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holding that where an ALJ's decision does not conflict with physician's opinions, an error in assigning weight is harmless
Summary of this case from Duprey v. BerryhillOpinion
02 Civ. 0791 (SHS)
March 6, 2003
OPINION AND ORDER
Patricia A. Jones brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to challenge a final decision by defendant Jo Anne Barnhart, Commissioner of Social Security, denying her disability insurance benefits and Supplemental Security Income benefits. Defendant and plaintiff have both moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, defendant's motion is denied, plaintiffs motion is granted, and this case is remanded to the Commissioner for reconsideration upon the existing record.
I. BACKGROUND
On September 15, 1998. Jones submitted an application to the Social Security Administration ("SSA") for Disability Insurance benefits and Supplemental Security Insurance payments. (R. 63-66, 236-39.) The applications were denied both initially and on reconsideration. (R. 41-46, 48-51.) At Jones's request, administrative law judge Kenneth L. Scheer held a de novo hearing on October 29, 1999 and found that Jones was not disabled pursuant to the Social Security Act, and thus not entitled to either of the benefits she sought. (R. 27-35.) The decision became the final decision of the Commissioner on December 6, 2001, when the Appeals Council denied plaintiffs request for review. (R. 6-7.)
References to "R.___"are to the relevant pages of the record of proceedings filed by the Commissioner.
A. The Administrative Hearing
1. Plaintiffs Testimony
At the time of hearing, Jones was 49 years old and lived in a first-floor Bronx apartment with her eleven-year old son. (R. 283-84.) Her income consisted of child support payments, food stamps, and occasional help from other family members. (R. 285.) Jones's education consisted of high school and a year and a half of business school. (R. 285.) Her most recent employment, which lasted from January 1994 to April 1998, was as a word processor for the King's County District Attorney's office. (R. 74, 285.) Jones also worked as a word processor at Empire Blue Cross Blue Shield from April 1984 to March 1992. (R. 74, 287.)
Jones testified that she was claiming benefits on the basis of several physical impairments. She testified that she suffered from high blood pressure, which was normally, but not always, controlled by medication. (R. 288, 297-98.) She also testified to having bilateral knee replacement surgeries performed — the first in May 1998, and the second in April 1999 and receiving physical therapy after both operations. (R. 288-89.) Jones also testified to having a herniated disc, as well as pain in her back, knees, and feet. (R. 289-90.) Jones testified that her back pain was not constant, but was aggravated by walking, bending, and taking stairs. (R. 290-91.) With respect to day-to-day activities, Jones stated that she did light grocery shopping, cooked meals for herself and her son, and had recently started riding a stationary bicycle. (R.292.)
With respect to physical limitations, Jones testified that she could walk five to six blocks at a time, that she needed to stand up at times while sitting for more than an hour or so, and that she could only stand for "about an hour." (R. 293.) Jones also stated that she could lift twenty pounds occasionally and ten pounds frequently. Id. She also testified that her condition was much worse prior to her second operation. (R. 294.)
2. Vocational Expert's Testimony
Bala Carr, a rehabilitation specialist, testified as a vocational expert. (R. 299-304.) She characterized Jones's past relevant work as that of a data entry clerk and word processing operator — both classified as sedentary work in the Dictionary of Occupational Titles. (R. 301.) When asked whether Jones's past relevant work could be performed by someone of her age, education, work experience, and the capacity for the full range of sedentary work, except for the requirement of cane-assisted walking and five minutes of walking every two hours, Carr responded that such a person could perform Jones's past work. (R. 301-02.)
United States Dept. of Labor, Dictionary of Occupational Titles (4th ed. 1991).
B. Medical Evidence
1. Evidence from Before the Alleged Onset Date
On September 15, 1997, Dr. David P. Gerstman performed a magnetic resonance imaging ("MRI") of Jones's lumbosacral spine. (R. 115.) The MRI revealed degenerative disc disease with osteophytes at L2-3, L3-4, L4-5, and L5-S 1; a centrally herniated disc at L3-4; bulging annuli at L2-3 and L5-S1; spinal stenosis at L3-4 and M-5; and evidence of scohosis.Id. On October 16, 1997, Jones was seen at Montefiore Medical Center, complaining of pain in her back and both legs as well as numbness in her lower extremities after one hour of walking. (R. 103, 111.) She also reported pain with prolonged sitting. (R. 111.) Jones reported a history of hypertension and arthritis, as well as a variety of other symptoms including shortness of breath, swelling of feet/ankles/hands, loss of appetite, joint pain and stiffness, weakness in muscles and joints, and difficulty in walking. (R. 103-04.) Her physical examination revealed spinal irregularities. (R. 111.) Dr. Brian Kahan recommended a lumbar flexion program to increase stability of Jones's lumbar spine and decrease pain. Id.
Subsequently, Jones was periodically examined and continued with a physical therapy regimen at Montefiore. (R. 107-1 10, 113-125.) Jones was examined on February 24, 1998 by Dr. Melvin L. Adler. (R. 94.) He reported slow but normal ambulation, difficulty squatting, but full range of motion of the hips. Id. Jones's knees showed various deformities and irregularities. Id. Dr. Adler's diagnosis was degenerative osteoarthritis of both knees, which the doctor found to be severe for Jones's age. Id. Dr. Adler prescribed anti-inflammatory medication, suggested a weight reduction diet, and discussed the possibility of surgery. Id. On March 12, 1998, Dr. Adler noted that Jones was due to undergo total right knee replacement surgery due to extensive degenerative osteoarthritis. (R. 99.) X-rays taken on this date showed degenerative changes involving all three compartments of her right knee and subchrondral cyst formation.Id. Dr. Adler stated that Jones was "totally/partially incapacitated" between the dates February 24, 1998 and March 12, 1998, was capable of returning to work on March 13, 1998, but would have to stop working on April 2, 1998, the alleged onset date, to prepare for her April 24, 1998 knee replacement. (R. 200.)
2. Medical Evidence From April 2, 1998 through October 29, 1999
a. Treating Physician Reports
Jones's right knee was replaced on May 1, 1998. (R. 93.) During a follow-up exam in June, Dr. Adler stated that Jones's operation was successful and that she could walk independently with a cane with right knee flexion of 100 degrees, full extension, and no instability. Id. On July 1, 1998, Dr. Jeffrey Nissinoff examined Jones and reported that her right knee had flexion of 100 degrees and her left knee had full range of motion. (R. 105.) Dr. Nissinoff demonstrated a knee flexibility exercise and advised Jones to lose more weight. (R. 106.) On August 20, 1998, Dr. Adler composed a letter describing Jones's treatment over the past two years. (R. 95.) He stated that Jones was "doing reasonably well" after undergoing right knee replacement on May 1, 1998, but noted complaints of increased pain in her left knee. Id. He also noted x-rays taken on August 4, 1998 that showed extensive degenerative osteoarthritis of the left knee, and stated that Jones would be scheduled for total left knee replacement in the very near future. Id. Dr. Adler concluded that Jones was "unable to return to work at her previous type of employment." Id. On October 1, 1998, Dr. Adler noted that Jones's right knee condition had greatly improved, but that her left knee pain was increasing. (R. 97.) While surgery was discussed with her, Dr. Adler continued Jones on the current regimen of anti-inflammatory medication. Id.
Dr. Nissinoff submitted a report to the New York State Office of Temporary and Disability Assistance on November 18, 1998, describing his treatment of Jones over the past six months. (R. 144-51.) He noted that after Jones's right knee replacement in May, she underwent full inpatient rehabilitation therapy, as well as outpatient physical therapy and home service treatment. (R. 145.) His diagnosis was osteoarthritis of the left knee with attendant pain and reduced range of motion, which caused difficulty walking and taking steps, sitting for prolonged periods of time, and caused decreased balance. (R. 144, 146.) Dr. Nissinoff noted that Jones's left knee condition was not responding to current treatment — therapy, medication, cane, or injection — and thus surgery within the next year was required. (R. 145.) Dr. Nissinoffs conclusions were that Jones was fully disabled at the time, that her symptoms increased during any extended period of sitting, that she could not take steps to get to work, that she could not carry any weight that would require both arms, that her condition required a cane, and that Jones was in end stage of degenerative joint disease of the knee and was awaiting surgery. Id. Dr. Nissinoff also noted that Jones's ability to lift/carry, stand/walk, sit, and push/pull were limited, although he did not specify the extent of these limitations. Id.
On February 16, 1999 Dr. Adler composed a note describing Jones's status. (R. 195.) He noted that her right knee replacement was successful and that she had flexion of 110 degrees with no instability. However, Dr. Adler reported increasing left knee pain, reports of "buckling episodes," and difficulty traversing stairs. Id. He also noted that Jones required a cane to ambulate. Id. X-rays showed severe degenerative changes with deformity and loss of the medial joint space. Id. His recommendation was left knee replacement, which was subsequently performed on April 5. (R. 195-97.) On May 20, 1999, Dr. Arnold Wilson, a physician at Central Bronx Orthopaedic Group, indicated that Jones's left knee replacement occurred without complications, and that Jones's condition was improved. (R. 221.) She now had left knee flexion of 100 degrees, full extension, and was neurovascularly stable. Id.
On July 16, 1999, Dr. Barry Rodstein, one of Jones's treating physicians, completed a residual functional capacity questionnaire covering the period April 5, 1999 to June 24, 1999. (R. 2 15-20.) Dr. Rodstein described Jones's post-operative prognosis as "excellent," but noted symptoms of pain, reduced range of motion in both knees, and decreased mobility. (R. 215.) Nonetheless, Dr. Rodstein opined that Jones could tolerate moderate work stress and that her impairments had not lasted twelve months, and could not be expected to last twelve months. (R. 216.) He also stated that Jones could walk two city blocks without rest or severe pain, that she could sit continuously for more than two hours, that she stand continuously for fifteen minutes, that she could sit for a total of eight hours in a working day, that she could stand/walk for less than two hours in an eight-hour day, and that she needed to walk during an eight-hour working day for 5 minutes every two hours. (R. 2 16-17.) He also noted that Jones did not need a job that permitted shifting positions at will from sitting, standing, or walking, and that she did not need to take unscheduled breaks during an eight-hour work day. Id. Dr. Rodstein also stated that Jones required the use of cane, (R. 217), and that Jones could lift twenty pounds occasionally and ten pounds frequently. Id.
Occasionally is defined by the report as less than one-third of the working day, while frequently means one-third to two-thirds of the working day. (R. 218.)
On July 20, 1999, Dr. Daniel B. O'Connell at West Farms Family Practice, composed a note describing his treatment of Jones for hypertension. (R. 223.) He noted blood pressure readings of 170/90 on May 24, 1999 and 170/110 on July 20, 1999, and that Jones was prescribed medication to control her high blood pressure. Id. He also noted that Jones's medication should be increased to achieve better control of her ailment. Id.
b. Consultative Physician's Examination
On October 23, 1998, Jones was examined by Dr. Joseph A. Grossman, a consultative physician. (R. 129-32.) Jones reported back pain that began one year before the examination, which was aggravated by walking, and a history of disc disease. (R. 129.) She also related a history of joint pains in her knees and legs, hypertension, dizziness and headaches, and eye complications. Id. Jones's stated reason for disability was right knee replacement, left knee deterioration, hypertension, and back pain. Id. Dr. Grossman noted that Jones's gait and station were normal and that she had no difficulty dressing or getting on or off the examination table. (R. 130.) He also made reference to Jones's obesity, and noted that Jones could walk without a cane. (R. 130.) Dr. Grossman reported Jones's blood pressure at 170/20, and his examination of Jones's eyes revealed retinopathy due to hypertension. Id. Dr. Grossman's examination of Jones's spine revealed no scoliosis, lumbar range of motion within normal limits, and full range of motion of the cervical spine. Id. Dr. Grossman found no respiratory, heart, or abdominal irregularities, save for a healed Caesarian section scar. (R. 131.) Dr. Grossman's examination of Jones's extremities revealed normal range of motion of both knees, with some pain while crouching. Id. His diagnosis was back pain with documented lumbar disc disease by history, joint pain in the right knee with bilateral knee arthralgias by history, and "grossly elevated" hypertension, for which Jones was warned to seek medical attention. (R. 132.) His functional assessment of Jones was as follows: "Impaired for prolonged rapid walking and climbing, and for prolonged repeated vigorous bending, stooping, and crouching. Can walk without cane. No impairment for standing, sitting, lifting, hand and foot controls, pushing, pulling, hearing, speech, and travel." Id. His prognosis was "fair." Id.
Although it is not clear from the record, it appears that Dr. Grossman is not one of Jones's treating physicians, but rather than this examination was authorized by the Commissioner to gather information about Jones's condition.
c. State Agency Physician Report
On November 19, 1998, Dr. L. Marisigan, a state agency physician, reviewed the medical record and assessed Jones's residual functional capacity. (R. 136-43.) Dr. Marisigan determined that Jones could lift twenty pounds occasionally, ten pounds frequently, and could walk, stand, and sit for six hours a day each. (R. 137.) He further indicated that Jones's ability to push or pull was limited in her lower extremities, although he did not specify the extent of this limitation.Id. Dr. Marisigan also noted pain in both knees on crouching and full range of motion of the right knee. Id. He indicated that Jones could climb stairs, balance, stoop, kneel, crouch, and crawl "occasionally." (R. 138.) Dr. Marisigan found no manipulative, visual, communicative, or environmental limitations. (R. 139-40.)
On March 9, 1999, Dr. C. Boyd, also a state agency physician, again reviewed Jones's medical records and assessed her residual functional capacity. (R. 175-82.) Dr. Boyd's conclusions echo those of Dr. Marisigan, except for the following: Dr. Boyd found that Jones had limited use of her left knee, (R. 176), that Jones could frequently stoop, crouch, and crawl, (R. 177), and he noted Jones's right knee replacement, osteoarthritis of the left knee, and an RFC of "light." (R. 180.) In addition, Dr. Boyd reviewed the November 18, 1998 findings of Dr. Nissinoff, who indicated that Jones could not sit for long periods of time, climb or descend stairs, or lift and carry objects requiring two arms. (R. 181.) Dr. Boyd opined that although Jones was scheduled for left total knee replacement, and could not lift and carry objects weighing over twenty pounds, she could frequently lift and carry objects weighing up to ten pounds. Id.
3. Medical Evidence Submitted to the Appeals Council
Several pieces of medical evidence were submitted to the Appeals Council after Jones's hearing on October 29, 1999. On January 6, 2000, Dr. Adler reported that Jones's total left and right knee replacements had been performed and that she was doing "reasonably well," although she still used a cane to walk. (R. 251.) Dr. Adler also noted increasing back pain and a December 18, 1999 MRI that showed a prominent disc bulge with facet hypertrophy causing some lateral recess stenosing at L2-3. Id; see also (R. 252.) The MRI also showed disc bulges at L3-4, L4-5, and L5-S 1. (R. 252.) He determined that her spinal irregularity was the source of her back and leg pain. (R. 251.) Upon examination, Dr. Adler concluded that Jones still had some restricted motion and spasm in her back. Id. He also opined that she "remains disabled and unable to return to work."Id. On February 17, 2000, Dr. Adler noted that Jones's pain was increasing and was making the performance of daily activities difficult. (R. 254.) Dr. Adler noted that although Jones's condition had responded "somewhat" to treatment, she reported difficulty sitting for extended periods and taking public transportation. Id. On examination, Dr. Adler found Jones to be markedly overweight with limited range of motion of the back, "considerable spasm," and "positive straight leg raising sign on the right." Id. Dr. Adler concluded that it was doubtful that Ms. Jones would be able to return to her previous type of employment as a word processor. Id.
On November 3, 2000, Dr. Emmanuel Riconalla, a pain fellow at Monteflore, completed a "Multiple Impairments Questionnaire." (R. 256-63.) Dr. Riconalla's diagnosis of Jones's condition was chronic low back pain with lumbar radiculopathy, spinal stenosis, and lumbar facet syndrome. (R. 256.) He described the nature of Jones's pain as "shooting," "constant," and precipitated by walking and carry heavy loads. (R. 257-5 8.) Riconalla indicated that Jones's pain was "moderately severe," and that efforts to "completely relieve" the pain were unsuccessful. (R. 258.) Riconalla then assessed Jones's residual functional capacity, noting that she could sit two hours in an eight hour workday and stand/walk less than one hour. Id. Riconalla stated that Jones could lift and carry five pounds frequently, and ten pounds occasionally, but found that she could not lift more than ten pounds. (R. 259.) Riconalla, when asked what the earliest date that his report applies was, stated "At present." Id.
From August to December 2000, Jones received treatment at the Pain Center at Montefiore. On September 20, 2000, Sandra Goodman, a nurse practitioner, described Jones's status in a letter to Dr. Adler. (R. 274.) She noted low back pain with lumbar radiculopathy, spinal stenosis, and facet syndrome. Id. Ms. Goodman also noted a significant decrease in the level of pain and an increase in Jones's level of functioning. Id. On October 18, 2000, Dr. Ian Yang evaluated Jones and noted signs of chronic lower back pain, lumbar radiculopathy, and reports of pain "4/10-6/10" in severity. (R. 268.) Dr. Yang also noted on this date that Jones reported improvement in her condition, and that the plaintiff was "doing well." (R. 268, 270.) On a follow-up visit in December, Dr. Yang noted Jones's reports of maintained pain control. Id.
The last piece of evidence submitted to the Appeals Council was an October 28, 2001 report by Dr. Adler, evaluating the impact of Jones's back and knee impairments. (R. 15-22.) In his report, Dr. Adler indicated that Jones could neither sit, stand, nor walk more than one hour in an eight-hour day. (R. 17.) He also found that she could both lift and carry only five to ten pounds occasionally, and could never lift or carry any more weight. (R. 18.) Dr. Adler indicated that this description of symptoms and limitations applied to Jones's condition beginning in April 1998. (R. 21.)
C. The ALJ's Decision
In his written decision, the ALJ evaluated Jones's claim pursuant to the procedure set forth in 20 C.F.R. § 404.1520, 416.920. (R. 28.) He found that Jones had not engaged in substantial gainful activity since April 2, 1998, and that she did suffer from a series of "severe" impairments that imposed "vocationally relevant limitations," including degenerative disc disease, hypertension, and "status post bilateral knee replacement surgeries." (R. 28, 31.) Despite finding that the medical evidence supported a history of impairments and that these impairments limited Jones's ability to perform certain work, the ALJ concluded that Jones's impairments were not equal in severity to one listed in 20 C.F.R. app. 1 § 404, Pt. P. Id. The ALJ also found that Jones had the residual functional capacity to perform a full range of sedentary work and that she was able to lift up to ten pounds frequently. (R. 32-34.) In making this determination, the ALJ relied on Jones's testimony, as well as on the opinion of her knee surgeon and the consultative physicians. (R. 32.) The ALJ noted Dr. Rodstein's report, which indicated that Jones required movement for five minutes every two hours, and the reports of the consultative physicians, which indicated limitation of Jones's ability to climb, crawl, balance, crouch, and kneel.
However, he did not find that these limitations significantly eroded her ability to perform a full range of sedentary work. (R. 32-3 3.) The ALJ explicitly found Jones's testimony to be not entirely credible in light of the medical evidence in the record. (R. 32.) Specifically, the ALJ found that after a reasonable recuperation period after her two surgeries, Jones had excellent results and was found to be able to return to work. Id. He also gave reduced weight to Dr. Grossman's report, and reduced weight to the November 18, 1998 report of Dr. Nissinoff. (R. 32-33, 34.) Finding that Jones could perform a full range of sedentary work, and relying partly on the testimony of the vocational expert, the ALJ determined that Jones could return to her past work as a word processor operator or data entry clerk, as these positions were sedentary — they required lifting of no more than ten pounds, allowed Jones to frequently change position, and did not require her to perform postural activities. (R. 33-34.) In sum, the ALJ concluded that Jones was not disabled, as defined in the Social Security Act, at any time through the date of his decision. Id.
II. DISCUSSION
A. Standard of Review
This court's review of the denial of social security benefits is limited to a determination whether there is "substantial evidence" to support the Commissioner's decision. 42 U.S.C. § 405(g) ("The findings of the Commissioner., as to any fact, if supported by substantial evidence, shall be conclusive . . . ."); accord Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). Substantial evidence is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. "`Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. 1999) (quoting Burris v. Chater, No. 94 Civ. 8049, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996)). Therefore, this court will not disturb a decision supported by substantial evidence, unless "the decision was the product of legal error." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); accord Jones, 66 F. Supp.2d at 536.
B. The Definition of Disability
An individual is "disabled" for purposes of Disability Insurance benefits and Supplemental Social Security Income benefits claims when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques," 42 U.S.C. § 423(d)(3), and it must be "of such severity that [the claimant] is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(3); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77.
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520, 416.920. The United States Court of Appeals for the Second Circuit has articulated this sequence as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work that the claimant could perform.Shaw, 221 F.3d at 132 (citing DeChinco v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)). If the claimant carries the burden of proof on the first four steps, the burden shifts to the Commissioner on the fifth step—to show that there is alternative substantial gainful work in the national economy that the claimant can perform. Id. In determining whether the claimant is disabled, the Commissioner must consider four factors: (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).
C. The ALJ's Determination of Plaintiffs Residual Functioning Capacity
Neither party contests the ALJ's findings relating to the first three steps of the disability sequence. However, Jones raises three arguments attacking the validity of the ALJ's decision at step four — where he found that Jones was able to return to her past relevant work, and thus was not disabled. Jones argues (1) that the ALJ did not assess correctly or give proper weight to the conclusions of her treating physicians; (2) that the ALJ's assessment of her credibility was flawed; and (3) that the ALJ's final determination that she was not disabled was not supported by substantial evidence. Because the ALJ failed to consider and evaluate Dr. Rodstein's opinion that Jones could stand or walk less than two hours in an eight-hour workday, the Commissioner's motion for judgment on the pleadings is denied, Jones's motion for judgment on the pleadings is granted, and this case is remanded to the Commissioner for reconsideration upon the existing record.
1. New Evidence Submitted to the Appeals Council
As an initial matter, it should be noted that Jones submitted several new medical reports to the Appeals Council. These reports, including follow-up notes by Dr. Adler, (R. 251-54), a questionnaire completed by Dr. Emmanuel Riconalla, (R. 256-63), and reports covering Jones's treatment at the Pain Center at Montefiore, (R. 265-75), were specifically added to the administrative record by the Council. (R. 8.) In addition, a questionnaire completed by Dr. Adler on October 28, 2001 was submitted to the Appeals Council, but was not discussed in its decision to deny review. (R. 6-8, 15-22.) "Under the Commissioner's regulations, a claimant is entitled to submit new evidence to the Appeals Council, provided that it is `new' and `material.'" Reyes v. Bamhart, No. 01 Civ. 1724, 2002 WL 31385825, at *7 (S.D.N.Y. Oct 21, 2002). The Appeals Council is required to consider such evidence where it relates to the period on or before the date of the ALJ hearing. 20 C.F.R. § 404.970 (b), 416.1470(b); see also Reyes, 2002 WL 31385825, at *7. "That evidence then becomes part of the administrative record that the court considers in determining whether there is substantial evidence to support the Commissioners decision." Reyes, 2002 WL 31385825, at *7 (citing Perez v. Chater, 77 F.3d 41, 45-46 (2d Cir. 1996)). Where new evidence supports the disabling nature of medical conditions in the relevant time period, that evidence is material and should be included in the record reviewed by the court. See, e.g., Reyes, 2002 WL 31385825, at *7-*8; Lane v. Apfel, No. 98 Civ. 2068, 2000 WL 1118921, at *9 (S.D.N.Y. Aug 8, 2000).
This questionnaire is both new and material to Jones's condition during the time period at issue in this case. Dr. Adler specifically indicated that his statements applied to her condition as of April 1998. (R. 21.) It also supports the disabling nature of Jones's medical conditions. In the questionnaire, Dr. Adler indicated that Jones could neither sit, stand, nor walk more than one hour in an eight-hour day. (R. 17.) He also found that she could both lift and carry only five to ten pounds occasionally, and could never lift or carry any more weight. (R. 18.) For these reasons, and in light of the fact that the Appeals Council added other new medical evidence discussing the exact impairments covered by Dr. Adler's questionnaire, this evidence should have been added to the administrative record, and thus will be considered in assessing the Commissioner's decision.
2. The Treating Physician Rule and its Application
The Commissioner has adopted regulations that ordinarily give controlling weight to the opinion of a claimant's treating physician.Thomas v. Barnhart, No. 01 Civ. 518, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002) (citing 20 C.F.R. § 404.1527 (d)(2)); see also Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). To be given such deference, the opinion of the treating physician must be "well supported by medical findings and not inconsistent with other substantial record evidence." Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000) (citing 20 C.F.R. § 416.927(d)(2)). When controlling weight is not given to a treating physician's opinion, the ALJ must consider the following factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the 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. Daniels v. Barnhart, No. 01 Civ. 4331, 2002 WL 1905957, at *7 (S.D.N.Y. Aug 16, 2002); see also 20 C.F.R. § 404.1527 (d)(2), 416.927(d)(2). With respect to the ALJ's written decision, it must contain "`good reasons'" for the weight given to the treating source's opinion. Schal v. Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998) (quoting 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)).
Jones argues that the ALJ failed to give sufficient weight to the opinions of Dr. Adler and Dr. Kahan. Specifically, Jones notes that on various occasions Dr. Adler stated that Jones was disabled and that the ALJ did not give special weight to these opinions. However, special significance is not given to treating source opinions that a claimant is "disabled" or is unable to work, as determinations of this kind are strictly reserved to the ALJ. 20 C.F.R. § 404.1527(e), 416.927(e). Therefore, the ALJ's failure to accord these opinions greater weight was not erroneous.
In addition, the ALJ's findings do not conflict with the assessments of these treating physicians. Dr. Brian Kahan, who evaluated Jones on October 16, 1997, found that she suffered from some spinal irregularities. (R. 111.) Jones was periodically examined after that date, with no notable change in diagnosis. (R. 107-110, 113-125.) Dr. Kahan never evaluated Jones's functional capacity or expressed an opinion on her ability to perform work-related tasks in light of her impairment. The ALJ found, in keeping with Dr. Kahan's finding of a back problem, that Jones suffered from degenerative disc disease, (R. 31), and he reduced his assessment of Jones's lifting ability in part based on "radiological evidence of two herniated discs and two bulging discs, stenosis, and scohosis." (R. 32.) Similarly, Dr. Adler, in reports before the ALJ, never evaluated Jones's functional capacity or her ability to perform work-related tasks. While he repeatedly mentioned her complaints of increased pain and osteoarthritis in Jones's left knee, (R. 95, 97, 195), this knee was replaced on April 5, 1999, and there are no reports from Dr. Adler discussing Jones's subsequent condition. The ALJ, in keeping with the assessment of Dr. Adler, noted Jones's osteoarthritis as a condition that would impose a vocationally relevant limitation, as well as her status as "post knee replacement surgeries," which the ALJ found to be a "severe" impairment. (R. 31.) In essence, the findings of these physicians were limited to descriptions of Jones's impairments and reports of Jones's subjective complaints of pain, and to this extent, the ALJ appears to have fully accepted them.
This is not to say that the ALJ's handling of this evidence was not without some error. Specifically, the ALJ did not specifically state the weight accorded to these physicians' opinions. See Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993) (ALJ required to articulate weight given to treating doctors' conclusions). However, he engaged in a detailed discussion of their findings, (R. 29-31), and his decision does not conflict with them. Therefore, the ALJ's negligence was harmless error, and does not provide a basis for a remand to the Commissioner. See Duvergel v. Apfel, No. 99 Civ. 4614, 2000 WL 328593, at *11 (S.D.N.Y. Mar. 29, 2002); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *9 (S.D.N.Y. Sept. 26, 1995) (ALJ's failure to discuss a treating physician's report was harmless error where consideration of report would not have changed outcome); see also Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1996) (harmless error rule applies to review of denial of disability benefits).
Jones also argues that the ALJ improperly discounted the opinion of Dr. Nissinoff, who concluded, inter alia, that Jones was fully disabled and that she could not carry any weight that would require both arms. (R. 148.) As noted above, Dr. Nissinoffs conclusion that Jones was "totally disabled" was properly not given special weight by the ALJ. (R. 33.) However, the ALJ went further, reducing the weight given to Dr. Nissinoff s "report of symptoms of pain and reduced range of motion." (R. 33.) This decision was based on the lack of evidentiary support for the report of Dr. Nissinoff and conflicting medical evidence. Id.
Specifically, Dr. Nissinoffs assessment was made before Jones's left knee replacement was performed. Dr. Wilson indicated that Jones's condition was improved as a result of the procedure, noting increased left knee flexion, full extension, and increased neurovascular stability (R. 221.) On July 16, 1999, Dr. Barry Rodstein, one of Jones's treating physicians, described Jones's post operative prognosis as "excellent," and opined that Jones could walk two city blocks without rest or severe pain, that she could sit for eight hours in a workday, and that Jones could lift 20 pounds occasionally and ten pounds frequently. (R. 215-17.) Dr. Grossman, a consultative physician who evaluated Jones before her second knee replacement, found no impairment for standing, sitting, lifting, hand and foot controls, pushing, pulling, hearing, speech, and travel." (R. 132.) Similarly, Dr. Marisigan, a state agency physician, reviewed the medical record and determined that Jones could lift twenty pounds occasionally, ten pounds frequently, and could walk, stand, and sit for six hours a day each. (R. 137.) Dr. Boyd, another state agency physician, reviewed the findings of Dr. Nissinoff, and opined that Jones could frequently lift and carry objects weighing up to ten pounds frequently. (R. 140.) In addition, Jones herself testified that she could lift twenty pounds occasionally and ten pounds frequently, indicating the change in her condition following her second knee replacement, and undermining the assessment of Dr. Nissinoff. (R. 293.)
With the exception of Dr. Boyd's assessment, the ALJ specifically referenced the evidence cited above in his written decision. (R. 29-33.) While the ALJ did not systematically go through the factors enumerated the Commissioner's regulations, Schaal, 134 F.3d at 504 (decision flawed where "ALJ failed to consider all of the factors cited in the regulations"), his decision reveals good reasons to accord the report lesser weight — namely, the discrepancies between this report and other medical evidence in the record, and the fact that Dr. Nissinoff evaluated Jones before she underwent surgery on her left knee. Shaw, 221 F.3d at 134 (controlling weight given to treating physician opinion only where it is "well supported by medical findings and not inconsistent with other substantial record evidence"); see also Bierd v. Barnhart, No. 01 Civ. 6907, 2002 WU 31410640, at *7 (S.D.N.Y. Oct 25, 2002) (treating physician report properly given reduced weight where it conflicted with medical evidence in the record); Loftin v. Barnhart, No. 01 Civ. 1118, 2002 WL 31202760, at *11 (S.D.N.Y. Sept 3, 2002) (same). Therefore, any technical defect in the ALJ's analysis is harmless error.
However, the ALJ's treatment of Dr. Barry Rodstein's evaluation presents a harder question. While the ALJ accepted his opinion that Jones could lift ten pounds frequently, and could sit continuously for eight hours, with five minutes of movement every two hours, (R. 32-33), the ALJ did not consider Dr. Rodstein's other opinions on Jones's condition in assessing Jones's claim — specifically, the opinion that she was able to stand/walk less than two hours in an eight-hour day. (R. 216-17) In failing to do so, the ALJ did not follow the proper procedure for assessing the opinion of a treating physician. See 20 C.F.R. § 404.1527 (d) ("Regardless of its source, we will evaluate every medical opinion we receive"); see also id. § 404.1527(d)(2) ("we will always give good reasons in our notice of determination or decision for the weight we give your treating source s opinion").
The ALJ did make specific reference to this opinion while outlining the medical evidence in the record, (R. 31), but he did not consider this opinion in his analysis of Jones's claim at step four of the disability sequence, (R. 31-35).
In this instance, the ALJ's error cannot be overlooked as harmless. In making his determination, the ALJ specifically found that Jones was able to perform a full range of sedentary work. (R. 31.) Sedentary work "is defined as involving only occasional standing and walking, the lifting of no more than ten pounds at a time, and the occasional lifting and carrying of light objects." Schaal, 134 F.3d at 501 n. 6; see also 20 C.F.R. § 404.1567. "secretary work also generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour workday." Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("secretary work also generally involves up to two hours of standing or walking and six hours of sitting in an eight hour workday").
Under this standard, if Jones could not stand or walk for two hours, her ability to perform a full range of sedentary work would have been eroded, a fact which may have directed the ALJ to a different outcome on the question of her disability. In fact, the ALJ himself noted during the hearing that if he found "that she stands less than two hours, then she doesn't make sedentary, does she?" (R. 305.) In addition, the vocational expert's belief that Jones could return to her previous work, relied on by the ALJ in his written decision, was based on the assumption that she could perform a full range of sedentary work. (R. 33.) of course, even if the ALJ considered Dr. Rodstein's opinion, he might have found it undermined by other medical evidence in the record, or unsupported by specific medical findings. or he might have found that while this limitation eroded Jones's ability to perform a full range of sedentary work, she still retained the residual functional capacity to return to her previous work as a data entry clerk or word processor.
However, the ALJ's analysis is barren of any such discussion, and "a reviewing court, in dealing with a determination of judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency." SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (emphasis added). Therefore, the ALJ's failure to address Dr. Rodstein's opinion cannot be considered harmless, and is therefore cause for remand. Mann v. Chater, No. 95 Civ. 2997, 1997 WL 363592, at *2 (S.D.N.Y. June 30, 1997) ("A finding of legal error is cause for remand, even if substantial evidence exists to support the Commissioner's factual findings" (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("Failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand" (quotation omitted)) cf. Conway v. Barnhart, No. 00 Civ. 8148, 2002 WL 31478192, at *4 (S.D.N.Y. Nov. 6, 2002) (remand proper "when there is a question as to how the ALJ applied legal standards, such as determining what controlling weight was given to a treating physician's conclusions and diagnosis" (citing Rosa v. Callahan, 168 F.3d 72, 79-81 (2d Cir. 1999)).
3. Jones's Credibility and Review of Decision for Substantial Evidence
Because we remand for the reason set forth above, and because there is additional evidence in the record that may impact the ALJ's assessment of Jones's credibility and his resolution of Jones's disability claim, we do not address here whether those determinations are supported by substantial evidence.
III. CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied, Jones's cross-motion for judgment on the pleadings is granted, and this case is remanded to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g), for reconsideration upon the existing record, including the October 29, 2001 medical questionnaire completed by Dr. Adler. (R. 15-22.)