Opinion
03-CV-6509 (JG).
April 18, 2005
FLORENCE HINDS, Brooklyn, New York, Plaintiff Pro Se.
ROSYLNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York.
Margaret Donaghy, Special Assistant United States Attorney, Attorney for Defendant.
MEMORANDUM AND ORDER
Florence Hinds brings this action pro se 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 Supplemental Security Income ("SSI") benefits under the Social Security Act. The Commissioner has moved for judgment on the pleadings affirming the denial of benefits to Hinds. I held argument on the motion April 1, 2005. For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied, and the case is remanded to the Commissioner for further proceedings.
BACKGROUND
A. Personal and Work HistoryHinds was born in Jamaica in 1950, immigrated to the United States in 1982, and became a citizen in 1996. She obtained a general equivalency diploma ("GED") and completed one year of college and training as a home health aide. From 1986 through 1989, Hinds worked as a nursing attendant at a hospital. Prior to that, she worked as a machinist at a launderette. (Tr. 86.) In 1987, Hinds was injured at the hospital when an elevator door malfunctioned. At some point thereafter, she began to receive workers' compensation, which she continues to receive. Hinds has not worked since 1989. (Tr. 86.)
Hinds applied for SSI benefits by telephone, and the application was given a protective filing date of January 31, 2001. The Social Security Administration ("the SSA") denied that application. At Hinds's request, an administrative hearing was held on March 26, 2003 before an Administrative Law Judge. On May 12, 2003, the ALJ issued a decision denying Hinds's claim. That decision became the final decision of the Commissioner when the Appeals Council denied Hinds's request for review.
This matter is a test case in the SSA's model program of modifications to the disability review process. Here, the second step of the disability claims process, i.e., the reconsideration stage, is eliminated. If dissatisfied with the outcome of the initial determination, a claimant may directly file a request for a hearing before an ALJ. See Comm'r's Br. at 1 n. 2.
B. Medical Evidence
1. Brookdale Hospital
Hinds was seen at Brookdale Hospital on August 17, 1998. She complained of pain, headache, dizziness and lightheadedness, for which she was referred to a neurologist. She reported feeling depressed, and that she took Effexor for depression and Buspar for anxiety. She wore a brace on her right knee. On September 2, 1998, Hinds returned for blood tests, and the physician recommended rheumatological and neurological examinations, and prescribed Plendil for hypertension. (Tr. 216-218.) On October 20, 1998, Hinds returned to Brookdale complaining that she had run out of medication. The physician's impression, in legible part, was that Hinds was depressed. (Tr. 216.)
Hinds returned to Brookdale in January, May, and June 1999, complaining of, among other things, a trembling sensation and difficulty sleeping (January), and neck pain and depression (May). After the visit in May, the physician ordered physical therapy and a neurological consultation. In June, Hinds was diagnosed with cervical radiculopathy. (Tr. 213-15.)
In April 1999, Hinds began to see Dr. Brian Goldberg, a chiropractor. Goldberg treated Hinds twice per month, at least through July 2002. Goldberg's findings are discussed below.
2. HS Systems
On May 25, 1999, Hinds was examined by Dr. Tambyn at HS Systems. The copy provided to the Court is virtually illegible, though under "chief complaints" it appears to say "high blood pressure, back pain, right knee." The Commissioner has read Tambyn's report to state that Hinds's neck was normal; her range of motion was limited in her spine; straight leg raising was limited on the right; right knee was slightly tender, and flexion was limited; and shoulder movements were normal. (Comm'r's Br. at 3.) Tambyn's impressions were high blood pressure (not stable), chest pain (not stable), back pain (not stable), right knee pain (not stable), shoulder pain (stable), anemia (stable), and obesity (not stable). X-rays were negative for Hinds's right hip and right knee, and x-rays of her lumbosacral spine showed minimal degenerative changes. (Tr. at 126-130.)
On June 10, 1999, Hinds was examined by Dr. B. Fajardo at HS Systems. Again, the court's copy is illegible. The Commissioner states that Dr. Fajardo's diagnoses were hypertension, not well controlled with medication; low back pain; shoulder pain; anemia; and decreased vision. Dr. Fajardo opined that Hinds could sit, stand, walk, lift, carry, handle objects, hear and speak. Fajardo noted "a moderate limitation for travel secondary to decreased visual acuity." (Comm'r's Br. at 3.) Fajardo's prognosis was "fair." (Tr. 124.) A treadmill examination performed on June 24th was negative, showing no significant EKG changes or arrhythmia. (Tr. 131.)
A "Physician's Assessment of Medical Condition" was completed on June 16, 1999. The court's copy is largely illegible. Under "Employability Assessment," the box marked "E-II Employable subject to limitation" is checked. Under "Functional Capacity," the "light" box is checked. Under "Limitations of Non-Exertional Functions," several postural, sensory, and environmental limitations are checked, but it is unclear which ones. Under "emotional/mental" limitations, a box stating "avoid situations requiring time limitations" is checked. Under special work site considerations, the box for "climbing stairs" is checked.
3. Methodist Hospital
On September 28, 1999, Hinds went to the medical clinic at New York Methodist Hospital seeking treatment for generalized body aches and headaches, and was referred to the sleep and psychiatric clinics. (Tr. 224.)
4. Kingsbrook Hospital
In May 2000, Hinds began treatment at the Kingsbrook Jewish Medical Center. On May 8, 2000, x-rays of the lumbosacral spine, knees, and left ankle revealed no fractures. The lumbosacral spine showed "spondylotic changes intact pedicles and disc." On May 30, 2000, Dr. Theogene referred Hinds to Dr. Fisse for a possible colonoscopy, noting that Hinds had significant iron deficiency anemia. An August 1, 2000 MRI showed degenerative changes in Hinds's left knee, and the physician's notes stated an impression of radial pain from spondylotic lumbar spine. Notes for February 5-6, 2001 stated that Hinds complained of coughing, back and knee pain, and headache. The physician's impressions were uncontrolled hypertension, hypercalcemia, obesity, mild osteoarthritis of the knees, and iron deficiency anemia. On February 15, 2001, Hinds was seen by Dr. Fisse in the GI clinic. (Tr. 144-146.)
On March 1, 2001, Hinds was examined by an orthopedist, complaining of neck, lower back, and bilateral knee pain. Hinds told the orthopedist that her lower back pain had increased in severity over the years. Upon examination, the orthopedist found a full range of motion in the neck with mild to moderate pain; spinal tenderness on palpation; a full range of motion in the lower back with mild to moderate pain; straight leg raising positive at 70 degrees; muscle strength in the legs was five out of five; and sensation was intact. The orthopedist's diagnosis was mechanical back pain, and he recommended weight loss and continued physical therapy for the lower back. The orthopedist prescribed Celebrex. (Tr. 148-49.)
On March 17, 2001, Hinds was seen at the emergency room at Methodist, complaining of leg cramps and numbness in her left arm and leg, with a tingling sensation. (Tr. 138-142.) The doctor's impression was leg cramps, and he recommended quinine sulfite and a medical follow-up.
5. Dr. Goldberg — Chiropractor
On April 19, 2001, Dr. Brian Goldberg, a chiropractor, completed a report concerning his treatment of Hinds, whom he had been seeing bi-monthly since April 1999. Goldberg's treating diagnoses were sciatic neuritis and lumbosacral segmental dysfunction. He indicated that Hinds's current symptoms were constant low back pain and stiffness radiating to her right ankle. This pain was aggravated by sitting, standing, walking, running, bending, lifting, and carrying. His clinical findings were that Hinds's motor, reflex and sensory examinations were all within normal limits. He stated that lumbar x-rays revealed a severe pelvic imbalance; degenerative spondylolisthesis at L3/4, L4/5, and L5/S1; moderate to severe torsion of the lower lumbar vertebral bodies with a right lateral convexity; bilateral pars separation at L5; and decreased disc space at L5/S1. Goldberg reported that Hinds used a cane to assist in walking, but that she had no significant abnormality in her gait. Goldberg found that with respect to work-related physical activities, Hinds was "permanently totally disabled." As far as her limitations, Goldberg checked the boxes that signified that Hinds could lift and carry five to ten pounds occasionally; could stand or walk up to two hours per day; and could sit for less than six hours a day. (Tr. 161-167.)
6. Dr. Khattak — Consultative Orthopedist
On May 8, 2001, Hinds underwent a consultative examination by Dr. M. Khattak, an orthopedist. Upon physical examination, Khattak found that Hinds was able to walk without a cane; was able to get off of the examination table without any assistance; had normal curvature of the cervical spine, with no muscle spasm or tenderness; had normal range of motion in the upper extremities; had no sensory or motor deficits; had normal curvature of the lumbosacral spine, but refused to move her spine in order to test its range of motion; had no swelling or instability in the knees and hip joints; had limited range of motion in the ankles; and that x-rays of Hinds's lumbosacral spine were negative. Khattak diagnosed Hinds with low back pain and arthralgia, and found no limitations in "bending, sitting, standing, walking, lifting, carrying or reaching with gross and fine manipulations of her hands." (Tr. 168-170.)
7. Brookdale Hospital
On August 7, 2001, Hinds was examined by Dr. Gupta at Brookdale. The record suggests that Hinds may also have been examined by Dr. Sandra Robinson. (Tr. 212.) Hinds complained of knee pain, ankle pain and swelling, back pain, sciatica symptoms, and numbness in her fingers and feet. Gupta's plan was to rule out diabetes, and to recommend that Hinds continue taking Norvase, Zoloft, Ambien, and Vioxx. (Tr. 211.)
On May 10, 2002, Hinds told a physician (presumably Dr. Robinson) that she had been in Virginia during the last year. The physician noted hypertension, low back pain, and cervical pain. The physician referred Hinds for a neurological examination. (Tr. 210.)
On about May 23, 2002, Dr. Robinson completed a physician's employability report for the Human Resources Administration of the City of New York. Robinson noted a current diagnosis of hypertension, osteoarthritis, and depression. Under "work limitations," Robinson stated that Hinds was unable to tolerate changes in environment, and unable to push/pull or lift objects due to arthritic pain. Under "what type of work can patient perform," Robinson stated that Hinds was unable to work until she had psychiatric and neurological evaluations. (Tr. 206.)
The report is undated. The Commissioner has ascribed a May 23, 2002 date, see Comm'r's Br. at 7, and the context of the surrounding documents suggests that the document was written in May or June 2002.
On June 5, 2002, Hinds was examined by a physician (presumably Dr. Robinson) about her complaints of knee pain. The Commissioner states that the physician's impressions were hypertension and low back pain. (Tr. 209, Comm'r's Br. at 7.)
In a letter to the Department of Welfare dated June 10, 2002, a social worker at Brookdale wrote that Hinds attended its clinic for symptoms of depression, for which she was given medication and supportive therapy. (Tr. at 208.)
8. Methodist Hospital
On July 15, 2002, Hinds was examined at Methodist Hospital complaining of breast tenderness. Hinds was referred to the breast clinic.
9. Dr. Goldberg
On May 20, 2002, Dr. Goldberg provided a "chiropractic re-evaluation." Goldberg reported that Hinds currently was complaining of neck pain, knee pain, upper and lower back pain, and had difficulty with all of the activities of daily living. Upon examination, Goldberg found that Hinds had an increase in her thoracic kyphosis; a decrease in her lumbar lordosis; that the right iliac crest was higher than the left one; that Hind's gait was normal, and she was able to heel walk; and that she had significant difficulty with toe walking and squat to stand. Goldberg found that a neurological exam showed that Hinds's motor, reflex, and sensory tests for the bilateral upper and lower extremities were within normal limits. His diagnoses were cervical radiculitis/brachial neuritis, and sciatic neuritis/lumbar radiculitis. Goldberg stated that Hinds was "permanently totally disabled. She is limited to treatment two times per month and this is only able to maintain her current status. Since she is unable to significantly improve with care she is permanently disabled." His plan was to continue chiropractic manipulative therapy, manual traction, and ultrasound therapy two times per month, and he stated that Hinds should avoid all physical activity. (Tr. at 227-28.)
On July 18, 2002, Dr. Goldberg completed an orthopedic medical report. Goldberg stated that he continued to see Hinds twice per month, and that his diagnoses were cervical, thoracic, and lumbar segmental dysfunction, and bilateral internal knee derangement. He stated that Hinds had multiple levels of spinal degeneration, disc disease, and degenerative joint disease, and that her condition was gradually worsening. He stated that Hinds had neck pain, upper and lower back pain, wrist pain, and knee pain, with the lower back and knee pain rated as eight to ten. Goldberg stated that during an 8-hour workday, Hinds could sit up to 2 hours continuously (for a total of 4 hours); stand up to 1 hour (for a total of 3 hours); walk up to 1 hour (for a total of 1-2 hours); lift 5-10 pounds frequently and 11-20 pounds occasionally; carry 6-10 pounds occasionally; bend, squat, and reach occasionally, and never climb. He opined that Hinds's symptoms were expected to worsen. Further, he stated that Hinds was unable to take a subway because of her difficulty in climbing stairs. (Tr. 193-97.)
10. Brooklyn Center for Independence of the Disabled
On March 28, 2003, Dr. Sahar Azbakh, a psychiatrist at the Brooklyn Center for Independence of the Disabled, completed a psychiatric evaluation. Azbakh summarized Hinds's psychiatric history as follows: [Hinds] was [outpatient] at our clinic before. She came back on 2/25/03 as she started to feel depressed again, [decreased] energy, [decreased] appetite, insomnia, feels helpless and hopeless." Azbakh's clinical findings were that Hinds's mood was depressed and affect constricted; she had some psychomotor agitation and retardation; and she had no psychosis or suicidal or homicidal idieation. For treatment, Hinds was restarted on 150 mg of Zoloft, with the dosage to be increased according to her response. Azbakh's diagnoses were: Axis I — major depressive disorder, recurrent; Axis II — deferred; Axis III — hypertension, knee injury, head and back pain; Axis IV — financial difficulties and a history of depression; and Axis V-"60" as the global assessment of functioning. Azback stated that she was unable to assess the duration of Hinds's impairments, and her prognosis was that Hinds "has been depressed before and relapsed recently." Azback noted that regarding Hinds's daily activities, she mainly stayed at home; her niece and daughter helped her with cooking and shopping; her niece also helped her in getting along with other people; and that when Hinds did go out, she mainly took car service because buses were crowded. (Tr. 233-243.)
The Commissioner explains that "[b]ased on the DSM-IV-R multiaxial system, Axis I calls for diagnosis of clinical syndromes; Axis II calls for diagnosis of developmental or personality disorders; Axis III call[s] for diagnosis of physical disorders and conditions; Axis IV calls for the severity of psychosocial stressers; Axis V calls for a global assessment of functioning." Comm'r's Br. at 9 (citing American Psychiatric Ass'n, Diagnostic Statistical Manual of Mental Disorders 27-34 (4th ed. 1994) (DSM-IV)).
11. Methodist Hospital
In a note dated April 28, 2003, Dr. Lupouge at Methodist Hospital wrote that Hinds had been followed in their medical clinic since July 1999, and "was depressed with hypertension, fybromyalgia, and severe osteoarthritis." In addition to being treated for those diseases, Lupouge wrote that the work-up on Hinds's headaches was still in process, and stated that Hinds "needs to get additional tests and consultations for it, not able to work." (Tr. at 231.)
At oral argument, Hinds submitted to the Court a note from Dr. Alex Politsmakher of Methodist Hospital dated March 11, 2005. This note is quite similar to the April 28, 2003 note of Dr. Lupouge. It reads, in its entirety,: "Mrs. Florence Hinds has been a patient of New York Methodist Hospital since 1999. She has multiple medical problems including: hypertension, osteoarthritis, obstructive sleep apnea, fibromyalgia, depression, and soleal vein thrombus."
12. Evidence Submitted to Appeals Court
On September 15, 2003, the Brooklyn Center for Independence of the Disabled faxed additional evidence to the Appeals Council, including: Dr. Goldberg's May 20, 2002 chiropractic re-evaluation with an attached range of motion report which apparently had not previously been provided to the ALJ; a report on x-rays taken on January 9, 2003; a March 12, 2003 medical report by Dr. Goldberg; and a note from Dr. Aman Sibal of Methodist Hospital dated September 3, 2003.
Dr. Goldberg's March 12, 2003 medical report is largely the same as his report dated July 18, 2002, except that in the 2003 report he states that Hinds has to lie down every four hours due to lower back pain and numbness in the foot. (Tr. 245-248.)
Dr. Sibal's September 3, 2003 note states that Hinds has been a patient at Methodist Hospital since July 1999; that she suffers from hypertension, fibromyalgia and depression; that she was last seen in July and August 2003; that she was following up with neurology for chronic headaches; and that she had a normal CT scan of her head in 2003. (Tr. 268.)
C. The ALJ's Decision
The ALJ conducted a hearing on Hinds's application for benefits on March 26, 2003. Hinds was represented by an advocate from the Brooklyn Center for Independence of the Disabled. Hinds testified regarding her various impairments and her depression. The ALJ stated that the record would be kept open until April 28, 2003 to allow Hinds to submit further evidence of her impairments. (Tr. 46.)
The ALJ issued a formal decision on Hinds's application on May 12, 2003. (Tr. 15-22.) Following the SSA's five-step disability evaluation, see 20 C.F.R. § 44.1520, the ALJ found that Hinds had depression, hypertension, knee pain, and discogenic and degenerative disc disease. The ALJ stated that the combination of these impairments qualified as severe for purposes of the SSA's regulations, but that they did not meet nor equal a listed impairment. Assessing Hinds's residual functional capacity, The ALJ found that Hinds was capable of performing substantially all of the full range of light work, but that Hinds was unable to deal with excessive stress in a work setting. Finding that Hinds's prior work as a home health attendant was usually considered to be medium work, the ALJ concluded that Hinds retained the capacity to make an adjustment to light work which existed in significant numbers in the national economy. Accordingly, the ALJ found Hinds to be "not disabled." (Tr. 21.)
"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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 416.967.
In reaching her decision, the ALJ gave less weight to the assessment of Dr. Goldberg because he is a chiropractor (as opposed to a physician) and because she found certain discrepancies in his report. The ALJ also found Hinds's testimony to be not entirely credible because the evidence did not support a medical disorder that would correspond to the severity of pain and impairment alleged, and because the medical treatment Hinds had received was not consistent with Hinds's allegations of severe and persistent pain.
DISCUSSION
A. 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) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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) (quoting Valente v. Secretary of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). 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 Social Security 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." § 423(d)(2)(A).
The Commissioner uses a five-step regulatory analysis to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132; 20 C.F.R. § 404.1520. First, the claimant must not 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 that her impairment is listed in Appendix 1 of the regulations or is equal to a listed impairment. 20 C.F.R. § 404.1520(d). Fourth, if the impairment does not meet or equal a listed impairment, 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), (f). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(g). The claimant has the burden of proof with respect to 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, her 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) (expressly providing that the SSA "conduct the administrative review process in an informal, nonadversary manner"); Sims, 530 U.S. at 110-11 (2000) ("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits"); Shaw, 221 F.3d at 134. If "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).
C. 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 source's opinion.20 C.F.R. §§ 404.1527(d)(2).
If the ALJ does not give the treating physician's opinion controlling weight, she must set forth reasons for the weight she ultimately gives the opinion. In making this decision, the ALJ must consider the following factors: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Shaw, 221 F.3d at 134. Moreover, even where the ALJ obtains an assessment from the treating physician(s), the ALJ's duty in this respect is not necessarily discharged. If the ALJ rejects the finding of a treating physician because they are conclusory or unsupported by specific clinical findings, the ALJ should obtain a more detailed explanation from the physician. Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990).
An ALJ is not required to give controlling weight to a treating physician's opinion that a claimant is disabled or unable to work. See 20 C.F.R. § 404.1527(e). Such an opinion is not a "medical opinion" within the meaning of the statute. See 20 C.F.R. § 404.1527(e); 404.1527(a)(2) ("Medical opinions are statements . . . that reflect judgments about the nature and severity of [a claimant's] impairment(s)," including judgments about a claimant's symptoms, diagnosis, prognosis, and physical or mental limitations. Nevertheless, an ALJ must review "all of the medical findings and other evidence that support a medical source's statement that [a claimant] is disabled." § 404.1527(e)(1).
Here, the ALJ determined that Hinds "had the residual functional capacity to perform substantially all of the full range of light work," except that she could not deal with excessive stress in the work setting. See Tr. 21. In her review of the medical evidence, the ALJ discounted the reports of Dr. Goldberg, Hinds's chiropractor (who found that Hinds had significant physical limitations, that her condition was expected to worsen, and who opined that Hinds was totally disabled); reported without comment the findings of Dr. Khattak, the consultative orthopedist (finding no functional limitations); and neither reported or commented upon the opinions of two treating physicians, Sandra Robinson of Brookdale Hospital (who stated that Hinds was unable to push, pull, or lift objects due to arthritic pain, was unable to tolerate changes in environment, and was unable to work until further psychiatric and neurological evaluations were performed (tr. 206)); and Dr. Lupouge of Methodist Hospital, who stated in a note dated April 28, 2003 that Hinds was "not able to work" (tr. 231)).
While it is within the ALJ's discretion to discount the findings of a chiropractor, the ALJ was required to further develop the record where one treating physician stated that Hinds was unable to work, and another stated that Hinds was unable to work until further tests were performed and had greater functional limitations than the ALJ was prepared to find.
An ALJ is not required to give particular weight to a chiropractor's findings, as a chiropractor is not an "acceptable medical source" under the Commissioner's regulations. See Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995) (citing 20 C.F.R. § 404.1513(a)). Rather, a chiropractor's opinion is "evidence from other sources" that an ALJ "may use" "to show the severity of [a claimant's] impairment(s) and how it affects [the] ability to work." 20 C.F.R. § 404.1513(d). As such, a chiropractor's opinion is not entitled to any special consideration, and "the ALJ has the discretion to determine the appropriate weight to accord the chiropractor's opinion based on all the evidence before him." Diaz, 59 F.3d at 314. Reports from chiropractors may assist an ALJ, however, in determining whether a claimant is disabled, and thus should not be discounted arbitrarily. See id. at 312 n. 4 (explaining that the Secretary may accord a chiropractor's opinion significant weight in appropriate circumstances.).
In discounting Goldberg's findings and his opinion that Hinds was totally disabled, the ALJ noted "certain discrepancies" in his reports; specifically "a functional assessment which suggests an ability to perform sedentary work, and clinical and range of motion findings which show few medical deficits." Tr. 19. The ALJ has the discretion to determine the appropriate weight to give Goldberg's findings, though my review suggests that those findings were more consistent with the bulk of the medical evidence than were the findings of Khattak, the consultative orthopedist, whose opinion the ALJ apparently credited.
Khattak's findings that Hinds had no functional limitations whatsoever is contradicted by virtually all of the medical evidence submitted to the Commissioner, and in particular the opinions of Doctors Robinson and Lupouge.
Remand is necessary here because the ALJ did not explain in her decision the weight accorded to the opinions of Lupouge and Robinson (of Methodist and Brookdale Hospitals, respectively, where Hinds had been examined over the course of several years). At oral argument, the Commissioner argued that the ALJ need not give controlling weight (nor explain why she was not giving such weight) to Dr. Lupouge's opinion because a statement that a claimant is "unable to work" is an opinion that is reserved to the Commissioner. See 20 C.F.R. § 404.1527(e)(1). While "[t]reating source opinions on issues reserved to the Commissioner will never be given controlling weight," SSR 96-5p,
our rules provide that adjudicators must always carefully consider medical source opinions about any issue, including opinions about issues that are reserved to the Commissioner. For treating sources, the rules also require that we make every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us. . . . If the case record contains an opinion from a medical source on an issue reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record.Id.
The requirement that an ALJ clarify a treating source's opinion that a claimant is unable to work is part of the ALJ's affirmative obligation to develop a claimant's medical history. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) ("`[I]f an ALJ perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the administrative record accordingly'" (quoting Hartnett v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998)); see also Foster v. Callahan, 1998 WL 106231, at *5 (N.D.N.Y. Mar. 3, 1998) ("An ALJ should make every reasonable effort to obtain treating source evidence, and if the treating source provides an incomplete report, the ALJ must request the necessary additional information from the treating source." (emphasis in original, internal quotations omitted)); 20 C.F.R. § 404.1512(e)(1) (providing that the SSA "will seek additional evidence or clarification from [a] medical source when the report from [the] medical source contains a conflict or ambiguity that must be resolved."). Not only did the ALJ have a duty to clarify Lupouge's opinion, but the "notice of the determination or decision must explain the consideration given to the treating source's opinion(s)." SSR 96-5p.
The ALJ was also required to explain why she presumably discounted the statements of Dr. Robinson, a treating physician at Brookdale Hospital, where Hinds had been treated on and off since 1999. In the employability report likely dated in about May 2002, Robinson stated that Hinds was "unable to push or pull or lift objects due to arthritis pain." Such a statement is clearly inconsistent with the ALJ's conclusion that Hinds could perform substantially all forms of light work, which could require the frequent lifting of ten pound objects and the pushing and pulling of arm controls. Further, Robinson stated that Hinds was "unable to work until further eval[uated] by psychology and neurology." As with Lupouge's opinion, the ALJ had an affirmative responsibility to follow up with Robinson and clarify her statements. Because the ALJ did not fully develop the record in connection with the opinion of two treating physicians, remand to the Commissioner is appropriate. See Rosa, 168 F.3d at 83; Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997).
CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied. The case is remanded to the Commissioner for further proceedings consistent with this opinion.So Ordered.