Opinion
02-CV-686 (LEK/GJD)
September 12, 2003
ERWIN, McCANE DALY, THOMAS C. ERWIN, ESQ., Albany, New York, Attorneys for Plaintiff.
GLENN T. SUDDABY, WILLIAM H. PEASE, ESQ., Syracuse, New York, Attorney for Defendant.
REPORT-RECOMMENDATION
This matter was referred to me for report and recommendation by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(d). This case has proceeded in accordance with General Order 18 of this court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. (Dkt. Nos. 7, 9). Oral argument was not heard.
PROCEDURAL HISTORY
On January 22, 1996, Administrative Law Judge (ALJ) Margaret J. Quinn found that due to severe cervical disc disease, ulnar nerve entrapment, and myofascial pain syndrome, plaintiff was disabled as of June 4, 1993. (Administrative Transcript (T) 70-73). Plaintiff's case was reviewed by the Social Security Administration (SSA), and on April 11, 2000, the SSA advised plaintiff that his health had improved and that plaintiff was no longer disabled as of April, 2000. (T. 77). Plaintiff requested reconsideration, and a hearing was held by a Disability Hearing Officer (DHO) on July 25, 2000. (T. 82-92). On August 21, 2000, the DHO decided that plaintiff was no longer disabled. (T. 105-15).
Plaintiff requested a hearing before an ALJ which was held on May 3, 2001. (T. 32-64). On June 28, 2001, ALJ Carl Stephan determined that plaintiff was no longer disabled as of April 30, 2000. (T. 16-25). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on May 10, 2002. (T. 2-3).
CONTENTIONS Plaintiff makes the following claims:
(1) The Commissioner failed to properly apply the "medical improvement" standard before terminating plaintiff's benefits.
(2) The Commissioners Residual Functional Capacity (RFC) finding is not supported by substantial evidence.
(3) The finding that plaintiff can perform other work in the national economy is not supported by substantial evidence.
The Government argues that the Commissioners decision is supported by substantial evidence and must be affirmed. For the following reasons, this court agrees that the Commissioner's decision is not supported by substantial evidence and will recommend a remand for further proceedings.
DISCUSSION
1. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. NLRB, 197 U.S. 229 (1938)).
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
2. Standard for Cessation of Disability
Where the plaintiff's medical condition improves to the extent that he can engage in substantial gainful activity, he will no longer be entitled to disability insurance benefits. 42 U.S.C. § 423(f); 20 C.F.R. § 404.1594. In order to terminate benefits, the Commissioner must show by substantial evidence that a medical improvement has taken place in plaintiff's ability to work. 42 U.S.C. § 423(f)(1)(A); 20 C.F.R. § 404.1594. A medical improvement is defined as "any decrease in the medical severity" of an impairment. 20 C.F.R. § 404.1594(b)(1). Any decrease must be based upon changes in the symptoms, signs, and/or laboratory findings associated with the impairment. Id. To find medical improvement, the Commissioner must compare the prior and current medical evidence to determine whether there has been any changes in signs, symptoms, and laboratory findings associated with the claimant's impairment. 20 C.F.R. § 404.1594(b)(7), (c)(1).
If there has been a medical improvement, the Commissioner must then determine whether the improvement is related to the claimant? ability to work. 20 C.F.R. § 404.1594(a). A medical improvement will be related to the claimant? ability to work where it results in a decrease in the severity of the impairment present at the time of the most recent favorable medical decision and an increase in the claimant's functional capacity to perform basic work activities. 20 C.F.R. § 404.1594(b)(3). Basic work activities include abilities and attributes necessary to do most jobs, such as working, standing, pushing, pulling, reaching, carrying, hearing, speaking, remembering, and using judgment. 20 C.F.R. § 404.1594(b)(4). Even where a medical improvement related to claimant's ability to work has occurred, in most cases the Commissioner must show that the claimant is able to engage in substantial gainful activity before he will be found no longer disabled. 20 C.F.R. § 404.1594(a). In examining claimant's ability to work, all current impairments must be considered. 20 C.F.R. § 404.1594(b)(5).
3. Facts and Medical Evidence
The court would first note that it appears that the transcript in this case is incomplete. The court notes that none of the plaintiff's medical reports that were the basis of plaintiff's favorable decision have been included in the record. The ALJs and the Disability Hearing Officer (DHO) refer to these reports, but they are not included in the record. The court will outline the facts using the information available in this transcript.
A. ALJ Decisions
Plaintiff was initially found disabled due to severe cervical disc disease, ulnar nerve entrapment, and myofascial pain syndrome. (T. 70-73). ALJ Quinn found that plaintiff sustained a work-related injury to his neck and right shoulder in 1993. (T. 71). He stopped working on June 4, 1993 because of his "persistent symptoms." (T. 71). A magnetic resonance imaging (MRI) scan of plaintiff scervical spine showed "small posterior disc bulges at C5-6 and C6-7." Id. Electrodiagnostic studies showed evidence of entrapment of the ulnar nerve, denervation changes in the C5-6 muscles, and mild nerve root irritability in the C5 level of the cervical paraspinal muscles. Id.
Dr. Brian Quinn, an orthopedic surgeon performed a right ulnar nerve transposition in December of 1993. Id. ALJ Quinn also cited the reports of Dr. George Rowan, an orthopedic surgeon, who evaluated plaintiff for Worker's Compensation purposes. Id. Dr. Rowan noted that in June of 1994, plaintiff still complained of achiness in his right arm with numbness in the right elbow, and continued discomfort in his neck and right shoulder. Id. Dr. Rowan believed that plaintiff would be limited to working in areas in which he would have minimal use of his right upper extremity and not be required to lift any objects that weighed more than five pounds with his right arm. It was questionable whether he could even lift more than five pounds on a repetitive basis. Dr. Rowan recommended no repetitive use of his right extremity whatsoever, and stated that plaintiff could not perform any work that required constant neck motion or holding the neck in a fixed position. Id.
The ALJ also considered the opinion of Dr. T. Sirico, D.O. who diagnosed myofascial pain syndrome in January of 1995, and also noted that plaintiff could not use his right upper extremity for any repetitive tasks. Plaintiff suffered from headaches related to his cervical pain and was unable to tolerate lifting, sitting, or standing for prolonged periods. Plaintiff suffered from cervical muscle spasm with decreased thoracic kyphosis, and decreased sensation in his right hand with limited range of motion in the cervical spine. Dr. Sirico observed that plaintiff's symptoms over the past two years had been "progressive as well as disabling." (T. 72). The ALJ stated that the "additional" medical reports were consistent with Dr. Sirico's reports. (T. 72). The ALJ found that plaintiff's "occupational base" was "so markedly eroded" that he could not be expected to make a vocational adjustment to any job. (T. 72).
Doctor of Osteopathy.
The reports authored by Drs. Quinn, Rowan, and Sirico are not contained in the record.
In ALJ Quinn's findings, she stated that plaintiff could not perform even sedentary work because of the "recalcitrant pain" and the limited use of his right dominant arm. (T. 73). ALJ Quinn stated that the range of sedentary work that plaintiff could have performed was "significantly compromised" and therefore a finding of disabled was appropriate.
In his June 28, 2001 decision, ALJ Stephan found that plaintiff had "medical improvement" in his condition that was "related to the ability to work." (T. 20). ALJ Stephan outlined plaintiff's more recent medical reports and found that plaintiff continued to have "severe impairments, with neck and lower back pain," but that plaintiff could engage in a "wide range of light work activity." (T. 20, 22). At the hearing, ALJ Stephan utilized the services of a vocational expert, who in response to a hypothetical by the ALJ, testified that jobs would exist in the national economy that plaintiff could perform. (T. 22). The ALJ found that plaintiff's complaints of additional pain and restrictions were "overstated." (T. 22).
B. Current Medical Reports
Plaintiff's treating physician is Dr. Lisa Bevilacqua, D.O. Plaintiff has been treated by Dr. Bevilacqua since at least May of 1995. (T. 208). The record contains four of Dr. Bevilacqua's reports from 1995, one report from 1997, five reports from 2000, and two reports from 2001. (T. 202-208, 214, 219, 225-27, 241-42). The earliest note in the record from Dr. Bevilacqua is dated May 26, 1995. (T. 208). This report predates ALJ's favorable decision.
Doctor of Osteopathy.
Dr. Bevilacqua stated that plaintiff had a diagnosis of myofascial pain syndrome and had been experiencing some increased pain and discomfort. (T. 208). Plaintiff had "fairly good" range of motion in the cervical spine and fairly good range of motion in the upper thoracic spine, except for some tight muscles on the right paravertebral area and a lesion of T5. (T. 208). Plaintiff received osteopathic manipulative treatment (OMT), consisting of myofascial release techniques and "muscle energy" together with high velocity, low amplitude technique applied to the T5 region. (T. 208). Dr. Bevilacqua continued to see plaintiff, and the record contains her reports that were written prior to the plaintiff's first hearing.
On June 27, 1997, Dr. Bevilacqua wrote that plaintiff was complaining of chronic lower back pain together with the left side shoulder pain. (T. 202). He had decreased range of motion in his shoulder and decreased external rotation. (T. 202). Dr. Bevilacqua performed OMT and plaintiff had a "slight" increase in his shoulder range of motion on the left side. At that time, plaintiff was taking Baclofen, Motrin, and Elavil. Dr. Bevilacqua's progress note also stated that plaintiff had seen Dr. Forrest in April of 1997. (T. 202).
Although Dr. Bevilacqua's June 1997 reports indicates that plaintiff would have a follow up ("F/U") in two to three months, Dr. Bevilacqua's reports of record start again in June of 2000. (T. 215-16). In a report dated June 5, 2000, Dr. Bevilacqua stated that plaintiff was complaining of his legs "giving out." (T. 215, same report repeated at 217). Plaintiff was "mildly stressed" when walking and had a wide gait. (T. 217). He had a good range of motion in his upper extremities, but decreased sensation to pin prick in his right arm. Id. Although his strength was 5/5 in the right leg and 4/5 in the left leg, straight leg raising was positive on the right, and there was decreased sensation in the right thigh. (T. 217). Dr. Bevilacqua also noted piriformis tenderness. Dr. Bevilacqua suggested physical therapy and prescribed Doxepin for pain. Id. In a Worker's Compensation form, based upon the June 5, 2000 report, Dr. Bevilacqua stated that plaintiff was totally disabled. (T. 216).
Dr. Bevilacqua's July 10, 2000 report noted that plaintiff had an acute exacerbation of his lower back pain. (T. 214, repeated at 223 and 224). The pain was on the right side and plaintiff had piriformis spasm. Id. Straight leg raising was positive on the right side. Plaintiff was administered OMT and given an exercise sheet with instructions. (T. 214). On August 18, 2000, Dr. Bevilacqua reported poor muscle tone in the lower back, piriformis tenderness on the right side, and fair muscle tone in the upper back with tenderness of the paravertebral muscles. (T. 227). Plaintiff was still taking Doxipen and Motrin. Id. Dr. Bevilacqua noted that plaintiff used a cane most of the time. Id.
On October 4, 2000, plaintiff told Dr. Bevilacqua that plaintiff had been denied continuing disability by the Social Security Administration, and was very distressed. (T. 225). Plaintiff requested that Dr. Bevilacqua perform a "functional evaluation" and Dr. Bevilacqua stated that she "agreed with this approach." Id. Thus, Dr. Bevilacqua's October 4 report appears to be a complete physical examination. (T. 225-26). However, it does not appear that any "functional" conclusions were made. There was no calf tenderness on palpitation, but the right calf measured 39 centimeters and the left measured 38 centimeters. (T. 226). Straight leg raising was positive on the right, and deep tendon reflexes were 1/2 for the patella, bilaterally, but 0/2 for the Achilles and 0/2 for the upper extremities bilaterally. There was tenderness in the paravertebral muscles of the lumbosacral spine. (T. 226).
Dr. Bevilaqua's December 18, 2000 report noted cervical "strain/sprain" with "tender-tense" paravertebral muscles from C3 to upper thoracic region. The doctor performed OMT with improved muscle response and reduced tenderness. (T. 219). In a Worker's Compensation form based upon the December 18 report, Dr. Bevilacqua stated that plaintiff was "totally disabled." (T. 219).
There are two reports from Dr. Bevilacqua in 2001, one dated January 26, 2001 and the other dated April 27, 2001. (T. 241, 242). In January, Dr. Bevilacqua stated that plaintiff's neck had "somatic dysfunction." (T. 241). Plaintiff had positive "trigger points" of the paravertebral muscles from T3-T7, together with right leg "jerks" when the muscles were palpated. (T. 241). There was increased tension of the lower back muscles. The doctor also noted piriformis tenderness and spasm. (T. 241). The only notations for April 27, 2001 were "OMT" and cervical and thoracolumbar strain. (T. 242).
On March 13, 2000, plaintiff was consultatively examined by Dr. Amelita Balagtas, M.D. from IMA Disability Services. (T. 209-11). Dr. Balagtas stated that plaintiff's cervical range of motion was limited to 30 degrees of flexion, 40 degrees of extension, and 20 degrees of rotation to the right. (T. 210). There was no paracervical pain or spasm, but there was tenderness over the right upper trapezius muscle. Biceps, triceps, and brachioradialis reflexes were 2+ bilaterally. Id. plaintiff's shoulder range of motion was limited to 130 degrees of forward elevation, and 110 degrees of abduction due to pain in the shoulder blades. (T. 210). Dr. Balagtas stated that there was no tenderness in the shoulder itself, and the plaintiff had full range of motion at both elbows, forearms, wrists, and fingers. Biceps and triceps strength was 5/5 bilaterally. There was no muscle atrophy in both upper extremities, but plaintiff stated that there was decreased sensation around the right elbow where he had the surgery. Id. Dr. Balagtas found no tenderness or spasm in plaintiff's back, but forward bending was limited to 60 degrees, beyond which the plaintiff complained of a pulling sensation in the mid and low back. (T. 210). There was no atrophy, motor, or sensory abnormalities of the lower extremities, and strength was 5/5 bilaterally. Plaintiff had full range of motion of the hips, knees and ankles. There was no effusion or instability of the knees or ankles. (T. 210). Dr. Balagtas's stated that plaintiff had neck and upper back pain, and that he would have "some limitations in overhead hand activities, as well as in activities that would require lifting, carrying, and reaching with the right upper extremity." Id.
There is no indication of a specialty for Dr. Balagtas.
On February 8, 2001, plaintiff was consultatively examined by Dr. William Rogers, M.D., who stated that he specialized in Occupational Medicine. (T. 232-238). Dr. Rogers reviewed plaintiff's history, and noted that plaintiff was still taking Doxepin and Motrin. (T. 232-33). Dr. Rogers reported normal symmetry of the plaintiff's spine with no spinal tenderness at any level. (T. 233). Dr. Rogers stated that there was a "jumping jack" reaction to the lightest touch of his right trapezius, right rhomboids and right lumbar musculature. The left-sided musculature was "completely nontender," but plaintiff complained of right cervical discomfort with extremes of range of motion of his neck in all directions. (T. 233).
Dr. Rogers stated that plaintiff would rotate his neck 20 degrees, flex 20 degrees, extend 5 degrees, and flex laterally 15 degrees in each direction. (T. 233). Plaintiff complained of tenderness to light touch diffusely throughout the right shoulder in all aspects. Abduction and flexion of the right shoulder was to 90 degrees, and plaintiff complained of increased right upper back pain. (T. 233-34). Plaintiff had tenderness over both the medial and lateral epicondyle of the right elbow, but he had full range of motion in both elbows, wrists, and all joints of both hands. (T. 234). Straight leg raising was positive for pain at 30 degrees on the right and negative on the left. Seated straight leg raising was mildly positive at full extension on the right and negative on the left. Id.
The court notes that Dr. Rogers's exact words were that plaintiff " "will rotate his neck. . . ." (T. 233). It appears that by using the word "will" instead of "can," Dr. Rogers was expressing his opinion that plaintiff may have been able to do more but was not making a full effort.
Dr. Rogers stated that there was no atrophy in plaintiff's lower extremities. Flexion of the hips was 90 degrees on the right and 110 degrees on the left, and plaintiff complained of lumbar discomfort with flexion and right lateral flexion. (T. 234). Deep tendon reflexes were absent in both ankles and 2+ in both knees and upper extremities diffusely. Dr. Rogers found, however, that motor testing was "unreliable" because he believed that "full effort" was not being given. (T. 234). Plaintiff reported decreased sensation to pin prick on the forearm, the third to fifth fingers of his left hand, and the area of the right triceps. (T. 234).
Dr. Rogers's diagnosis was "[s]tatus post ulnar nerve transpositon, right elbow . . . [c]hronic right cervical-upper back pain consistent with soft tissue etiology . . . and [c]hronic low back pain." (T. 234). Dr. Rogers stated that "[m]any of the findings were nonphysiologic in nature, suggesting some degree of exaggeration." (T. 234).
Notwithstanding this comment, Dr. Rogers completed a residual functional capacity (RFC) form, stating that plaintiff could occasionally lift and carry 10 pounds, and could also frequently lift and carry 10 pounds. (T. 235). Dr. Rogers also stated that plaintiff would be limited to standing and walking for a total of two hours in an eight hour day. Sitting was limited to less than six hours per day, and pushing and pulling were mildly limited on the right side. (T. 236). Plaintiff could never climb or crawl, but could occasionally balance, kneel, crouch, or stoop. (T. 236). Reaching was limited to "occasionally" with the right arm, and feeling was limited in the third through fifth fingers of the right hand. (T. 237). Environmental limitations were noted for temperature extremes, vibrations, and "hazards" such as machinery and heights. (T. 238).
Plaintiff was referred to physical therapy. His initial evaluation was on January 9, 2001, and the reports have been made part of the record. (T. 220, 243-51). However, after six treatments, plaintiff's strength and range of motion actually decreased, and one report states that discharge from physical therapy was recommended on January 25, 2001. (T. 251). It does appear from the record that plaintiff had some subsequent physical therapy sessions. (T. 247-49). The last physical therapy note is dated March 2, 2001.
C. Hearing Testimony
Plaintiff testified at the hearing that he had problems with his right hand and arm, and that they "go numb" every day if he tries to write. (T. 40). Plaintiff stated that the numbness could last from 15-30 minutes. (T. 41). He also testified to shooting pain in his neck and from his shoulder to his arm. (T. 42). He stated that he would lie down one half hour in the afternoon, and that the Motrin and Doxepin that he takes for pain make him sleepy and groggy. (T. 43). Plaintiff stated that if he walked for one block, his legs started shaking, and his back began to hurt. (T. 44). When he walked, he would sit after walking one block, and sometimes had to lie down a couple of times per day. (T. 43). Plaintiff stated that he was also experiencing numbness in his legs, and he could not sit for more than 15-20 minutes before getting up to change position or lying down. (T. 45). Plaintiff stated that he could lift five to ten pounds, but he could not carry that much weight. (T. 46). Plaintiff stated that he liked to see Dr. Bevilacqua once or twice a month. (T. 49).
Plaintiff also testified that although he stated that he finished the ninth grade, that was not true, and he really did not know how to read, but his wife was teaching him. (T. 52).
Vocational expert, Margaret Heck testified at the hearing. (T. 56-63). The ALJ asked VE Heck to assume that plaintiff could perform light work on a regular basis, that he would have to sit or stand as desired, and could only occasionally climb, stoop, bend, and crouch, but could not crawl. (T. 58). The ALJ also stated that plaintiff would be precluded from work involving overhead reaching, pushing or pulling with the right upper extremity. (T. 59). Based on the hypothetical question, the VE determined that plaintiff could work as a security guard, parking lot attendant, and sales person. (T. 59). However, the VE stated that if plaintiff had limited reading and writing skills, the sales position would be "difficult." (T. 60).
Although the VE noted that the stated jobs existed in significant numbers, she did not know how many of them were mostly sedentary or had a "sit/stand" option. (T. 61). plaintiff's attorney asked the VE if her opinion would change if the hypothetical person experienced pain after walking for a period of time, had to lay down during the course of the day, and was on pain medication. (T. 63). The VE stated that a person who was unable to function for the full eight hours "or at least a 4-hour block of . . . time, . . . would be unable to perform that job." (T. 63). 4. Medical Improvement
As stated above, the transcript in this case appears to be incomplete. There are no medical records that relate to plaintiff's first hearing. On August 21, 2000, the Disability Hearing Officer noted the reports that he used to make his determination of medical improvement. (T. 115). None of the reports listed under "B. Medical/Vocational Reports at Comparison Point Decision" are included in the transcript before the court. Additionally, ALJ Stephan states in his opinion that plaintiff first saw Dr. Bevilacqua in 2000 , but it is clear from the transcript that Dr. Bevilacqua has treated plaintiff since at least 1995 .
The court also notes that the ALJ Stephan states in his decision that plaintiff has no "recent evaluations" from Dr. Forrest in the record. (T. 22). However, on page 231 of the transcript, there is an indication that a report from Dr. Forrest was obtained on May 15, 2000 and "is in file." (T. 231). However, this court's transcript contains no reports from Dr. Forrest. It is difficult for the court to determine what was considered and whether the ALJ's finding that plaintiff had medical improvement is supported by substantial evidence. Thus, this court must recommend a remand based upon the incompleteness of the record in addition to the following reasons.
5. Residual Functional Capacity (RFC) In rendering an RFC determination, the ALJ must consider objective medical facts, diagnoses and medical opinions based on such facts, as well as a plaintiff's subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R. § 404.1545; 416. 945. See also Martona v. Apfel, 70 F. Supp.2d 145 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). RFC can only be established when there is substantial evidence of each physical requirement listed in the regulations. LaPorta v. Bowen, 737 F. Supp. at 183. Furthermore, an ALJ must specify the functions plaintiff is capable of performing, and may not simply make conclusory statements regarding a plaintiff's capacities. Verginio v. Apfel, 1998 WL 743706 (N.D.N.Y. Oct. 23, 1998); LaPorta v. Bowen, 737 F. Supp. at 183.
In this case, once the ALJ made a finding that the plaintiff had medical improvement in his condition, the ALJ was required to determine whether that improvement was related to plaintiff's ability to work. The ALJ found that plaintiff had the RFC to perform "light work activity which allows him to alternate sitting and standing and which does not require any crawling or more than occasional climbing, stooping, bending, or crouching, and which does not require repetitive pushing or pulling or overhead reaching with the right upper extremity. (T. 24). The only actual RFC evaluation forms contained in the record are from Dr. Rogers, a consultative physician, and from a non-examining physician. (T. 120-27, 235-38). The ALJ apparently rejected both reports. The ALJ did not mention the non-examining report, and it is clear that the non-examining report is not supported by any evidence in the record, since the doctor opined that plaintiff could lift up to 50 pounds, and no doctor at any time has indicated that this would be true.
The court would note that if the ALJ is using Dr. Rogers's report for this portion of the RFC, Dr. Rogers stated that plaintiff could "never" climb. (T.236).
Instead, the ALJ relies heavily on Dr. Rogers narrative report, while stating that his RFC contains too many restrictions. (T. 21). The ALJ apparently believed that Dr. Rogers's opinion was based on plaintiff's allegations rather than on what Dr. Rogers believed was plaintiff's RFC. However, there is no indication that Dr. Rogers did not make his own assessment of plaintiff's RFC, based on the fact that the doctor thought that the plaintiff was exaggerating and not making a full effort.
The ALJ states that the "medical record simply does not contain findings to establish the presence of pathologies which are so advanced that they could limit the claimant's activities as Dr. Rogers described." (T. 21). Since there are no other RFC evaluations from examining physicians, the ALJ appears to be making his own medical assessment of whether plaintiff's abilities are limited "as Dr. Rogers described." The ALJ is not entitled to make medical assessments. Zorilla v. Chater, 915 F. Supp. 662, 666-67 (S.D.N.Y. 1996). The court in Zorilla stated that RFC is a medical assessment , and the ALJ is precluded from making this assessment without some expert opinion to support the finding. Id. at 667 (citing 20 C.F.R. § 404.1513(c),(d)(3)).
As stated above, the ALJ in a termination case is also required to consider all of plaintiff's "current impairments." 20 C.F.R. § 404.1594(b)(5). In making his RFC determination, the ALJ stated that plaintiff had not undergone a "work-up for his lower back" and that "muscle spasm which might corroborate the loss of motion has often been absent." (T. 21). While it is true that some doctors did not find any spasm, Dr. Bevilacqua noted "piriformis spasm" as late as July of 2000. (T. 214). The piriformis muscle is in the lower back. Additionally, in November of 1995, plaintiff complained to Dr. Bevilacqua about his low back, and the doctor assessed "lower back syndrome". (T. 203). Dr. Bevilacqua stated that the plaintiff believed that the low back problem could be due to "improper body mechanics," relating to his upper back pain. (T. 203). Dr. Rogers also diagnosed chronic low back pain. (T. 234). Thus, the ALJ did not properly reject plaintiff's claim of an additional impairment that might contribute to a reduced RFC.
DORLAND'S MEDICAL DICTIONARY 439 (Shorter Ed. 1980).
Additionally, in making his evaluation, the ALJ rejected plaintiff's subjective complaints that if believed, would limit his ability to perform certain functions. "An [ALJ] may properly reject [subjective complaints] after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons 'with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.'" Lewis v. Apfel, 62 F. Supp.2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No. 96 CIV 9435, 1999 WL 185253, at *5 (S.D.N.Y. March 25, 1999)).
One of the reasons that the ALJ appears to have rejected plaintiff's subjective complaints is that he testified that he saw Dr. Bevilacqua twice a month, but that Dr. Bevilacqua's notes do not reflect this frequency of treatment. (T. 22). A review of the transcript shows that the ALJ misinterpreted plaintiff's testimony. Plaintiff testified that he "lik[ed] to see [Dr. Bevilacqua] at least once or twice a month. But I sometimes — what her schedule now — and it's hard to get her because she has late hours and now she's only going to be there once a month so . . ." (T. 49-50). The ALJ never let plaintiff finish his statement, and instead asked a totally unrelated question about his ability to take care of his bathing and personal hygiene. (T. 50). It was clear that plaintiff was not alleging that he saw Dr. Bevilacqua twice per month, and he was attempting to explain why when the ALJ interrupted plaintiff. The ALJ should not have used this as a reason to discredit plaintiff, since plaintiff never made the allegation as stated by the ALJ.
Another reason for rejecting plaintiff's complaints of limiting pain was that he was only under the care of a family doctor "whom he only first saw on June 5, 2000." (T. 22). As stated above, Dr. Bevelacqua has been treating plaintiff since at least 1995, not June 5, 2000. Plaintiff returned to Dr. Bevilacqua on June 5, 2000, after what appears to be a gap between 1997 and 2000, but since there are other records missing in the file, it is unclear what plaintiff was doing between 1997 and 2000.
Additionally, when the objective evidence alone does not substantiate the intensity, persistence, or limiting effects of the claimant's symptoms, the ALJ must assess the credibility of the claimant's subjective complaints by considering the record in light of the following symptom-related factors: (1) claimant's daily activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional limitations and restrictions due to symptoms. 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3).
In this case, although the ALJ did consider plaintiff's daily activities, the ALJ did not address the fact that plaintiff alleged that his medications made him drowsy. (T. 43). At the time of the first ALJ's decision, the side effects of plaintiff's medications were considered in finding him totally disabled. (T. 72). Although it appears that plaintiff's medications may have been different at the second hearing than they were when he was found disabled, the ALJ never considered plaintiff's allegation. Dr. Balagtas's March 13, 2000 report states that plaintiff was taking Motrin and Baclofen. At the time of the hearing, plaintiff stated that he was taking Motrin and Doxepin. (T. 43). Although the Motrin was "over the counter" and may not have had a substantial effect on plaintiff's abilities, the Doxepin and Baclofen clearly cause drowsiness. Thus, the ALJ did not have substantial evidence to reject plaintiff's subjective complaints, and there is no substantial evidence to support the RFC finding.
PHYSICIAN'S DESK REFERENCE 2627 (57th Ed. 2003) (Doxepin); www.nlm.nih.gov/medlineplus/druginfo/uspdi/202080.html (Baclofen).
5. Vocational Expert
If a claimant is unable to perform a full range of a particular exertional category of work, or the issue is whether a claimant's work skills are transferable to other jobs, the ALJ may utilize the services of a vocational expert. 20 C.F.R. § 404.1566, 416.966. A vocational expert may provide testimony regarding the existence of jobs in the national economy and whether a particular claimant may be able to perform any of those jobs given his or her functional limitations. See Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983).
Although the ALJ is initially responsible for determining the claimant's capabilities based on all the evidence, a hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony. See De Leon v. Secretary of Health and Human Services., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F. Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be "substantial record evidence to support the assumption upon which the vocational expert based [her] opinion." Dumas, 712 F.2d at 1554. See also Renna v. Barnhart, 02-CV-765, 2003 U.S. Dist. LEXIS 7402 *10 (E.D.N.Y May 2, 2003) (citing Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983); Aubeufv. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)).
Dumas, 712 F.2d at 1554 n. 4.
In this case, VE Heck testified that based on the hypothetical proposed by the ALJ, plaintiff could perform three light work jobs. The ALJ did include restrictions on reaching in his hypothetical, as well as noting that plaintiff would have to have the opportunity to alternate sitting and standing. The ALJ did not note that the plaintiff could lift only ten pounds, whereas light work requires the individual to lift up to 20 pounds. The ALJ also did not include some of the other restrictions on sitting, standing, and walking imposed by Dr. Rogers. Since the court has found that the ALJ's rejection of Dr. Rogers's RFC was not supported by substantial evidence, it follows that a hypothetical that did not include these additional restrictions may not have been proper. The hypothetical also stated that plaintiff could occasionally climb, while Dr. Rogers's RFC stated that plaintiff could "never" climb. (T. 58, 236).
In response to a question by plaintiff's attorney, the VE stated that if plaintiff could not perform a function for at least four hours, then he would not be able to perform any of the jobs. (T. 63). The ALJ noted in his decision that there was no evidence that the plaintiff could not function for up to four hours per day. (T. 22). Plaintiff did not argue that he could not function four hours per day. The VE testified that the jobs would not be available if plaintiff could not function for "at least a four hour block of time." (T. 63). Based on the above findings, it is unclear that plaintiff could perform the activities outlined in the hypothetical. Thus, the ALJ's determination is not supported by substantial evidence.
6. Remand or Reversal
When there are gaps and inconsistencies in the administrative record, with no sufficiently complete proof that the plaintiff is disabled, the appropriate relief is remand for further or proper evaluation of the record. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
Because of the missing evidence, the ALJ's improper analysis of RFC and improper hypothetical to the VE, this court must remand for further evaluation, consistent with this opinion.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the Commissioner's decision be reversed, and the case be REMANDED, pursuant to sentence FOUR of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion, including an attempt to determine what documents are missing or may have been lost from the record, obtain and consider those documents.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.