, Cohen, Nealon, Khelemsky and Polak with respect to the effects of Stancel's brain aneurysm. However, the ALJ's decision does not reveal that he relied on this evidence in making his determination at step five in the sequential evaluation.
The Commissioner further contends that the ALJ's determination was supported by the fact that Dr. Charney's diagnosis of lumbosacral radiculopathy was not confirmed by electromyography or nerve conduction studies, X-rays of Stancel's lumbosacral spine taken in July 1989 and May 1996 were normal, a CT scan of Stancel's lumbosacral spine performed in September 1989 revealed disc bulges at L5-S1 and L4-L5 and no degenerative changes of any significant degree, the lack of evidence of disc herniation or spinal stenosis, and the evidence adduced that Stancel was able to tandem walk and to walk on her heels and toes. Again, however, the ALJ's decision does not reveal reliance on this evidence at step five in the analysis, nor are deficiencies in Stancel's evidence sufficient at that stage.
Stancel avers that the ALJ also failed to accord sufficient weight to her testimony as to her symptoms. The ALJ stated with respect to Stancel's complaints that "[t]he claimant's testimony of pain and functional limitation was somewhat credible, but did not tend to establish that she is disable[d]." Tr. at 23. This conclusion, taken with the rest of the findings, can be fairly read to state that although the ALJ believed the testimony concerning pain and limitation, the medical evidence failed to support the alleged cause for the symptoms.
There must be an underlying physical or mental impairment, demonstrable by medically acceptable clinical and laboratory diagnostic techniques, which could reasonably be expected to cause the symptoms alleged. 20 C.F.R. § 404.1529 (b); Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). If the claimant's symptoms suggest a greater restriction of function than can be demonstrated by objective evidence alone, consideration is also given to such factors as:
1. The claimant's daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Precipitating and aggravating factors;
4. Type, dosage effectiveness, and adverse sideeffects of medication that the claimant has taken to alleviate her symptoms;
5. Treatment other than medication, which the claimant receives or has received for relief of pain or other symptoms;
6. Any measures which the claimant uses or has used to relieve her pain or other symptoms.20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 61 Fed. Reg. 34, 483, at 34, 486 (1996) ("Evaluation of Symptoms in Disability Claims: Assessing Credibility of an Individual's Statements"). It is within the discretion of the Commissioner to evaluate the credibility of Stancel's testimony and render an independent judgment in light of the medical findings and other evidence regarding the true extent of symptoms alleged. See Mimms v. Secretary of Health and Human Services, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 (S.D.N.Y. 1995).
The ALJ found that Stancel, despite her allegations of pain and limitation, was not undergoing any regular treatment. The record indicates she undertook physical therapy for her back for only one month in 1989. The ALJ also found that Stancel engaged in "extensive" daily living activities. Tr. at 22., Stancel testified that she cooked, dusted and did laundry, went grocery shopping several times a week, went to church twice a week by taxi, and also traveled by bus, and in 1996, she traveled to Virginia to visit relatives.
Applying the appropriate standard of review, according to which this Court may not reweigh the evidence and substitute its views for those of the Commissioner so long as the proper legal principles were applied,see 42 U.S.C. § 405(g); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980), the problem is not that the ALJ erred as to his findings as to Stancel's credibility with respect to her reported symptoms. Rather, the problem is that at step five the burden is not appropriately characterized as simply "to establish that she [was] disable[d]." Tr. at 23. See Curry, 209 F.3d at 123 n. 1 ("[T]he ALJ's conclusion that the `record does not establish that the claimant is unable to sit for prolonged periods of time' evinces a disregard for the [shifting of the burden of proof]"). Rather, once Stancel had established her inability to perform her past work, the burden was on the Commissioner to show that she had residual functional capacity to perform sedentary work.
Stancel also avers that the ALJ erred in not giving sufficient weight to the assessments of Drs. Nealon, Charney, and Edwards, who supported her claim of disability. The ALJ found that Dr. Nealon's opinions were not entitled to controlling weight because Dr. Nealon was not a treating physician and her opinions were based on only one examination of Stancel that took place on July 6, 1994. Dr. Charney's medical assessment was considered not controlling due to this physician's limited contact with Stancel, and Dr. Edwards' assessment did not indicate whether the assessment was based on an examination of Stancel or whether any diagnostic tests were performed. The ALJ was entitled to consider factors such as the limited nature of a particular doctor's contact with the claimant in deciding the weight to be accorded that doctor's opinion.See 20 C.F.R. § 404.1527(d)(2). Again, the error in the ALJ's analysis was not that he was required to afford greater weight to these physicians' assessments than he did. Rather, the error was that at step five the burden was on the Commissioner rather than on Stancel, and the fact that the evidence offered by Stancel had its weaknesses does not mean that the Commissioner met that burden. See Garcia, 1999 WU 1059968, at *4 ("The Commissioner did not meet his burden by merely citing medical reports that indicate `a lack of definitive evidence that the plaintiff cannot perform sedentary work.'") (internal quotation marks and citation omitted).
Finally, this Court has found no support in the record for the ALJ's finding that Stancel "acknowledg[ed] that she can lift ten pounds." Tr. at 22. Indeed, the transcript of the hearing itself reveals that, upon inquiry by the ALJ as to this precise issue, Stancel claimed that she would not be able to lift a gallon of milk with her left hand — which the ALJ estimated as weighing 8 or 9 pounds — although she admitted she could lift a quart. Tr. at 41-42.
Although the Commissioner is not entitled to a judgment on the pleadings based on the current record, neither is Stancel. When there are gaps in the administrative record or the ALJ has applied an improper legal standard, remand for a rehearing is often an appropriate remedy.See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Marcus v. Califano, 615 F.2d 23 (2d Cir. 1979). That is the case here. Therefore, this action will be remanded to the Social Security Administration for further proceedings.
Conclusion
Therefore, for the reasons set forth above, the motions by Stancel and the Commissioner are denied, and this action will be remanded to the agency for further proceedings consistent with this opinion.