OPINION AND ORDER

ROBERT PATTERSON, Senior District JudgePage 2

Plaintiff, John T. Downey, appeals a June 3, 2002 order of the Appeals Council of the Social Security Administration refusing to review the October 24, 2001 decision of an Administrative Law Judge (ALJ) denying Plaintiffs claim for benefits. Plaintiff moves for an order pursuant to 42 U.S.C. § 405(g), reversing the determination of the Commissioner of Social Security ("Defendant") and remanding Plaintiffs claim solely for the calculation of benefits, or, in the alternative, remanding the Plaintiffs claim for a new hearing and decision. The Defendant cross-moves for a judgment on the pleadings affirming her final decision that Plaintiff was not entitled to disability insurance benefits under the Social Security Act. For the reasons stated below the Defendant's motion is denied and the Plaintiffs motion for remand solely for the calculation of benefits is granted.

I. Background

In his opinion dated October 24, 2001, the ALJ concluded that Plaintiff was not disabled because "[t]he medical evidence indicates that the claimant has back pain and right knee problems including status post arthroscopy, impairments that are severe within the meaning of the Regulations but not severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. of the entire record of proceedings related to case, submitted by Patrick J. Herbst on January 15, 2003 [hereinafter Rec.] at 221.)

After finding that Plaintiff was not "disabled," the ALJ proceeded to determine whether Plaintiff retained the residual functional capacity to perform the requirements of his past relevant work or other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520. The ALJ determined that Plaintiff could not perform his past relevant occupations (Rec. at 225 (citing 20 C.F.R. § 404.1565)), but did have "the residual functional capacity to perform a significant range of sedentary work" (Rec. at 226 (citing 20 C.F.R. § 416.967)). Accordingly, the ALJ found that claimant was not under "disability" as defined in the Social Security Act at any time prior to September 30, 1998, the last date on which Plaintiff was insured for benefits. (Rec. at 226 (citing 20 C.F.R. § 404.1520 (f)).) The Appeals Council denied Plaintiffs request for review. (Rec. at 188.)

Plaintiff makes two claims on appeal. First, the ALJ should not have accepted an opinion from a medical adviser over that of a treating physician, because the medical advisor acknowledged his opinion was based on incomplete medical records, and because the ALJ did not advise the medical adviser, who had never treated or examined Plaintiff, of later evidence of a herniated disk. (Pl.'s Mem. of Law in Supp. of Pl's Mot. of J. on the Pleadings at 1.) Second, the ALJ failed to make adequate findings respecting the lack of credibility of Plaintiff's testimony about pain. (Id.)

A. The Hearing

At the hearing held before the ALJ on April 20, 2001, the Plaintiff, Dr. Albert Mylod (a medical adviser), and a vocational expert testified. (See Rec. at 228.) Plaintiff testified that he experiences constant pain and he "can't sit down for more than twenty minutes without my [right] leg going numb, my [right] foot going totally numb." (Id. at 233.) Plaintiff further stated that the pain is located in his "lower back and it radiates down my right leg into my foot," (Id.), and that the pain is "sharp when I move, and it throbs later on in the day when I've been doing a lot," (Rec. at 234). He said that he has stopped using a cane because it did not seem to help much. (Id. at 235.) He spends six to ten hours a day lying down, "[b]ecause that's the only position that's not as painful." (Id. at 242.) He testified that he had not been able to remain seated for an hour watching television: "I haven't been able to do that for years . . . [b]ecause of my back, the back pain and my foot goes numb and the whole leg goes numb" (id. at 243). Plaintiff "sometimes" does cooking, cleaning and other housework (Id. at 236) and walks his then-eight-year old son one and a half blocks to school "sometimes" when his pain is not too great (Id. at 243-44). He testified that he took the train to the hearing. (Id. at 231.) Plaintiff also stated that he could lift and carry "probably five to ten [pounds] at the most." (Id. at 237.)

Dr. Mylod, the medical advisor, testified after the Plaintiff. When asked what condition or conditions the claimant had, Dr. Mylod responded, "Fm hesitating here, because Fm not quite sure what's going on here." (Id. at 245.) When asked to clarify, Dr. Mylod replied:

He has a long history of having lower back pain with radiation, yet his physical examination, at least what's in the file here, which is, I guess we don't have the treating physician's notes, is hard to figure out-to match up the severity of subjective complaints with his objective complaints. It's reported here that he had an EMG in `94 that was positive for L5-S1 radiculopathy. There is an MRI in this file. It was done by a chiropractor back in 1994 I believe. It says `92 here, Dr. Ferguson, which mentions that there's an L5 radiculopathy on the right side, but it doesn't mention the SI. It states that there was an MRI in June `92 which was — basically reported no herniated discs. His physical findings basically have had exaggerated neurological findings referable to . . . He's had no consistent neurological findings as far as motor, sensory, reflexes. He has pain with motion.

(Id.) Dr. Mylod then stated, without citing to the names of the reporting physicians or making specific reference to the documents on which he was relying, "most examinations that are in this file are generally within normal limits." (Id.)

Dr. Mylod's testimony misrepresents the EMG and confuses the results of the EMG and MRL Dr. Mylod corrected the date of the EMG to 1992 (Rec. at 250). He continued to question the results of the EMG because it was conducted by Dr. Ferguson by stating, "I don't know what the qualification of the chiropractor's EMG is." (Id.) The EMG was not performed by Dr. Ferguson, the chiropractor, as Dr. Mylod testified (Id.). Rather, it was performed and analyzed by Dr. E. Wiseman, Diplomat American Board of Physical Medicine and Rehabilitation (Rec. at 121). The EMG was "positive for right lumbar radiculopathy mostly involved [sic] L5 root" (Id.), not at L5-S1 as Dr. Mylod testified (Rec. at 245). Dr. Mylod also testified that this diagnosis was reached by an MRI taken in 1992 by Dr. Ferguson. (Id.) The MRI, performed on June 10, 1992, was by Drs. Kellett and Staron, not by Dr. Ferguson (Rec. at 196), and it did not confirm the diagnosis L5 radiculopathy on the right side (Id.).

Dr. Mylod reviewed the report of Dr. Chamberlin, Plaintiffs treating physician (Rec. at 246), which made a diagnosis of lumbar radiculitus and sciatica (Id. at 165). Dr. Mylod discounted Dr. Chamberlin's finding that in a workplace setting Plaintiff: (i) can sit continuously for only one hour, (ii) can stand continuously for thirty minutes, and (iii) can walk continuously for one hour (Id. at 166). Dr. Mylod interpreted Dr. Chamberlin's handwritten note in the margin stating "the above noted estimates of (i), (ii), and (iii) were based solely on possible times and not based on patient's time experience in these activities which are actual" (Id.) as meaning that the estimates of Dr. Chamberlin were based on Plaintiffs complaints and were not the doctor's own estimates, an interpretation to which Plaintiffs attorney objected (Rec. at 246). Dr. Mylod failed to comment on Dr. Chamberlin's report that plaintiff had to lie down four to six hours a day (Id. at 165), or that Dr. Chamberlin reported, without any qualifying notes, that during an entire eight-hour work-day, the patient can "sit a total of one hour . . . stand a total of 30 minutes . . . [and] walk a total of one hour" (Id. at 167).

Based on his review of the medical records, Dr. Mylod estimated that the Plaintiff would not be able to stand more than fifteen to twenty minutes at a time for a total of two to three hours in an eight-hour day (Id. at 248). Dr. Mylod added that the Plaintiff would have some limitations walking (Id.), and he assessed that, with five minute breaks every forty-five minutes to an hour, the plaintiff could sit for six hours in an eight-hour day (Id. at 249). The maximum weight the Plaintiff could lift, according to Dr. Mylod, would be ten pounds. (Id. at 248) Dr. Mylod qualified these estimates by stating that they were based on what he had available to him in the record at the time. (Id.)

On cross examination, Dr. Mylod testified that radiculopathy is defined as "having a motor sensory reflex change in an extremity . . . that are referable or can be traced to a certain nerve root and coming out of the spinal cord . . . It usually has pain associated with it." (Rec. at 249-50.) He also admitted that muscle spasms could be from a pinched nerve. (Id. at 250.) He acknowledged that with radiculopathy noted at the right L5-S1 level, the pain would start in the back and "radiate down through the buttocks, down the back of the leg, somewhere around to the knee, mid-calf." (Id. at 251.) He further stated that such pain would cause limitations on the ability to sit (Id.) and he then asserted that Dr. Chamberlin's report stated that Plaintiff could sit continuously for "one hour to two," (Id.; contra Rec. at 166-67 (stating plaintiff could sit continuously for one hour in a workplace setting and sit a total of one hour in an entire eight-hour work day)).

B. Decision of the ALJ

Based on this evidence, the ALJ made the following findings in his decision dated October 24, 2001. (Id. at 216.) In concluding that the medical and other evidence does not support Dr. Chamberlin's assessments, the ALJ relied on Dr. Mylod's interpretation of Dr. Chamberlin's handwritten note. The ALJ cited Dr. Mylod's conclusion that Dr. Chamberlin's handwritten note on his report of Plaintiff's ability to work (Id. at 166) indicated that Dr. Chamberlin was reporting Plaintiffs assertions and not Dr. Chamberlin's estimates (Id. at 222). Next, the ALJ cites Dr. Chamblerlin's statements 1) that Plaintiff was able to travel alone by subway and/or bus and 2) that as stated in another report, Plaintiff had only a "partial" permanent disability (Id.).

The ALJ provides other examples of evidence, which he alleges do not support Dr. Chamblerlin's findings. (Id.) The ALJ first cites an examination (Id. at 302) which occurred prior to the disability period of February 1992 to September 1998, showing that in April 1987 Plaintiff had no evidence of a herniated nucleus pulposus (Id. at 222).

Most disturbing is the following summary by the ALJ of the reports received after the hearing (Exhibits 38, 40 and 41):

Although the claimant's most recent medical reports state that he is suspected of having pain related to a forminal [sic] disc herniation, the claimant was noted to present no pain on flexion of the spine and had a normal neurological examination, aside from `4/5' right angle dorsiflexion. Moreover the same report documents that the claimant was sole caregiver for his then eight year old son (Exhibit 41) [sic: Exhibit 40].

(Rec. at 222.)

In fact, medical reports from Alistaire K. Selassie, M.D., updated January 20, 2001, refer to an MRI taken after the disability period ended which "demonstrates a right foraminal disc herniation at L4-5 narrowing the neural foramen and contacting the exiting nerve root" (Id. at 320), and a diagnosis of a spasm (Id. at 328), as well as pain on extension of the spine to five degrees and pain on right straight leg raise to forty-five degrees (Id. at 320). Dr. Selassie's report was based on tests taken after the disability period. The ALJ makes no indication that he obtained from Dr. Mylod an evaluation of whether the report from Dr. Selassie, which was received after the hearing, would change his conclusions as to the Plaintiffs abilities to sit, stand, or walk during the disability period.

The ALJ concluded that the claimant's reports of pain and other subjective complaints were not credible (Id. at 223), although Dr. Mylod on cross-examination admitted that every doctor who examined or treated Plaintiff gave a diagnosis associated with pain (Id. at 253). The ALJ supports his finding that Plaintiffs complaints of pain were not credible with Plaintiffs testimony that he came to the hearing alone via subway and that he is the "sole caregiver" of his nine year old son. (Id. at 223.)

As Plaintiff points out, he would be put in a "Catch-22" situation if appearance at a hearing using public transportation indicates lack of disability and failure to appear at a hearing leads to a default on his claim. (See Am. Mem. of Law in Supp. of Pl's Mot. for J. on the Pleadings at 22.) Plaintiff had testified to his difficulty in using public transportation at the two previous disability determination hearings (Rec. at 33-34, 59). Accordingly, the ALJ's reliance on this statement to question the Plaintiffs credibility seems misplaced and indicates his unfamiliarity with the content of the medical records.

The ALJ's reliance on Dr. Selassie's comment that Plaintiff "is the sole caregiver to an eight-year-old son, as his wife had to move out last year," (Id. at 320 (Exhibit 40 received post-hearing)) as grounds for finding Plaintiff capable of sedentary work, demonstrates an unfamiliarity with the entire medical record. The Plaintiffs claim period ended in September 30, 1999. During the claim period, Plaintiff consistently testified that he had assistance raising his son. At the first hearing in August 1995, Plaintiff testified that his then-wife did the household chores. (Id. at 47-48.) At a supplemental hearing in May 1997, he stated that his in-laws and wife help with childcare. (Id. at 72-73.) Thus, at the time of his disability period, Plaintiff was not the sole-care giver to his son. Furthermore, the ALJ did not inquire whether Plaintiff currently receives assistance in caring for his son from other family members, nor about the amount of responsibility the child takes on himself. Even at the hearing in April 2001, upon inquiry from the ALJ about Plaintiffs ability to do housework, Plaintiff testified that he sometimes receives help from his ex-wife and from his parents. (Id. at 236.) Plaintiff also testified that he walks his son one to two blocks to school when he can get out of bed and feels that he is able. (Id. at 243.) The ALJ did not inquire further about the nature of Plaintiff's child care.

II. Analysis

In addition to the factual errors described above, the ALJ made several legal errors in his analysis. To begin with, he failed to give proper deference to the assessment of Plaintiff's treating physician, Dr. Chamberlin. See Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998). Dr. Chamberlin's finding that Plaintiff was incapable of engaging in sedentary work on a sustained basis was supported, not only by Plaintiffs complaints of pain, but by the following objective evidence. According to a report by Dr. Chamberlin (Rec. at 315), an April 16, 1992 EMG finding by Dr. Wiseman (Id. at 121, 199) of radiculopathy at the L-5 nerve root constituted "definitive evidence of spinal injury," (Id. at 315). The finding of a positive Lasegue sign by Dr. Chamberlin (Id. at 165) also provides objective evidence of Dr. Chamberlin's diagnosis of sciatica. In view of the clinical support, the ALJ should have based his opinion on Dr. Chamberlin's diagnosis as required by the Social Security Administration's rules. 20 C.F.R. § 404.1527(d)(2) ("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."). The only evidence cited by the ALJ to find against Plaintff was the testimony of Dr. Mylod, the medical advisor, which the ALJ accepted without adequate scrutiny. The ALJ erred in giving controlling weight to Dr. Mylod, a non-examining physician who admitted that he was "not quite sure what's going on here" (Rec. at 245) and then testified as to the content of the medical records making inaccurate statements as to their authorship and their content, which the ALJ, apparently unfamiliar with the medical records, accepted without correction or questioning.

First, the Social Security Regulations do not contemplate that the opinions of a non-examining physician be treated as substantial evidence.See 20 C.F.R. § 404.1527(d)(1) ("Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you."). See also, Filocomo v. Chater 944 F. Supp. 165, 170 n. 4 (E.D.N.Y. 1996) ("[T]he conclusions of a physician who merely reviews a medical file and performs no examination are entitled to little if any weight.").

Second, Dr. Mylod's factual errors, his hesitation about giving an opinion (see Rec. at 245 ("what's in the file here . . . is hard to figure out.")) and his admission that he was "not quite sure what's going on here," (Id.) are grounds for reversal. See Gonzalez v. Apfel 113 F. Supp.2d 580, 589 (S.D.N.Y. 2000) (holding the ALJ erred in basing decision on testimony of medical advisor that began, "it's just hard for me to say" and contained factual errors). Furthermore, it was error for the ALJ to accept Dr. Mylod's discounting of Dr. Chamberlin's assessment of the Plaintiffs ability to sit, stand and walk continuously in a work place setting based on his interpretation (Rec. at 246) of Dr. Chamberlin's non-medical, explanatory note (Id. at 166) instead of accepting its plain meaning. The plain meaning of the explanatory note, that Dr. Chamberlin made estimates rather than timing the patient himself, is consistent with Dr. Chamberlin's unqualified finding that in an eight-hour workday, Plaintiff had to lie down four to six hours a day (Id. at 165) and his additional unqualified finding that Plaintiff could only sit for a total of one hour, stand for a total of thirty minutes, and walk for a total of one hour in an eight-hour work day (Id. at 167).

Additionally, the ALJ erred by failing to refer the medical reports received after the hearing to Dr. Mylod for his opinion as to the weight they might bear on his prior conclusions as to the claimant's physical condition, during the disability period ending September 1998.Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) ("The ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.") (quoting McBrayer v. Secretary of Health and Human Services, 712 F.2d 795, 799 (2d Cir. 1983)); Rivera v. Sullivan, 923 F.2d 964, 968 (2d Cir. 1991) (holding that retrospective opinions may be considered, even if the claimant's condition is a degenerative defect); Filocomo, 944 F. Supp. at 170 ("In the absence of supporting expert medical opinion, the ALJ should not have engaged in his own evaluations of the medical findings.").

Finally, the ALJ improperly dismissed the Plaintiffs subjective complaints of pain, concluding that because the Plaintiff raises his son and attended the social security hearings using public transportation, his complaints of pain were not credible (Rec. at 223). These citations to the record, while accurate, are not sufficient evidence to support a finding of Plaintiff's lack of credibility as the AU concluded (Id.). Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989) ("When a disabled person gamely chooses to endure pain in order to pursue important goals [such as raising his son, or attending a hearing], it would be a shame to hold this endurance against him in determining benefit, unless his conduct truly showed that he is capable of working."). Here, during the claim period, Plaintiff consistently testified and reported to doctors that he receives assistance from family members with child care and household responsibilities (Rec. at 72-73, 107, 139). At the April 2001 hearing, Plaintiff again testified that his ex-wife and parents assist him. (Id. at 236.) Although "subjective pain may serve as the basis for establishing disability, even if . . . unaccompanied by positive clinical findings or other `objective' medical evidence," here there is objective evidence of pain. Donato v. Sec, of Dep't of Health and Human Servs., 721 F.2d 414, 418-19 (2d Cir. 1983) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)) (emphasis in original); see also 20 C.F.R. § 404.1529 (c)(2). As Dr. Mylod admitted, every doctor who has examined Plaintiff has reported that Plaintiff asserts that he is in pain. (See Rec. at 123, 124, 139, 164, 176, 280.) Objective evidence includes the diagnoses of right-sided L5 radiculopathy (Id. at 183, 140) as demonstrated in an EMG dated April 16, 1992 (Id. at 121). Plaintiff has tried a number of remedies including acupuncture (Id. at 284), epidural blocks (Id. at 315), and physical therapy (Id.). He has taken medicines such as Aleve (Id. at 176), Vicodin (Id. at 139), Tylenol with Codeine (Id. at 124), and Naprosyn (Id.), and has testified that medication does not help to alleviate the pain (Id. at 65). Furthermore, he acknowledged having used a cane in the past, though he testified that he did not use it anymore, because it "didn't seem like it was helping . . . that much." (Id. at 235.) On such a record, the ALJ should not have reached the conclusion that Plaintiffs subjective complaints of pain were not credible.

III. Disposition

Due to the length of time this case has been pending and the Commissioner's failure to meet her burden, remand for further evidentiary proceedings is not warranted.

IV. Conclusion

IT IS SO ORDERED.