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finding error where the ALJ did not explain why he disregarded treating physician's opinion regarding claimant's inability to stoop, crouch, crawl or kneel
Summary of this case from Huhta v. BarnhartOpinion
01-CV-6075 CJS
November 15, 2001
DECISION AND ORDER
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") which denied plaintiff's application for disability benefits. Now before the Court is plaintiff's motion for judgment on the pleadings [#4] and defendant's cross-motion for judgment on the pleadings [#9]. For the reasons stated below, plaintiff's motion is granted, defendant's motion is denied, and this matter is remanded for a new hearing.
FACTUAL BACKGROUND
The facts of this case are set forth at length in the parties' submissions and in the Decision of the Administrative Law Judge ("ALJ"), and, unless otherwise noted below, are not in dispute. It is sufficient to note the following facts. Plaintiff applied for Social Security disability benefits on June 20, 1996, claiming to be disabled due to "lower back sprain — lifting/bending." (R. 86, 93). Plaintiff further indicated: "[I] [h]ave a light lift (5lb) problem, bending and lifting. OCHF [her former employer] has a no restriction policy. And [I] have to use a Ted [TENS] unit which they don't allow." (R. 93).
Unless otherwise noted, all citations are to the administrative record.
Plaintiff's application was denied on August 7, 1996, and again on reconsideration, on October 3, 1996. On December 6, 1996, plaintiff requested a hearing before an ALJ, and a hearing was held on July 31, 1997.
Plaintiff appeared at the hearing with her attorney. At the hearing, plaintiff testified that she was 42 years old, and had completed the tenth grade. During the hearing, plaintiff was asked:
Q. Do you have any limitation in motion?
A. Yeah. The bending is a big problem. You have to be careful on how you move. Twisting is — it big time agitates my back, can't reach above the shoulders [sic]. Pushing and pulling — sometimes standing is a problem.
(R. 47). Regarding her ability to stand, plaintiff further testified: "Standing is pretty good. I can do about an hour or so. . . . I may have to reposition. It's like every 10 minutes, 5 to 10 minutes depending on how you're standing or what you're doing." (R. 49). She also testified she could walk "about a mile" at a time, and sit "about half an hour to 45 minutes." (R. 49-50). Plaintiff's doctors have not recommended surgery for her back problems. (R. 47). Plaintiff also testified that once, during a period of less than a month, she experienced four headaches, for which she sought treatment at a hospital emergency room. (Record, p. 46). Plaintiff further testified that her primary treating physician, Dr. Ballance, "was trying to get me back to work" with restrictions, but that her employer would not allow her to work with restrictions, so her labor union paid for her to obtain another medical evaluation at F.F. Thompson Hospital. (R. 59).
On June 18, 1996, Dr. Ballance indicated that plaintiff's headaches were not migraines, but were possibly caused by stress: "H/A, doubt migraine. Consider tension." (R. 161).
Although plaintiff testified that Dr. Ballance wanted her to return to work with the "restrictions off," it appears that she meant that he wanted her to return to work with some lifting restrictions, because she indicated that Ontario County, her employer, was "giving her a hard time" about returning to work with restrictions. (R. 59). Also, when she applied for benefits, she indicated that Ontario County "has a no restriction policy." (R. 93).
Plaintiff further testified regarding alleged mental impairments. Plaintiff stated that her "disability" affected her memory: "I have to write things down like dates, places, any appointments. If I don't write them down . . . I don't keep track." (R. 51). Plaintiff also indicated that her alleged mental impairments affect her ability to concentrate "a lot." (R. 51). Additionally, plaintiff testified that she experiences depression, "When I'm home and not working. I can't tolerate being home." (R. 53). Plaintiff did attempt suicide in December of 1996, and, as to that, she testified that it was caused by "all this back problem, no money. I'd lost my trailer. Not being able to do the job I liked. And then it became Christmas time and there was no money and it caused a big argument between (my boyfriend and me) and we broke up and I said to hell with it." (R. 60).
Although plaintiff and her boyfriend travel by car from Ovid, New York, to Plattsburgh, New York, a distance of several hundred miles, "a couple of times a week" to visit friends, plaintiff testified that she did not seek counseling for her alleged mental impairments, "[b]ecause there no money, no money for gas, no money for treatment." (R. 54) (emphasis added).
As plaintiff herself noted, "that's quite a drive." (R. 53).
Plaintiff also submitted medical records to the ALJ, which revealed the following. On December 5, 1995, plaintiff went to F.F. Thompson Hospital complaining of back discomfort. The notes of Dr. Timothy Pitler, M.D., indicate:
The patient is a 41-year-old complaining of a day history of some right lower back pain. She had no specific injury. . . . She has had no upper back discomfort. The patient describes her pain as in the right lower back along the pelvic brim. It comes from the mid-upper back and radiates around to the lateral aspect of the pelvis. She had some tenderness in the buttocks and it goes down the right leg slightly.
(R. 192). Dr. Pitler gave plaintiff pain medication, which helped, and he sent her home with instructions to use pain medication as needed and warm soaks on her back. (Id.). X-rays of plaintiff's lumbosacral spine taken on December 5 showed "[m]arginal osteophytes . . . at the L1-2, L2-3, L3-4 and L4-5 levels. No spondylosis is noted. IMPRESSION: Mild degenerative changes as described." (R. 191).
On December 19, 1995, Dr. Ballance noted, "low back pain consistent w/moderate paraspinal muscle spasm. No evidence of herniated disc on exam." (R. 215). On February 28, 1996, Dr. Ballance noted that plaintiff reported "feeling much better and has minimal pain at rest." (R. 170). Dr. Ballance also noted that he was encouraging plaintiff to return to work. (R. 169). On March 19, 1996, Dr. Ballance noted that plaintiff "is doing much better and feels she may be able to return to work on March 22nd as we have arranged." (R. 169).
On April 5, 1996, Dr. Ballance noted:
She's unable to work despite my release to work on March 22. She states that her employer has refused to allow her to wear a brace while working. . . . After much discussion w/patient, she feels that she should be better off doing a lateral transfer to a home health aid or start doing some farm work tying grapes. She continues to have minimal discomfort in her low back, esp. when she does some relatively moderate lifting such as sawing wood w/a circular saw. Otherwise, pt. is w/o complaints.
(R. 167).
On April 4, 1996, Physical Therapist Donna Golden reported that plaintiff had failed to appear for her last visit, and that Golden had thereafter been unable to reach plaintiff by telephone for a month. (R. 179, 184). Golden further noted: "Patient reported slow improvement in symptoms at last visits. No [complaint of increase in symptoms] with gym exercises." (R. 179). Ms. Golden also wrote that plaintiff was "able to participate in a 45-minute gym strengthening program without exacerbation of symptoms." (R. 177). It is interesting to note that plaintiff apparently told Ms. Golden that, as of 1996, she had only been employed by Ontario County as a nurse's aid "for approximately three years," when plaintiff indicates in this action that she had been employed there since 1987, period of almost ten years. (R 97, 176). Moreover, she told Ms. Golden that, "on 12/5/95 she was injured at work while picking up a 60-pound patient" (R. 176), however, during the hearing before the ALJ, plaintiff testified that she "could not prove whether [she had injured her back] on or off the job." (R. 42).
On May 3, 1996, Dr. Ballance indicated that plaintiff claimed to have re-injured her back the previous day by lifting a bag. (R. 165). On May 21, 1996, Dr. Ballance noted that plaintiff "should benefit from further [physical therapy] with emphasis on bio feedback strengthening conditioning. Also will benefit from wt. loss encouraged her to increase her exercise (cardiovascular strength)." (R. 201).
On June 12, 1996, Dr. Ballance's records indicate that plaintiff was given a note for a 25 pound lifting restriction, to last 8 weeks. (R. 163). On June 18, 1996, Dr. Ballance described plaintiff's condition as "a mild ache on the rt thigh buttock region with a pressure feeling at the rt lower back. Continues to be about the same since re-aggravating her injury in the early part of May." (R. 162). Dr. Ballance further indicated that plaintiff's headaches were not migraines, but were possibly stress-related. (R. 161).
On June 7, 1996, Dr. Anthony Geraci, M.D., noted that plaintiff's headaches "are relatively infrequent, necessitating E.D. visits only once every 1-2 years." (R. 175).
On June 21, 1996, F.F. Thompson Health System, upon a referral from Dr. Ballance, completed a residual functional capacity summary, which indicated the following:
Rose has recently completed a Functional Capacity Evaluation on 6/19/96. The results of this evaluation indicate that Rose is functioning within the Sedentary level of work according to U.S. Department of Labor Standards. The sedentary level of work encompasses lifting, carrying, pushing and/or pulling up to 10 lbs. on an occasional basis (0-33% of the workday), a Negligible amount of weight on a frequent basis (34-66% of the workday) and a Negligible amount of weight on a constant basis (67-100% of the workday).
* * *
Rose demonstrated a good ability to follow and carry out instruction. She demonstrated fair judgment for safety and poor ability to maintain physical stamina.
(R. 150-51). While the report indicates that plaintiff was capable of sedentary work, that opinion appears to refer only to the lifting requirements for sedentary work, since the report also indicates that plaintiff was only capable of sitting occasionally, for "0-33% of the day." (R. 150).
On July 12, 1996, Dr. Ballance noted that plaintiff had "minimal paraspinal tenderness present on the rt lumbar region," and was "definitely not depressed." (R. 195). He also noted that plaintiff apparently had a "situational reaction" while driving her car, involving an incident where she drove the wrong direction on a one-way street, but he encouraged her to continue driving her car to overcome her "paranoia" about driving. (Id.). Dr. Ballance indicated that plaintiff denied "any emotional lability, decreases in concentration, has good ability to sleep, still has pleasurable activities such as . . . crocheting and refinishing furniture." (R. 197). Dr. Ballance further "encouraged [plaintiff] to continue seeking avenues of returning to work." (R. 195).
On August 6, 1996, Dr. Joung R. Oh, M.D., a reviewing agency physician, completed a residual functional capacity evaluation, in which he indicated that plaintiff could frequently lift 10 pounds, could stand, walk, or sit for 6 hours in an 8-hour day, with unlimited pushing and pulling. (R. 117). Dr. Oh noted that plaintiff had "mild degenerative changes" in her lumbosacral spine, with a full range of movement of all extremities. (R. 117). Dr. Oh further opined that plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. (R. 118-20). However, Dr. Oh's report indicates that the file he reviewed did not contain a statement from a treating or examining source. (R. 122). Dr. Oh also completed a Psychiatric Review Technique form, in which he indicated that plaintiff had a non-sever anxiety related disorder, consisting of one instance in which she experienced a "situational adjustment reaction," as a result of driving the wrong way on a one-way street. (R. 128).
On August 10, 1996, Dr. Ballance noted that plaintiff continued to complain of back pain, consisting of "a pressure feeling in the rt lower back as like bones grinding w/ occasional numbness down the rt leg." (R. 231). He also indicated that plaintiff complained of depression, although he noted that her "thought process is linear. Affect, quite happy. Mood OK." (Id.). On October 1, 1996, Dr. Ballance noted that plaintiff continued to complain of pain, and he noted "possible herniated disc. Still is unable to bear much weight on the rt lower extremity but otherwise pain is much improved." (R. 232). On November 4, 1996, Dr. Ballance wrote: "MRI results show mild disc protrusion at the L-3/L-4, L-4/L-5 levels with some bilateral neural foramina narrowing from bulging disc and facet osteoarthropathy at the L-4, L-5 level," and that plaintiff was awaiting a surgical consultation. (R. 236).
On September 3, 1996, Dr. Ballance wrote a note for plaintiff, indicating: "Rose is currently not able to work as she has a low back injury [with] limitations of no prolonged standing or sitting and 10# lifting." (R. 221).
On October 22nd 23rd, 1996, John T. Sempowski, Ed.D., Ph.D., conducted a neuropsychological evaluation of plaintiff. His report, dated October 26, 1996, indicates that plaintiff "is of modest intellectual ability, and is burdened by a serious life-long learning disability, involving both receptive and expressive language processing, and a discrete long-term memory deficit." (R. 252). Dr. Sempowski noted that plaintiff "is currently reporting significant levels of depression and anxiety which are purportedly impairing her mentation (memory and thinking) and distressing her." (R. 248).
Sempowski assigned plaintiff a GAF score of 65, indicating mild symptoms. (R. 23).
Plaintiff told Dr. Sempowski that she "hated school . . . I could never learn to read or write." (R. 248). However, the Court notes that in her application for disability benefits, plaintiff indicated that her job as a nurse's aid, which she held for nine years, required her to write reports. (R. 102). Plaintiff also told Dr. Sempowski that she dropped out of school in the tenth grade, whereas she told another examining psychologist, Dr. Baer, that she graduated from high school. (R. 248). Dr. Sempowski indicated that plaintiff "appeared genuinely unable to recall details, organize a life chronology, or express her thinking cogently." (R. 248). However, the transcript of the hearing before the ALJ indicates that plaintiff is articulate and had no difficulty expressing her history or answering questions.
On December 10, 1996, Dr. Steven D. Lasser, M.D., examined plaintiff, and noted:
Films reviewed from 12/95 show some osteophyte formation at the lumbar spine. MRI of the lumbar spine from 10/12/96 shows degenerative changes of the discs at L3,4 and L4,5 levels. At L3,4 there is bilateral facet arthopathies. At L3,4, L4,5, and L5, S1, the report notes protrusion of the discs. However, when reviewed by Dr. Lasser, he could not appreciate any protrusions of the discs. IMPRESSION: Mild degenerative changes in the lumbar spine with minimal bilateral facet arthropathies.
(R. 259).
On February 10, 1997, Dr. Ballance noted that plaintiff had recently attempted suicide, but that she currently had no suicidal ideation. (R. 228). He further noted that plaintiff still had "moderate rt sided paraspinal tenderness." (Id.). On March 26, 1997, Dr. Ballance noted that plaintiff complained of gynecological problems, but "otherwise feels fine." (R. 229). He noted that "she continues to ambulate well," and "back straight with no CVA tenderness. There is still minimal spasm noted, especially on the rt side." (Id.).
On March 19, 1997, Dr. Lasser noted that plaintiff was "quite tender in the right lower back with limited lumbar motion," and that "the pain appears to be localized to the L4,5 level. However, Dr. Lasser seemed to have some doubt as to the cause of her complaints, writing:
Her plain films and MRI scan are reviewed from October 1996. There is no evidence of a significant herniation and the discs themselves actually look better than what the report states. There is fairly good hydration in the discs and no evidence of a large herniation or spinal stenosis. IMPRESSION: Mechanical back pain and right sided sciatica secondary to subtle disc derangement not seen on her MRI.
(R. 260).
Between March and June of 1997, plaintiff claims to have worked at Dudley's Poultry Farm. (R. 41, 43, 56). There is apparently some confusion in the record as to the dates and nature of this employment, because, in a disability questionnaire completed in 1996, plaintiff indicated that she had held a job at Dudley's, required lifting boxes of meat weighing 70 to 80 pounds. (R. 103). However, at the hearing, when she was asked how much weight she could lift and carry, plaintiff testified: "Well, when I was at Dudley's, the heaviest thing we had was 4-pound chickens and it bothered my back." (R. 50). Plaintiff also indicated that while at employed at Dudley's, she used machines, tools, and equipment, used technical knowledge and skill, and wrote reports. (R. 103).
It may be that plaintiff worked at Dudley's on two separate occasions, but that is not clear from the record.
On June 5, 1997, Dr. Ballance completed a residual functional capacity assessment, in which he indicated that plaintiff could stand, walk, and/or sit, each for 4 hours in an 8-hour workday, and that she would have to change position every half hour. (R. 225). He also indicated that she could occasionally lift ten pounds. (Id.). He further indicated that plaintiff could never stoop, crouch, kneel or crawl. (R. 226). Dr. Ballance also indicated that reaching, pushing, and pulling would exacerbate plaintiff's lower back pain. (Id.).
On June 5, 1997, a meyelogram was performed to evaluate plaintiff's back pain. (R. 272). A report by Ted Barnett, M.D., indicates "[e]vidence of mild spinal stenosis at L4-L5." (Id.). On July 22, 1997, Dr. Lasser wrote:
EXAMINATION: She is quite tender in the right sacroliliac region. Neural exam is grossly intact. IMPRESSION: Right sacroliliac joint dysfunction. It does not appear from her meyelogram or CT that there is any evidence of significant disc disease although there is a small bulge at L4,5. The most likely etiology is coming from the SI joint.
(R. 274).
On November 26, 1997, the ALJ issued his decision, finding that plaintiff was not entitled to disability benefits. The ALJ noted that plaintiff's past relevant work was as a nurse's aid, and that she had not worked since December 5, 1995. The ALJ further found that plaintiff had a severe impairment, degenerative disease of the lumbar spine, which did not meet or equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ next concluded that plaintiff could not perform her past relevant work as a nurse's aide, but that she could "lift and carry up to ten pounds, sit for six hours of an eight hour day, stand or walk for a total of two hours each during a work day [sic]." (R. 26). Finally, at the fifth step of the five-step sequential analysis, using the medical vocational grids in the Commissioner's regulations, the ALJ found that plaintiff could perform a full range of sedentary work. (Administrative Record ("Record"), p. 27).
In reaching this determination, the ALJ made several findings regarding plaintiff's medical and mental condition. The ALJ found that plaintiff's complaints of pain were not entirely credible, since the objective medical evidence did not support the amount of pain which plaintiff claimed to experience. More specifically, ALJ indicated that "[t]he medical evidence . . . identified only mild degenerative disc disease with possible sciatic joint involvement. Although this would be expected to cause some pain, and could possibly preclude performing the requirements of light work, it would not prevent the claimant from performing a full range of sedentary work." (Record, p. 26). Additionally, the ALJ found that plaintiff's complaints of pain were inconsistent with her daily activities. The ALJ further found that certain opinions of two doctors, Dr. Ballance and Dr. Sempowski, were entitled to little weight with regard to plaintiff's back pain:
Dr. Ballance, one of the claimant's treating physicians, wrote on September 3, 1996 that the claimant was unable to work. As the claimant's treating physician, Dr. Ballance's opinion would generally be entitled under the Regulations to considerable weight. . . . Dr. Ballance's own physical examinations of the claimant have shown few problems. . . . His own statements indicated that the claimant was able to lift up to ten pounds. . . . Therefore, Dr. Ballance's opinion regarding the claimant's ability to work is given little weight in this determination.
Dr. Sempowski, a psychologist, wrote on October 23, 1996, that the claimant was unable to work due to her back condition. However, Dr. Sempowski's two day examination was devoted entirely to the claimant's mental status, and his opinion regarding a medical disorder would have little weight.
(Record, p. 25).
As to plaintiff's alleged mental impairments, the ALJ concluded that there was no evidence of a severe anxiety disorder, and, regarding her depression, he noted that her depression was primarily due to being unable to work, and that "there is no evidence to indicate that the claimant has any continued suicidal ideation." (Record, p. 26). As for her intelligence, the ALJ found that plaintiff's "test scores place her in the low average range of cognitive functioning, which would allow her to perform most jobs in the sedentary work range." (Id.). The ALJ also completed a Psychiatric Review Technique Form, which noted the presence of affective and anxiety related disorders, depression, and one instance of a situational adjustment reaction, but which further found that none of those disorders would restrict daily living, cause difficulty with social functioning, or cause deficiencies in concentration, persistence or pace." (Record, pp. 30-32). Based upon those findings, the ALJ concluded that plaintiff did not have a severe mental impairment, and that she therefore did not have any significant non-exertional limitations which would narrow the range of work she could perform. (Record, p. 26).
Plaintiff appealed the ALJ's decision to the Appeals Council. On May 11, 1999, plaintiff's counsel submitted a brief, along with additional medical records. Those records included the following: On October 15, 1996, Strong Memorial Hospital completed an MRI radiology report, which concluded: "Degenerative disc disease in the L4-5 level that results in minimal bilateral foraminal stenosis. The other levels are unremarkable." (R. 294).
On October 31, 1997, after having an SI joint block injection, plaintiff complained that her pain had worsened. (R. 295). Upon examination, Dr. Lasser noted "exquisite tenderness on palpation over the right SI joint. Currently ambulates with an upright posture. Decreased ROM in all planes, secondary to pain. Neurologic exam is grossly intact. . . . IMPRESSION: Right SI joint dysfunction." (Id.).
On December 13, 1997, Christopher J. Lyon, M.D., noted in a report that plaintiff had sought treatment at an emergency room, complaining of back pain. A physical exam indicated "diffuse lumbar tenderness both in the midline and laterally on both sides. The tenderness extends down toward the sacrum and the buttocks. Distal sensation, pulses and capillary refill are normal." Plaintiff at that time also complained of a headache. Dr. Lyon provided plaintiff with pain medication, and noted, "[t]he patient had continued improvement and was able to ambulate to the bathroom without difficulty." (R. 283).
On December 23, 1997, Dr. Lasser noted that plaintiff was still complaining of intense pain in her right sacroliliac joint, and opined, "I do not feel she is capable of any form of gainful employment at this time." (R. 295).
On February 3, 1998, Dr. Lasser noted that plaintiff's pain was worsening, and he opined that she, "cannot do anything because of it. Back locks up on her and she cannot do anything." (R. 295). Dr. Lasser also noted that plaintiff "has been quite depressed, crying during the interview and exam. I strongly encouraged her to contact the mental health dept. for an appt." (R. 296).
On April 20, 1998, plaintiff was examined by Dr. Nancy Marino, M.D., who noted:
Back — demonstrated tenderness to palpation along the spinous processes from the C5 to T1 and from T11 to the sacrum. There were no significant lumbar spasms noted but mild parasacrum muscle spasms were noted. Mental status — awake, alert, and oriented x3. She was tearful and crying secondary to her pain and she does demonstrate a depressed affect.
(R. 290).
On July 17, 1998, plaintiff was again seen by Dr. Lyon, for a severe migraine headache. (R. 292).
However, as to these submissions, the Commissioner's regulations, 20 C.F.R. § 404.970(b) state, in relevant part:
If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision.
(Emphasis added). Therefore, of the new medical records that plaintiff provided to the Appeals Council, only those two relating to October 15, 1996, and October 31, 1997, pertain to the period on or before the ALJ's decision, which was rendered on November 26, 1997. The Appeals Council was not able to consider the other records.
On February 7, 2000, the Appeals Council denied plaintiff's request for review. (R. 8-9). On March 6, 2000, plaintiff commenced an action in federal court, whereupon the parties stipulated to remand the matter to the Appeals Council. (Plaintiff's Memo of Law, p. 2). On remand, the Appeals Council vacated its earlier determination, to consider additional evidence and further arguments. On February 9, 2001, the Appeals Council again denied plaintiff's request for review. (R. 5-6). The ALJ's decision thus became the final decision of the Secretary.
Plaintiff commenced this action on February 15, 2001, and filed the subject motion for judgment on the pleadings on June 28, 2001. Plaintiff alleges the following errors: 1) that the ALJ wrongly determined that her mental and cognitive impairments are not severe; 2) that the ALJ failed to properly weigh the opinions of treating sources; 3) that the ALJ improperly evaluated her residual functional capacity; 4) that the ALJ erred by failing to call a vocational expert; and 5) that the ALJ improperly assessed her credibility.
Defendant filed the subject cross-motion for judgment on the pleadings on October 22, 2001, alleging that the ALJ's determination is supported by substantial evidence. On November 1, 2001, plaintiff filed a reply brief. Counsel for both parties appeared before the undersigned for oral argument on November 8, 2001. The Court has thoroughly considered the parties' submissions, the comments of counsel, and the entire record.
ANALYSIS
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
For purposes of the Social Security Act, disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
The SSA has promulgated administrative regulations for determining when a claimant meets this definition. First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities. If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work.
Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work."
Schaal, 134 F.3d at 501 (Citations omitted). At step five of the five-step analysis above, the defendant may carry its burden by resorting to the Medical Vocational Guidelines or "grids" found at 20 C.F.R. Pt. 404, Subpart P, Appendix 2. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996) (citation omitted). However, if a claimant has nonexertional impairments which "significantly limit the range of work permitted by [her] exertional limitations," then defendant cannot rely upon the grids, and instead "must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform." Id. at 39.
The Commissioner's regulations further state: "Unless we give a treating source's opinion controlling weight . . . we consider all of the following factors in deciding the weight we give to any medical opinion. (1) Examining relationship. . . . (2) Treatment relationship. . . . (3) Supportability. . . . (4) Consistency. . . . (5) Specialization. . . . (6) Other factors." 20 C.F.R. § 416.927(d). Further, the regulations define a non-severe impairment as one that "does not significantly impair [one's] physical or mental ability to do basic work activities," such as "understanding, carrying out, and remembering simple instructions." 20 C.F.R. § 404.1521
The Court will now examine the plaintiff's arguments, turning first to her claim that the ALJ erred by determining that her alleged mental impairments were not severe.
As to this contention, plaintiff relies almost entirely on the report of Dr. Sempowski, a non-treating psychologist. (Plaintiff's Memo, pp 11-13). However, Dr. Sempowski's conclusions are, essentially, disproven by plaintiff's own actions. More specifically, plaintiff worked as a nurse's aide for approximately ten years, during which time she had to write reports and use medical equipment, among other duties. Her report writing alone contradicts her statements to Dr. Sempowski that she, "could never learn to read or write" (R. 248). Plaintiff has never claimed that her alleged mental impairments prevented her from performing her prior work in an effective manner. Rather, plaintiff has apparently performed her work with little or no difficulty, until she injured her back.
Dr. Sempowski also felt strongly that plaintiff had a hearing problem, something that plaintiff does not claim, and that no other doctor has even suggested. Moreover, Dr. Sempowski opined that plaintiff could not recall the details of her life, but she had absolutely no difficulty doing so at the hearing before the ALJ. In that regard, the Court notes that, from the hearing transcript, plaintiff appears to be an intelligent person who has no difficulty expressing herself. In short, Dr. Sempowski's report is largely inconsistent with most of the evidence in the record.
Next, as for plaintiff's claim that the ALJ improperly evaluated her credibility, the Court disagrees. In fact, plaintiff's complaints of pain, during the relevant period, do seem inconsistent with the objective medical findings submitted to the ALJ, which usually used terms such as "minimal" or "mild." Dr. Lasser's report on March 19, 1997, indicates that the MRI report actually overstated the severity of plaintiff's condition: "[T]he discs themselves actually look better than what the report states. There is fairly good hydration in the discs and no evidence of a large herniation or spinal stenosis." (R. 260). Moreover, plaintiff's testimony that she could not attend counseling because she had no money to pay for gasoline is not credible, in light of her testimony that she and her boyfriend had no difficulty traveling by car to Plattsburgh once or twice a week to visit friends.
The Court also notes that plaintiff has apparently provided different and conflicting information to the various health care professionals. At the hearing, plaintiff stipulated to the admission of a report by a Michael A. Baer, Ph.D., dated March 26, 1991, which indicates that plaintiff came to him complaining that she was "slow and depressed," and had difficulty with "comprehension." (R. 137-38). Dr. Baer concluded that plaintiff was within the low average range of intellectual functioning. (R. 21). However, the report also indicates plaintiff told Dr. Baer that she was a graduate of Brockport High School ("The client reports that she attended Brockport High School and graduated in 1979."), was single with no children, and had been working as a "cleaner" at Brighton High School for ten years. (R. 137-144). According to Dr. Baer, plaintiff indicated to him that the job as a cleaner was "the only job she is capable of handling." (R. 137). Dr. Baer's report further indicated that plaintiff denied any history of alcohol abuse. (R. 139). Plaintiff also indicated to Dr. Baer that she was 29 years old, when in fact, based upon the date of birth she now claims, she was 36 years old. In this proceeding, however, plaintiff maintains that she only completed the tenth grade and was unable to complete a GED program (R. 40), and that she was employed as a health care aide from 1987 through 1996 (R. 97, 101), the same period she told Dr. Baer she was working at Brighton High School. Plaintiff's application for disability benefits also does not mention ever having worked at Brighton High School. (R. 97). Plaintiff also now indicates that she is divorced, and that at the time of the hearing, she had "2 sons who are both over 21." (R. 55). Moreover, plaintiff testified at the hearing that her alleged ability to concentrate only became problematic after July of 1996 (R. 57-58), and that she has a history of alcohol abuse. (R. 55). Clearly, then, much of the information which plaintiff now claims to be true contradicts what she formerly told Dr. Baer.
Plaintiff also told Dr. Baer that she had a "hip problem" caused by an automobile accident in 1985. (R. 138).
Plaintiff indicated that Dr. Ballance's note, in July of 1996, that her "concentration is fine, can crochet, refinish furniture," was correct, but that her ability to concentrate subsequently deteriorated. (R. 57-58).
The Court will now consider plaintiff's claims that the ALJ failed to properly weigh the opinions of her treating physicians, and failed to properly assess her residual functional capacity. Residual functional capacity "is the individual's maximum remaining ability to perform sustained work on a regular and continuing basis; i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-9p. Regarding her residual functional capacity, plaintiff states:
In this case, the plaintiff needs to alternate between sitting and standing every 15 to 30 minutes. Additionally, she suffers from significant cognitive impairments, including low intellectual ability and the inability to concentrate, as well as hearing and speech difficulties. Finally, the plaintiff suffers from severe migraine headaches and depression and was hospitalized as the result of a suicide attempt. Due to the plaintiff's many nonexertional limitations, the ALJ was required to call upon the services of a [vocational expert].
(Plaintiff's Memo, p. 17). As for plaintiff's alleged mental and cognitive impairments, the Court finds that, for the reasons stated above, the ALJ's determination is supported by substantial evidence. Similarly, none of plaintiff's doctors have indicated that her infrequent headaches were significant enough to impair her ability to work. As for her alleged depression, since plaintiff herself acknowledges that the depression is due to the fact that she is not currently working, it does not appear that it would pose any problem if she were to return to work.
However, the Court finds that the ALJ erred in relying upon the medical vocational grids, because the record contains evidence, including Dr. Ballance's residual functional capacity evaluation, that plaintiff has significant exertional and non-exertional limitations, affecting her ability to sit, stoop, crouch, kneel, and crawl. (R. 226). Dr. Ballance opined that plaintiff could sit only four hours of an 8-hour workday, while sedentary work generally requires the ability to sit for six hours. SSR 96-9p ("Sitting would generally total about 6 hours of an 8-hour workday."), and he further indicated that plaintiff could never stoop, crouch, kneel, or crawl. (R. 226). The ALJ did not specifically address Dr. Ballance's opinion regarding these limitations, or explain why he would disregard that opinion. (See, R. 25). Although the ALJ did provide a general explanation for why he was assigning little weight to Dr. Ballance's opinions, he did not conduct the analysis required by 20 C.F.R. § 416.927. The Court finds that this was erroneous, and that the Commissioner's decision must be reversed, and this matter remanded for a new hearing. See, Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) ("We therefore conclude that on remand, the ALJ must conduct a re-evaluation as to whether the Commissioner has demonstrated that [the claimant's] ability to perform the full range of light work was not significantly diminished by his nonexertional impairments. If the ALJ finds that [the claimant's] ability is significantly diminished, then the Commissioner should be required to present the testimony of a vocational expert or other evidence concerning the existence of jobs in the national economy for an individual with [claimant's] limitations."); Zwick v. Apfel, No. 97 Civ. 5140(JGK), 1998 WL 426800 at *9 (S.D.N.Y. Jul. 27, 1998) ("A remand for further evidentiary proceedings is the appropriate disposition in this case because there were errors of law by the ALJ in not giving appropriate weight to the opinion of [the] treating physician, and in not calling a vocational expert when serious non-exertional limitations are present.").
As to plaintiff's ability to sit and stand, it is the Court's interpretation of the record that plaintiff does not necessarily need to alternate between sitting and standing every 15 to 30 minutes, as plaintiff contends, but rather, that while sitting or standing for longer periods, she needs to adjust her position somewhat:
Q. And how long can you stand?
A. Standing is pretty good. I can do about an hour or so.
Q. Okay. And is that standing in one position?
A. No. No, I may have to reposition. It's like every 10 minutes, 5 to 10 minutes depending on how you're standing or what you're doing.
(R. 49). Nonetheless, the need to change position frequently may also impact on plaintiff's ability to perform sedentary work.
The only contrary evidence regarding plaintiff's non-exertional limitations was a report by Dr. Joung Oh, M.D., a non-treating, non-examining agency review physician, who indicated that, in completing his evaluation, he did not have reports from any of plaintiff's treating or examining doctors. (R. 116-123).
CONCLUSION
Plaintiff's motion for judgment on the pleadings [#4] is granted, and this matter is remanded for a new hearing. Defendant's cross-motion [#9] is denied.
So Ordered.