Opinion
99-CIV-3505(KMW)
February 20, 2001
ORDER
Plaintiff brought this action to challenge a final decision of the Commissioner of the Social Security Administration ("Commissioner" or "defendant") that denied her applications for Supplemental Security Income ("SSI") and Social Security Disability ("SSD") benefits. Plaintiff moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), reversing the final decision of the Commissioner and finding plaintiff eligible for disability benefits. Defendant cross-moved for judgment on the pleadings, pursuant to Rule 12(c), to affirm his final decision and dismiss the complaint.
I. Background
Plaintiff filed for SSI and SSD benefits on December 19, 1995. (Tr. 66-68, 323-28). She alleges that she has been disabled since December 15, 1992 because of medical impairments that include rheumatoid arthritis, fibromyalgia, and Lyme disease. See Complaint at ¶ 4. Prior to her alleged disability, plaintiff had worked as a waitress, cleaning person, and convenience store clerk. Plaintiff's applications were denied upon initial review and upon reconsideration. (Tr. 55-58, 60-63, 330-33, 334-37). Plaintiff requested that her case be heard by an administrative law judge ("ALJ"), and, on July 15, 1997, the ALJ found that plaintiff was not disabled because of her residual functional capacity to perform at least sedentary work and her vocational factors. (Tr. 19-28). Plaintiff requested that the Social Security Appeals Council ("Appeals Council") review her claim. On March 19, 1999, the Appeals Council declined her request for review. (Tr. 4-5). Plaintiff brought this action to review the ALJ's decision and the Appeals Council's affirmation, claiming that the Commissioner's decision was erroneous and unfounded.
II. Discussion
A. Legal Standard for Review
1. Standard of Review
To review a disability determination under 42 U.S.C. § 423 (a)(1), the Court must consider: (1) whether the Commissioner applied the correct legal principles in making his determination, and (2) whether substantial evidence supports the Commissioner's determination. See 42 U.S.C. § 405 (g); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Substantial evidence is "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 (1971) (internal quotation marks and citation omitted). It is the responsibility of the Court "to conduct a searching inquiry and to scrutinize the entire record, having in mind that the Social Security Act . . . is remedial in purpose." McBrayer v. Secretary of Health Human Servs., 712 F.2d 795, 798-99 (2d Cir. 1983).
2. Definition of Disability Under the Act
The Social Security Act requires a claimant to prove: (1) that he or she is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least twelve months; and (2) that the existence of such impairment is demonstrated by evidence supported by data obtained by medically acceptable clinical laboratory techniques. See 42 U.S.C. § 423(d), 1382c(a)(3)(A); see also Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
The Commissioner's analysis of disability claims proceeds under a five-step sequential evaluation process. See 20 C.F.R. § 404.1520. First, the Commissioner considers whether the claimant is engaged in substantial gainful activity. Second, the Commissioner considers whether the claimant has a severe impairment. Third, the Commissioner considers whether the impairment is "listed," which means that the claimant will be found to be disabled without consideration of vocational factors such as age, education, and work experience. If the claimant does not have a listed disability, the Commissioner considers, fourth, whether the claimant has the residual functional capacity to perform her past work. Fifth, the Commissioner considers whether the claimant can perform other work that exists in the national economy. The claimant bears the burden of proof as to the first four steps. The Commissioner bears the burden of proof as to the fifth step. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (citations omitted).
B. Disability Determination
The ALJ concluded, and the Appeals Council affirmed, that plaintiff does not qualify as disabled because she has a residual functional capacity to perform at least sedentary work and can perform work in the national economy. Plaintiff argues that the Commissioner's determination is erroneous and unsupported by substantial evidence for at least three reasons.
First, plaintiff argues that the ALJ did not assess the medical evidence in accordance with the required legal standards. Under Social Security regulations, the ALJ must give "controlling weight" to a treating physician's opinion if it is "well- supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record. . . ." 20 C.F.R. § 404.1527(d)(2); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The Second Circuit has interpreted this regulation to mean that the Social Security Administration is required to explain the weight that it gives to the opinions of treating physicians and to provide "good reasons" if it chooses not to credit the treating physician's opinion. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); Schisler, 3 F.3d at 568 ("[T]he regulations . . . require the Secretary to provide a claimant reasons when rejecting a treating source's opinion.").
If the ALJ finds that the treating physician's opinion is not entitled to controlling weight, he must decide what weight to give to other medical opinions according to the following factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the physician's opinion; (4) the consistency of the physician's opinion with the record as a whole; (5) the degree to which the physician is a specialist about the medical issues related to the claim; and (6) other relevant factors. See 42 U.S.C. § 404. 1527(d); Schisler, 3 F.3d at 567.
The record reveals that the ALJ did not conduct this required analysis. First, the ALJ did not explain the reason that he did not give controlling weight to the treating physician. Second, the ALJ did not consider the other medical opinions according to the required regulatory factors as set forth in 20 C.F.R. § 404.1527(d)(2). The Second Circuit has clearly held that such omissions are grounds for remand. See Snell, 177 F.3d at 133; see also Reyes v. Shalala, 1995 WL 60021 (S.D.N.Y. Feb. 10); Kiggins v. Shalala, 1995 WL 450478 (S.D.N.Y. July 31); Ortiz v. Shalala, 1994 WL 673630 (S.D.N Y Dec. 1).
Second, plaintiff argues that the ALJ's determination that she can perform a full range of at least sedentary work is not supported by substantial evidence. In order to support a finding that a claimant is not disabled, the Commissioner must proffer specific medical evidence that the claimant can meet the exertional demands of a given residual functional capacity. See Nelson v. Bowen, 882 F.2d 45, 48 (2d Cir. 1989) (citations omitted); Davis v. Shalala, 883 F. Supp. 828, 837 (E.D.N Y 1995). Plaintiff argues that the record reveals that the Commissioner did not meet this burden of proof and that the only evidence cited establishes that plaintiff can not meet the demands of sedentary work. (Tr. 146-49, 290-91, 292-93, 300, 340). The Court agrees. Defendant argues that Dr. Carol Wakeley and Dr. Alan Auerbach, state agency physicians, both found that plaintiff retained the residual functional capacity for sedentary work. (Tr. 252-59). However, the ALJ did not refer to this medical evidence. Therefore, the Court concludes that the ALJ's determination that plaintiff can perform a full range of at least sedentary work is not supported by substantial evidence.
Third, plaintiff argues that there is not substantial evidence to support the ALJ's decision to discount the credibility of her subjective complaints. The Second Circuit is clear that "the subjective element of pain is an important factor to be considered in determining disability." Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citation omitted). The Commissioner may not ignore subjective evidence as to the severity of the impairment but rather must evaluate the credibility of the subjective evidence against objective medical evidence, the claimaint's demeanor, and other indicia of credibility. See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Having reviewed the ALJ's decision, the Court concludes that there is not substantial evidence to contradict the severity of plaintiff's subjective complaints. The ALJ relies on the finding that numerous diagnostic studies were "unremarkable" (Tr. 25); however, negative tests alone are not sufficient to contradict plaintiff's subjective complaints which are consistent with her treating physician's evaluation and opinion.
III. Conclusion
The Court reverses the Commissioner's decision and remands this action, pursuant to sentence four of 42 U.S.C. § 405 (g), for further administrative proceedings. Both parties' motions for judgment on the pleadings are denied. The Clerk of the Court is directed to enter judgment accordingly.
SO ORDERED