Serrano v. Barnhart

Full title: RAYMOND SERRANO, Plaintiff, -against- JO ANNE BARNHART, Commissioner of…

Court: United States District Court, S.D. New York

Date published: Nov 14, 2003

02 Civ. 6372 (LAP)(AJP) (S.D.N.Y. Nov. 14, 2003)

Opinion

02 Civ. 6372 (LAP)(AJP)

November 14, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

Plaintiff Raymond Serrano brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 205(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Serrano disability benefits. (Dkt. No. 2: Compl.) The Commissioner and Serrano, represented before this Court by the Center for Disability Advocacy Rights, have cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 11-12, 23-26.) Serrano seeks an order vacating the Commissioner's final decision and remanding the matter for proper consideration of the medical evidence. (Dkt. No. 23: Serrano Motion at 1; Dkt. No. 24: Serrano Br. at 1.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be denied, Serrano's cross-motion should be granted, and the case should be remanded to the Commissioner for further development of the record.

PROCEDURAL BACKGROUND

On May 21, 1999, plaintiff Raymond Serrano filed for disability benefits, alleging an inability to work since May 10, 1997. (Dkt. No. 20: Revised Administrative Record¹ ("R.") filed by the Commissioner at 138-41.) Serrano's application was denied initially (R. 134-37) and upon reconsideration (R. 129-31). At Serrano's request (R. 127), a hearing was held before an administrative law judge ("ALJ") on March 14, 2000 (R. 29-50.) On August 25, 2000, the ALJ issued a decision finding that Serrano was not disabled. (R. 19-28, 105-14.) Upon Serrano's application (R. 103-04), on July 6, 2001, the Appeals Council vacated the ALJ's decision due to "inconsistent statements and conclusions" about Serrano's impairments and a lack of medical and vocational evidence and remanded the case for further proceedings. (R. 100-02.) After a second hearing on November 8, 2001² (R. 51-83), the ALJ issued a second decision on February 22, 2002, finding that Serrano was not disabled because he was able to perform his past relevant work as a security guard, or alternatively, because he could perform other light work. (R. 9-18).

1 The Commissioner submitted the Administrative Record with her Motion for Judgment on the pleadings (Dkt. No. 12) and later submitted a revised version (Dkt. 20). The sole difference in the revised version is the inclusion of R. 220.

2 On April 11, 2001, Serrano filed a second application for disability benefits (R. 12, 145-47, 158-76), which was denied initially on August 6, 2001 (R. 91-94). Because the applications covered identical time periods, at Serrano's second hearing, the ALJ consolidated the records from Serrano's May 1999 and April 2001 applications and treated them as a single application. (R. 12, 56.)

The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Serrano's request for review (R. 7-8) on July 3, 2002 (R. 5-6).

FACTS

Serrano's First Administrative Hearing

On March 14, 2000, a hearing was held before ALJ Robin Arzt. (R. 29-50.) Serrano appeared without counsel. (R. 31-33.) Before hearing testimony, the ALJ confirmed that Serrano was fully appraised of his right to legal representation and that he waived that right. (R. 31.)³

3 Serrano stated: "I think I can handle it on my own. You could help me with the record." (R. 31.) In response, the ALJ confirmed his responsibility to develop the record for Serrano:

Now, it's part of my job to make sure that the record is complete. Now, what that means is if there are medical records or other records I need to make a decision that I don't have, I've got people on staff who can request those records and if it's something I think you can get easily, I'll ask you to get it and I'm not going to make my decision until I have all the records I need. Now, it's also part of my job to question witnesses carefully to get the information I need to make a decision. Now, if you have a representative, that person would also gather documents for you, question witnesses at the hearing and make arguments on your behalf in the case.

(R. 32.)

Serrano was born on November 18, 1958 (R. 36), and was forty-one years old at the time of the hearing. Serrano testified that he lived with his parents, sister, niece, and his niece's fiance (all of whom receive disability payments) (R. 36) in a first floor apartment of a walk-up building (R. 37). Although Serrano had a driver's license, he had not driven for three years prior to the hearing because he did not have a car. (R. 37.) Serrano took a bus to the hearing. (R. 37-38).

Serrano testified that he completed the eleventh grade. (R. 38.) From June 1988 to May 1997, Serrano worked full-time as an armed security guard, patrolling office buildings and outdoors, both on foot and in vehicles. (R. 38-39.) In addition to wearing a gun belt that usually held more than one revolver, Serrano carried a radio and handcuffs. (R. 39.) Serrano has not worked since he was laid off⁴ in May 1997. (R. 39.) Although he looked for a similar job, potential employers rejected him because he did not have a New York City gun permit. (R. 40.) Serrano later learned that he could have transferred his permits to New York, but "was tired of getting lied to so [he] gave up on" looking for employment entirely.⁵ (R. 40.)

4 When asked why he stopped working in a disability report dated May 21, 1999, however, Serrano stated that his "job ended, due to [his] illness." (R. 186.)

5 Serrano's earnings record showing he worked from 1986 to 1988, but he was unable to tell the ALJ if he was employed as a security guard. (R. 40.)

Serrano testified that he had not been to a doctor, hospital, chiropractor, or emergency room since his disability began on May 1, 1997. (R. 34-35.) In June 1999,⁶ a consulting physician told Serrano that he had an enlarged liver. (R. 41.) According to Serrano, this was the first time he had been so diagnosed. (R. 41.) Serrano testified that he was never diagnosed with hepatitis, had a blood transfusion, or taken drugs other than Advil.⁷ (R. 41.) Serrano told the ALJ he would like to have his intestines "checked" to "eliminate everything at one time." (R. 42.) Serrano stated that he did not trust doctors in the Bronx, while he could trust doctors in Manhattan "a little bit but that's where the high prices are." (R. 42.)

6 Although the date of this consulting exam is listed as June 11, 1998, since Serrano did not apply for benefits until May 1999, the exam more likely took place on June 11, 1999.

7 Serrano testified that Advil only alleviates his headaches, not his back pain. (R. 44.)

Serrano testified that he has had problems with his back, arms, and legs for about two years prior to the hearing. (R. 43-44.) Specifically, when he touches metal or puts his legs in bath water, he gets a "tingly," numb sensation that feels "like a charge." (R. 44.) Given these symptoms, Serrano also believed he had a blood disorder or circulation problem.⁸ (R. 44-45.)

8 Serrano believed he had a blood disorder because he and his mother, who has "arthritis and a glucose problem," experienced similar symptoms. (R. 35-36.) He also experienced sharp pains on the sides of his legs, but noted that it was after drinking lemon juice, which causes him to have an allergic reaction. (R. 45.)

Serrano testified that his back injuries stem from a bicycle accident in about 1985, when he was hit and thrown about "20 feet in the air." (R. 42.) Although he had not been treated for back problems in the last several years (R. 43), he stated that the left side of his spine continues to bother him. (R. 43.) Serrano has problems going up and down stairs on certain days, when he can hear his "spine shifting." (R. 37, 43.) Serrano described his back as "spasmic" when he wakes up, and "tr[ies] to get up and [he] can't." (R. 43.) When asked about the frequency of his back pain, Serrano explained that "[i]t depends which side I'm sleeping on." (R. 43.)

Serrano testified that he could walk about a mile, maybe more, although he might feel pain afterwards. (R. 45.) He can stand as long as he wants to, "but [he]'11 feel it later." (R. 45.) He is able to pick up things from the floor. (R. 45-46.) Serrano can sit for "awhile" and "shift[s] from side-to-side" when he becomes uncomfortable. (R. 46.) Serrano testified that he can use his hands and arms despite the tingly, numb sensations when touching metal. (R. 46.) Serrano stated that he "probably" would be able to carry home about two gallons of milk (weighing about 16 pounds) and that he carries one gallon home "all the time." (R. 46.)

When asked if he had "any other problems that [the ALJ] should be aware of," Serrano responded that he thought "that about covers it" and would "like to get a real good check up so they could figure out what's wrong with [him]." (R. 45.) The ALJ explained that she would order two consulting exams by: (a) an internist, who would perform a blood test and back X-ray and (b) a neurological consultant to investigate the numbness Serrano reported. (R. 36, 48.) The ALJ stated that because Serrano did not have any other treating sources, "that is all [she] can do." (R. 48.) The ALJ stated that she would hold the record open (R. 48), and the record was reopened on August 10, 2000 to admit into evidence: (a) an internal medicine evaluation by Dr. Stephen Rocker dated April 27, 2000, (b) a neurological evaluation by Dr. A. Ivanson, and (c) a proffer letter to Serrano (R. 49-50; see R. 115).

The ALJ's Decision after Serrano's First Administrative Hearing

On August 25, 2000, the ALJ denied Serrano's application for disability benefits. (R. 19-28, 105-14.) The ALJ stated that" [e]very reasonable effort has been made to develop the medical record pursuant to 20 C.F.R. § 404.1512" and determined that "the evidence of record is adequate to reach a conclusion regarding the claimant's disability and that no further evidence is required in this case." (R. 23.) The ALJ found that Serrano was not entitled to receive benefits based on his May 21, 1999 application because he "has no 'severe' impairment or combination of impairments" and therefore "is not under a disability as that term is defined in the Social Security Act and Regulations." (R. 23.) Specifically, the ALJ found that Serrano's "possible peripheral neuropathy or bilateral carpal tunnel syndrome," "singly or in combination," "do[es] not significantly limit his ability to perform basic work-related activities." (R. 24; see also R. 27-28.)

The Appeal Council's Decision

On July 6, 2001, the Appeals Council granted Serrano's request for review, vacated the ALJ's decision, and remanded the case because" [t]he decision contains inconsistent statements and conclusions concerning the severity of claimant's hand impairment and the effect of said impairment on the claimant's ability to perform work-related activities." (R. 101.) The Appeals Council specifically directed the ALJ to (1) "[g]ive further consideration to the treating and examining source opinions . . . and the nonexamining source opinions . . . and explain the weight given to such opinion evidence"⁹ and (2) "[o]btain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. . . ." (R. 101-02.)

9 The Appeals Council stated that the ALJ should "request the treating and examining sources to provide additional evidence and/or further clarification of the opinions and medical source statements about what [Serrano] can still do despite the impairments. . . ." (R. 102.)

Serrano's Second Administrative Hearing

On November 8, 2001, a second hearing was held before ALJ Arzt. (R. 51-83.) Serrano again proceeded without counsel.¹⁰ (R. 53.) The ALJ confirmed that Serrano was fully apprised of his right to legal representation and that he waived that right. (R. 53-56.)¹¹ Also present at the hearing was a Social Security Administration vocational rehabilitation counselor, Edna Clark. (R. 53, 76-83.)

10 Serrano explained that he had scheduled a November 1, 2001 appointment with Legal Aid to obtain representation for the hearing, but missed the appointment because he had something else to do. (R. 54.)

11 As at the prior hearing, the ALJ explained the ALJ's obligation to obtain medical records: "Now, it's part of my job to make sure the record is complete. What that means is if there are medical records or other records I need to make a decision and I don't have [them,] I've got people on staff who can get those records and, if it's something I think you can get easily, I'll ask you to get it and I'm not going to make any decision until I have all the records I need." (R. 54-55.)

Serrano testified that he lives with his mother, sister, brother-in-law, and niece and was receiving public assistance. (R. 63.) He worked as an armed security guard in Florida for almost nine years. (R. 64.) When the ALJ asked why he did not do similar work in New York, Serrano explained that he attempted to, but in 1992 he was charged and acquitted of firearms possession and never got his gun back. (R. 65.)

When the ALJ asked Serrano if his medical problems had been diagnosed since his first hearing, Serrano testified that he needed surgery on his spine and brain stem to alleviate pressure caused by a herniated disk in his neck. (R. 65-66.) Serrano stated that the doctor's talk of surgery "[s]cared the heck out of [him]." (R. 66.) Serrano reported that the doctors also discovered a lower back problem that required continued treatment, including physical therapy. (R. 66-67.)

Serrano explained that his neck pain runs from the back of his neck down the length of his spine (R. 67), and his lower back pain occurs in the middle and bottom part of his buttocks (R. 68). The pain in both his neck and back is "constant." (R. 68.) Serrano was prescribed Vioxx but it does not relieve the pain (R. 68) and makes him "groggy," "like a hangover" when he wakes up (R. 73). His only medical problems are the neck and lower back problems. (R. 69-70.)

Serrano can stand for six hours uninterrupted (R. 74) and walk twenty or thirty yards or more at a time (R. 73). When the ALJ asked why Serrano could not walk more, he explained that he stops to rest or to light a cigarette. (R. 73.) Serrano can carry a gallon of milk home from about four and a half blocks away, although he stops frequently. (R. 74-75.) He can bend to reach items on the floor, but "only with pain" in his spine. (R. 74.) Serrano can sit as long as necessary, but has to "go slow" when he stands up. (R. 74.) Serrano "black[s] out" "[a]t times." (R. 73.) Although Serrano drinks "a lot of coffee" and smokes "a lot of cigarettes," he does not use drugs or drink alcohol. (R. 74.)

Serrano explained that he was in a car accident in approximately 1986. (R. 69.) He uses a weight-lifter's belt for back support, but never uses any support on his neck and does not use a cane. (R. 69.) Serrano explained that the hand and arm problems he reported at the first hearing had continued and were related to his neck problems. (R. 70.) Serrano testified that the doctors had advised him that the numbness and tingling in his arms and hands could be mild arthritis. (R. 71.) These sensations are exacerbated by water, metal, and paper, and cause him to drop things involuntarily. (R. 71-72.) Thus, he "can't put no firearm in [his] hand, that's for sure." (R. 71.) Due to the problems with his hands, it takes Serrano "a long time" to groom himself. (R. 71-72.) "[M]ostly" his left hand is affected, although "they're basically both the same." (R. 72.)

The ALJ obtained testimony from Edna Clark, a vocational expert hired by the Social Security Administration. (R. 76.) Clark testified that Serrano's prior relevant work as a security guard¹² was "light exertional" and "semiskilled", ranking at "SVP three" in theDictionary of Occupational Titles. (R. 77-78.) When the ALJ asked Clark whether "a person who is able to push, pull, lift and carry up to 20 pounds occasionally and ten pounds frequently, can walk and stand up to six hours, and otherwise can do the requirements of light work" and can perform "fine manipulations and handling of objects occasionally" could do Serrano's past relevant work as a security guard, Clark responded "[y]es."¹³ (R. 78-79.) Clark further testified that the hypothetical individual the ALJ described could work as a messenger,¹⁴ elevator operator,¹⁵ or internal messenger,¹⁶ all of which are entry level positions. (R. 80-81.) Clark explained that her list of possible jobs for the hypothetical person was exhaustive. (R. 81.)

12 When the ALJ asked Clark to state how long Serrano was employed as a security guard, Clark noted a discrepancy in the record on this point: the disability report (Ex. 8-E) lists the duration as 1982 to 1997, while the claimant's work background (Ex. 7-E) lists it as June 1988 to May 1999. (R. 77.) When asked to clarify, Serrano testified that he started working as a guard in 1986 or 1987. (R. 77-78.)

13 Clark confirmed for the ALJ that "light work does not require frequent, fine manipulations." (R. 79.)

14 Messenger (230.663-010) is a light and unskilled job, ranking at SVP two. (R. 80.) Clark reported there were 20,000 messenger jobs in the nation and 2,000 in the local economy. (R. 80.) The "local economy" refers to region in a fifty-mile radius around New York City. (R. 80-81.)

15 Elevator operator (388.663-010) is a light and unskilled job, ranking at SVP two. (R. 80.) Clark reported that there are 6,000 elevator operator jobs in the nation and 1,600 in the local economy. (M.)

16 Clark explained that "internal messenger" is synonymous with "office helper" (239.567-010), a light, unskilled job, ranking at SVP two. (R. 80.) Clark initially testified that there are 100,000 jobs in the nation and 10,000 in the local economy, but reduced the numbers of office helper jobs (to 20,000 in the nation, and 1,500 in the local economy), because Serrano "will really only do messenger work because the office helper can do more than occasional manipulation of objects." (R. 80-81.)

The ALJ posed a second hypothetical to Clark identical to the first, "except that the person would only be able to lift, carry, push and pull up to ten pounds occasionally[,] walk and stand up to two hours occasionally[,] and . . . be able to do sedentary work." (R. 81.) Clark testified that the changes in the hypothetical would eliminate the three jobs she had listed for the first hypothetical person, and that the sedentary job of surveillance system monitor¹⁷ would be the only position appropriate for the person in the second hypothetical. (R. 81.) The Medical Evidence Before the ALJ

17 Surveillance system monitor is a sedentary, unskilled job, ranking at SVP two. (R. 82) Clark stated that there were 20,000 jobs in the nation and 2,000 in the local economy. (Id.)

The ALJ stated that a report from Dr. Ivanson was in the record from Serrano's first hearing. (R. 57.) Serrano testified that he only saw Dr. Ivanson that one time, when he referred Serrano to Dr. Tindel, an orthopedist at Jacobi Medical. (R. 57-58, 60, 62.) Serrano saw Dr. Tindel twice, but was being treated by a neurologist at Jacobi Hospital for the hand disorder. (R. 60-61.) Serrano reported that he had not seen Dr. Tindel, or any other Jacobi doctor, since August 2001. (R. 61.) Serrano started going to Jacobi about six to eight months prior to the hearing and had seen a different doctor each time. (R. 58-59.) At the time of the second hearing, Serrano was scheduled to have a follow-up on the surgery for his neurological disorder. (R. 58.)

The ALJ stated that she would subpoena Serrano's records from Jacobi and try to obtain a report from Dr. Tindel on Serrano's condition. (R. 62; see also R. 82-83.) When the ALJ asked Serrano if he would like to review his medical records before the ALJ made her decision, Serrano declined because he "wouldn't be able to understand what's in [his records] anyway unless it's explained to [him] by the doctor himself." (R. 63.)

On November 21, 2001, the ALJ issued a subpoena to Jacobi Medical Center, to the attention of Dr. Tindel, which reads:

You are hereby required to appear and testify in the above case at a hearing to be held by Robin J. Arzt, an Administrative Law Judge of the Office of Hearings and Appeals. The hearing will be held on the Eighth day of November at 10:30 AM o'clock. . . .

You are further required to bring with you and produce at said hearing the following books, correspondence, papers, records or other documents: ALL CLINICAL RECORDS FROM 1/1/01 TO PRESENT AND COMPLETE OUR ORTHOPEDIC REPORT and any other evidence in your possession relating to the above matter and RETURN WITHIN THE TWENTY (20) DAYS OF THIS SUBPOENA.

If you submit all the records asked for, you do not have to come to the required hearing. . . .

(R. 238; accord, R. 242.) The subpoena also indicated a "reply date" of December 11, 2001 (R. 238, 242.)

Treating Physician Records

In response to the ALJ's subpoena, Jacobi Hospital produced records of Serrano's visits in February to July 2001. (R. 246-309.) On February 16, 2001, Serrano underwent a medical clearance exam for oral surgery. (R. 253-55.) Serrano complained of tingling and numbness in his upper and lower extremities. (R. 253.) He also reported childhood asthma and shortness of breath "off and on," for which he did not take any mediation. (Id.) The report references a January 2001 MRI¹⁸ that showed an osteoarthritic ridge¹⁹ at the C4-C5 level with cord compression, tight spinal stenosis, and cord atrophy. (R. 254, 258-59.)²⁰ The physician's assessment was mild asthma and cervical spine stenosis.²¹ (Id.)

18 MRI, or magnetic resonance imaging, is "a diagnostic technique that provides high quality cross-sectional images of organs and structures within the body without X rays or other radiation." American Medical Association Encyclopedia of Medicine at 699 (Charles B. Dayman, M.D., ed.) (Random House 1989) ("AMA Encyclopedia").

19 "Osteoarthritis is characterized by degeneration of the cartilage that lines joints or by osteophyte (bony outgrowth) formation, which leads to pain, stiffness, and occasionally loss of function of the affected joint." AMA Encyclopedia at 753.

20 The June 4, 2001 interpretative report of the January 17, 2001 MRI reported "no evidence of acute fractures of subluxations. There is mild degenerative changes of the vertebral bodies C3 through C6 with disc space narrowing between C4 and C6," with an impression of "[m]ild degenerative changes as described above. Otherwise, the exam is unremarkable." (R. 258.)

21 Cervical pertains to the neck. Dorland's Illustrated Medical Dictionary at 325 (29th ed. 2000) (here after "Dorland's Med. Dictionary"). Spinal stenosis is a narrowing of the vertebral canal caused by encroachment of bone upon the space. Dorland's Med. Dictionary at 1698.

On February 22, 2001, Serrano had a neurological exam at Jacobi. (R. 256-57.) Serrano complained of numbness at the base of his skull, which had been constant since his last visit. (R. 256.) The physician's assessment was "significant stenosis at several levels on spinal cord," hyperreflexia,²² and myleopathy²³ at the C4-C5 level. (R. 257.) Serrano was referred for a "neurosurgery evaluation." (R. 257.)

22 Hyperreflexia is disordered stimuli response, "characterized by exaggeration of reflexes." Dorland's Med. Dictionary at 558, 857.

23 Myelopathy refers to "any disease of the spinal cord or of the bone marrow." AMA Encyclopedia at 710.

On March 20, 2001, Serrano had another neurological examination at Jacobi. (R. 251-52, 306.) Serrano complained of "whole body tingling," numbness, and pain. (R. 251.) Serrano scored a 5/5 motor power for all extremities.²⁴ (R. 251.) His upper extremity reflexes were "2+ and equal", while his lower extremities were "brisk and symmetric." (Id.) With an assessment of "chronic radioculopathy/myleopathy,"²⁵ the physician referred Serrano to orthopedics for a surgical evaluation. (R. 252.)

24 Muscle strength may be graded on a scale of 0 to 5, ranging from no movement (0) to normal strength (5). The Merck Manual of Diagnosis Therapy, 1347 (17th ed. 1999).

25 Radiculopathy is "[d]amage to the nerve roots that enter or leave the spinal cord," which "maybe caused by diskprolapse, spinal arthritis, thickening of the meninges (the membranes that cover the brain and spinal cord), and sometimes diabetes mellitus or ingestion of heavy metals, such as lead." AMA Encyclopedia at 847.

On May 16, 2001, Serrano had an orthopedic examination. (R. 249.) Serrano was referred from neurology for complaints for neck and total body pain, as well as weakness and numbness in all extremities. (R. 250.) The report reflects mild cervical spine tenderness, negative Clermitte's and Spurling's tests, a score of 5/5 motor power for all extremities, and grossly intact sensation to light touch in all extremities. (Id.) The physician's assessment was cervical spine stenosis and mild degenerative joint disease. (Id.) Serrano was prescribed Vioxx. (Id.) He was scheduled for a follow-up with Dr. Tindel on May 25, 2001 (R. 249-50), but there are no records that Serrano kept that appointment.

The record also includes a cervical x-ray request dated July 17, 2001 and a written report, which is illegible. (R. 247-48.) According to the Government's brief, "[t]he attending physician noted that [Serrano] was referred for an examination of incidental cervical spine stenosis. . . . On examination, plaintiffs motor power was 5/5 in all extremities. The attending physician's impression was cervical spine stenosis." (Dkt. No. 12: Gov't Br. at 10.)

Consultative Medical Records

All of the consultative medical records were from the first ALJ hearing; none were done after the second ALJ hearing in November 2001.

Dr. Joseph A. Grossman examined Serrano on June 11, 1999.²⁶ (R. 345-47.) Serrano complained of back, joint, and chest pain for twenty-three years and a skin disorder for twelve years. (R. 345.) Dr. Grossman reported no abnormalities with the exception of hepatomegaly,²⁷ or an enlarged liver, which he found required further evaluation. (R. 346-48.) Dr. Grossman found that Serrano's history of back and joint pain was "not clinically correlated." (R. 348.) Dr. Grossman concluded that Serrano was "[n]ot impaired for bending, stooping, crouching, heavy pushing, pulling, lifting, carrying, standing, sitting, climbing, walking, hand and foot controls, hearing, speech, and travel." (R. 348.)

26 Although the date of this consulting exam is listed as June 11, 1998, since Serrano did not apply for benefits until May 1999, the exam more likely took place on June 11, 1999. See R. 137.)

27 Hepatomegaly is "[e]nlargement of the liver." AMA Encyclopedia at 534.

On April 27, 2000, Dr. Steven Rocker, a doctor of internal medicine, examined Serrano. (R. 325-30.) Serrano complained of "episodic numbness extending from the foot up the left leg to the left arm" and "occasionally occurs on the right side." (R. 325.) All of Dr. Rocker's findings were within the normal ranges (R. 326), and he concluded that Serrano experienced "[n]onspecific subjective paresthesias,"²⁸ but that there was no "neurological impairment nor organic etiology of this per evaluation" (R. 327).

28 Paresthesias is "[a]ltered sensation in the skin that causes numbness or tingling." AMA Encyclopedia at 772.

On May 4, 2000, neurologist Dr. Andrew Ivanson examined Serrano. (R. 310-24.) Serrano "reported a history of numbness and tingling" in the fingers of both hands, which "started slowly and progressively became worse" "over the last four years." (R. 310.) Serrano reported weakness in his hands, a tendency to drop "a lot of things," and a numbness in his leg on the left side. (Id.) Dr. Ivanson noted that Serrano "never went to a physician for this problem" and "never had any history for this problem." (Id.) Dr. Ivanson found Serrano muscle strength to be "5/5 in all muscles tested including APB muscles on both hands." (R. 311, 320.) The doctor reported Serrano's deep tendon reflexes of 2+ on both arms and both knees, 1+at both ankles, and negative Babinski's sign.²⁹ (R. 312.) Dr. Ivanson stated that Serrano's "[p]inprick and light touch sensation was decreased over tips of both fingers." (Id.) He found Serrano's grip strength to be normal, but found Serrano's ability to perform fine manipulation "abnormal" (R. 321) and his ability to finger and handle objects "limited" (R. 324). Dr. Ivanson's diagnostic impression was "[b]ilateral carpel tunnel syndrome³⁰ or underlying peripheral neuropathy."³¹ (R. 312, 314.) Dr. Ivanson "did not find any weakness in both hands," and found that Serrano's symptoms were "minimal" and "restricted by sensory symptoms only." (R. 312.) Dr. Ivanson recommended Serrano have an "EMG test for objective confirmation of carpel tunnel syndrome or peripheral neuropathy."³² (R. 312, 323.) Dr. Ivanson found no limitations on Serrano's ability to lift and carry, stand, walk, sit, push or pull. (R. 323.)

29 Babinski's sign is "[a] reflex movement in which the big toe bends upward when the outer edge of the sole of the foot is scratched. Babinski's sign indicates damage or disease of the brain or spinal cord." AMA Encyclopedia at 150.

30 Carpal tunnel syndrome is "[n]umbness, tingling, and pain in the thumb, index, and middle fingers that often worsens at night. The condition may affect one or both hands and is sometimes accompanied by weakness in the thumb(s)." AMA Encyclopedia at 238.

31 Neuropathy is a" [d]isease, inflammation, or damage to the peripheral nerves, which connect to the central nervous system, or CNS (brain and spinal cord), to the sense organs, muscles, glands, and internal organs. Symptoms caused by neuropathies include numbness, tingling, pain, or muscle weakness, depending on the nerves affected." AMA Encyclopedia at 723.

32 EMG is the "abbreviation for electromyogram, a test in which the electrical activity in muscle is analyzed after being amplified, displayed, and recorded." AMA Encyclopedia at 399.

On April 27, 2001, Dr. Peter Graham, a doctor of internal medicine, examined Serrano. (R. 230-36.) Serrano reported a history of back pain for 19 years, "worsened by bending or lifting." (R. 230.) Serrano denied numbness in his extremities, as well as radiculopathy and extreme weakness. (R. 230.) As for Serrano's spine, Dr. Graham reported a "decreased range of motion on flexion extension range 75 degrees" and "mild tenderness on palpation of the spine." (R. 231.) However, the doctor also found "no gross spinal deformity" and "no paraspinal muscle tenderness or spasm." (Id.) Dr. Graham also found Serrano's joints, muscle strength, and hand dexterity to be normal. (Id.) Dr. Graham's assessment was back pain and asthma by history. (R. 232.) Dr. Graham concluded that Serrano was "able to sit, stand, walk, lift, carry, handle objects, hear, speak and travel," but his ability to lift or carry was limited by his back problems. (Id.)

On June 28, 2001, Dr. Ivanson again examined Serrano (R. 218), although the doctor's report makes no mention of his earlier exam. According to Dr. Ivanson, Serrano "claim[ed] that doctors from Jacobi Hospital all say he needs surgery," for a "bone disease" but Serrano did not want the surgery. (R. 218.) Serrano complained of low back pain and a history of muscle spasms and stiffness in both legs, and also "described episodes of blackouts as temporal loss of vision for a few seconds every two day[s]." (Id.) Dr. Ivanson found "mild paravertebral muscle tenderness" and a "mild limitation for forward flexion and lateral rotation of his lumbosacral region."³³ (R. 221.) Dr. Ivanson concluded that "there is no limitation for sitting, speaking, hearing, carrying objects or handling objects" but he found a "mild limitation for standing, walking, traveling, lifting, pulling and pushing" due to Serrano's neck and back pain. (R. 222.) Dr. Ivanson recommended Serrano "undergo medical and neurological evaluation to test his heart and intracranial vessels for explanation" of his blackouts, for which there was a "lack of any objective evidence." (Id.)

33 Lumbosacral pertains to "the loins and the sacrum." Dorland's Med. Dictionary at 1029.

On August 2, 2002, medical consultant James Oliva prepared a physical exertion functional capacity assessment based on the medical evidence in the record. (R. 206-16.) Oliva concluded that Serrano could occasionally lift 50 pounds and frequently lift 25 pounds; stand or walk with normal breaks for 6 hours in an 8 hour workday; sit with normal breaks for 6 hours in an 8 hour workday; and push or pull without limitation. (R. 207.) He also found no limitations on manipulations. (R. 210.) Oliva concluded that Serrano's "allegations of back pain and asthma are attributable to a medically determinable impairment" (i.e., his bicycle injury). (R. 207, 214.) But he found that Serrano's "allegations of blackouts and having a blood disease are found to be not credible" since Serrano "has not been able to medically substantiate these allegations. Neurological examination has been normal." (R. 214.)

The ALJ's Decision after Serrano's Second Administrative Hearing

On February 22, 2002, the ALJ again denied Serrano's application for SSI and disability benefits. (R. 9-18.) The ALJ "concluded that [Serrano] has a severe impairment or combination of impairments," i.e., his neck and mild lower back disorder, "but he retains the residual functional capacity to return to the work he performed in the past." (R. 13-17.) Specifically, the ALJ found that Serrano "retains the residual functional capacity to perform the exertional demands of light work, or work involving lifting/carrying of 20 pounds frequently and lifting/carrying of 10 pounds occasionally." (R. 16.) The ALJ held that Serrano "has no significant non-exertional limitations which narrow the range of work [he] can perform." (R. 16.) The ALJ found that Serrano does not have functional limits on the use of his hands. (R. 14.) The ALJ found that Serrano could perform his prior work as a security guard. (R. 17.) The ALJ held in the alternative that, "assuming that [Serrano] could not perform his past relevant work, there are a significant number of other jobs at the light level that he could perform . . ." (R. 17-18.)

The Appeals Council denied Serrano's request for review (R. 7-8) on July 3, 2002 (R. 5-6).

ANALYSIS

I. THE APPLICABLE LAW A. The Definition of Disability ³⁴

A person is considered disabled for Social Security benefits purposes when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A): see, e.g., Barnhart v. Thomas. No. 02-763, 2003 WL 22657815 at *3, ___ S.Ct. ___ (U.S. Nov. 12, 2003): Barnhart v. Walton, 535 U.S. 212, 214, 122 So. Ct. 1265, 1268 (2002); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002): Shaw v. Chater. 221 F.3d 126.131 ad Cir. 2000): Currv v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999);Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999): Rosa v. Callahan, 168 F.3d 72.77 (2d Cir. 1999): Balsamo v. Chater, 142 F.3d 75.79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).³⁵ The combined effect of all impairments must be of such severity that the person

35 See also, e.g., Martinez v. Massanari, 242 F. Supp.2d 372, 375 (S.D.N.Y. 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *4 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp.2d 265, 268 (S.D.N.Y. 2002); Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *4 (S.D.N.Y. Dec. 23, 2002); Perez v. Barnhart, 234 F. Supp.2d 336, 339 (S.D.N.Y. 2002).

is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 2003 WL 22657815 at *3: Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Draegert v. Barnhart. 311 F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.³⁶

36 See also, e.g., Garcia v. Barnhart, 2003 WL 68040 at *4; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).

In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Rebull v. Massanari, 240 F. Supp.2d at 268; Worthy v. Barnhart, 2002 WL 31873463 at *4.

B. Standard of Review ³⁷

37 For additional decisions by this Judge discussing the standard of review in Social Security cases, in language substantially similar to that in this entire section of this Report and Recommendation, see Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *6-8 (S.D.N.Y. July 8, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 21755932 (S.D.N.Y. July 30, 2003) (Kaplan, D.J.); DeRoman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *7-9 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *7-9 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alyarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *5-7 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Morris v. Barnhardt, 02 Civ. 0377, 2002 WL 1733804 at * 3 (S.D.N.Y. July 26, 2002) (Peck, M.J.); Jimenez v. Massanari, 01 Civ. 8957, 2001 WL 935521 at *6 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *5-6 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.);Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *5 (S.D.N.Y. July 11, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *6 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.);Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. Sept. 20, 1999) (Pauley, D.J. Peck, M.J.);Craven v. Apfel, 58 F. Supp.2d 172, 181 (S.D.N.Y. July 12, 1999) (Preska, D.J. Peck, M.J.); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.);Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *6 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 423 (S.D.N.Y. Nov. 13, 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).

A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 537 U.S. 961, 123 S.Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); 42 U.S.C. § 405(g).³⁸ "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhardt, 2002 WL 1733804 at *4.³⁹

38 See also, e.g., Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Teiada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999);Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Schaal v. Apjel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Martinez v. Massanari, 242 F. Supp.2d 372, 375 (S.D.N.Y. 2003); Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *7 (S.D.N.Y. Jan. 13, 2003); Gartia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *3 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp.2d 265, 268-69 (S.D.N.Y. 2002): Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *3 (S.D.N.Y. Dec. 23, 2002); Noms v. Barnhart, 01 Civ. 0902, 2002 WL 31778794 at *3 (S.D.N.Y. Dec. 12, 2002);Morales v. Barnhart, 01 Civ. 4057, 2002 WL 31729526 at *6 (S.D.N.Y. Dec. 5, 2002)

39 See also, e.g., Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *9; Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted).

The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971);accord, e.g., Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122;Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Teiada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46.⁴⁰ "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982),cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); see also, e.g., Veino v. Barnhart, 312 F.3d at 586; Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at*1 (2d Cir. Sept. 26, 1996); Garcia v. Barnhart, 2003 WL 68040 at *3; Morales v. Barnhardt, 2002 WL 31729526 at *6. However, the Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see also, e.g., Teiada v. Apfel, 167 F.3d at 773 (citing cases).

40 See also, e.g., Martinez v. Massanari, 242 F. Supp.2d at 375; Duran v. Barnhart, 2003 WL 103003 at *9; Garcia v. Barnhart, 2003 WL 68040 at *3; Worthy v. Barnhart, 2002 WL 31873463 at *3; Noms v. Barnhart, 2002 WL 31778794 at *3;Morales v. Barnhardt, 2002 WL 31729526 at *6; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).

The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20C.F.R. § 404.1520, 416.920:Barnhart v. Thomas, 2003 WL 22657815 at *3; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:

Acting pursuant to its statutory rulemaking authority, 42 U.S.C. § 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 20 C.F.R. § 404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. [1] At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." §§ 404.1520(b), 416.920(b). [2] At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." §§ 404.1520(c), 416.920(c). [3] At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). [4] If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. [5] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).

Barnhart v. Thomas, 2003 WL 22657815 at *3 (fns. omitted);⁴¹ accord, e.g., Draegert v. Barnhart, 311 F.3d 468.472 ad Cir. 2002): Shaw v. Chater, 221 F.3d at 132:Curry v. Apfel, 209 F.3d at 122: Brown v. Apfel, 174 F.3d at 62: Rosa v. Callahan, 168 F.3d at 77: Teiada v. Apfel, 167 F.3d at 774: Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46: Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995):Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).⁴²

41 Recent amendments to 20 C.F.R. § 404.1520 became effective September 25, 2003. See 68 Fed. Reg. 51, 153 (Aug. 26, 2003);see also Barnhart v. Thomas, 2003 WL 22657815 at *3 n. 2. Among other minor changes, the amendments added a new section §§ 404.1520(e) and redesignated previous §§ 404.1520(e) and (f) as §§ 404.1520(f) and (g), respectively. 20 C.F.R. § 404.1520; see also 68 Fed. Reg. 51, 156. The new § 404.1520(e) explains that if the claimant has an impairment that does not meet or equal a listed impairments, the SSA will assess the claimant's residual functional capacity. 20 C.F.R. § 404.1520(e). The SSA then uses the residual functional capacity assessment at step four to determine whether the claimant can perform past relevant work and, if necessary, at step five to determine whether the claimant can do any work. Id.

42 See also, e.g., Martinez v. Massanari, 242 F. Supp.2d at 375-76; Garcia v. Barnhart, 2003 WL 68040 at *4; Worthy v. Barnhart, 2002 WL 31873463 at *4; Norris v. Barnhart, 2002 WL 31778794 at *3-4: Perez v. Barnhart, 234 F. Supp.2d 336, 339 (S.D.N.Y. 2002); Soto v. Barnhart, 2002 WL 31729500 at *4-5.

The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Barnhart v. Thomas, 2003 WL 22657815 at *3; Draegert v. Barnhart, 311 F.3d at 472;Curry v. Apfel, 209 F.3d at 122; Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467.

Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d at 1031;see, e.g., DeLeon v. Secretary of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984).⁴³ C. The Treating Physician Rule ⁴⁴

43 See also, e.g., Miles v. Apfel, 51 F. Supp.2d 266, 269 (E.D.N.Y. 1999); Nivar v. Apfel, 98 Civ. 3930, 1999 WL163397 at *4-5 n. 8 (S.D.N.Y. Mar. 23, 1999): Vitale v. Apfel, 49 F. Supp.2d 137, 142 (E.D.N.Y. 1999); Irvin v. Heckler, 592 F. Supp. 531, 540 (S.D.N.Y. 1984).

44 For additional decisions by this Judge discussing the treating physician rule in language substantially similar to that in this entire section of this Report and Recommendation, see Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *8-9 (S.D.N.Y. July 8, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 21755932 (S.D.N.Y. July 30, 2003) (Kaplan, D.J.); DeRoman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *9-10 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *9-l 1 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *7 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Jimenez v. Massanari, 01 Civ. 8957, 2001 WL 935521 at *8 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.);Mord v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *6 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *8 (S.D.N.Y. Mar. 29.1999) (Peck. M.J.): Jones v. Apfel, 66 F. Supp.2d 518, 537 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 182 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at*7-8 (S.D.N.Y. May 20, 1998) (Peck, M.J.);Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).

The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:

If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.

20 C.F.R. § 404.1527(d)(2); see, e.g., Kamerling v. Massanari, 295 F.3d 206, 209 n. 5 (2d Cir. 2002); Jordan v. Barnhart, No. 01-6181, 29 Fed. Appx. 790, 792, 2002 WL 448643 at *2 (2d Cir. Mar. 22, 2002); Bond v. Social Sec. Admin., No. 00-6333, 20 Fed. Appx. 20, 21, 2001 WL 1168333 at *1 (2d Cir. Sept. 27, 2001); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000);Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998);Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).⁴⁵

45 See also, e.g., Martinez v. Massanari, 242 F. Supp.2d 372, 376 (S.D.N. Y. 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *5 n. 4-5 (S.D.N. Y. Jan. 7, 2003).

Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503; Martinez v. Massanari, 242 F. Supp.2d at 376; Garcia v. Barnhart, 2003 WL 68040 at *6;Rebull v. Massanari, 240 F. Supp.2d 265, 268 (S.D.N.Y. 2002).

The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).

II. SERRANO'S APPLICATION SHOULD BE REMANDED BECAUSE THE ALJ FAILED TO ADEQUATELY DEVELOP THE RECORD A. The ALJ's Duty to Adequately Develop the Record ⁴⁶

46 For additional decisions by this Judge discussing the ALJ's duty to adequately develop the record, in language substantially similar to that in this entire section of this Report Recommendation, see Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *9-11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Jiminez v. Massanari, 00 Civ. 8957, 2001 WL 935521 at *9-10(S.D.N.Y.Aug. 16, 2001) (Peck, M.J.);Jones v. Apjel, 66 F. Supp.2d 518, 537-41 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 185-88 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.).

A court reviewing a denial of disability or SSI benefits "must first satisfy [itself] that the claimant has had 'a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health. Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972V): see, e.g., Cruz v. Sullivan., 912 F.2d 8, 11 (2d Cir. 1990): Hankerson v. Harris, 636 F.2d 893. 895 (2d Cir. 1980).⁴⁷

47 See also, e.g., Vaughn v. Apfel, 98 Civ. 0025, 1998 WL 856106 at *6 (S.D.N.Y. Dec. 10, 1998) clarified on reconsideration. 1999 WL 314163 (S.D.N.Y. May 18.1999): Prentice v. Apfel, 11 F. Supp.2d 420, 425 (S.D.N.Y. 1998); Dawson v. Apfel, 96 Civ. 6023, 1997 WL 716924 at *7 (S.D.N.Y. Nov. 17, 1997); Rodriguez v. Apfel, 96 Civ. 1132, 1997 WL 691428 at *4 (S.D.N.Y. Nov. 4, 1997).

"Moreover, it is the rule in our circuit that the ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (internal quotations alterations omitted); accord, e.g., Green v. Apfel, No. 01-6117, 25 Fed. Appx. 54, 56, 2002 WL 4566 at *2 (2d Cir. Dec. 28, 2001);Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Cruz v. Sullivan, 912 F.2d at 12; Echevarria v. Secretary, 685 F.2d at 755.⁴⁸

48 See also, e.g., Meiias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *5 (S.D.N.Y. Sept. 23, 1998); Maestre v. Apfel, 96 Civ. 8273, 1998 WL 477950 at *4 (S.D.N.Y. Aug. 13, 1998); Prentice v. Apfel, 11 F. Supp.2d at 425; Dawson v. Apfel, 1997 WL 716924 at *7; Rodriguez v. Apfel, 1997 WL 691428 at *4.

"[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well, . . .[the courts] have 'a duty to make a "searching investigation" of the record' to make certain that the claimant's rights have been adequately protected." Cruz v. Sullivan, 912 F.2d at 11 (quoting Gold v. Secretary, 463 F.2d at 43); see, e.g., Echevarria v. Secretary, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d at 895.⁴⁹

49 See also, e.g., Vaughn v. Apfel, 1998 WL 856106 at *6:Meiias v. Apfel, 1998 WL 651052 at *5; Maestre v. Apfel, 1998 WL 477950 at *4; Prentice v. Apfel, 11 F. Supp.2d at 425; Dawson v. Apfel, 1997 WL 716924 at *7:Rodriguez v. Apfel, 1997 WL 691428 at *4: Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at *3 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.).

The ALJ is thus obligated to explore the facts by obtaining relevant medical records and asking questions of a pro se claimant to assist the claimant in developing his case. See, e.g., Rosa v. Callahan, 168 F.3d at 80 (ALJ required to request additional records from physicians); Perez v. Chater, 77 F.3d at 47 (ALJ required to make "'every reasonable effort to help [the claimant] get medical reports from [his] own medical sources'") (quoting 20 C.F.R. § 404.1512(d));Cruz v. Sullivan, 912 F.2d at 11 (ALJ required to obtain hospital records and ask plaintiff about his asthma attacks);Echevarria v. Secretary, 685 F.2d at 755-56 (ALJ failed to explore claimant's subjective complaints or obtain necessary medical records).⁵⁰

50 See also, e.g., Meiias v. Apfel, 1 998 WL 65 1 052 at *5 (ALJ required to help claimant get medical records); Maestre v. Apfel, 1998 WL 477950 at *4 (ALJ "obligated to explore the facts by asking questions of and obtaining relevant medical records from pro se claimants").

The ALJ's responsibility to assist a claimant in obtaining the claimant's medical records carries particular importance in light of the well-established treating physician rule, which requires an ALJ to grant special deference to the opinions of a claimant's treating physicians. (See Point I.C, above.) As Judge Glasser explained:

[T]hese two principles — the duty to develop a full record and the treating physician rule — do not operate independently of each other. . . .[T]he duty to develop a full record and to assist a pro se plaintiff compels the ALJ . . . to obtain from the treating source expert opinions as to the nature and severity of the claimed disability. . . . Thus, when the claimant appears pro se, the combined force of the treating physician rule and of the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability. . . . Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties to the pro se claimant under the treating physician rule.

Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991).⁵¹ To achieve this goal, the ALJ is authorized to issue subpoenas requiring the production of any evidence relating to a matter under consideration. See, e.g., 42 U.S.C. § 405(d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner of Social Security."); Treadwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983).⁵² B. Application of These Principles

51 See also, e.g., Meiias v. Apfel, 1998 WL 651052 at *6;Almonte v. Apfel, 96 Civ. 1119, 1998 WL 150996 at *7 (S.D.N.Y. Mar. 31, 1998); Rodrjguez v. Apfel, 1997 WL 691428 at *5.

52 See also, e.g., Meiias v. Apfel, 1998 WL 651052 at *6;Carroll v. Secretary of Health Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995).

The ALJ failed to adequately develop the record in Serrano's case. In cases involving pro se plaintiffs, the ALJ's duty to develop the record is "heightened," and "'[r]easonable efforts' . . . entails more than merely requesting reports from the treating physicians. It includesissuing and enforcing subpoenas requiring the production of evidence, as authorized by 42 U.S.C. § 405(d), and advising the plaintiff of the importance of the evidence." Jones v. Apfel, 66 F. Supp.2d 518, 524 (S.D.N.Y. 1999) (Pauley, DJ. Peck, M.J.) (emphasis added); accord, e.g., Brown v. Barnhart, 02 Civ. 4523, 2003 WL 1888727 at *8 (S.D.N.Y. Apr. 15, 2003); Encarnacion v. Barnhart, 00 Civ. 6597, 2003 WL 1344903 at *2-3 (S.D.N.Y. Mar. 19, 2003); Camacho v. Apfel, No. 97 CV 4728, 1999 WL 294731 at *4 (E.D.N.Y. Mar. 2, 1999); Carroll v. Secretary of Dep't of Health Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. Jan. 20, 1995) ("In the event that a person [the ALJ] served with a subpoena refuses to comply, the Secretary may seek enforcement by a federal district court. 42 U.S.C. § 405(e). At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that 'he considered his case unpersuasive, and . . . suggest that he produce additional medical evidence or call [his treating physician] as a witness.'"); see also cases cited at pages 28-29 above. Here, the ALJ fell short in both respects: by failing to enforce the subpoena for Serrano's treating physician's report and by failing to advise Serrano of the importance of that report to his claim. 1. The ALJ Should Have Enforced the Subpoena to Obtain a Treating Physician Report from Dr. Tindel or Explained Why Enforcement was Unnecessary

The ALJ exercised her subpoena power to request Serrano's medical records from Jacobi Hospital and Dr. Tindel's "orthopedic report." (R. 238, 242.) When Jacobi Hospital produced only Serrano's medical records (R. 246-309) and Dr. Tindel failed to submit a report on Serrano's condition and treatment, the ALJ should have enforced the subpoena to obtain Dr. Tindel's opinion or should have explained on the record her reasons for declining to do so. The Second Circuit has long recognized the ALJ's obligation to explain her decision whether to enforce a subpoena:

The official handbook issued by the Social Security Administration's Office of Hearings and Appeals . . . provides that where there is failure to obey a subpoena, the ALJ should proceed with the hearing, and then decide whether to request enforcement via the Administration's Office of General Counsel. In either event, the ALJ is expected to include a memorandum explaining his choice.

Treadwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983);see also, e.g., id. at 142 ("In the case of noncompliance with a subpoena, the [Social Security] agency has recognized the desirability of having the ALJ articulate the basis for concluding that enforcement is or is not necessary."). Section 1-2-5-18 of the Social Security Handbook,⁵³ entitled "Obtaining Testimony from a Treating Source," states:

53 The Social Security Handbook is available online via the agency's official website, www.ssa.gov.

A treating source's medical reports are usually sufficient to document his or her medical findings and assessment. However, at the claimant's request and with the agreement of the treating source, the source may testify at a hearing.

Also, if an ALJ determines that a treating source's testimony is needed to inquire fully into the matters at issue, the ALJ will try to obtain the testimony on a voluntary basis. The ALJ must enter into the record copies of all correspondence and other documentation of his or her efforts to obtain the treating source's voluntary testimony.

If a treating source will not testify voluntarily, the ALJ will follow the procedures in 1-2-5-78, Use of Subpoenas — General, through 1-2-5-82, Noncompliance With a Subpoena.

Section 1-2-5-18 (emphasis added). Section 1-2-5-82, entitled "Noncompliance With a Subpoena," provides that:

If an individual refuses or fails to comply with a subpoena, the ALJ must consider any changes in the situation since the subpoena was first issued and again determine whether the evidence or facts requested are reasonably necessary for the full presentation of the case. If so, the ALJ will prepare a memorandum to the OGC Regional Chief Counsel requesting enforcement of the subpoena . . ., and transmit the memorandum to the OGC Regional Chief Counsel through the RCALJ. . . .

Section 1-2-5-82 (emphasis added).

The procedure for judicial enforcement of Social Security subpoenas is set out in 42 U.S.C. § 405(e), which provides that:

In case of contumacy by, or refusal to obey a subpoena duly served upon, any person, any district court of the United States for the judicial district in which said person charged with contumacy or refusal to obey is found or resides or transacts business, upon application by the Commissioner of Social Security, shall have jurisdiction to issue an order requiring such person to appear and give testimony, or to appear and produce evidence, or both; any failure to obey such order of the court may be punished by said court as contempt thereof.

42 U.S.C. § 405(e).

The absence of Dr. Tindel's opinion is glaring in the ALJ's written decision. (R. 12-18.) When describing the findings of the consulting physicians who examined Serrano, the ALJ includes each doctors' assessment of Serrano's condition:

Dr. Joseph Grossman, M.D., found no limits on the claimant's physical capabilities. . . . Dr. Stephen Rocker, M.D., found the claimant['s] sensory perception was normal and he opined the claimant had no functional limitations. . . . Dr. Andrew Ivanson, M.D., described the claimant's sensory loss as minimal [and] completes a detailed report and residual functional capacity form to indicate there [were] no exertional limitations found. . . . Dr. Peter Graham, M.D., opined that the claimant may have limits in lifting and carrying because of his lower back.

(R. 15-16.) In stark contrast, the ALJ reports the findings of Serrano's January 2001 MRI in highly technical medical terms: as "reveal[ing] localized myelopathy of the spinal cord at the C4-C5 level, spinal degenerative disc disease, and osteoarthritic changes at the C3 to C6 levels. There was bridging at C4 to C6 levels with narrowing of the neural foramina at the C3-C4 level and significant spinal canal stenosis." (R. 15-16.)

In a summary that purports to evaluate all of the medical evidence, the ALJ refers only to the consulting physicians' findings, making no mention of the January MRI results:

In summary, all consulting physical examinations were essentially within normal limits. The neurological examinations were found to be grossly intact. The consulting examiners found no limitations in the claimant'[s] physical capabilities and the neurological consulting examiner viewed the claimant's impairment as minimal, with a finding that the claimant was able to do frequent, but not constant fine manipulations and handling of objects.

(R. 16.)

In light of the ALJ's duty to develop the record (in this second hearing, after remand for failing to develop the record initially) and the Treating Physician rule, the ALJ erred in deciding Serrano's claim without a report from his treating physician. Even though the ALJ attempted to obtain the record via the November 21, 2001 subpoena, when Dr. Tindel failed to complete an orthopedic report, the ALJ should have reached out to Dr. Tindel or enforced the subpoena, and advised Serrano that Dr. Tindel failed to issue a report and suggest that Serrano try to contact him. The ALJ contravened Social Security regulations by failing to document Dr. Tindel's noncompliance with the subpoena and her reasons for not pursuing enforcement. The purpose of these regulations is clear: an ALJ's subpoena authority has little force if a physician or other witness can refuse to produce a critical document without consequence. Here, without any explanation for her actions, the Court is left to conclude that the ALJ abridged Serrano's rights to a fair hearing by rendering a decision without the requested treating physician report from Dr. Tindel. Accordingly, the Court recommends the case be remanded for development of the record, specifically for inclusion of a treating physician opinion from Dr. Tindel. See, e.g., Connor v. Barnhart, 02 Civ. 2156, 2003 WL 21976404 at *5, 7 (S.D.N.Y. Aug. 18, 2003) (Case remanded due to,inter alia, "clear gaps in the administrative record due to the absence of relevant medical opinions." "[T]he ALJ must obtain the treating physician's opinion regarding the claimant's alleged disability; 'raw data' or even complete medical records are insufficient by themselves to fulfill the ALJ's duty.") (citing cases); Encarnacion v. Barnhart, 00 Civ. 6597, 2003 WL 1344903 at *3, 4 (S.D.N.Y. Mar. 19, 2003) (Case remanded where "ALJ did not have [treating physician's] opinion, but formed a medical judgment on the basis of [treating physician's] treatment notes alone." The day after claimant's hearing, the ALJ sent treating physician a letter requesting an assessment of claimant's disability to supplement his treatment notes. However, there was no evidence that the ALJ advised claimant to seek an assessment from her treating physician and the ALJ issued a decision without further attempts to obtain the treating physician's opinion.); Peralta v. Callahan, No. 97 CV 5174, 1999 WL 294722 at *5 (E.D.N.Y. Mar. 24, 1999) (Case remanded where treating physician's report did not include opinion about "how plaintiffs condition or prognosis would affect his ability to function and work, [and so] the court cannot conclude there were no material gaps in plaintiffs medical record."); Camacho v. Apfel, No. 97 CV 4728, 1999 WL 294731 at *4 (E.D.N.Y. Mar. 2, 1999) (Case remanded for "obvious gaps in the medical record": one treating physician "submitted a cursory, handwritten report" unsupported by medical records and no treating physician "submitted any findings on plaintiffs residual functional capacity to work." ALJ erred in discrediting plaintiffs subjective complaints where incomplete record did not provide "adequate basis in competent medical opinion to do so.").⁵⁴

54 See also, e.g., Soler v. Chater, No. 93 CV 2905, 1995 WL 520020 at *1, 3 (E.D.N.Y. Aug. 16, 1995) (Case remanded where treating physician records included test results and factual descriptions of plaintiffs condition and treatment but did not contain treating physician's opinion "as to the existence, nature and severity of [plaintiffs] claimed disabilities. . . . Once the ALJ became aware that the medical record sent by [treating physician] did not contain any diagnosis as to [plaintiffs] alleged disability, [ALJ] should have made appropriate arrangements to have [treating physician] submit an additional report containing such information. . . .[I]t was impossible for the ALJ to have made an informed decision without the opinion of [plaintiffs] treating physician as to [plaintiffs] alleged disability."); Carroll v. Secretary of Dep't of Health Human Servs., 872 F. Supp. 1200, 1204-05 (E.D.N.Y. 1995) (Case remanded where ALJ subpoenaed treating physicians records but did not seek to enforce subpoena nor "suggest that plaintiff attempt to obtain and submit the records." Court ordered ALJ to apply for enforcement of subpoena before next holding a new hearing.); Peed v. Sullivan, 778 F. Supp. 1241, 1247 (E.D.N.Y. 1991) (Case remanded where ALJ failed to secure treating physicians' opinions. "[T]he ALJ cannot substitute his opinion for that of the treating physician; he cannot — as the ALJ here — replace the diagnosis of the doctor who knows the patient best with his own reading of the claimant's history."); cf Mayfield v. Bowen, 87 Civ. 7419, 1988 WL 126905 at *1 (S.D.N.Y. Nov. 23, 1988) (Where "Secretary acknowledge[d] that the Administrative Law Judge's failure to enforce the administrative subpoena on . . . plaintiffs treating physician resulted in a denial of due process[,]. . . . a remand is necessary to allow the ALJ to correctly assess [treating physician's] evaluation of plaintiff").

None of Serrano's treating physicians at Jacobi Hospital gave opinions; the ALJ had nothing more than a pile of records. The ALJ has a duty to aid the claimant in obtaining important evidence such as a treating physician's assessment of a claimant's functional capacity. See, e.g., 20 C.F.R. § 404.1512(e) ("When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision.");Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (Where "the ALJ was left to base her conclusions on incomplete information that was necessarily 'conclusive of very little'[,]. . . the ALJ should have taken steps directing [the claimant] to ask [her treating physician] to supplement his findings with additional information."); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998);Jimenez v. Massanari, 00 Civ. 8957, 2001 WL 935521 at *11 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Richardson v. Apfel, 44 F. Supp.2d 556, 563 (S.D.N.Y. 1999); Vaughn v. Apfel, 98 Civ. 0025, 1998 WL 856106 at *7 (S.D.N.Y. Dec. 10, 1998) ("Most importantly, are man disappropriate since the ALJ did not specifically request [the treating physician's] opinion as to the plaintiffs claimed disabilities."), clarified on reconsideration, 1999 WL 314163 (S.D.N.Y. May 18, 1999); Brown v. Apfel, 991 F. Supp. 166, 171-72 (W.D.N.Y.I998); Rosa v. Apfel, 97 Civ. 5831, 1998 WL 437172 at *4 (S.D.N.Y. July 31, 1998) (ALJ should have requested treating physician to assess claimant's medical functional capacity);Rodriguez v. Apfel, 96 Civ. 1132, 1997 WL 691428 at *5 (S.D.N.Y. Nov. 4, 1997) ("[T]he ALJ failed to develop the record regarding [claimant's] functional abilities."); Peed v. Sullivan, 778 F. Supp. at 1246-47 ("It is the opinion of the treating physician that is to be sought; it is his opinion as to the existence and severity of a disability that is to be given deference. . . . [While] the ALJ obtained voluminous records from these doctors," the ALJ did not obtain their opinions.) (emphasis in original).

2. The ALJ Also Should have Advised Serrano of the Importance of Dr. Tindel's Report

The ALJ had a duty to inform Serrano of (1) the importance of Dr. Tindel's opinion to Serrano's case in light of the Treating Physician Rule, and (2) that Serrano himself could request a statement from Dr. Tindel. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79-80 (2d Cir. 1999); Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990) ("We have repeatedly stated that when the ALJ rejects the findings of a treating physician because they were conclusory or not supported by specific clinical findings, he should direct a pro se claimant to obtain a more detailed statement from the treating physician."); Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 756 (2d Cir. 1982) ("'basic principles of fairness require that the [ALJ] inform the claimant of his proposed action and give him an opportunity to obtain a more detailed statement'") (quoting Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980) ("The ALJ also erred in failing to advise plaintiff that he should obtain a more detailed statement from his treating physician.")); Jimenez v. Massanari, 00 Civ. 8957, 2001 WL 935521 at *11-12 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 540 (S.D.N. Y. 1999) (Pauley, D.J. Peck, M.J.) ( cases cited therein); Meiias v. Apfel, 96 Civ. 9680, 1998 WL 651052 at *6 (S.D.N.Y. Sept. 23, 1998) (remand appropriate where ALJ "did not consider exercising his authority to issue subpoenas" in order to produce additional evidence or "inform plaintiff that she should — or even could — produce additional evidence or call her treating physicians as witnesses"); Rosa v. Apfel, 97 Civ. 5831, 1998 WL 437172 at *4 (S.D.N.Y. July 31, 1998) ("At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that he considers the claimant's case unpersuasive and suggest that he produce additional evidence or call his treating physician as a witness.");Jasmin v. Callahan, 97 Civ. 2429, 1998 WL 74290 at *5 (S.D.N.Y. Feb. 20, 1998) (Sotomayor, D.J.) ("ALJ had a duty to inform [pro se] plaintiff of his ability to call or subpoena [treating physician] as a witness."); Mann v. Chater, 95 Civ. 2997, 1997 WL 363592 at *5 (S.D.N.Y. June 30, 1997) (Sotomayor, D.J.) ("[B]efore denying a pro se claimant's application, the ALJ should advise the claimant that he considered his or her case unpersuasive, and suggest that he or she produce additional medical evidence or call his or her treating physician as a witness.") (internal quotations alterations omitted);Rivera v. Chater, 942 F. Supp. 178, 183-84 (S.D.N.Y. 1996) (where medical information supplied by treating physician is insufficient, "the ALJ has a duty to inform a pro se claimant of the inadequacies and the remedial action required"); Carroll v. Secretary of Health Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995); Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1982).

Here, the ALJ made no effort to emphasize the potential impact of Dr. Tindel's opinion on Serrano's case. Early in the hearing, the ALJ explained to Serrano: "it's part of my job to make sure the record is complete. What that means is if there are medical records or other records I need to make a decision [that] I don't have, I've got people on staff who can get those records and, if it's something I think you can get easily, I'll ask you to get it and I'm not going to make my decision until I have all the records I need." (R. 54-55.) The ALJ later specified that "[w]hat we're going to do is . . . ask Jacob[i] to give us all of their clinical records. Okay?", to which Serrano responded, "[o]kay." (R. 61.) The ALJ also told Serrano that: "I'm going to hold the record open, we're going to subpoena the record from Jacob [i] and I'm going to see if we can get Dr. Tindel to do a report regarding your condition. Okay?", to which Serrano answered "[v]ery good." (R. 62.) At the close of the hearing, the ALJ again indicated that she would wait for Serrano's records before rendering her decision. (R. 82.) ("[O]nce I get the rest of your medical records, I'm going to issue a decision in writing.")

These limited exchanges could not have possibly conveyed to Serrano (a) the importance of Dr. Tindel's report to rebut the consulting physician's reports, (b) the fact that the ALJ would issue an opinion without Dr. Tindel's report, or (c) the fact that Serrano could (and should) have tried to obtain Dr. Tindel's report himself. Although at the beginning of the hearing, the ALJ suggested that she might ask Serrano to obtain records himself, she never specifically explained that he should try to obtain a report from Dr. Tindel. See, e.g., Brown v. Barnhart, 02 Civ. 4523, 2003 WL 1888727 at *7-8 (S.D.N.Y. Apr. 15, 2003) ( cases cited therein).

C. Remand Is Necessary

"Upon a finding that an administrative record is incomplete or that an ALJ has applied an improper legal standard, we generally . . . remand the matter to the Commissioner for further consideration." Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000): accord e.g., Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980): Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *15 (S.D.N.Y. Apr. 10.2003) (Peck M.J.): Jones v. Apfel, 66 F. Supp.2d 518, 542 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.)( cases cited therein); Craven v. Apjel, 58 F. Supp.2d 172, 187-88 (S.D.N.Y. 1999) (Preska, D. J. Peck, M. J.).

Accordingly, because the ALJ failed to adequately develop the record in reaching her determination of Serrano's residual functional capacity, the Court need not — indeed, cannot — reach the question of whether the Commissioner's denial of benefits was based on substantial evidence. The case should be remanded to the Commissioner to further develop the record. As the Second Circuit has explained:

Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the Commissioner for further development of the evidence. . . . This case, in our view, is one in which remand for further development of the evidence is the wiser course. . . .[T]he extent of the [claimant's] injuries was not at all clear, and the ALJ failed to develop the record sufficiently to make any appropriate determination in either direction.

Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (internal quotations alterations omitted).⁵⁵

55 Accord, e.g., Jimenez v. Massanari, 2001 WL 935521 at * 13; Jones v. Apfel, 66 F. Supp.2d medical records);Maestre v. Apfel, 1998 WL 477950 at *4 (ALJ "obligated to explore the facts by asking questions of and obtaining relevant medical records from pro se claimants").

CONCLUSION

For the reasons set forth above, the Commissioner's motion for judgment on the pleadings should be denied, Serrano's cross-motion should be granted, and the case should be remanded to the to the Commissioner for further development of the record consistent with this Report and Recommendation.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988):McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).