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finding Commissioner's decision not supported by substantial evidence where non-examining medical expert disagreed with treating physicians' limitations opinions
Summary of this case from Bowler v. Comm'r of Soc. Sec.Opinion
01 CV 1550 (JG)
September 30, 2002
CHARLES E. BINDER, Binder Binder, New York, New York, for Plaintiff.
ROSYLNN A. MALJSKOPF, United States Attorney; Paul Kaufman, Assistant United States Attorney, Brooklyn, NY, for Defendant.
MEMORANDUM AND ORDER
Desmen McKissick brings this action pursuant to 42 U.S.C. § 405 (g) to review a final determination of the Commissioner of the Social Security Administration ("the Commissioner") denying her disability insurance benefits under the Social Security Act. The Commissioner has moved for judgment on the pleadings affirming the denial of benefits. McKissick has cross-moved for an award of benefits or, in the alternative, for a remand for further proceedings. Because the Administrative Law Judge did not follow the treating physician rule and because the record as a whole overwhelmingly supports a finding that McKissick is totally disabled, the Commissioner's motion for judgment on the pleadings is denied, and plaintiff's motion is granted. The case is remanded to the Commissioner solely for the calculation and payment of benefits.
BACKGROUND
A. Plaintiff's Personal and Work History
Desmen McKissick is now almost sixty-three years old. She was born in Jamaica in 1939, and lives in Flushing with her husband, who is retired. Tr. 65, 80. Her precise educational background is unclear: she stated both that she stopped school at the age of seven and that she graduated from high school. Tr. 65-66, 164. For twenty-five years, she worked as a cashier for a furniture company. Tr. 64-67. When the furniture company went bankrupt, she found a job cleaning airplane cabins at John F. Kennedy International Airport for six months, until the pain in her legs stopped her from working. Tr. 67. She stopped working on May 29, 1997, had surgery on her left knee the next day, and on September 26, 1997, she had surgery on her right anklee. Tr. 37-40. Since her claim for social security benefits was rejected, she has also had surgery on her right thumb. Tr. 473.
"Tr." refers to the pages of the administrative record.
B. Procedural History
McKissick filed for Social Security Disability Insurance Benefits on July 17, 1997, following the surgery on her left knee. Tr. 142-44. Her application was denied on initial review, and although she applied for reconsideration following the surgery on her ankle, that too was rejected on February 4, 1998. Tr. 121-24, 125, 128-30. McKissick then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on October 27, 1998. Tr. 61-118. ALJ Manuel Cofresi ruled against McKissick on December 29, 1998, finding that although she was unable to return to her former employment, she was not disabled because she was able to perform a full range of sedentary work and could find work as a check cashier. Tr. 36-47. On January 26, 2001, the Social Security Administration's Appeals Council declined review. Tr. 5-6. McKissick then sued in federal court.
C.Medical Evidence
McKissick has a long history of problems with arthritis and pain in both her legs, and her case includes a significant amount of medical evidence. Because the ALJ failed to give appropriate deference to McKissick's treating physicians and incorrectly weighed the balance of the evidence, it is important to outline the medical evidence supporting her claim of disability.
1. Doctors Yager and Hutzel — Podiatric Surgeons
McKissick's medical records indicate that she first visited a doctor for pain in her legs in October 1996. Tr. 180. At that time, Dr. Stephen Yager, a podiatric surgeon, examined McKissick and diagnosed her with posterior tibial tendinitis in her right foot. Tr. 205. He gave her a local injection, which seemed to alleviate the pain. Id..
In March 1997, she returned for a follow-up and saw Dr. Michael Hutzel, also a podiatric surgeon. Tr. 186. In addition to general pain in the foot, McKissick complained specifically of pain in her right ankle.Id.. Dr. Hutzel found tenderness along the tibial and anterior tendon and swelling and tenderness at the nevicular tuberosity. I d. Dr. Hutzel diagnosed McKissick with a Tibialis Posterior Tendon Dysfunction with associated Tibialis Anterior Tendinitis and recommended that McKissick have an MRI to evaluate the possibility of any tearing of the tendons, and following the MRI that McKissick be placed in a short leg cast for two weeks with the possibility of surgery to correct the problem. Id..
McKissick returned in April, and Dr. Hutzel noted that while the pain was "slightly better," examination still revealed swelling and pain. Tr. 185. Dr. Hutzel put MeKissick in a unnoboot and reshoe and asked her to return the following week. Id.. When she returned, Dr. Hutzel noted that some tenderness remained, so he placed her back in the unnoboot for another week. Tr. 184. In May 1997, McKissick reported that the pain had subsided, but she still had difficulty when she was on her feet all day and her foot was still swollen. Tr. 183. Dr. Hutzel noted that the tenderness had decreased, but a moderate amount of swelling remained, and he instructed McKissick to return to wearing orthotics. Id.. Dr. Hutzel further noted that if the pain increased, he would place McKissick in a short leg cast. Id.. Later that same month, Dr. Goldman operated on McKissick's left knee. Infra.
2. Dr. Sunil Patel — Treating Internist
Dr. Sunil Patel is McKissick's primary medical provider. Tr. 189. His notes regarding the pain in her legs begin in November 1996 and continue through March 1998. Tr. 207, 335. In early 1997, Dr. Patel referred McKissick to Dr. Michael DellaCorte, another podiatric surgeon, for pain in her right foot. Tr. 205. Dr. DellaCorte found pain in the medial aspect of her right foot at the level of the navicular and an inflamed posterior tibial tendon, and that McKissick's medial arch collapsed when she stood. Id.. Dr. DellaCorte's assessment was dysfunctional posterior tibial tendon, with a possible partial rupture. Id.. He recommended conventional x-rays and a MRI, noting that if her symptoms did not resolve after three to six months with orthotics, surgery would be necessary. Id..
In March 1997, McKissick saw Dr. Patel again, this time complaining of swelling and severe pain in her left knee. Tr. 193. Dr. Patel's exam revealed swelling, warmth and restricted movement, and he prescribed Naprosyn and warm compresses. Tr. 193. Dr. Patel wanted to order an MRI, but he was prevented from doing so because McKissick had undergone an operation fair an aneurysm in 1986 and had a metal clip inserted in her head, which prevented an MRI exam. Tr. 69-70, 193. On April 14, 1997, Patel sent McKissick for physical therapy for the pain in her left knee and right ankle. Tr. 194. The notes from those physical therapy session over four months show continuous complaints of ankle and knee pain. Tr. 195-203.
On May 30, 1997, McKissick had surgery on her left knee, and on September 26, 1997, she had surgery on her right ankle. Infra.
On November 12, 1997, Dr. Patel completed, at the behest of the Social Security Administration, a summary report on McKissick. Tr. 288-91. He confirmed his treatment of McKissick for hypertension, arthritis, and pain associated with her right ankle and left knee and that her current symptoms included "severe pain" in both. Tr. 288. His clinical findings included swelling in both the ankle and knee and that movement in both were "severely restricted." Tr. 289. Based on the medical findings in his report, Dr. Patel noted that McKissick's physical abilities were limited to lifting and carrying a maximum of five pounds, standing and/or walking less than 2 hours per day, sitting for less than 6 hours per day, and never pushing or pulling anything. Tr. 290-91.
McKissick returned to Dr. Patel in December 1997 and three times in early 1998. Tr. 335-36. She continued to report severe right ankle and left knee pain despite the arthroscopic surgery on both, and Dr. Patel noted no changes to her complaints and or condition. Id.. Dr. Patel also referred McKissick to a hand surgeon in 2000. Tr. 472.
3. Dr. Arnold Goldman — Treating Orthopedic Surgeon
Dr. Arnold Goldman, an orthopedic surgeon, began treating McKissick in February 1997. Tr. 313-14. He first ordered a CT scan of her knees, which revealed left knee joint effusion with bilateral osteoarthritis and a high possibility of vascular necrosis of the left knee. Tr. 344. However, just a few days later, on March 1, 1997, the pain in her right ankle was so great that McKissick went to the emergency room, where she was diagnosed with "chronic leg [and] foot pain." Tr. 444. Later that same month, Dr. Goldman noted that McKissick complained of "pain in both knees, [and her] right ankle and right foot," and he called her case a "highly complex situation" due to her "longstanding history of discomfort in both knees, right ankle and right foot." Tr. 313. His overall impression changed to a possible medial and lateral meniscal tears in both knees and that McKissick had a chronic right ankle sprain and might need bunion surgery. Tr. 314.
In May 10, 1997, Dr. Goldman again noted "exquisite medial and lateral joint line pain on both knees, much more so on the left still as opposed to the right." Tr. 312. He diagnosed medial and lateral meniscal tears in both knees and discussed with McKissick again the possibility of arthroscopic surgery. Id.. McKissick elected to proceed with the surgery, and Dr. Goldman stated that because McKissick had "enough synovial thickening and weakness from an objective point of view and pain, [and] locking and clicking from a subjective standpoint to warrant surgery," another CT scan was unnecessary. Id..
Dr. Goldman operated on McKissick's left knee on May 30, 1997. Tr. 402-04. Six weeks after the surgery, he stated that McKissick was healing well and feeling less pain in her knees, but she was experiencing "persistent pain in the right ankle." Tr. 311. Upon examination, he found synovitis along the course of her posterior tibial tendon on the right ankle and contemplated requesting an MRI for the ankle, but again the metal clip in McKissick's head from the operation following her aneurysm prevented him, so he ordered an CT scan, which was normal other than "a small amount of contrast extending superiorly into the tibial fibula syndesmosis." Tr. 266.
In August, Dr. Goldman again noted that McKissick was feeling less pain in her knee, but that "the right ankle is more of a problem in terms of discomfort and soft tissue swelling." Tr. 301. Dr. Goldman reviewed the CT scan and again regretted that he was unable to order an MRI, but he stated that arthroscopic surgery on the ankle was a possibility and in the meantime prescribed an air cast. Tr. 302.
Dr. Goldman's notes for McKissick's September 4, 1997 visit reveal a significant change in her condition. Tr. 303. He observed "several complicating factors": McKissick was now actually suffering from "more pain in the right ankle as opposed to the left knee;" there was "exquisite tenderness over the anterolateral aspect and along the course of the posterior tibial tendon" of that ankle, and there was also "synovial thickening over the left knee." Id.. He prescribed a larger, more stable brace for knee and now recommended surgery on the ankle. Id..
Based on this information, Dr. Goldman made his first finding that McKissick was "totally disabled." Id.. He noted that McKissick made her living cleaning airplanes and that the job entailed walking up and down steps. Id.. He then concluded that "[f]rom an orthopedic standpoint at this time, she is totally disabled." Id.. Dr. Goldman confirmed this assessment that McKissick was "totally disabled" in a one page form letter — without reference to her present employment — on the same day. Tr. 306.
On September 26, 1997, Dr. Goldman performed arthroscopic surgery on McKissick's ankle. Tr. 277-79. After the surgery, he placed her in splints and a cast/shoe and gave her a prescription for Vicodin. Tr. 269. Two weeks after the surgery, McKissick visited Dr. Goldman. Tr. 304. He found synovial tissue and fibrocartilage in the right ankle, gave her some exercises, and recommended regular Tylenol for her pain. Id. He concluded his October 7, 1997 report with the simple, unqualified statement: "Patient remains totally disabled." Id..
McKissick returned to Dr. Goldman in mid-October. Tr. 305. Although her swelling was down, he re-bandaged her right foot, prescribed a formal physical therapy program and an ankle/foot support stocking, and renewed McKissick's prescription for Vicodin-ES. Id.. In late November, McKissick reported that the right ankle had improved, but the left knee was causing her problems again. Tr. 293. Dr. Goldman told her it was important to continue with her physical therapy and that she should avoid activities like volleyball and instead swim, bike, or use a Stair Master. Id.. In late January 1998, she again repeated her complaints about her knee pain, and Dr. Goldman noted that she was wearing her knee brace. Tr. 329. X-rays of the knee showed sclerosis and osteochondritis, and Dr. Goldman again recommended low-impact physical therapy. Id..
In March 1998, McKissick went to Dr. Goldman after suffering a fall. Tr. 330. While x-rays did not reveal any bone pathologies, a February 1998 CT scan did show bilateral osteoarthritis. Id.. Dr. Goldman again prescribed a formal physical therapy program for McKissick's left knee and another brace, but he found no need for repeat surgery. Id. After more reports of pain on a May 9 visit, Dr. Goldman prescribed Tylenol #3, again encouraged her to continue with physical therapy and to wear her brace, and now noted that he would "prefer" to hold off on repeat surgery at this time. Tr. 331.
On May 19, 1998, at the request McKissick's lawyer, Dr. Goldman drafted a "Narrative Summary" of his treatment of McKissick. Tr, 324-27. The summary begins by noting the length of treatment and that her situation was "highly-complex" because she had a "longstanding history of discomfort in both knees, the right ankle, and right foot" and because her brain aneurysm surgery prevented any MRIs. Tr. 324. The summary then detailed all of Dr. Goldman's interactions with McKissick, including office visits and telephone calls. Tr. 324-26. It concluded:
It is my opinion from an orthopedic standpoint that this patient has a permanent disability in terms of both knees and the right ankle and I anticipate that she will have intermittent discomfort in these areas. She may also require repeat arthroscopic intervention on the left knee in the future. I have recommended continuation of physical therapy to both lower extremities, particularly to the left knee and right ankle. Tr. 327.
McKissick continued to see Dr. Goldman throughout 1998, always complaining of pain in her knees. Tr. 332, 466-68. Dr. Goldman recommended physical therapy and prescribed Tylenol #3. Tr. 332. In late 1998, McKissick began reporting problems with her right knee, and they again discussed surgery. Tr. 467-68.
4. Dr. Kyung Seo — Consultative Examining General Surgeon
On August 15, 1997, after the surgery on her left knee but before the surgery on her right ankle, Dr. Kyung Seo, a general surgeon, examined McKissick at the request of the Social Security Administration. Tr. 247-48. He noted McKissick's history of left knee and right ankle pain, her past surgery on her left knee, that she was currently taking Tylenol #3 for the pain in both legs, and that she complained that the pain made standing and walking difficult. Tr. 247. Dr. Seo's physical exam of McKissick, however, showed that she could move around his office with little difficulty, but that she did feel pain in both her left knee and right ankle. Tr. 247. Dr. Seo did not see anything significant in her x-rays and diagnosed "rheumatoid arthritis with chronic synovitis of the right ankle and left knee." Tr. 248. He concluded that although she had difficulty standing, walking and carrying heavy objects, she was presently able to sit without difficulty, stand for fifteen minutes, walk a few blocks, and lift and carry around fifteen pounds. Id.. His ultimate prognosis for McKissick, even before the ankle surgery, was "GUARDED."Id..
5. Dr. Harold Schechter — Consultative Examining Internist
On May 27, 1998, Dr. Harold Schechter, an internist, examined McKissick at the request of her lawyer and recounted his review in a letter a few days later. Tr. 318-21. Dr. Schechter began by noting that McKissick was "disabled" due to longstanding arthritis in both knees and her right ankle and that her surgeries had not seemed to help her. Tr. 318. McKissick told him that she had difficulty walking, felt pain and had swelling in her left knee and right ankle, and could not sit for long periods due to leg cramps. Tr. 318-19. Dr. Schechter also noted that she had worked as an airport cleaner. Tr. 319. Upon examination, he found that McKissick walked with a "marked limp," had "great difficult getting on and off the exam table," and had swelling and "marked pain" in both knees. Tr. 319-20. His overall impression was "chronic severe arthritis in the knees and ankle," and he concluded that McKissick was "totally and permanently disabled from performing the duties of her usual occupation" and that "she should continue to follow-up with her usual medical physicians." Tr. 320-21.
In addition to the letter, Dr. Schechter also completed a "residual functional capacity form" on the day he examined McKissick. Tr. 322-23. He found that McKissick could not sit or stand and walk for more than two hours per eight-hour work day, that she could only occasionally lift or carry no more than 5 pounds. Tr. 322. While her hands did not prevent her (at this time) from performing any tasks, she was unable to use her legs for pushing or pulling. Id.. McKissick's condition also totally restricted her from activities that involved "unprotected heights," "being around moving machinery," "exposure to marked changes in temperature and humidity," and "exposure to dust, fumes, and gases," and that she was "moderately" prevented from "driving automotive equipment."Id.. Finally, he noted that McKissick's condition caused her pain, and that she had difficulty dealing even with low levels of stress. Tr. 323.
6. Physical Residual Functional Capacity Assessments
In addition to the various reports by McKissick's treating and examining physicians, there are also two "Physical Residual Functional Capacity Assessments" forms included in McKissick's medical record. Tr. 250-57, 258-65. These forms were apparently created by medical consultants at the Social Security Administration. Tr. 257, 265.
One of these forms is virtually blank. The government alleges that it was written by Dr. S. Gowd on August 27, 1997 see Gov't's Mem. of Law in Support of the Comm'r's Mot. for Summ. J. at 9, but the form is simply signed "L," and the year is not clearly legible and could easily indicate 1999, not 1997. Tr. 265. Regardless, the form indicates that McKissick's primary diagnosis was "arthritis". Tr. 258. According to the form, McKissick suffered from only minimal "exertional limitations": she could occasionally lift and carry up to 20 pounds and frequently lift and carry 10 pounds, she could sit or stand and walk about six hours per work day; and she had unlimited ability to push or pull objects. Tr. 251. In the space provided for the consultant to indicate "how and why the evidence supports [his] conclusions" and to "[c]ite the specific facts upon which [his] conclusions are based," "L" wrote nothing. Strangely, the form listed no postural limitations of any kind for McKissick. Tr. 260. In fact, it is not exactly clear what the consultant based his decisions on, because he indicated that McKissick's file did not contain any "treating or examining source statement[s]" regarding her physical capabilities. Tr. 264.
The second physical assessment form is neither signed nor dated, but it appears to have been completed on May 29, 1998. Tr. 250-57. The government contends that "Dr. C. Ladopoulous" conducted the assessment on January 27, 1998. See Gov't's Mem. of Law in Support of the Comm'r's Mot. for Summ. J. at 11-12. In that form, the medical consultant provided a slightly more detailed diagnosis: McKissick had a "Left Medial Meniscus Tear" and "Tenosynovitis of Right Ankle." Tr. 250. Her "exertional limitations" were listed as the exact same as in the other form, although this consultant at least provided a description of the evidence on which he relied to make his assessment, which shows that the consultant reviewed reports by Dr. Goldman and Dr. Seo through November 29, 1997. Tr. 251. This consultant also found significant "postural limitations" on McKissick's physical abilities; she should never climb stairs or scaffolds, balance herself, or crawl around, and she could only occasionally stoop, kneel, and crouch. Tr. 252-56. Here again, however, the form indicated that there were no "treating or examining source statement[s]" included in the file that were reviewed by the consultant. Tr. 256.
7. Dr. Robert Reiss — Testifying, Non-Examining Orthopedic Surgeon
On October 7, 1998, Dr. Robert Reiss, an orthopedic surgeon, testified at McKissick's administrative hearing after reviewing her medical file. Tr. 87-106. Dr. Reiss stated that McKissick did not have a disability that met or equaled any of the listed impairments. Tr. 88. He also stated that, while there might a limit to McKissick's ability to walk great distances, it was "not to the extent" that she claimed. Tr. 90. He further testified that he did not believe that McKissick's surgeries affected her ability to sit or to stand intermittently. Tr. 91. Cross-examination of Dr. Reiss revealed that he relied primarily on Dr. Seo's examination of McKissick in August of 1997. Tr. 92. Dr. Reiss also disputed whether McKissick needed a brace for her knee and felt that she would need only a brief break from long periods of standing. Tr. 96.
8. Dr. Fred Siegel — Vocational Expert
Dr. Fred Siegel testified as a vocational expert at McKissick's administrative hearing. Tr. 106-15. Dr. Siegel stated that her most recent job as a plane cleaner was unskilled, but that her prior job as a cashier checker at the furniture company gave her minimal skills, such as "meeting people" and "recording information," which would allow her to transition to other jobs like a check cashier, receptionist, or file clerk. Tr. 107-10. On questioning from McKissick's lawyer, Dr. Siegel stated that some of these jobs might require a person to be on their feet for up to six hours per work day and that they would require McKissick to make at least a minimal adjustment to her available work skills. Tr. 112-15.
9. Dr. Apostolos Tambakis — Consultative Examining Internist
On March 24, 1999, three months after her hearing before the administrative law judge, Dr. Apostolos Tambakis, another orthopedic surgeon, examined McKissick at the request of her lawyers and reported his findings in a letter. Tr. 470-71. Although there are several minor errors in Dr. Tambakis's rendition of McKissick's history — including that she had an MRI and that the surgery on her left knee was done in June — Dr. Tambakis was aware that McKissick had had two surgeries and that her last job was cleaning airplanes. Tr. 470. He also noted that her present problems focused on pain in her left knee and right ankle and that she had difficulty moving around and sitting. Id. His physical examination revealed pain in the right and left knees and her right ankle, as well as tenderness in her back. Id.. He diagnosed derangement of both the left knee and right ankle, derangement and synovitis of the right knee, and low back strain. Tr. 471. He concluded that "[f]rom an orthopedic point of view, [McKissick] has a moderate-marked disability" that made it difficult for her to stand, walk, or climb stairs, and that while she could "use her fingers for fine manipulation," she was not able "to sit long" or "do continuous bending, lifting or carrying objects heavier than 10 lbs." Id..
D. The ALJ's Decision
On October 7, 1998, ALJ Manuel Cofresi held an administrative hearing at which McKissick, who was represented by counsel, and Drs. Reiss and Siegel testified. Tr. 61-118. ALJ Cofresi issued his decision on December 29, 1998. Tr. 33-47. Following the outline of the evaluation process under 20 C.F.R. § 404.1520, ALJ Cofresi determined that McKissick had stopped working on May 29, 1997, the day before the surgery on her left knee. Tr. 37. He then found that McKissick had arthritis of the knees and right ankle which caused "significant vocationally relevant limitations" on her ability to work. Id.. However, he found that McKissick's ailments did not meet the criteria of any impairment listed in the regulations and that neither her treating nor examining physicians found that her problems were the equivalent to any of the listed impairments. Id.. ALJ Cofresi then found that despite her impairments McKissick "retains the capacity for sedentary work." Tr. 38.
To support this conclusion, ALJ Cofresi reviewed McKissick's medical record, including Dr. Goldman's treatment of McKissick, Dr. Seo's consultative exam, Dr. Patel's November 27, 1997 report, Dr. Schecter's consultative exam, and Dr. Reiss's testimony at the hearing, and he made several comments about their evaluations. Tr. 38-42. The ALJ used bold typeface and underlining for emphasis in his review. For example, he noted that Dr. Seo found that while McKissick "had some difficulty standing, walking, and carrying heavy objects, [she] could sit without much difficulty." Tr. 39. ALJ Cofresi also minimized Dr. Goldman's September 4, 1997 conclusion that McKissick was disabled because it was "in light of [her] current work cleaning airplanes, which entailed going up and down stairs and doing heavy cleaning." Tr. 40.
Unless otherwise indicated, all such emphasis in the quotations below are in the original.
ALJ Cofresi made clear that he placed little value on Dr. Schechter's opinions, for three reasons: (1) McKissick visited the doctor at the request of her lawyer in connection with her disability claim; (2) Dr. Schechter specialized in internal medicine, not orthopedics; and, (3) Schecter noted only that McKissick was disabled from performing her " usual occupation," and because Schecter noted that McKissick's last job was cleaning airplanes, his opinion did not rule out other work. Tr. 41-42. Finally, ALJ Cofresi rejected McKissick's own statements about her impairments because of the "discrepancies between [her] assertions and information contained in the documentary reports, the reports of the treating and examining practitioners, the findings made on examination, and the testimony of the impartial medical experts." Tr. 42.
Ultimately, ALJ Cofresi found that the "objective medical findings do not support the degree of severity that [McKissick] alleges." Tr. 43. Instead, he stated, even "her treating physician, Dr. Goldman . . . has never indicated that she could not work at all" and that McKissick would have only " intermittent discomfort." Id.. He therefore concluded that McKissick retained the ability to perform sedentary work which did not require heavy lifting. Tr. 43-44. While she could not return to either of her past jobs as cashier checker or airplane cleaner, she could find work as a check cashier. Id.. The ALJ made this conclusion based on the fact that McKissick had a high school education and, relying on Dr. Siegel's testimony, that she had obtained significant and transferable work skills from her prior job at the furniture company. Tr. 44. Because McKissick retained "the capacity to make an adjustment to work which exists in significant numbers in the national economy," she was "not disabled within the meaning of the Social Security Act." Tr. 45.
DISCUSSION
A. The Standard of Review
The role of a district court in reviewing the Commissioner's final decision is limited. "A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by `substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); see also 42 U.S.C. § 405 (g). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal quotations omitted). If substantial evidence supports the ALJ's findings, the decision is binding, Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), and this Court cannot "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) (internal quotations and citations omitted). However, in deciding whether the Commissioner's conclusions are supported by substantial evidence, the reviewing court must "first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purpose of the Act.'"Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of HEW, 463 F.2d 38, 43 (2d Cir. 1972)).
B. Establishing a Disability
"To receive federal disability benefits, an applicant must be `disabled' within the meaning of the Act." Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423 (a), (d). A claimant is "disabled" within the meaning of the Act when he can show an "inability 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." § 423(d)(1)(A). The impairment must be of "such severity that he 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." 42 U.S.C. § 423 (d)(2)(A).
Both the Commissioner and the courts of the Second Circuit use the same five-step regulatory analysis to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132 (citing the five steps with approval); Curry, 209 F.3d at 122 (same). First, the claimant must not currently be engaged in substantial gainful activity. 20 C.F.R. § 404.1520 (b). Second, the claimant must show a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities. 20 C.F.R. § 404.1520 (c). Third, the claimant must establish either that the impairment is listed in Appendix 1 of the regulations or that the impairment is equivalent to a listed impairment. 20 C.F.R. § 404.1520 (d). Fourth, if the impairment is neither listed in the Appendix nor the equivalent of an impairment listed in the Appendix, the claimant must show that he or she has no residual functional capacity to perform his or her past work. 20 C.F.R. § 404.1520 (e). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy which the claimant could perform. 20 C.F.R. § 404.1520 (f). The claimant has the burden of proving the first four steps; the Commissioner bears the burden of proof on the last step. Shaw, 221 F.3d at 132.
In making the required determinations, the Commissioner must consider (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and work experience. Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Further, the ALJ conducting the administrative hearing has an affirmative duty to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. 20 C.F.R. § 404.900 (b) (1999) (expressly providing that the SSA "conduct the administrative review process in an informal, nonadversary manner"); Sims v. Apfel, 530 U.S. 103, 110-11 (2000); Shaw, 221 F.3d at 134. Finally, "when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," it is appropriate for a court to reverse an ALJ's decision and order the payment of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).
McKissick and the ALJ part ways at steps four and five. At step four, ALJ Cofresi found that McKissick "retains a capacity for sedentary work," but because her past job as cashier checker at the furniture company required her "to stand or walk for four hours per day" and her most recent job cleaning airplanes required her "to lift more than 20 pounds or walk for prolonged periods," she could not go back to either job. Tr. 43. At step five, he found that, given her "age, educational background, work experience, and residual functional capacity," McKissick could "make a successful vocational adjustment" and find work as a check cashier. Tr. 45. McKissick contends that the ALJ erred in concluding that she retains a capacity for sedentary work and erred in concluding that she could perform the job of check cashier. Because ALJ Cofresi ignored the treating physician rule, misstated McKissick's medical record, and incorrectly evaluated the overwhelming evidence of disability, I agree.
1. The Treating Physician Rule
"The law gives special evidentiary weight to the opinion of the treating physician." Clark v. Commissioner, 143 F.3d 115, 118 (2d Cir. 1998). Specifically, the Social Security Administration regulations state:
Generally, we give more weight to opinions from your treating sources. . . . 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. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining what weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [a claimant's] treating physician's opinion.20 C.F.R. § 404.1527 (d)(2) and 416.927(d)(2). The factors that an ALJ must apply when a treating physician's opinion is not given controlling weight include: "(i) the frequency of the 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; (iv) whether the opinion is from a specialist; and (v) other relevant factors." Schaal, 134 F.3d at 496 (citing 20 C.F.R. § 404.1527 (d)(2) and 416.927(d)(2)).
McKissick had two treating physicians for the arthritis and pain in her legs, Drs. Patel and Dr. Goldman. Dr. Patel was McKissick's primary medical provider, and records of his consultations regarding McKissick's pain in both legs go back to 1996. On November 12, 1997, at the request of the Social Security Administration, Dr. Patel completed a summary report on McKissick's condition. There he confirmed that her current conditions included "severe pain" and that her movement was "severely restricted." Tr. 288-89. Based on his long experience with McKissick, Dr. Patel found that she was limited in each of four categories of physical abilities — lift and carry, stand and/or walk, sit, and push and/or pull — and in each category Dr. Patel reported the greatest restriction on McKissick's physical abilities: less than two hours per day of standing or walking and less than six hours per day of sitting. Tr. 290-91. In short, in no way did Dr. Patel consider McKissick able to perform even sedentary work.
McKissick's other treating physician was Dr. Goldman, to whom Dr. Patel referred McKissick in February 1997. Dr. Goldman, a specialist in the field of orthopedic surgery, saw McKissick almost every month over the following two years and twice operated on McKissick's legs. Dr. Goldman's notes confirm a constant condition of arthritis, pain and discomfort in her legs, and on three separate occasions he specifically found these made her completely and permanently disabled. On September 4, 1997, Dr. Goldman stated that "[f]rom an orthopedic standpoint, she is totally disabled." Tr. 303. A month later, following surgery on McKissick's right ankle, Dr. Goldman confirmed that McKissick "remains totally disabled." Tr. 304. Finally, on May 19, 1998, in his summary of his treatment of McKissick, Dr. Goldman again stated: "It is my opinion from an orthopedic standpoint that this patient has a permanent disability in terms of both knees and the right ankle and I anticipate that she will have intermittent discomfort in these areas." Tr. 327.
In sum, McKissick's treating physicians saw her on numerous occasions over the course of two years. Each submitted not only his records on each of McKissick's visits, but also comprehensive summaries and evaluations of McKissick's physical condition. Each independently concluded that the arthritis and pain in her legs severely limited McKissick's physical abilities and that she was totally disabled. At the time of the hearing, these independent conclusions were unequivocally supported by one consultative examining physician, Dr. Schechter, and later by another, Dr. Tambakis, and portions of their medical opinions were also supported by the Administration's own consultative, examining physician, Dr. Seo. One of the two treating physicians, Dr. Goldman, was even a specialist.
ALJ Cofresi accorded little weight to the opinions of either treating physician, and his reasons for doing so are insufficient. He dismissed Dr. Patel's conclusions for two reasons: (1) because Dr. Patel prepared his report in November 1997, two months after McKissick's ankle surgery; and (2) because Dr. Patel had not seen McKissick since he prepared the report. Tr. 40. Neither of these justifications addresses the merits of Dr. Patel's medical opinions. The first relates only to the timing of Dr. Patel's report, a factor that does not undermine in the slightest the strong evidence of disability Dr. Patel provided. The ALJ's second reason for disregarding Dr. Patel's opinions — that the doctor did not see McKissick after the report was prepared — lacks support both in logic and in the facts of the case. A treating physician's opinion does not lose its controlling weight simply because the relationship has ended. In any event, the ALJ was wrong: Dr. Patel continued to see McKissick not only through March 1998 — his notes attest to her continuing leg problems — but at least until 2000, when Dr. Patel referred McKissick to a hand surgeon for surgery on her right hand. Tr. 335, 472.
The ALJ's treatment of Dr. Goldman's opinion is even more problematic. Twice the ALJ stated that Dr. Goldman's September 4, 1997 conclusion that McKissick was totally disabled was related only to her work as an airplane cleaner, and thus was wholly irrelevant to whether McKissick could perform sedentary work. But Dr. Goldman did not so qualify his conclusion in the September 4, 1997 report. It is true that he referenced McKissick's job as an airplane cleaner in the sentence before his concluding statement in that report, but his finding was not explicitly limited to that work, and I see no justification for the ALJ's strained effort to so limit it.
The ALJ wrote that Dr. Goldman "opined that in light of the claimant's work cleaning airplanes. which entailed going up and down stairs and doing heavy cleaning, she was disabled from an orthopedic standpoint." Tr. 40 (emphasis added). Later, the ALJ wrote that Dr. Goldman's September 4, 1997 report found that "she could not perform the exertional requirements of her past work because of heavy lifting and having to negotiate the stairs." Tr. 43 (emphasis added).
The final two sentences of the one-page report read: "In addition, she works for Triangle Service cleaning airplanes and has to walk up and down stairs and do heavy cleaning. From an orthopedic standpoint at this time, she is totally disabled." Tr. 303.
Moreover, Dr. Goldman's other reports confirm that it was his medical opinion that McKissick was totally disabled, regardless of her most recent job. Indeed, he consistently reaffirmed that it was his medical judgment that she was completely and totally disabled, without reference to her past employment. On the same day as the September 4 report, Dr. Goldman in a form letter marked that McKissick was "totally disabled;" his October 1997 interview report stated that McKissick "remain[ed] totally disabled;" and his May 1998 narrative summary stated that McKissick was "totally disabled" and has a "permanent disability." Tr. 304, 327. Not one of these opinions mentions her former jobs.
The ALJ misstated Dr. Goldman's records in other ways. He sought to minimize Dr. Goldman's medical opinion because he said Dr. Goldman encouraged McKissick to bicycle, swim, and use the Stair Master "for conditioning." Tr. 43. Dr. Goldman's notes do indicate that in two consecutive appointments with McKissick, on November 11, 1997 and January 31, 1998, Dr. Goldman encouraged her to "continue on a physical therapy program" and "to continue to avoid ballistic/percussive type of activities, such as volleyball and aerobics, and to participate in activities such as swimming, bicycling, and use of a Stair Master." Tr. 328, 329. On their face, these recommendations appear casual and gratuitous: McKissick's record does not contain any evidence that she — a women in her late 50s who had just had two surgeries on and consistently complained of intense pain and swelling in her legs — had been playing volleyball or doing aerobics, or that she was about to make the switch to a Stair Master. Nor did Dr. Goldman at any point suggest that these activities were "for conditioning." And even if Dr. Goldman thought that McKissick might, in November 1997 and January 1998, benefit from these limited forms of "physical therapy" — not "conditioning" — he still explicitly found four months later that McKissick suffered from a "permanent disability." Tr. 303.
Finally, as though it were additional support to reject Dr. Goldman's finding of complete disability, the ALJ highlighted that Dr. Goldman concluded that McKissick would only "have intermittent discomfort" in her legs. Tr. 43. Yet again, just as Dr. Goldman did not qualify his medical opinion based on McKissick's past employment, he did not qualify his conclusion that McKissick "has a permanent disability in terms of both knees and the right ankle" because "she will have intermittent discomfort in these areas." Rather, Dr. Goldman said, in full: "It is my opinion from an orthopedic standpoint that this patient has a permanent disability in terms of both knees and the right ankle and I anticipate that she will have intermittent discomfort in these areas." Tr. 327 (emphasis added). Furthermore, the ALJ's apparent belief that "intermittent" bouts of arthritic "tenderness," "swelling," "stiffness," "cracking," "exquisite discomfort " and "persistent pain" are insufficient to support a finding of a permanent disability was wrong. Tr. 324-27. The fact that a person may gain some occasional relief from significant pain and discomfort does not preclude a finding of permanent disability, particularly by a treating physician who has twice operated on the patient within the past two years and had the opportunity to examine the patient on innumerable occasions. See Chuckman v. Apfel, 1999 WL 890902, at *6 (E.D.N.Y. Sept. 4, 1999) (noting that an intermittent mental disorder could be of sufficient seriousness to limit a person's ability to work).
Instead of following the treating physician rule and giving both Dr. Patel's and Dr. Goldman's medical opinions "special evidentiary weight," the ALJ improperly, and without sufficient basis, found fault with and explained away their judgments. Clark, 143 F.3d at 118. While this alone might warrant only a remand of the case for further proceedings, see Hidalgo v. Bowen, 822 F.2d 294 (2d Cir. 1987), the rest of the record overwhelmingly supports the treating physicians' conclusions that McKissick was totally disabled, and thus the only appropriate remedy is a remand for the sole purpose of calculating McKissick's benefits. Parker, 626 F.2d at 235.
2. Other Substantial Evidence of Disability
A treating physician's opinion is entitled to controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 404.1527 (d)(2) and 416.927(d)(2). Here, the ALJ did not state that he disregarded the opinions of the treating physicians either because they were not well-supported or because they were inconsistent with the other evidence in the case. Rather, as described above, he minimized their medical conclusions by casting doubt on the timing of Dr. Patel's evaluation and mischaracterizing Dr. Goldman's reports. In any event, a review of the record reveals that it provides substantial support to their opinions that McKissick is disabled.
First, Drs. Patel and Goldman were not the only doctors to conclude that McKissick was disabled. The ALJ also rejected the testimony of Dr. Schechter, an internist who examined McKissick at the request of her lawyer in May 1998. Dr. Schechter confirmed Dr. Patel's and Dr. Goldman's conclusions that McKissick was "totally and permanently disabled," and he also completed a residual functional capacity form that is virtually identical to the one prepared by Dr. Patel. Tr. 322-23. Dr. Schechter's form also indicated that McKissick could neither sit nor stand and walk for more than two hours per day, and thus she could not perform even sedentary work. Tr. 322-23. Although Dr. Schechter's conclusions supported those of McKissick's treating physicians, the ALJ found them "to be of limited probative value," in part because he found McKissick was "disabled from performing the duties of her usual occupation," so he "did not intend to rule out other, lighter work." Tr. 41-42.
Here again, the ALJ erred by mischaracterizing — and limiting — a finding of disability. Specifically, the ALJ wrote:
Dr. Schechter opined that the claimant was disabled from performing the duties of her usual occupation. In his report, the doctor makes note of the claimant's last job. Thus, the Administrative Law Judge draws inference [sic] that Dr. Schechter found the claimant unable to perform only her past work as an airplane cleaner and did not intend to rule out other, lighter work. Tr. 42 (emphasis added).
It is true that Dr. Schechter noted on the second page of his report that McKissick had been working as an airplane cleaner. Tr. 319. However, that hardly supports an inference that when he wrote (two pages later) that she was "totally and permanently disabled from performing the duties of her usual occupation," he was suggesting that McKissick could perform sedentary work. Tr. 321. To the contrary, the rest of Dr. Schechter's letter and his "residual functional capacity form" indicate that Dr. Schechter did not believe that McKissick could perform such work. They show that she had "chronic severe arthritis in the knees and ankles," that she "finds it very difficult to sit for prolonged periods of time," and that she could only sit and stand or walk for "0-2" hours per day. Tr. 319, 320, 322. Dr. Schechter's individual statements, his reports as a whole, and McKissick's medical record in its entirety all contradict the ALJ's "inference" that Dr. Schechter thought McKissick could perform sedentary work.
The ALJ should have given more weight to the medical opinion of Dr. Schechter, who personally examined McKissick in May 1998 and confirmed the evaluations of McKissick's two treating physicians. See 20 C.F.R. § 404.1527 (d)(1) and (4). While the facts that Dr. Schechter was consulted in connection with McKissick's disability claim and was not a specialist in orthopedic surgery may be among the appropriate factors in determining the weight of a consultative, examining physician, see Id., the ALJ was incorrect to grant Dr. Schechter's opinion "little probative value" for these reasons.
In rejecting the medical opinions of McKissick's two treating physicians and Dr. Schechter, the ALJ instead chose to rely on the conclusions of Dr. Seo and Dr. Reiss. Dr. Seo, a general surgeon, examined McKissick on August 15, 1997. He found various indications of pain and swelling in her legs, but he concluded that while McKissick had some difficulty standing and walking, she was able to sit without difficulty and lift and carry approximately fifteen pounds. Tr. 248. Even though Dr. Seo's ultimate prognosis for McKissick was "GUARDED," the ALJ relied heavily on his examination when he found that McKissick could perform "sedentary work, or work which is generally performed while sitting and never requires lifting in excess often pounds." Tr. 43.
It is hard to understand why the ALJ credited Dr. Seo's opinion after dismissing the opinions of McKissick's treating physicians and Dr. Schechter. The ALJ ignored Dr. Patel's conclusion because Dr. Patel prepared his report two months after McKissick's ankle surgery and had not (the ALJ thought) seen McKissick since. Yet Dr. Seo saw McKissick only once, six weeks before she had ankle surgery and several months before both of her treating physicians and Dr. Schechter concluded she was permanently disabled. If any of the examinations were untimely, it was Dr. Seo's, not Dr. Patel's. Similarly, in dismissing the testimony of Dr. Schechter, the ALJ noted that Dr. Schechter did not specialize in orthopedics. But Dr. Seo was not a specialist either. Nevertheless, the ALJ credited Dr. Seo's opinion with regard to McKissick's capacity to sit.
While he chose to rely on part of Dr. Seo's assessment, the ALJ had to ignore other portions of Dr. Seo's conclusions about McKissick's ability to stand and walk in order to support his own ultimate conclusion that McKissick could still perform sedentary work. Dr. Seo wrote in August 1997: "Presently, [McKissick] is able . . . to stand approximately 15 minutes [and] able to walk a few blocks and able to lift and carry approximately 15 pounds." Tr. 248. Nevertheless, the ALJ concluded that "the evidence supports a finding that she is "able to . . . stand or walk for 2 hours of any 8 hour work day with appropriate rest periods." Tr. 43. Dr. Seo's own report undermines the ALJ's findings about McKissick's residual functional capacity.
There is insufficient support in the record for the ALJ's conclusions about McKissick's ability to stand and walk. of course, neither of her treating physicians nor Dr. Schechter reported that McKissick could stand and walk so easily, and at the hearing McKissick stated that she "could stand if — like an hour [but that] I have to sit and stand and sit and stand" and "walk maybe half a block." Tr. 76. All of these statements are also consistent with Dr. Seo's report. In fact, the only support the ALJ noted for his conclusions about this aspect of McKissick's residual functional capacity was the testimony of Dr. Robert Reiss.
At the hearing, Dr. Reiss, a non-examining orthopedic surgeon, stated that McKissick's "medical record testified" that she was not so limited in her ability to walk or stand. Tr. 90-91. In his report, the ALJ noted that this "expert witness testified that [McKissick's] subjective complaints are inconsistent and disproportionate with the objective record." Tr. 42. Here again, it is not clear why the ALJ would credit the testimony of Dr. Reiss, who never personally examined McKissick, 20 C.F.R. § 404.1527 (f), especially if he dismissed Dr. Patel's evaluations because he thought (incorrectly) that Dr. Patel had not examined McKissick recently. Yet even still, the testimony of one non-examining physician "by itself does not constitute evidence sufficient to override the treating physician's diagnosis," let alone the evaluations of two treating physicians and two examining consultative physicians, one of whom examined McKissick at the behest of the Administration. Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Cir. 1987); see Havas v. Bowen, 804 F.2d 783, 786 (2d Cir. 1986). Dr. Reiss's testimony, standing alone, is not sufficient evidence to reject the consistent opinions of the other doctors that McKissick could not perform sedentary work.
Although the ALJ did not indicate specifically that he relied on the two physical residual functional capacity assessment forms contained in the record, Tr. 250-57; 258-65, he did state that McKissick's statements were not credible because of discrepancies between her assertions and, among other things, "information contained in the documentary reports." Tr. 42. If the ALJ did in fact rely on these assessment forms, he erred in doing so. First, neither of the forms is clearly signed or dated. Second, both forms indicate that none of the records from either of McKissick's treating physicians were contained in her files. Tr. 256, 264. Finally, if any of these statements had been in McKissick's file, the consultants who completed them would have had to explain the most significant problem with the forms — the fact that their conclusions are so grossly divergent from all the other physicians in the case. Id.. In fact, the forms even contradict themselves. In one form, McKissick's physical limitations were listed as insignificant: she allegedly could lift up to 10 pounds frequently, sit, stand, or walk for 6 hours per day, and easily push and pull objects with both her upper and lower body; she simply could not climb stairs, balance, or crawl. Tr. 251-52. In the other form, McKissick was apparently limited to standing or walking for between two and six hours per day, but she could still sit for six hours, push or pull anything with ease, and she even need not avoid the hazards of climbing stairs, balancing, or crawling. Tr. 259-60.
The purpose of the treating physician rule is that it places a thumb on the scale in favor of the medical opinion of treating physicians in close cases, where different physicians reach different conclusions.Brown v. Barnhart, 2002 WL 603044, at *3 (E.D.N.Y. April 15, 2002). This is not a close case. Rather, the overwhelming bulk of evidence in the case, including several separate evaluations by treating as well as consultative examining physicians, supports the conclusion that McKissick was totally and permanently disabled due to the pain and physical handicaps associated with the arthritis in both of her legs. Far from being "not inconsistent with the other substantial evidence in [the] case record," the opinions of both Dr. Patel and Dr. Goldman were fully supported by McKissick's medical record. 20 C.F.R. § 404.1527 (d)(2) and 416.927(d)(2).
Because McKissisck's complete medical record confirms the opinions of her treating physicians that she was totally and permanently disabled and incapable of performing even sedentary work, there is no point in remanding the case to back to the ALJ for further proceedings. See Parker, 626 F.2d at 235.
Since the ALJ did not heed the treating physician rule and there is overwhelming evidence to support the conclusions of McKissick's treating physicians that she was totally disabled and incapable of performing even sedentary work, there is no need to review the ALJ's decision at step five that McKissick could work as a check cashier. Tr. 45. Nevertheless, in this regard the ALJ made two conclusions that are also problematic: (1) that McKissick had graduated from high school; and (2) that she had sufficient transferable skills, at the age of 59 and with her significant disability, to make a successful adjustment to a new job. The record reveals significant confusion on the subject of McKissick's level of education, yet the ALJ failed to investigate the subject. Tr. 46, 65-66. The ALJ also relied on the vocational expert's determination that McKissick had gained transferable "skills," including "the ability to meet people and record information," in concluding that she could find employment as a receptionist or check cashier "with minimal adjustment." Tr. 44. However, to shift a disabled worker over the age of 55 to skilled sedentary work, there may only be a "very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry." 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 201.00(f); see Thorton v. Hecker, 609 F. Supp. 1185, 1189-90 (E.D.N.Y. 1985). Because McKissick lacks "special skills," has a "limited education," and is of advanced age, each a "factor which significantly limits vocational adaptability," I do not believe the ALJ could carry his burden at step five that McKissick's adjustment would be nominal at best. 20 C.F.R. Part 404, Subpart P. Appendix 2, Section 201.00(c). In any event, because the ALJ so erroneously evaluated the medical opinions of McKissick' s treating physicians and the overwhelming evidence in her medical record supporting their opinions that McKissick was permanently disabled, step five is irrelevant.