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remanding to a new ALJ because of animosity between the ALJ and claimant's attorney, as well as the ALJ's lack of sensitivity
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00 CV 6277 (SJ)
March 28, 2002
LANSNER KUBITSCHEK New York, New York 10007 By: Carolyn A. Kubitschek, Esq. Attorneys for Plaintiff.
ALAN VINEGRAD, ESQ. United States Attorney Eastern District of New York Brooklyn, N.Y. 11201 By: Paul Kaufman, Esq. Assistant U.S. Attorney Attorneys for Defendant.
MEMORANDUM ORDER
Carmelo Ocasio ("Plaintiff') brought the above-captioned action for review of the determination by the Commissioner of Social Security ("the Commissioner" or "Defendant") that Plaintiff was not entitled to disability insurance benefits ("benefits") under the Social Security Act ("the Act"). Presently before the Court are Defendant's and Plaintiffs Motions for Judgment on the Pleadings. Having carefully reviewed the administrative record and the briefs of both parties, the Court finds that the Commissioner's findings are not supported by substantial evidence. Accordingly, the Court grants Plaintiffs motion to vacate the Commissioner's Decision and remands the case for further proceedings by the Social Security Administration ("SSA").
PROCEDURAL BACKGROUND
Plaintiff filed applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on October 13, 1995, alleging disability due to diabetes and diabetes-related conditions. His applications were denied initially on January 2, 1996, and on request for reconsideration, on March 22, 1996 for SSI, and on March 26 for DIB, upon the finding that Plaintiff was able to perform light work. Plaintiff requested a hearing before an administrative law judge ("the ALJ"), which was held on March 13, 1997. The ALJ, Joseph Rowe, found that Plaintiff was not disabled. The April 16, 1997 decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied Plaintiffs request for review on June 9, 1998.
Plaintiff first appealed that decision to federal district court on July 17, 1998. The parties stipulated to a voluntary remand to the Social Security Administration on May 10, 1999. Plaintiffs second administrative hearing on June 12, 2000, was also before ALJ Joseph Rowe. Again, the ALJ found that Plaintiff was not disabled. Plaintiff commenced this second action in federal court on October 19, 2000. Both sides have now moved for summary judgment on the pleadings. Defendant requests that the Court affirm the final decision of the Commissioner. Plaintiff opposes that motion and requests that the Court reverse the Commissioner's decision and direct Defendant to award benefits, or in the alternative, to remand the matter for a new hearing before a different ALJ. Plaintiff also requests reasonable attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d).
DISCUSSION
I. Standard for Eligibility for Disability Benefits
To be eligible for Social Security disability benefits under the Act, a claimant must show that he or she suffers from a medically determinable physical or mental impairment of such severity that he or she is unable to engage in substantial gainful activity, given the claimant's age, education, and work experience. 42 U.S.C. § 423 (d); 42 U.S.C. § 1382c(a)(3)(A) — (B). The Secretary of Health and Human Services has promulgated a five-step process for the Commissioner of Social Security to follow in evaluating disability claims. See 20 C.F.R. § 404.1520. First, the Commissioner determines whether the claimant is presently engaged in substantial gainful activity. If he or she is not employed, the Commissioner then determines whether the medical evidence indicates that the claimant has a severe impairment. If the claimant has such an impairment, the Commissioner then determines whether it meets or equals the criteria of an impairment that is listed in 20 C.F.R. Subpart P. Appendix 1 ("Appendix 1"). If the impairment meets or equals a listed impairment, the claimant will be found disabled. However, if the claimant does not have a listed impairment, the fourth step requires the Commissioner to determine if, notwithstanding the impairment, the claimant is capable of performing his or her past relevant work. Finally, if the claimant is not capable of performing the past relevant work, the fifth step requires that the Commissioner determine whether the claimant is capable of performing other work which exists in the national economy, considering the claimant's age, education, past work experience, and residual functional capacity, and based on a series of charts provided in the Health and Human Services regulations contained in 20 C.F.R. § 404, Subpart P, Appendix 2. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). In order to prove the existence of a disabling impairment, the claimant must demonstrate an impairment or impairments which are "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423 (d)(3).
II. Standard for Review of the Commissioner's Decision
The Social Security Act states that "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405 (g). This Court is thus not empowered to conduct a de novo review and must give deference to the Commissioner's fact-finding. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Absent an erroneous application of law by the Commissioner, the Court may review the factual findings of the Commissioner only to determine if the administrative record contains substantial evidence to support such findings. 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." Richardson v. Perales, 402 U.S. 389, 401 (1971).
III. The Findings of the Administrative Law Judge
Unfortunately, the second administrative hearing seems to have been marred by the apparent mutual antipathy of the ALJ and Plaintiffs attorney at the time, which spilled out into the hearing and permeated the ALJ's final decision. Nonetheless, the ALJ's opinion does apply the five-step process for review of Social Security disability claims and gives some limited explanation for his findings.
The ALJ repeatedly accused Plaintiffs counsel of failing to develop the record, at the hearing (R. at 190-91, 193, 256), and in his decision (R. 164, 165, 167); made sarcastic comments ("Gee that's wonderful") (R. at 191); questioned her qualifications (R. at 164, 239); and cut off her questioning of Dr. Plotz (See fn. 5).
First, the ALJ found that Plaintiff has not been engaged in substantial gainful activity since October 18, 1990, the alleged onset date. The ALJ found that Plaintiff did have severe physical impairments consisting of insulin-dependent diabetes mellitus and related conditions and essential hypertension, and a severe mental impairment with anxiety, depression, and history of substance abuse, now in remission. However, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in or medically equal to one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), including Listings 8.09 and 4.04. At the fourth step, the ALJ found that Plaintiff was not physically able to perform any of his past relevant work. Finally, he found that, despite Plaintiffs physical and mental impairments, he has the residual functional capacity to perform work-related activities for a reduced range of light work and sedentary work. The ALJ used the SSA's Medical-Vocational Guidelines ("the Grids") to determine that "a significant number of jobs do exist which Mr. Ocasio can perform on a sustained basis and amounting to substantial gainful activity." (Administrative R. at 172.) The ALJ did not list any of these jobs or categories.
The ALJ based his findings upon his analysis of Plaintiffs testimony at the hearing, the testimony of two medical experts working as consultants for the SSA, and the medical reports submitted by Plaintiffs counsel and requested by subpoena from Woodhull Hospital. (R. at 165.) The ALJ also reviewed a summary of the medical records submitted after the hearing by Dr. Jeffery Katz, a physician retained by Plaintiffs counsel to independently analyze the medical records.
Plaintiffs wife, Aleita Ocasio also testified at the hearing, but the ALJ seems not to have considered her testimony.
IV. Evidence Presented
A. Plaintiffs Testimony
Plaintiff claims that he is incapable of working as a result of his physical and mental impairments. In his application for SSI/DIB he indicated that he gets dizzy and weak and has poor circulation and pains in his legs, and "feelings of numbness every day due to the diabetes." (R. at 80.) At the second administrative hearing, he discussed his diabetes, including two hospitalizations, regular check-ups, and daily insulin shots. He also complained of pains, swelling, and ulcers in his legs and nausea caused by the pain medication he was taking; hypertension; poor vision; and depression and anxiety. (R. at 202-211.). He testified that his doctors had told him that these ailments were related to his diabetes. (R. at 236.) Plaintiff also testified to a family history of diabetes, including his father's death from diabetes-related liver failure, two uncles who had amputations as a result of diabetes, and his mother who also suffers from the disease. (R. at 219-20.) Upon further questioning by his attorney, Plaintiff also testified that he suffers from shortness of breath and arthritis.
Plaintiff also testified to his daily functioning. He indicated that he can partially stretch his arms and hands out, but cannot make a fist. (R. at 216.) He testified that he uses public transportation, does not drive, and cannot walk more than two blocks without getting numbness or tingling in his legs. (R. at 217,220.) He testified that he cannot bend or make pushing or pulling motions, and that he can lift and carry only 5-10 pounds. (R. at 218.) He indicated that he could sit for only 15 or 20 minutes before getting numbness and pain in his legs. (R. at 224.) His wife does the household activities such as cooking and cleaning. (R. at 220.)
Plaintiff testified that he began having mental impairments after his second hospitalization, in 1997. He testified that he saw a psychiatrist once in March 1997, then in July 1998 began monthly visits to a psychiatrist at the Woodhull Hospital. (R. at 194, 209-212.) Plaintiff indicated that he feels depressed and anti-social as a result of his physical impairments. (R. at 225.) He testified that his depression and paranoia keep him from working. (R. at 227-228.)
Plaintiffs wife, Aleita Ocasio, also testified to her husband's mental impairments. She testified that he often locks himself in the bathroom and cries, that he doesn't like to talk to people, that he needs to be forced to eat, and that he has difficulty concentrating. (R.at 232.)
B. Treating Physicians' Reports
The ALJ also reviewed Plaintiffs available medical records. Plaintiffs then treating physician, Dr. Cornelia Samgeap, submitted a report on October 5, 1995. She stated that she had been treating him for poorly-controlled Type I diabetes, diabetic neuropathy, and chronic alcoholism. She noted that he suffered from paresthesia and pain in his legs when he walked. At that time, she indicated that he was limited in the amount he could carry or push and pull, that he could stand or walk up to six hours per day and sit for less than six hours per day, and that he had postural, manipulative, and communicative limitations. She also found that he had an anxiety disorder and depression. (R. at 105-108.) A consultive examination on December 7, 1995 by SSA consulting physician Dr. Howard Finger, confirmed the medical diagnoses of Dr. Samgeap and added hypertension and hypercholesterolemia. Dr. Finger found that Plaintiff was mildly limited in his ability to stand and walk, and perhaps moderately limited in his ability to lift and carry. (R. at 109-111.) On March 13, 1996, Plaintiff was examined by Dr. Taner Turkes, also in a consultative capacity. Dr. Turkes confirmed the diagnoses of diabetes mellitus, hypertension, osteoarthritis, and anxiety. He also noted chest pains and chronic arthralgia of the shoulder. He indicated limitations in lifting and climbing, but no limitations in walking or standing. (R. at 117-120.)
Plaintiff began seeing Dr. Rajab Khan in June of 1996, and continued to see him regularly. Dr. Khan initially diagnosed hypertension, arthralgia, and depression. In his report of July 13, 1997, Dr. Khan indicated that Plaintiff was very limited in his abilities, and could not stand for more than 15-20 minutes, sit continuously for more that 20-25 minutes, or carry more than 10 pounds. He further indicated that Plaintiff must lie down during the day as a result of weakness and dizziness.
Plaintiff was admitted to the hospital on October 27, 1997, upon the emergency referral of his treating physician, Dr. Khan, for a swollen and burning right foot. (R. at 440.) The initial diagnoses were diabetic neuropathy and poorly controlled diabetes. A peripheral venous flow exam given on October 30, 1997 and a venogram nuclear medicine exam given on October 31, 1997 both showed no definitive evidence of deep vein thrombosis. (R. at 487, 489). X-rays of his right foot, taken on October 27, indicated bony ankylosis of interphalangeal joints and degenerative changes of the right foot. (R. at 492.)
Upon discharge on November 2, 1997, Plaintiff was reported to have responded to treatment. (R. at 442.) However, his right foot was still swollen. He was instructed to keep it elevated and to follow the diabetic diet which was reinforced by consultation with a dietician during his stay. (R. at 479.) The hospital's final diagnosis was for uncontrolled diabetes, cellulitis and an abscess of the foot, essential hypertension, and "dietary surveillance." (R. at 443, 467, 479.) Following that hospitalization, Plaintiff continued follow-up care at Woodhull, with quarterly visits. These visits included laboratory tests and podiatry and eye exams, and notes were taken at each. These records were available to the ALJ, but many of them are difficult to read. The records document the clinic doctors' findings of Plaintiffs impairments. For example, in one podiatry visit, on January 30, 1998, the examining physician indicated that Plaintiff had pre-ulcers, callouses, and fungal infections. (R. at 390.)
After the hearing, Plaintiffs attorney submitted a report by Dr. Ljubomir Vujovic, whom she described as one of Plaintiffs treating physicians. Dr. Vujovic summarized Plaintiffs diagnoses as diabetes mellitus, diabetic neuropathy, "diabetic foot" (including hyperkeratosis of the skin, diabetic ulcers, and onychomycosis). (R. at 600.) The doctor indicated that Plaintiff was unable to work and that he met or equaled the listing for Diabetes Mellitus, under 9.08. (R. at 601-603.) However, he did not give detailed answers to the questions regarding Plaintiffs functional capacity.
The ALJ questioned whether Dr. Vujovic had personally treated Plaintiff. His title, as indicated on the report, is "Medical Record M.D., Correspondence Unit." The report did not indicate how long he had been treating Plaintiff. The Court recognizes the problems in identifying who is a "treating physician," given the tendency of large clinics to shuffle patients from doctor to doctor within the system. Nonetheless, the Court accepts the ALJ's decision not to give Dr. Vujovic's report the weight of a treating physician.
Plaintiff was also seen by several practitioners regarding his mental health. He was examined by two consulting psychiatrists when he first filed his SSA application. Dr. Juan Fiks saw him on December 7, 1995 and reported that he found no mental impairments. However, he noted that his prognosis depended on Plaintiffs ability to stay "off drugs and alcohol, the nature and severity of his medical problems as well as his attitude." (R. at 114). Plaintiff was also examined by Dr. Syeda Hasan on March 13, 1996, who also found no limitations. (R. at 116.)
Plaintiff did seek psychiatric treatment. He was first seen by psychiatrist Dr. Rodolfo Sandin, on March 7, 1997. The ALJ was specifically directed by the Appeals Council to get records from Dr. Sandin. (R. at 192.) However, it later became apparent that Plaintiff had only seen Dr. Sandin once. (R. at 565.) Plaintiff was treated by social worker Roy Thomas on a biweekly basis from at least July 17, 1998 to December 7, 1998 during which time Dr. Shklyarevsky prescribed Zoloft and Vistaril for his depressive disorder. Thomas and Dr. Shklyarevsky reported him to have poor social interactions and to be lonely and depressed. (R. at 576.) It appears that Plaintiff continued to be treated by the mental health clinic at Woodhull (R. at 194), but later reports were not available. (R. at 192).
C. Consulting Physicians' Reports
In addition to the medical records, the ALJ heard testimony from two consulting physicians for the SSA and reviewed a letter submitted by an independent reviewing doctor. One of the agency consultants was internist Dr. Charles Plotz, who reviewed Plaintiffs medical records and testified to his summary of those records. Dr. Plotz testified that Plaintiff suffers from insulin dependant diabetes mellitus, which he believed was under adequate control at that time. (R. at 234.) The doctor testified that he did not find any evidence of diabetes-related ailments, including peripheral vascular disease and diabetic neuropathy (R. at 242-43) in the record. (R. at 241.) He also testified that Plaintiff has varicose veins, which he indicated were the cause of the swelling and pain in Plaintiffs legs and the 1997 hospitalization. (R. at 235-36.) He further testified that varicose veins can cause ulcerations. (R. at 237.) Dr. Plotz also indicated that the medical record did not include any findings of arthritis (R. at 236), and that the blood pressure readings suggested that findings for hypertension were inconclusive. (R. at 244).
Upon questioning by Plaintiffs attorney, Dr. Plotz acknowledged that the record indicated that Plaintiffs treating doctors had diagnosed him with diabetic neuropathy, but he denied that such a diagnosis was supported by the record. (R. at 243.)
He did not indicate that varicose veins were the cause of Plaintiffs ulcers "and cellulitis in his legs. The ALJ permitted Dr. Plotz to testify to general symptoms of varicose veins that were not shown to be relevant to this Plaintiff. However, Plaintiffs attorney was not permitted to elicit testimony as to general symptoms that could affect diabetics. The hearing transcript shows that this line of questioning was repeatedly cut off by the ALJ ("I try to be liberal, but let's not go into outer space," R. at 242, "I'm considered liberal, but boy you're really, you're going off the basis here," R. at 247, "you go off in left field," R. at 254, "the record you are building, the records you are building is not helpful to your client" R. at 257), who also complained of her approach in his decision ("I must mention the conduct of claimant's counsel in this matter. . . . The record will indicate the extreme liberality of the Administrative Law Judge in the conduct of this hearing, including counsel's repeated attempts to discuss other medical matters not related to this claim and claimant." R. at 166).
When Plaintiffs attorney questioned him about the discrepancies between his analyses and the diagnoses made by Plaintiffs treating physicians, Dr. Plotz suggested that the diagnoses were not supported by the medical record. (R. at 243). However, he did acknowledge that the record indicated that Plaintiff suffered from diabetic retinopathy. (R. at 244.) He also acknowledged Plaintiffs paresthesia (R. at 250) and foot ulcers (R. at 252), but he suggested that they were caused by varicose veins, and not diabetes. (R. at 235-237.) Dr. Plotz also discounted Plaintiffs complaints of fatigue, dizziness, blurred vision, headaches, back pain, and abnormal sensation in his feet and legs as being subjective complaints that were not substantiated by any medical evidence. (R. at 246.) Dr. Plotz indicated that Plaintiff could and should do a full range of normal physical activity. (R. at 237-38.) He described Plaintiffs podiatrists recommendations to elevate his legs as "very bad advice." (R. at 249.) After Dr. Plotz reviewed the analysis of Dr. Katz, he conceded that Plaintiff "may have early neuropathy," for which he did not suggest any alternative cause. (R. at 606.)
Dr. Plotz indicated that the ulcers were described as "pre ulcers, which means they are in areas that could become ulcerated." (253.) Dr. Plotz denied that they were related to diabetes.
SSA consulting Psychiatrist Edward Halperin reviewed the records relating to Plaintiffs mental health and testified to his analysis at the hearing. He testified that the record indicated that Plaintiff suffered from chronic depression that was treated with Zoloft. Dr. Halperin noted that the Zoloft prescription had been maintained over a 3-5 year period, which led him "to assume that it's been reasonably successful." (R. at 264). He also noted that a prescription for Vistaril had been dropped, which Dr. Halperin interpreted to signify a decrease in the anxiety attacks for which it would have been prescribed. Id. Dr. Halperin also reviewed Exhibit 51, an undated report by Dr. Shklyarevsky, which indicated a level of functioning at 60 or 70 on Axis V of the DSM III diagnostic scale (R. at 575). According to Dr. Halperin, such a level is consistent with holding a job. He also noted that Plaintiffs treating psychiatrist had found that Plaintiff did not have limitations on the activities of daily living, but was limited in his friendships and socialization skills. Dr. Halperin suggested that those were a result of Plaintiffs choice, since the treating psychiatrist also noted that he was cooperative and well oriented. (R. at 265-66.) In his analysis, Dr. Halperin suggested that the depression might be related to the diabetes and Plaintiffs physical deterioration, but found that it did not meet a listing for severity. (R. at 266). This analysis was based on records dating up to 1998.
Dr. Jeffrey Katz, a board-certified urologist, also reviewed Plaintiffs medical records, at the request of Plaintiffs attorneys. He interpreted Plaintiffs hospitalization records to show admission on the basis of poorly controlled insulin-dependent diabetes mellitus, diabetic neuropathy, and cellulitis in his right foot and leg. In Dr. Katz's opinion, the record clearly indicated diabetes-related neuropathy that equaled Listing 9.08 for disability related to diabetes mellitus. In addition, Dr. Katz's review indicated hypertension, retinopathy, and possibly nephropathy. (R. at 591).
V. Review of the ALJ's findings
Plaintiff argues that the ALJ impermissibly discounted the opinions of his treating physicians. The Social Security Administration's regulations require that ALJs give controlling weight to the medical opinion of a claimant's treating physician if it is well supported by medical findings and is not inconsistent with other substantial record evidence. 20 C.F.R. § 416.927 (d)(2); 20 C.F.R. § 404.1527 (d). Here, the ALJ found that "[t]here is not clear and undisputed treating source medical evidence in the record sufficient to be entitled to controlling evidentiary weight." (R. at 171.) This finding is supported in the record. Plaintiffs treating physicians did not give many explanations for their opinions, nor did they explain the alleged inconsistency between their diagnoses of diabetic neuropathy, cellulitis, and diabetes-related foot problems (R. at 600) and the negative clinical findings for deep vein thrombosis.
However, even where treating physicians' opinions are not entitled to controlling weight, the regulations require that they be evaluated, 20 C.F.R. § 416.927 (d), and be given more weight than nontreating sources. 20 C.F.R. § 416.927 (d)(2)(i) ("When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the sources' opinion more weight than we would give it if it were from a nontreating source."). See also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). The amount of weight given to opinions by treating physicians may be determined by applying a variety of factors established by the Regulations. 20 C.F.R. § 416.927 (d)(2) — (6). See also Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).
In accordance with that mandate, the ALJ indicated that "consideration has been given to the relevant factors such as in person contact, quantity and quality of the treating relationship, duration, supportability, internal and external consistency, area of practice and known qualification." (R. at 171.) However, this boilerplate language does not describe his findings on these factors, nor does he indicate the amount of weight he accorded to the treating physicians' opinions. While the ALJ may not have been satisfied with the completeness of the reports submitted by Plaintiffs physicians at Woodhull Medical Center, the records indicated that they had seen and treated him on a frequent and regular basis over a lengthy period of time, continually monitoring his blood sugar and adjusting medications, as he acknowledged at the hearing. (R. at 202-03.)
The Regulations "provide that the Commissioner will always give good reasons in our notice of determination or decision for the weight we give [claimant's] treating sources' opinion.'" Schaal, 134 F.3d at 504 (quoting 20 C.F.R. § 404.1527 (d)(2); 20 C.F.R. § 416.927 (d)(2)). Plaintiff is entitled, at the very least, to an explanation of why his treating physicians' opinions were not credited. Snell, 177 F.3d at 134. Yet the ALJ does not allege that he discounted their opinions for lack of supportability or for inconsistency with the "objective" medical record. See 20 C.F.R. § 416.927 (d)(3). Nor does he give any other "good reasons" for ignoring the findings of Plaintiffs treating physicians Dr. Samgeap and Dr. Khan, nor discuss their findings.
Instead of considering Plaintiffs treating physicians' opinions, the ALJ seems to have given greater weight to the opinions of the earlier consulting physicians and the non-examining SSA consulting physicians who testified as to their interpretations of the medical record. He did consider the written summary provided by Dr. Katz, who offered his opinion on behalf of Plaintiff, but who had also never examined him. Dr. Katz and Drs. Halperin and Plotz reached very different conclusions from their independent analyses of Plaintiffs medical records. ALJ Rowe explains these inconsistencies as the result of the SSA consultants' access to a larger number of records. Yet those additional records primarily consisted of consultative examinations that also should not be accorded great weight in comparison to Plaintiffs treating physicians. However, the ALJ does not identify the specific contradictions in the record, nor the additional evidence upon which he bases his findings.
The ALJ acknowledged that "[n]o "disability' claim can be proven or disproven based on evidence of nonexamining physicians, including hearing medical experts, alone." (R. at 169.) Yet the ALJ seems to have reached a determination that Plaintiffs conditions did not meet or equal an impairment listed in the Listings, on the basis of one piece of evidence: Dr. Plotz's explanation that the venogram administered on October 31, 1997 "showed not vascular condition was related to Mr. Ocasio's diabetes mellitus." [sic] (R. at 172.) In order to meet the Listings for diabetes under § 9.08, a claimant must (1) demonstrate neuropathy evidenced by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dextrous movements, or gait and station, 20 C.F.R. Part 404, Subpart P, Appendix 1, § 9.08A, or (2) must have documented acidosis occurring at least on the average of once every two months; or (3) an amputation.. ., or (4) peripheral arterial disease; or (5) retinitis proliferans. Id. at § 9.08B, C, D. Dr. Samgeap diagnosed diabetic neuropathy as early as 1995 (R. at 105), and it was identified by Dr. Andrew Teller at Woodhull as one of the causes of his 1997 hospitalization (R. at 439). Dr. Vujovic included that diagnosis in his summary of the Woodhull hospital records. (R. at 600.) Consulting doctors Dr. Howard Finger and Dr. Taner Turkes noted Plaintiffs paresthesia (R. at 109, 117), which is frequently caused by neuropathy, but did not make any clinical findings.
If the reports of treating physicians are insufficient or inconsistent, the ALJ may not simply dismiss them. Rather, he has an affirmative duty to develop the administrative record, including seeking additional information from the treating physicians. Schaal, 134 F.3d at 505; Hartnett v. Apfel, 21 F. Supp.2d 217, 221 (E.D.N.Y. 1998). "This duty exists even when the claimant is represented by counsel." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). See also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). ALJ Rowe knew that Plaintiff was visiting Woodhull at least quarterly for regular check-ups, tests, and re-evaluation of his medication. (R. at 202-03.) If the clinic's records were incomplete or illegible, the ALJ should have sought clarification from Plaintiffs treating doctors, not merely adopted the consulting physician's interpretation of the incomplete record.
Plaintiff urges that even if the ALJ did not find that Plaintiffs impairments met or equaled the listing for diabetes mellitus, that he should have found that the combination of Plaintiffs diabetes, mental illness, arthritis, and hypertension were medically equal to a listed impairment. (Pl.'s Mot. at 14.) A claimant may be found disabled if the combined effect of all his impairments is medically equivalent to a listed impairment. 42 U.S.C. § 423 (d)(2)(B); 20 C.F.R. §§ 404.1526(a); 416.926(a)(2). The ALJ found that the "medical evidence does not disclose an impairment or combination of impairments which meet or equal the requirements for any impairment in the Listings." (R. at 171.) The ALJ described Dr. Plotz's description of a non-diabetes related ailment as the basis for this opinion. Id. It is not clear from the opinion how the ALJ reached his conclusion regarding the impact of Plaintiffs impairments in combination.
Even if the record supported the ALJ's determination that Plaintiffs impairments singly, or in combination do not meet or equal the criteria in the Listings, the ALJ must consider the claimant's residual functional capacity, under step five, in determining whether there are other jobs that he could perform. Here, the ALJ noted that he gave due consideration to Plaintiffs subjective complaints and symptoms and the expert opinions, findings, and residual functional capacities provided by the SSA consultants. He discounted the treating sources evidence as being "insufficient to be entitled to controlling evidentiary weight" (R. at 171), but, again, he did not indicate what weight, if any, he did give that evidence. He implied, without stating or explaining, that he doubted Plaintiffs credibility regarding his subjective feelings of pain and self assessment of his exertional capacities. (R. at 168) ("[S]urely counsel expects that I consider all of the evidence, including credibility."). "Where there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings." Snell, 177 F.3d at 135. ALJ Rowe did not do this. Without these explanation, this Court cannot conclude that the ALJ's findings were supported by substantial evidence.
The ALJ then determined that Plaintiff could perform work that existed in the national economy: "From the evidence, I conclude that the claimant has the residual functional capacity for a range of light (and sedentary) work activity." (R. at 171.) He referred to the Grids provided by the SSA, to determine that "there were approximately 1,600 separate unskilled light and sedentary occupations" and found these further reduced by Plaintiffs residual functional capacity. (R. at 171.) However, he indicated that "I still conclude that a significant number of jobs do exist which Mr. Ocasio can perform on a sustained basis and amounting to substantial gainful activity." (R. at 172.)
Plaintiff argues that the ALJ failed to adequately consider his non-exertional impairments of mental illness and arthritis in his hands. (Pet.s Mot. at 16.) He further argued that these impairments precluded the use of the Grids, and thus that the ALJ should have heard testimony from a vocational expert. (Id. at 18.) Step five of the SSA guidelines places the burden of proof for the final determination of disability on the Commissioner. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) ("While the burden is on the claimant to prove that he is disabled within the meaning of the Social Security Act, if the claimant shows that his impairment renders him unable to perform his past work, the burden then shifts to the Commissioner to show there is other gainful work in the national economy that the claimant could perform.") (internal quotation marks and ellipses omitted). The Second Circuit has held that "if a claimants nonexertional impairments significantly limit the range of work permitted by his exertional limitations then the grids obviously will not accurately determine disability status because they fail to take into account claimant's nonexertional impairments." Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986) (internal citations and quotation marks omitted). In such cases, the ALJ must solicit additional evidence, such as testimony from a vocational expert, regarding the types of jobs available which claimant could obtain or perform. See Pratts, 94 F.3d at 39. Here, the ALJ acknowledged Plaintiffs functional limitations, but not his nonexertional limitations. He failed to obtain testimony or other evidence regarding vocational possibilities for an individual of Plaintiffs limitations. Nor did the ALJ give examples of occupations or jobs that Plaintiff could do. Accordingly, this Court finds that the ALJ's decision is not supported by substantial evidence.
VI. Remand to the Social Security Administration
Plaintiff urges that the Court reverse the Commissioner's decision and award benefits, arguing that the record "is sufficiently complete to support a finding of disability." (Pl.'s Mot. at 23.) This Court does not find such "persuasive proof of disability" in the record here. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) ("[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.").
The District Court has the power to affirm, modify, or reverse the decision of the Commissioner upon the pleadings and transcript of the record, "with or without remanding the cause for a rehearing." 42 U.S.C. § 405 (g); Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). The Court hereby remands this case for further proceedings that: (1) take into consideration Plaintiffs treating physicians' opinions, including seeking out additional, legible records from the Woodhull clinic, if necessary, or explaining why those opinions should not be given substantial weight and (2) assess Plaintiffs credibility and his subjective reports of his pain and functional limitations. If, upon further review the Commissioner still does not find that Plaintiffs impairments meet or equal a Listing individually, the Commissioner is directed to follow SSA regulations and (3) consider the impairments in combination; and (4) consider Plaintiffs non-exertional limitations, and if necessary, take testimony from a vocational expert.
Having reviewed the transcript of the second hearing and ALJ Rowe's complaints about Plaintiffs attorney in his decision, the Court further deems it provident to direct the Commissioner to transfer this case to a different ALJ. See Koldnay v. Schweiker, 680 F.2d 878 (2d Cir. 1982) (finding it appropriate to remand to a different ALJ); Hartnett v. Apfel, 21 F. Supp.2d 217, 222 (E.D.N.Y. 1998) (finding remand to a new ALJ appropriate where the ALJ made insensitive comments to Plaintiff and miseharacterized and misunderstood the evidence); Ortiz v. Chater, 1997 WL 50217 (E.D.N.Y.) (finding that "rather than have the same ALJ review the claims a third time, a fresh look by another ALJ would be beneficial."). The Court reaches this conclusion on the basis of the apparent animosity between ALJ Joseph Rowe and Plaintiffs attorney at the second hearing, and the ALJ's lack of sensitivity to Plaintiffs impairments.
For example, the ALJ stated that "I understand from the file here that your main problem appears to be your drug and alcohol history." (R. at 149.) Yet the record indicated only past alcoholism (which was never defined nor documented), with no alleged current use of drugs or alcohol. The ALJ seems to have accepted this diagnosis by Plaintiffs treating physician without clinical confirmation, whereas he apparently rejected the simultaneous diagnosis of diabetic neuropathy. The ALJ also made sarcastic comments such as "In our country one of the wonderful things about it is you can go to any doctor you want" (R. at 210), asked "What do you do with yourself all day?" (R. at 211), stated "Let's get on with your mental thing" (R. at 209), and summarized Plaintiffs testimony as: "In other words you can't talk to people. Is that what you're saying?" (R. at 228.)
CONCLUSION
Having reviewed the record and the ALJ's conclusions, this Court finds that substantial evidence does not support the ALJ's decision that Plaintiff was capable of performing a range of light and sedentary work and was "not disabled" within the meaning of the Social Security Act. Accordingly, the Court reverses the ALJ's final determination and REMANDS this case to the Commissioner for further administrative proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405 (g). Defendant's Motion for Judgment on the Pleadings is hereby denied. Plaintiffs Motion is granted to the extent that it seeks a reversal of the Commissioner's decision, and denied to the extent that it seeks an award of benefits. The Clerk is directed that this order closes the case. Further, Plaintiffs attorneys are granted reasonable attorneys fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d).