Opinion
02-CV-6599 CJS.
March 3, 2004
Christopher M. Mesh, Esq., Connors Ferris, LLP, Rochester, New York, for the Plaintiff.
Michael A. Battle, Esq., United States Attorney for the Western District of New York, Brian M. McCarthy, Esq., Assistant United States Attorney, Rochester, New York, for the Defendant.
DECISION AND ORDER
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") which denied plaintiff's application for disability benefits. Now before the Court is defendant's motion for judgment on the pleadings [#10] and plaintiff's cross-motion for judgment on the pleadings [#13]. For the reasons stated below, the matter is remanded to the Commissioner for additional administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff Ann E. Preston ("plaintiff") filed an application for social security disability and SSI benefits on or about May 29, 1999, with a protective filing date of May 6, 1999, alleging disability due to neck and back pain, fibromyalgia, "heart attack," depression, and myotonic dystrophy." The application was denied initially and on reconsideration, and on January 12, 2001, a hearing was held before Administrative Law Judge Bruce R. Mazzarella ("ALJ"). (Transcript, hereinafter "Tr.," pp. 26-75). By a written Decision, dated March 1, 2001, the ALJ found that plaintiff was not entitled to benefits. (Tr. 14-24). On April 27, 2001, plaintiff filed a Request for Review of Hearing Decision with the Appeals Council. (Tr. 9). On September 13, 2002, the Appeals Council denied plaintiff's request. (Tr. 7-8). The ALJ's Decision, therefore, became Defendant Commissioner's final decision on plaintiff's application for benefits. On November 15, 2002, plaintiff commenced the action now before this Court.
The record does not contain substantial evidence that plaintiff actually suffers from myotonic dystrophy, nor does plaintiff claim, in this action, that the condition is severe.
FACTUAL BACKGROUND
Plaintiff was born on January 5, 1953, and was 48 years of age at the time of the hearing. She has a high-school education. Plaintiff has worked as a school cook/lunch monitor and as an in-home child care provider/nanny. In or about September 1987, while working as a school cook/lunch monitor, plaintiff began experiencing pain in her neck and right arm. (Tr. 190). Later, the pain spread into her left arm. As a result of the pain, plaintiff stopped working on November 3, 1987 and remained out of work until 1992. Plaintiff contends that her neck, arm, and back pain may be caused by a pinched nerve or thoracic outlet syndrome. (Tr. 42). Plaintiff also claims to have "severe fibromyalgia," which she says causes "severe pain and exhaustion throughout my whole body. I feel like . . . people beat me up with a baseball bat." (Tr. 55). She states that she has felt this way her "whole life," although the fibromyalgia has been substantially more symptomatic since 1987. ( Id.). She states that she eventually "stopped going to doctors [for these conditions] because they weren't able to really help [her] with anything." (Tr. 42). She is not currently taking any medication for pain because she does not believe that it helps. (Tr. 43-44).
In 1992, plaintiff returned to work, as a private in-home child care provider or nanny, although she indicates that it was difficult because of pain. (Tr. 39). She continued to work in this capacity until 1998. (Tr. 47-48). On December 7, 1998, plaintiff experienced heart palpitations and a possible myocardial infarction, and remained hospitalized for a week. Plaintiff has not worked at all since December 1998. (Tr. 39). Subsequently, plaintiff had a surgical treatment called ablation, to correct the heart palpitations. However, she contends that since the ablation, her heart "races all the time, not just once in a while." (Tr. 48). She further states that she has "pain all the time in [her] heart and chest and in [her] upper back." (Tr. 50). Plaintiff takes medication, including metoprolol and nitroglycerin, for the palpitations and chest pain. (Tr. 51).
As for her mental condition, plaintiff states that she has had "three nervous breakdowns," but has not sought treatment from a psychologist or psychiatrist. (Tr. 52). Plaintiff takes Prozac, which is prescribed by her primary care physician, Karai P. Balaji, M.D. ("Balaji"). (Tr. 52-53). Although Balaji has recommended that plaintiff see a mental health specialist, she has declined. When asked why, plaintiff stated that "for awhile there, I didn't have a car to get there." (Tr. 54). She also indicated that she is reluctant to see a specialist because her problems are personal and she does not want to discuss them with a stranger. ( Id.).
Plaintiff states that she does her own laundry and housekeeping, and that she prepares meals, does dishes, and goes grocery shopping "at times." (Tr. 56-57). However, she experiences pain if she overdoes any of these activities. Plaintiff indicates that she mainly spends her days visiting relatives and friends. (Tr. 58). At the hearing before the ALJ, plaintiff had great difficulty quantifying the length of time that she is able to sit and stand. (Tr. 59-62). Generally, she indicated that she can sit for 30 minutes at a time, then needs to change position. (Tr. 60-61). She stated that she can only stand for 15 minutes at time, then needs to lay down because of pain in her chest and back. (Tr. 61). She also indicated that regardless of whether she is standing or sitting, she needs to lie down every 30 minutes.(Tr. 62). Plaintiff stated that she is able to walk less than a block, and is "sometimes" able to lift 5 pounds. (Tr. 62-3).
MEDICAL EVIDENCE
On March 2, 1988, Craig Hyser, M.D. ("Hyser") examined plaintiff concerning pain in her right arm and found the results to be "quite suggestive of injury to the long thoracic nerve." (Tr. 200). On April 11, 1988, neurologist Joseph I. Mann, M.D. ("Mann") examined plaintiff and found that he could not "make a definite diagnosis of a nerve entrapment syndrome nor radiculopathy." (Tr. 208). Mann noted that plaintiff's complaint involved the "right upper extremity." (Tr. 207). On February 11, 1989, Joseph E. Geary, M.D. ("Geary"), indicated that he had examined plaintiff and found her nerve conduction study to be within normal limits. (Tr. 186). Geary opined that plaintiff possibly could have thoracic outlet syndrome, although he noted that "there is no way that you can prove this." ( Id.). On January 19, 1990, Mann again examined plaintiff, and noted: "The patient's nerve conduction studies are normal. I don't find evidence of neurological dysfunction on examination today." (Tr. 206). On October 19, 1990, Michael G. Dunn, M.D. ("Dunn") performed a neurological examination and found it to be unremarkable. Dunn wrote:
Mrs. Preston is a somewhat difficult patient to evaluate. She has seen a number of different neurologists among other specialists. No clear etiology has been found for her chronic pain syndrome. She does have a hint of carpal tunnel syndrome. . . . I doubt this is related to any of her symptoms. . . . In general, she appears to be an anxious person who pays attention to minimal symptoms. I do not think there is [an] organic basis for much of what she complains of. . . . I do not detect any definite neurologic or neuromuscular condition that is related in any way to work or a work injury.
(Tr. 204).
Between October 1990 and July 1997, there is no record of medical treatment. On July 22, 1997, John Baum, M.D. ("Baum") of the Strong Memorial Hospital Allergy, Immunology, and Rheumatology Clinical Group examined plaintiff, who was complaining of "pain all over." (Tr. 209). Baum wrote, in relevant part:
On physical examination, she was tender everywhere that I examined her. She was tender in all the classic points for fibromyalgia but, the point is, that everywhere I examined, she complained of marked tenderness. I did not find any evidence of arthritis. I agree . . . that the most likely diagnosis is fibromyalgia and I base this also on the fact that I think she is in a state of agitated depression. At one point toward the end of the examination, she did start to cry and complain about her symptoms.
(Tr. 209). On July 8, 1999, Rheumatologist Margaret M. Holyst, M.D. ("Holyst") examined plaintiff and found opined that plaintiff had "long-standing fibromyalgia" that was "quite symptomatic." (Tr. 299). Holyst wrote: "Exercise is important, however, she [plaintiff] reports that she is unable to exercise even in cardiac rehabilitation due to tachycardia associated with shortness of breath and light-headedness. Given her other medical problems, I really have very little to offer her in the way of treatment." (Tr. 299). Holyst did, however, refer plaintiff to an occupational therapist, who instructed plaintiff regarding energy conservation techniques. (Tr. 299-305).
In December 1998, plaintiff was hospitalized following a myocardial infarction. On March 29, 1999, Cardiologist Chee Kim, M.D. ("Kim") examined plaintiff in connection with complaints of "intermittent [heart] palpitations, lasting anywhere from 5-10 minutes with no association to any activity." (Tr. 272). Kim noted that,
[i]n December of 1998 she had a particularly severe episode of palpitations associated with light-headedness, dizziness and presyncope. The episode lasted approximately 4 hours and she was taken to the Emergency Department. . . . She apparently ruled in for a myocardial infarction and was hospitalized for a week at Highland Hospital. I have a report of an exercise Thallium which reveals no evidence of infarction or ischemia. . . . She continues to have intermittent episodes however, of her palpitations.
(Tr. 272). Kim recorded that plaintiff had "recurrent palpitations and rapid supraventricular tachycardia with non Q wave myocardial infarction secondary to her supraventricular tachycardia," and that she was being admitted to the hospital for an elective procedure known as ablation to address those problems. (Tr. 273). On May 18, 1999, Kim noted that the ablation procedure was successful, but that plaintiff "continue[d] to have abrupt sinus tachycardia during periods of minimal exertion and would benefit from continued monitoring during cardiac rehabilitation." (Tr. 284).
On July 20, 1999, Balaji, plaintiff's primary care physician, opined that plaintiff had a history of fibromyalgia, tachycardia, hyper-triglycidemia, and "possible depression." (Tr. 310). Balaji noted that plaintiff
does not tolerate medications very well for [fibromyalgia] and very few things [sic] make her easily tired. She does cardiac rehab with considerable difficulty and has significant tachycardia when she does any form of exercise and is presently on medications to control this. In addition, very minimal effort makes her muscles ache and increases fatigue.
(Tr. 310-11).
On June 17, 1999, Cardiologist James Peterson, M.D. ("Peterson") noted that plaintiff had been admitted to the hospital emergency room after an episode of exertional tachycardia. Upon arrival at the emergency room, plaintiff's blood pressure was 204/112 with a heart rate of 112. Subsequently, an ECG showed a normal sinus rhythm with a heart rate of 78. (Tr. 285). On June 30, 1999, Peterson noted that plaintiff's tachycardia had improved since she had begun taking metoprolol, a beta blocker medication. (Tr. 291). On July 28, 1999, Peterson noted that plaintiff was "still having occasional episodes of rapid heart rate but [they] have settled down fairly well" on medication. (Tr. 292). Peterson further noted:
She has occasional chest discomfort with vigorous activity that lasts from minutes to hours. She says she has some shortness of breath when she exerts herself vigorously. She says that overall she is feeling a little better or at least feels she is a little better able to cope with her symptoms.
( Id.). On October 11, 1999, Peterson reported that plaintiff was still having episodes of tachycardia upon exertion, as well as some chest discomfort, although the chest discomfort may have been attributable to fibromyalgia. (Tr. 293). He further noted that plaintiff "seems to be quite disabled by these episodes of tachycardia." ( Id.). On December 15, 1999, Peterson reported that plaintiff continued to have episodes of exertional tachycardia, and that she reported that "her `lungs feel sore' for several days afterwards and she feels exhausted." (Tr. 295). Peterson recommended increasing the dosage of metoprolol. ( Id.).
On July 28, 1999, Chiropractor Richard Quatro ("Quatro") opined that in 1987, plaintiff had suffered the following injuries: "Nerve root damage. Also possible carpal tunnel syndrome and thoracic outlet syndrome." (Tr. 312). Quatro stated that, while he was treating plaintiff, her "disability appeared to be of [a] permanent nature." ( Id.). However, he noted that he had not seen plaintiff since 1991, and therefore could not "comment on [her] current disability status." ( Id.).
On August 16, 1999, David Batt, M.D. ("Batt"), a non-treating consulting physician, examined plaintiff, and reported his impression as post myocardial infarction with residual angina and recurrent tachycardia, fibromyalgia that is "severe involving all muscles and extremities," and depression. (Tr. 331). Batt further stated:
1. . . . She has difficulty using her hand since [1987] and her upper extremities. She was later diagnosed as having fibromyalgia and has tenderness of a severe nature in all of her muscle joints. She is limited in her activities.
2. Since her heart attack, she has had anterior chest pain daily, even when standing, washing dishes. This does radiate into her forearms and into her jaw. This is associated with tachycardia at times. Activities can bring this on therefore she lies down for relief and takes Nitroglycerin. This is regarded as a very severe impairment.
3. As far as fibromyalgia is concerned, any activity, pressure or touching causes severe pain and she is severely limited in any activity. She has 10/10 pain in her muscle groups with bending, lifting and any activity, pulling, pushing or any motor activity whatsoever causes pain.
4. The patient is therefore severely limited in regards to her heart and as well as [sic] her muscular disease.
(Tr. 331-32).
On August 16, 1999, Donald A. Warren, Ph.D. ("Warren"), a non-treating consulting psychologist, performed a psychiatric evaluation of plaintiff, and diagnosed her as having an adjustment disorder with depressed mood. Warren stated:
The claimant is likely to perform adequately with complex tasks with understanding [sic] most directions and instructions. She is likely to have difficulty with endurance secondary to her reported fatigue and shortness of breath. It is likely that physical difficulties are likely to present greater barriers to her functioning than psychological difficulties would. It is likely the claimant would relate adequately with co-workers and supervisors.
(Tr. 339). Finally, Warren noted that plaintiff's prognosis was "fair, and is enhanced by generally good judgment and cognitive skills, but appears limited by the apparent severity of her physical difficulties." (Tr. 340).
On October 19, 1999, Anthony Cannuli, M.D. ("Cannuli"), a non-treating, non-examining agency review physician, completed a Psychiatric Review Technique form and a Residual Functional Capacity Assessment. In the psychiatric review form, Cannuli echoed Warren's findings that plaintiff suffered from an adjustment disorder with depressed mood. (Tr. 357). Cannuli stated that this impairment was not severe, and would have only a slight degree of limitation on plaintiff's activities of daily living. (Tr. 354, 361). As for his residual functional capacity assessment, Cannuli concluded that plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, sit, stand and/or walk approximately 6 hours each in an 8-hour workday, and push and/or pull without limitation. (Tr. 347). Cannuli indicated that plaintiff otherwise had no limitations, except that she should avoid "hazards" including machinery and heights. Significantly, Cannuli indicated that, in completing the Residual Functional Capacity Assessment, he had not reviewed any treating or examining source statements regarding plaintiff's physical condition. (Tr. 352). Thus, it is unclear how Cannuli arrived at his opinion regarding plaintiff's lifting, sitting, standing, and walking abilities.
This Court has repeatedly held that the opinions of non-treating, non-examining agency review physicians which are not based on treating or examining source statements, or which do not indicate what they are based upon, are essentially worthless. The ALJ also noted that Cannuli's report should be given little weight in light of Peterson's subsequent residual functional capacity assessment. (Tr. 20).
On November 2, 2000, Peterson completed a residual functional capacity assessment, indicating that plaintiff can occasionally lift 10 pounds, and can frequently lift less than 10 pounds, and can stand and/or walk for 2 hours in an 8-hour workday. (Tr. 380). Peterson further indicated that plaintiff had no restriction on her ability to sit. (Tr. 381). Peterson also stated that plaintiff was limited in her ability to push and pull, due to her tachycardia, and had postural limitations regarding her ability to balance, kneel, and crouch.
On November 7, 2000, Michael A. Baer, Ph.D. ("Baer"), a psychologist employed by Vocational and Educational Services for Individuals with Disabilities ("VESID") rehabilitation services, examined plaintiff. Baer found that plaintiff exhibited pressured speech, depressed, anxious, tearful and angry mood, and a flat affect. (Tr. 428). Plaintiff tested above average on an I.Q. test. (Tr. 429). Baer wrote:
Very teary with poor ability to express her feelings and a very poor ego defense system. She appears to be chronically abused, resulting in a very poor self image. . . . Needs mental health services but makes excuses. . . . Mental health services are a must. Psychopharmacology and psychotherapy, SSD serv[ices] warranted, with work a more distant goal.
(Tr. 431).
On November 13, 2000, Holyst completed a narrative report, in which she noted that she had examined plaintiff on only one occasion, July 8, 1999. Holyst stated that at that time, plaintiff
had significant symptoms from her fibromyalgia including a severe sleep disturbance. . . . She also had diffuse musculoskeletal pain. At that time, we did not discuss issues of disability, so I really do not have a good sense of what her work limitations are. When we discussed exercise and its role in the treatment of fibromyalgia, she did tell me that she could not exercise in her cardiac rehabilitation program due to an increased heart rate (tachycardia), shortness of breath and light headedness. It appeared to me that she was actually more limited in function by her cardiac symptoms than her fibromyalgia symptoms. . . . Unfortunately, I really cannot give you an opinion as to whether she is disabled from the fibromyalgia as, again, at the time I saw her, most of her limiting symptoms seemed to be cardiac in nature, which I cannot really comment on. In terms of prognosis, unfortunately, in most patients who have had fibromyalgia as long as Ms. Preston, it continues to be a chronic symptomatic problem. Some people do improve, but often have symptoms despite improvement. In order to evaluate her further for disability, you may want to consider a functional capacity examination. The Strong Physical therapists can perform that and it would give a good picture of what she is and is not able to do.
(Tr. 422).
On November 20, 2000, Peterson provided a narrative report, in which he indicated that, "from a cardiology standpoint," he did not believe that plaintiff was disabled from working, because he saw "no cardiac contraindication to sedentary work," and believed that plaintiff had no restriction on her ability to sit. (Tr. 420).
On November 22, 2000, Balaji provided a narrative report, which concluded:
Ann Preston has been a patient in our practice for many years. I have been taking care of her [sic] September 1998. Mrs. Preston has a history of fibromyalgia with severe muscle aches, very limited exercise capacity, shortness of breath, and tachycardia. She may also have an underlying hereditary muscle condition that involves myotonia and also depression. She is only able to do very low levels of activity in my opinion. I doubt that she will have significant improvement as she has remained more of less the same over the last 24 months since her myocardial infarct in December of 1998. I would say that she has been totally disabled since then. Prognosis for improvement is very bleak.
(Tr. 418).
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
For purposes of the Social Security Act, disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
The SSA has promulgated administrative regulations for determining when a claimant meets this definition. First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities. If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work. Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work."Schaal, 134 F.3d at 501 (Citations omitted). At step five of the five-step analysis above, the defendant may carry its burden by resorting to the Medical Vocational Guidelines or "grids" found at 20 C.F.R. Pt. 404, Subpart P, Appendix 2. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996) (citation omitted); see also, SSR 83-10 (Noting that in the grids, "the only impairment-caused limitations considered in each rule are exertional limitations.") However, if a claimant has nonexertional impairments which "significantly limit the range of work permitted by his exertional limitations," then defendant cannot rely upon the grids, and instead "must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform." Id. at 39; see also, 20 C.F.R. § 416.969a(d).
"Exertional limitations" are those which affect an applicant's ability to meet the strength demands of jobs, such as sitting, standing, walking, lifting, carrying, pushing, and pulling. "Non-exertional limitations" are those which affect an applicant's ability to meet job demands other than strength demands, such as anxiety, depression, inability to concentrate, inability to understand, inability to remember, inability to tolerate dust or fumes, as well as manipulative or postural limitations, such as the inability to reach, handle, stoop, climb, crawl, or crouch. 20 C.F.R. 416.969a.
20 C.F.R. § 416.927(d) provides, in relevant part, that, "[w]hen the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect your ability to meet both the strength [exertional] and demands of jobs other than the strength demands [nonexertional], we consider that you have a combination of exertional and nonexertional limitations or restrictions. . . . [W]e will not directly apply the rules in appendix 2 [the grids] unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations; otherwise the rule provides a framework to guide our decision."
Under the regulations, a treating physician's opinion is entitled to controlling weight, provided that it is well-supported in the record:
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. § 416.927(d)(2); 20 C.F.R. § 404.1527(d)(2). However, "[w]hen other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed 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) ( citing 20 C.F.R. § 404.1527(d)(4)).
Thus, where a treating physician's opinions are inconsistent with other substantial evidence in the record, his opinion is not entitled to controlling weight. Snell v. Apfel, 177 F.3d at 133. In such a case, the ALJ not only must decide what, if any, lesser weight to assign to the treating physician's opinion, but must also explain that decision. Id. ("Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.") (citation omitted). The Commissioner's regulations state that, "[u]nless we give a treating source's opinion controlling weight . . . we consider all of the following factors in deciding the weight we give to any medical opinion. (1) Examining relationship. . . . (2) Treatment relationship. . . . (3) Supportability. . . . (4) Consistency. . . . (5) Specialization. . . . (6) Other factors." 20 C.F.R. § 416.927(d)(2); see also, 20 C.F.R. § 404.1527(d); Schaal v. Apfel, 134 F.3d at 504 (Finding that the ALJ did not properly apply the treating physician rule, in part, because he "failed to consider all of the factors cited in the regulations."). If the ALJ fails to properly weigh evidence, the court cannot do so; instead, the matter must be remanded. See, Schaal v. Apfel, 134 F.3d at 504 ("It is for the SSA, and not this court, to weigh the conflicting evidence in the record.") (citation omitted); accord, Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Moreover, the ALJ should not reject a treating physician's opinion as being unsupported, without first attempting to develop the record. See, Schaal v. Apfel, 134 F.3d at 505 ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the physician] sua sponte."); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) ("The ALJ has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings, regardless of whether the claimant is represented by counsel."); Rosa v. Apfel, 1998 WL 437172 at *4 (S.D.N.Y. Jul. 31, 1998) ("A simple follow-up request from the ALJ could have resulted in an assessment of the claimant's residual functional capacity from his treating physician.").
THE ALJ'S DECISION
Applying the five-step sequential analysis discussed above, the ALJ found, first, that plaintiff had not engaged in substantial gainful activity during the relevant period. Second, he found that she had three impairments which were severe within the meaning of the regulations, namely, myocardial infarction, thoracic outlet syndrome, and fibromyalgia. However, the ALJ found that plaintiff's depression was not a severe impairment. Third, the ALJ found that plaintiff's "severe impairments" did not meet or equal the criteria of any impairment(s) listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P ("the Listings") ( 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). Fourth, the ALJ found that plaintiff was not capable of performing her past relevant work. Finally, at the fifth step of the five-step sequential analysis, the ALJ found that plaintiff had a residual functional capacity that would allow her to perform other jobs which exist in significant numbers in the national economy, pursuant to rules 201.28 and 210.21 of the medical-vocational guidelines set forth at 20 C.F.R., Part 404, Subpart P, Appendix 2 ("the Grids"). (Tr. 21). In making this finding, the ALJ relied upon the testimony of a vocational expert ("VE"). The ALJ asked the VE to base his opinion on the following facts:
I want you to assume the individual could [sit] at least two hours . . . at one time and with normal breaks and meal periods for up to eight hours in an eight-hour workday. Stand and walk for at least two hours at a time and again with normal breaks and meal periods for up to eight hours in an eight-hour workday. Lift and carry up to 20 pounds on an occasional basis. Ten pounds on a frequent basis. . . . In addition . . . I want you to assume the individual should not stoop, crouch, kneel or climb on more than an occasional basis. I want you to assume the individual should not use her upper extremities on a repetitive basis.
(Tr. 68-9). The ALJ later asked the VE to assume that the individual "could only stand and walk occasionally and only lift . . . occasionally up to ten pounds." (Tr. 74). The ALJ found, based on the VE's testimony, that plaintiff could perform three jobs: Addresser (DOT 209-587-010), Cutter Paster (DOT 249-587-014), and Order Clerk (DOT 209-567-014). (Tr. 22). The definitions of these positions in the Dictionary of Occupational Titles are as follows:
Addresser: "Addresses by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing. May sort mail."
Cutter-and-Paster: "Tears or cuts out marked articles or advertisements from newspapers and magazines, using knife or scissors. Records name of publication, page and location, date, and name of customer on label, and affixes label to clipping."
Order Clerk: "Takes food and beverage orders over telephone or intercom system and records order on ticket: Records order and time received on ticket to ensure prompt service, using time-stamping device. . . . Distributes order tickets or calls out order to kitchen employees. May collect charge vouchers and cash for service and keep record of transactions."
DOT DICTIONARY OF OCCUPATIONAL TITLES, www.occupationalinfo.org.
In making this determination, the ALJ rejected Balaji's opinion that plaintiff became disabled following her myocardial infarction in 1998. As to that, the ALJ found that the opinions of Peterson and Holyst, treating specialists in the fields of cardiology and rheumatology, respectively, were worthy of more weight than that of Balaji, who is not a specialist. (Tr. 20) ("The undersigned grants more weight to these treating specialist's opinions than to the claimant's attending general practitioner who opined total disability since it is clear the claimant is not totally disabled when considering unbiased assessments from her cardiologist and rheumatologist."). The ALJ also noted that, according to Holyst, plaintiff's cardiac problems were more debilitating than her fibromyalgia, and that, according to Peterson, plaintiff's cardiac condition did not prevent her from performing sedentary work. (Tr. 20). Finally, the ALJ noted that plaintiff had been able to work up until 1998, when she experienced her myocardial infarction, despite her fibromyalgia and thoracic outlet syndrome. ( Id.). The ALJ reasoned that, if plaintiff's cardiac condition did not prevent her from performing sedentary work, neither would the fibromyalgia or thoracic outlet syndrome. ( Id.).
ANALYSIS
Plaintiff alleges that the ALJ's decision contains numerous legal errors. Specifically, she contends that the ALJ: 1) ignored the treating physicians' opinions and relied entirely on his own observations of plaintiff at the hearing; 2) failed to address any of plaintiff's work-related mental impairments; 3) did not take plaintiff's non-exertional limitations into consideration when determining her residual functional capacity; 4) "ignore[d] the plaintiff's treating physicians' opinions, while giving controlling weight to the opinion of a non-examining consultative examiner" (Pl. Memo, p. 9); 5) "fail[ed] to consider [Dr. Balaji's opinion] and fail[ed] to provide an explanation for his rejection of this critical evidence" ( Id. at 9); 6) improperly "parceled out" plaintiff's ailments, rather than considering their combined effect; 7) erred in rejecting the opinion of Dr. Warren, and in finding that plaintiff had no vocationally significant mental impairments; 8) failed to give controlling weight to the opinions of doctors Quatro and Balaji, which "were the only opinions properly assessing all of the plaintiff's impairments." ( Id. at 11) (emphasis in original); 9) failed to consider Batt's opinion that plaintiff was "severely limited"; 10) failed to develop the record; 11) failed to properly evaluate plaintiff's credibility, and relied solely on his observations at the hearing ( Id. at 13-14); 12) failed to give proper weight to plaintiff's long history of seeking medical attention and to her good work history, and placed too much emphasis on her settlement of a worker's compensation claim prior to her returning to work in 1992; 13) found that plaintiff was "not able to stoop," which should have required a finding of disability pursuant to SSR 96-9p ( Id. at 16-17); 14) improperly failed to apply the grids, which would have required a finding of disability; and 15) failed to give examples of jobs that plaintiff could perform.
Many of plaintiff's arguments merit little discussion, since they are simply inaccurate. For example, plaintiff's statement that Chiropractor Quatro was one of only two doctors who opined concerning all of plaintiff's impairments is clearly inaccurate, since he never treated her for fibromyalgia, and stopped treating her at all long before she suffered her initial cardiac incident in 1998. ( See, Tr. 312) ("I have not seen patient since 7-23-91: I cannot comment on current disability status of patient."). Plaintiff's claim that the ALJ "failed to identify" Batt's opinion that plaintiff was "severely limited" is also mistaken, since the ALJ expressly did so at page 6 of his decision. (Tr. 19) ("Dr. Batt concluded that she was severely limited in any motor activity because of the fibromyalgia."). Moreover, although plaintiff asserts that the ALJ found that plaintiff "was not able to stoop," the ALJ actually found that plaintiff could stoop "on an occasional basis" (Tr. 23). Plaintiff's assertions that the ALJ relied solely on his observations at the hearing in weighing plaintiff's credibility, that he failed to give examples of jobs that she could perform, and that he failed to properly apply the grids are also incorrect. ( See, Tr. 16-22).
Quatro treated plaintiff between December 1988 and April 1989. (Tr. 190). Because he had stopped treating plaintiff eight years earlier, Quatro did not even complete the residual functional capacity assessment form that was sent to him. ( See, Tr. 312-20). In any event, a chiropractors is not considered to be a "medical source," and an ALJ is not required to give controlling weight to the opinion of a chiropractor. Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). However, an ALJ may give appropriate weight to a chiropractor's opinion, based upon all of the evidence in the record. ( Id. at 314).
However, the Court agrees that some of the issues plaintiff has identified require that the Commissioner's decision be reversed. First, the Court agrees that the ALJ did not properly evaluate the opinions of plaintiff's treating physicians. As discussed above, the ALJ essentially rejected Balaji's opinion, and relied on those of Peterson and Holyst, because they are specialists. (Tr. 20) ("The undersigned grants more weight to these treating specialist's opinions than to the claimant's attending general practitioner who opined total disability.") Moreover, since Peterson opined that plaintiff was not disabled "from a cardiac standpoint," and since Holyst purportedly opined that plaintiff's cardiac impairments were more serious than her impairments from fibromyalgia, the ALJ concluded that plaintiff was not disabled by either condition. However, the Court finds several problems with this analysis. First, while Peterson and Holyst are specialists in their particular fields, Balaji was perhaps in the best position to render an opinion as to the combined effect of plaintiff's cardiac and fibromyalgia conditions. 42 U.S.C. § 423(d)(2)(B) states that,
[i]n determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Commissioner . . . does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.42 U.S.C. § 423(d)(2)(B) (Emphasis added). Clearly, Peterson's report indicates only that plaintiff's heart condition, if considered separately, was not disabling. Moreover, while portions of Holyst's November 13, 2000 letter suggest that plaintiff's cardiac condition appeared to be "more limiting" than her fibromyalgia, it is clear that overall, Holyst did not feel confident expressing an opinion as to whether or not plaintiff was disabled as a result of her fibromyalgia, which is why she recommended that plaintiff be evaluated further. (Tr. 422) ("I only saw Ms. Preston once. . . . Unfortunately I really cannot give you an opinion as to whether she is disabled from the fibromyalgia. . . . [Y]ou may want to consider a functional capacity examination."). Since Holyst did not actually express an opinion on the issue, the opinions of Balaji and Batt take on greater significance, particularly with regard to plaintiff's fibromyalgia. However, while Batt and Balaji both opined that plaintiff's physical abilities were severely limited, they did not explain exactly how her impairments would affect her ability to sit, stand, walk, lift, or use her hands. Accordingly, on remand, the ALJ should supplement the record by obtaining additional information from Batt and Balaji regarding the precise functional limitations imposed by her combined impairments.
By contrast, as noted above, Cannuli's residual functional capacity assessment is essentially worthless, since he did not indicate how he arrived at his opinion regarding plaintiff's lifting, sitting, standing, and walking abilities.
As for plaintiff's ability to use her hands, while the VE indicated that the Addresser, Cutter-and-Paster, and Order Clerk's positions did not require "frequent repetitive use" of one's hands, the descriptions of those positions from the Dictionary of Occupational Titles set forth above suggest otherwise. On remand, the ALJ should clarify whether or not plaintiff can actually perform the requirements of those positions.
The Court also finds that the ALJ failed to properly weigh all of the relevant evidence pertaining to plaintiff's mental impairments. Specifically, the ALJ erroneously relied solely on the report prepared by Warren, without considering, or at least explaining why he disregarded, Baer's conflicting report. See, e.g., 20 C.F.R. § 404.1527(d) ("Regardless of its source, we will evaluate every medical opinion we receive.") As discussed earlier, Baer appears to opine that plaintiff is disabled for Social Security Disability purposes. ( See, Tr. 431) (" SSD servs warranted, with work a more distant goal.") (Emphasis added). Baer's opinion on the ultimate issue of disability notwithstanding, he indicates that, due to her mental impairments, plaintiff should not attempt to work until she has received mental health treatment. However, Baer's report does not explain exactly how plaintiff's mental impairments would interfere with her ability to work. On remand, the ALJ should seek additional information from Baer so as to enable him to quantify and evaluate plaintiff's mental impairments in accordance with 20 C.F.R. § 404.1520a.
There is also no indication that Cannuli took Baer's opinion into consideration when he completed his Psychiatric Review Technique evaluation. (Tr. 354-62).
Plaintiff requests that this matter be remanded solely for the calculation of benefits. However, remand for that purpose is warranted only where
the reversal is based solely on the Commissioner's failure to sustain [her] burden of adducing evidence of the claimant's capability of gainful employment and the Commissioner's finding that the claimant can engage in `sedentary' work is not supported by substantial evidence. Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000) (Citations and internal quotation marks omitted). In such a case, "no purpose would be served by our remanding the case for rehearing." Id. Here, by contrast, remand for a new hearing is required to allow the ALJ to correct the errors of law identified above.
CONCLUSION
For all of the foregoing reasons, defendant's motion [#10] for judgment on the pleadings is denied, plaintiff's cross-motion [#13] for judgment on the pleadings is granted, and this case is remanded, pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this Decision and Order.So Ordered.