Opinion
00 Civ. 3940 (JGK).
November 18, 2001
OPINION AND ORDER
The plaintiff, Melania Medina, brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405 (g), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner, prior to filing an answer, has moved to remand this case for further administrative proceedings pursuant to sentence six of 42 U.S.C. § 405 (g), which permits such a remand for "good cause shown." The plaintiff has filed a cross-motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The Commissioner argues that the record requires further development, specifically, that the opinion of the plaintiff's treating physician must be reevaluated. The plaintiff argues that the record is sufficiently developed, that the plaintiff has made a prima facie showing of disability, and that the Commissioner's decision that the plaintiff is not entitled to Social Security Disability Insurance Benefits ("DIB") under Title II of the Act because she is not disabled within the meaning of that program is not supported by substantial evidence. The plaintiff seeks a reversal of the Commissioner's decision and a remand for calculation of benefits.
After considering the sworn testimony of the plaintiff and a medical expert, Dr. Albert G. Mylod, Jr., as well as reviewing the records submitted, on January 19, 1999 Administrative Law Judge ("ALJ") Joseph K. Rowe found that the plaintiff was not entitled to benefits (R. at 11-21). The ALJ determined that the plaintiff was unable to perform her past relevant work as a cafeteria worker, but retained residual functional capacity ("RFC") to perform the full range of light work and was not disabled (R. at 20). When, on March 28, 2000, the Appeals Council of the Social Security Administration denied the request to review the ALJ's decision (R. at 7), the ALJ's determination became the final decision of the Commissioner. This appeal followed.
I
Melania Medina was born in Santo Domingo, Dominican Republic, on May 7, 1949 (R. at 31). She attended school up to the third or fourth grade and then came to reside in the United States in 1986 (Id.). She cannot speak or communicate in English (Id.). She was employed by Culinart, Inc. (R. at 137) in a cafeteria from 1986 until 1996 (R. at 38). On February 22, 1996, while at work, she slipped on the floor and fell on her back (R. at 34-35, 40). The plaintiff testified that this accident resulted in two displaced discs and pain in her back, legs, hip and shoulders (R. at 35). She stopped working in May of 1996, on the advice of a doctor (R. at 41). She has been treated by two physicians: Dr. Aerie Rim from May to June 1996 (R. at 36), and Dr. Eduardo Belandria thereafter (R. at 35). On July 16, 1996, Dr. Belandria diagnosed the plaintiff with a herniated disc, locating it variously at L5-S1 (R. at 131), L4-L5 (R. at 190-91) and L3-L4 (R. at 193). An MRI in August suggested that the primary disc problem was at L3-L4 (R. at 135). Dr. Belandria also found various limitations of movement because of the injury (R. at 143-46). Dr. Irving Etkind, who examined the plaintiff on behalf of an insurance company on September 16, 1996, found fewer limitations on movement, and credited these to a "resolving lower back sprain" (R. at 138-39).
Dr. Antonio Y. De Leon, who examined the plaintiff on March 10, 1997, found only a slight limitation on other work-related activities due to the injury and resulting pain (R. at 149). A subsequent examination by Dr. Etkind on June 24, 1997 found that the plaintiff had a normal range of motion in her back with no restrictions or neurological signs, and concluded that there was resolved low back sprain (R. at 203).
On December 12, 1996 the plaintiff filed an application for DIB on the basis of orthopedic injuries and limitations as a result of the accident, stating that she became unable to work due to these injuries on May 10, 1996 (R. at 100, 103). She filed an amendment to the application on February 11, 1997, correcting the date of onset to May 13, 1996 (R. at 104). Her application for DIB was denied on April 11, 1997 (R. at 65-67). A request for reconsideration was filed on May 1, 1997 (R. at 68), and denied on June 17, 1997 (R. at 71-73). The plaintiff thereafter requested a hearing before an Administrative Law Judge. After the hearing on November 4, 1998 (R. at 28-62), at which medical expert Dr. Mylod testified that he could not correlate the plaintiff's subjective complaints with the objective findings in the medical records (R. at 47), and that the plaintiff could do "sedentary work" (R. at 46) and "light work" (R. at 60), ALJ Rowe determined that the plaintiff was not entitled to DIB because she was not under a disability within the meaning of the Act (R. at 20). In making the determination, the ALJ noted Dr. Belandria's inconsistency in the diagnosis as "an error [that] would certainly not add . . . weight" to Dr. Belandria's opinion (R. at 15). While the ALJ concluded that the plaintiff had established that she had severe impairments that prevented her from performing her past relevant work as a cafeteria worker, he also concluded that she had the residual functional capacity to do light work and was not disabled (R. at 20).
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties." 20 C.F.R. § 404.1567 (a).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567 (b).
The Appeals Council denied the plaintiff's request for review of the ALJ's decision on March 28, 2000 (R. at 7), and the ALJ's determination became the final decision of the Commissioner.
II (A)
The Commissioner contends that the case should be remanded for further administrative proceedings to develop the record. The Commissioner concedes that the ALJ erred in giving too much weight to the inconsistencies in the records of the treating physician, Dr. Belandria, and that the ALJ should have further explored the facts from the doctor. The plaintiff contends that remanding would achieve no purpose, because the record is complete; that the Commissioner's decision was not based on substantial evidence; and that, therefore, the Commissioner's decision should be reversed and the case remanded solely for calculation of benefits.
The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner, which set forth a five-step inquiry.See 20 C.F.R. § 404.1520 (evaluation of disability for DIB); see also 20 C.F.R. § 416.920 (same evaluation of disability for Supplemental Security Income benefits). The Court of Appeals for the Second Circuit has described this five-step process 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 capacity 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 I 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 which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citation omitted); see also Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999);Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
The claimant bears the initial burden of proving that she is disabled within the meaning of the Act. See 42 U.S.C. § 423 (d)(5); see also Shaw, 221 F.3d at 132; Maier v. Chater, No. 95 Civ. 9264, 1997 WL 570938, at *3 (S.D.N.Y. Sept. 5, 1997); Agovino v. Chater, No. 94 Civ. 8740, 1997 WL 153829, at *3 (S.D.N.Y. Apr. 2, 1997); Reyes v. Sec'y of Health and Human Servs., 807 F. Supp. 293, 298 (S.D.N.Y. 1992). This burden encompasses the first four steps described above. See Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). If the claimant satisfies the burden of proof through the fourth step, she has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step. See id. at 722-23; see also Infante v. Apfel, No. 97 Civ. 7689, 2001 WL 536930, at *4 (S.D.N.Y. May 21, 2001) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)).
(B)
In the present case, the ALJ undertook the appropriate sequential inquiry. He found that the claimant had not engaged in substantial gainful activity since May 13, 1996 (R. at 14), and that the medical evidence supported the conclusion that the plaintiff had severe impairments (R. at 14-15). These impairments, however, did not meet or equal the medical criteria of any condition described in the Listings of Impairments (R. at 15). The ALJ found that the plaintiff was capable of all work-related activities except those requiring her to lift more than 20 pounds occasionally, or 10 pounds frequently (Id.), making her "capable of the full range of `light' work" (R. at 19). Given the physical requirements of her previous work, however, she was unable to perform her past relevant work (Id.). Proceeding to step five of the analysis, the ALJ resorted to the Medical-Vocational Guidelines (specifically 20 C.F.R. § 404, Subpart P, Appendix 2, Regulation 4, Rule 202.16) and found that the plaintiff's residual functional capacity, age, education and work experience directed a finding of "not disabled" through the date of the decision (Id.).
III
The Commissioner moves for a remand for further administrative proceedings pursuant to 42 U.S.C. § 405 (g). In Shalala v. Schaefer, 509 U.S. 292, 296 (1993), the Supreme Court explained that the "exclusive methods" by which district courts may remand a case to the Commissioner are set forth in sentence four and sentence six of 42 U.S.C. § 405 (g). Sentence four provides:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.42 U.S.C. § 405 (g). Sentence six provides:
The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .Id. See Melkonyan v. Sullivan, 501 U.S. 89, 97-98 (1991) (discussing the two types of remand); Sullivan v. Finkelstein, 496 U.S. 617, 624-27 (1990) (same); Almonte v. Apfel, No. 96 Civ. 1119, 1998 WL 150996, at *9 (S.D.N.Y. Mar. 31, 1998) (same).
Thus, sentence four "permits the district court to remand in conjunction with a judgment affirming, modifying, or reversing the Commissioner's decision . . . ." Raitport v. Callahan, 183 F.3d 101, 103 (2d Cir. 1999) (per curiam). A remand under this sentence constitutes part of the final judgment disposing of the action. See Finkelstein, 496 U.S. at 625; Raitport, 183 F.3d at 104.
In contrast, a remand pursuant to sentence six does not entail a final ruling on the Commissioner's decision. See Raitport, 183 F.3d at 104. Sentence six remands can be granted in only two situations: 1) where the Commissioner requests a remand for good cause before answering the complaint; or, 2) "where new, material evidence is adduced that was for good cause not presented before the agency." Schaefer, 509 U.S. at 297 n. 2. A remand under section six is an interlocutory decision and non-appealable because the district court retains jurisdiction over the action for further development and consideration by the ALJ. See Raitport, 183 F.3d at 104.
In determining whether this case should be remanded under sentence six for good cause pursuant to the Commissioner's motion filed before an answer, it is useful to employ the standards that the Court of Appeals has developed under sentence four in deciding whether a case should be remanded to the Commissioner. Under sentence four, the Court of Appeals has declined to affirm or reverse a decision of the Commissioner, remanding instead for further development of the record "[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard." Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); see also Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996); Almonte, 1998 WL 150996, at *9. Courts have declined to remand if the record shows that a finding of disability is compelled and only a calculation of benefits remains. See Schaal, 134 F.3d at 504 ("Where application of the correct legal standard could lead only to one conclusion, we need not remand"); Parker, 626 F.2d at 235 ("[W]e have reversed and ordered that benefits be paid when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose") (citing Gold v. Sec'y of HEW, 463 F.2d 38, 44 (2d Cir. 1972)). Conversely, "[I]f . . . the record would permit a conclusion by the [Commissioner] that [the] plaintiff is not disabled, the appropriate remedy is to remand for further proceedings rather than for calculation of benefits." Rivera v. Sullivan, 771 F. Supp. 1339, 1359 (S.D.N.Y. 1991); see also Luna de Medina v. Apfel, No. 99 Civ. 4149, 2000 WL 964937, at *3 (S.D.N.Y. July 12, 2000) ("[A] district court may itself determine disability and award benefits only if, upon review of the administrative record, `application of the correct legal standard could lead to only one conclusion.'") (quotingSchaal, 134 F.3d at 504).
In this case, the Commissioner has moved, before answering the complaint, for a remand pursuant to sentence six for alleged good cause. The Commissioner argues that there was error in the ALJ's determination because he applied an incorrect legal standard in weighing the opinion of the treating physician. According to the regulations, the Commissioner gives controlling weight to the opinion of a treating source if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527 (d)(2). The regulations also require that the Commissioner "give good reasons in [the] notice of determination or decision for the weight [given the] treating source's opinion." Id. The ALJ found that Dr. Belandria's opinion was undermined by his inconsistent references to the location of the plaintiff's impairment (R. at 15). The Commissioner acknowledges that, rather than focusing on this inconsistency as undermining the opinion, the ALJ should have sought additional information from Dr. Belandria as the treating physician in order to give appropriate weight to the opinion of the treating physician.
Under the regulations, however, the ALJ does not necessarily give controlling weight to the treating physician's opinion. In determining the weight to give such an opinion, the ALJ must look at various factors, including the evidence in support of the opinion and the opinion's consistency with the record as a whole. Id.; see also Schaal, 134 F.3d at 503-04. Thus, the opinions of other doctors cannot be ignored even though they were not treating physicians. The record contains the opinions of other examining doctors, such as Dr. Etkind and Dr. De Leon, who disagree with the opinion of Dr. Belandria. Moreover, the expert medical consultant, Dr. Mylod, concluded that the plaintiff could do light work and noted that the tests performed on the patient did support a problem in the L3-L4 area, but were not consistent with ongoing nerve damage in the area. (R. at 42-44). Thus, looking at the record as a whole, it cannot be said that only a conclusion of disability was possible. Thus, the Commissioner has shown good cause for the further development of the record before the Commissioner, and for a remand under sentence six to develop that record.
The plaintiff urges that, because she has made a prima facie showing of disability (carrying her burden on steps one through four), further administrative proceedings would serve no purpose, so the Court should grant her cross-motion for judgment on the pleadings, reverse the Commissioner's decision, and remand solely for calculation of benefits. The plaintiff argues that the Commissioner has had ample time to develop the record during the previous administrative proceedings.
A court may set aside a determination by the Commissioner only if it is based on legal error or is not supported by substantial evidence in the record. See Berry v. Schweicker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is "more than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal punctuation omitted) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Shaw, 221 F.3d at 131; Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995).
The error committed in the present case was the application of the wrong legal standard in weighing the evidence of the treating physician. This type of error makes the case appropriate for remand. See Parker, 626 F.2d at 235. Moreover, because of the conflicting medical opinions reflected in the record, it cannot be said that the decision was not supported by substantial evidence, or that the record compels a finding of disability. Even application of the correct legal standard to Dr. Belandria's testimony will not necessarily result in a reversal of the ALJ's original decision, because "[a] treating physician's statement that the claimant is disabled cannot itself be determinative." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Because "the record would permit a conclusion by the [Commissioner] that plaintiff is not disabled, the appropriate remedy is to remand for further proceedings rather than for the calculation of benefits." Rivera, 771 F. Supp. at 1358. Therefore, the plaintiff's cross motion for judgment on the pleadings is denied.
Conclusion
For the reasons explained above, the defendant's motion for remand for further administrative proceedings pursuant to sentence six of 42 U.S.C. § 405 (g) is granted and the plaintiff's cross-motion for judgment on the pleadings is denied. This case is remanded to the Commissioner for further administrative proceedings consistent with this Opinion and Order.
SO ORDERED.