Opinion
Case No. 01-CV-7449
May 21, 2003
BILLY GONZALEZ, Brooklyn, NY, pro se.
ROSYLN R. MAUSKOPF, ESQ., United States Attorney, Eastern District of New York, By: LESLIE BRODKSY, ESQ. Assistant United States Attorney, Brooklyn, New York, For the Defendant.
MEMORANDUM AND ORDER
Pro se plaintiff Billy Gonzalez ("Gonzalez") seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income disability benefits. The Commissioner moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure because, she contends, the determination of the Administrative Law Judge ("ALJ") that Gonzalez was not disabled is supported by substantial evidence. Because the ALJ either ignored or disregarded the opinion of Gonzalez's treating physician without explanation, the ALJ's determination is reversed and the matter is remanded for reconsideration.
I
The administrative record before the Court discloses that on November 5, 1993, Gonzalez, an assistant elevator mechanic, fell down a flight of stairs, injuring his left knee. He applied for disability insurance benefits on March 22, 1995. His application was denied initially and again after reconsideration. Upon Gonzalez's request, an ALJ held a hearing on September 1, 1998. Three witnesses testified: Gonzalez, Dr. Jorge Bonilla-Colon ("Dr. Bonilla-Colon"), an orthopedic surgeon called by the ALJ, who had reviewed Gonzalez's case file, and Miguel Pellicier ("Pellicier"), a vocational expert, also called by the ALJ. Gonzalez's medical records were also introduced. The ALJ framed the issue as being whether Gonzalez was disabled as of December 31, 1995, the last day he was insured for social security disability benefits.
Gonzalez testified that at the time of the hearing he was 44 years old, had completed seventh grade, and could not read or write English or Spanish. Following his injury, he was treated by Dr. Gustavo Rodriguez ("Dr. Rodriguez") and Dr. Bennett Futterman ("Dr. Futterman"). Gonzalez's medical records established that Dr. Rodriguez had diagnosed a derangement of the knee and possible anterior cruciate ligament or meniscal tear. After several office visits, Gonzalez underwent arthroscopic surgery in December of 1994. The procedure, however, was not entirely successful, and on December 15, 1995, Dr. Rodriguez performed an anterior cruciate ligament reconstruction of the knee, an operation which Dr. Bonilla-Colon characterized at the hearing as a "major surgery." A.R. at 165. In an examination notation dated April 4, 1997, Dr. Futterman recorded that Gonzalez "cannot stand for any period of time on his left knee because of instant pain in the knee." A.R. at 101. Gonzalez continued to have problems with the knee and in May of 1998 underwent another arthroscopy to treat the medial meniscus, which was torn. He testified that the pain from his knee was "always there," that with the assistance of a cane he could walk short distances, that he had "no problems" while sitting down, and that he could make his own bed and feed his chickens. A.R. at 27-30.
"A.R." refers to the Administrative Record.
Dr. Bonilla-Colon testified as to the details of Gonzalez's surgeries. When asked by the ALJ whether, as of December 31, 1995, Gonzalez could work in a "sedentary" job — that is, one in which during an eight hour work day the person sits for six hours and stands or walks, intermittently, for two hours, see 20 C.F.R. § 404.1567 (a); Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) — Dr. Bonilla-Colon answered, "I think so." A.R. at 167. Pellicier, the vocational expert, testified that there were a number of unskilled sedentary jobs in the national economy and in Gonzalez's locale, such as an electronics tester, examiner, or pre-assembly worker.
In a decision dated September 18, 1998, the ALJ determined that Gonzalez was not disabled as of December 31, 1995. Applying the familiar five-step procedure for evaluating disability claims under the Social Security Act, see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), the ALJ found that Gonzalez had not engaged in substantial gainful activity since the onset of the injury, that although he had a "severe left knee condition," his impairment was not listed in Appendix 1 of the applicable regulations, and that Gonzalez did not have the residual functional capacity to perform his past work as an assistant elevator mechanic. A.R. at 16-18. As for the fifth and final step (for which the burden shifts to the Commissioner), the ALJ found, based on Gonzalez's age ("younger individual"), education ("limited") and work experience, that there are "a significant number of jobs in the national economy which [Gonzalez] could perform." A.R. at 19. Noting that Gonzalez's impairment "limited his ability to perform certain physical activities but not to the extent alleged[,]" the ALJ concluded that Gonzalez was not "disabled" and, therefore, not entitled to disability insurance benefits. The ALJ's decision is silent as to Dr. Futterman's opinion that, at least as of April 4, 1997, Gonzalez could not stand for any period of time. The Appeals Council denied Gonzalez's request for review on September 28, 2001, constituting the final decision of the Commissioner.
II
This Court, in reviewing the Commissioner's determinations, must evaluate whether the ALJ's findings are supported by "substantial evidence in the record as a whole." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Substantial evidence refers to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Commissioner's conclusions regarding a claimant's disability are based on considerations of: "(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." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (1983)). The Court "is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn" when determining whether the findings are supported by substantial evidence. Brown, 174 F.3d at 62 (quoting Mongeur, 722 F.2d at 1038).
One component of the substantial evidence test is proper application of the treating physician rule. The Commissioner's regulation governing the treating physician rule provides that:
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion of the issues 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; Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); see also Schall v. Apfel, 134, F.3d 501, 503 (2d Cir. 1998). When the treating physician's testimony is not given controlling weight, other factors listed in the Social Security regulations are considered, including: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Shaw, 221 F.3d at 134 (quoting Clark v. Commissioner of Soc. Sec., 1434 F.3d 115, 118 (2d Cir. 1998)); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (noting that the less consistent a medical opinion is with the entire record, the less weight it is afforded by the Commissioner); see also 20 C.F.R. § 404.1527. The ALJ is required "to set forth her reasons for the weight she assigns to the treating physician's opinion." Shaw, 221 F.3d at 134; see 20 C.F.R. § 404.1527; see also Snell, 177 F.3d at 134 ("The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, even — and perhaps especially — when those dispositions are unfavorable.").
Furthermore, because the proceeding before the ALJ is non-adversarial in nature, the ALJ has the affirmative obligation to develop the record, regardless of whether the claimant is represented by counsel. See Shaw, 221 F.3d at 131; Schall 134 F.3d at 505. "An ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." Rosa, 168 F.3d at 79 (citing Schall, 134 F.3d at 505). The obligation to develop the record includes "develop[ing the claimant's] complete medical history" and "recontacting [the claimant's] treating physician" if the information "receive[d] from [the] treating physician . . . or other medical source is inadequate . . . to determine whether [the claimant is] disabled[.]" Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing 20 C.F.R. § 404.1512).
In this case, the ALJ credited Dr. Bonilla-Colon's testimony that Gonzalez could intermittently stand or walk for two hours during an eight hour work day, and either ignored or was unaware of Dr. Futterman's opinion that Gonzalez "cannot stand for any period of time on his left knee because of instant pain in the knee." A.R. at 101. Although Dr. Futterman's opinion was rendered on April 4, 1997, some fifteen months after the December 31, 1995 inquiry date, evidence of a claimant's condition after the period for which the claimant is seeking disability can be relevant to the question of whether the claimant was disabled prior to the date last insured. See Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989)). Because the medical authorities disagreed about the extent of Gonzalez's abilities, the ALJ was not compelled to give Gonzalez's treating physician's opinion controlling, dispositive weight. See Shaw, 221 F.3d at 134. Nonetheless, the treating physician rule required the ALJ to more fully develop the record regarding Dr. Futterman's opinion, evaluate that opinion according to the other factors listed in the regulations, and to clearly articulate his reasons for assigning weights. See 20 C.F.R. § 404.1527; Shaw, 221 F.3d at 134. This the ALJ did not do.
When the ALJ does not correctly apply the law (for example, by failing to apply the treating physician rule properly), reversal and remand pursuant to sentence four of 42 U.S.C. § 405 (g) is generally appropriate. See Schaal, 134 F.3d at 505. The Court, however, need not remand to the ALJ where "application of the correct legal standards to the record . . . [leads] inexorably to a single conclusion." Id. Here the evidence regarding Gonzalez's ability to perform sedentary work is conflicting. The decision denying benefits is reversed and the matter is remanded to the ALJ to develop and consider Dr. Futterman's opinion.
CONCLUSION
For the reasons stated above, the decision denying benefits is reversed and the case is remanded for further proceedings in accordance with this Memorandum and Order.