Opinion
05 Civ. 7617 (KMW) (KNF).
June 18, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Stephen Martinez ("Martinez") brings this action, pursuant to the Social Security Act ("SSA"), 42 U.S.C. §§ 301- 1397jj, as amended, to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying him Period of Disability, Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI"). The plaintiff has moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), requesting that the court reverse the Commissioner's decision or, in the alternative, remand his case to the Commissioner for additional administrative proceedings. The Commissioner has cross-moved for judgment on the pleadings. The parties' motions are addressed below.
II. BACKGROUND
Administrative Proceedings
On January 22, 2002, Martinez filed, protectively, an application for a period of disability, SSDI and SSI, alleging an inability to work, due to reflex sympathetic dystrophy ("RSD") of his left upper extremity commencing June 1, 2001. (Tr. 22). The application was initially denied. (Tr. 35-41). Thereafter, Martinez requested a hearing before an Administrative Law Judge ("ALJ") and submitted additional evidence in support of his application for benefits. (Tr. 33-34). On March 23, 2004, Martinez appeared with counsel before the ALJ and testified about the nature of his disability. (Tr. 303-322). The ALJ issued a decision on October 6, 2004, finding that Martinez was not entitled to disability benefits because he was not disabled within the meaning of the SSA. (Tr. 22-30). On October 15, 2004, Martinez appealed from the ALJ's decision to the Social Security Administration, Office of Hearings and Appeals ("Appeals Council"). (Tr. 18). The ALJ's decision became final when, on March 4, 2005, the Appeals Council denied Martinez's request for review. (Tr. 10-13). The instant action followed.A. Non-Medical Evidence
Martinez was born on January 14, 1966. (Tr. 53). Martinez is a United States citizen, is married and has four children. (Tr. 53-54). Martinez filed an application for disability benefits in New York. (Tr. 53-55). In that application, Martinez indicated that he became disabled on June 1, 2001. (Tr. 53). Martinez moved from New York to Florida in 2003. (Tr. 312). On a Social Security Administration disability report form, Martinez asserted he suffered from RSD of his upper left extremity, causing severe and intense pain, traumatic anxiety and emotional distress. (Tr. 64). Martinez claimed his ability to work was limited, inter alia, due to: (i) a laceration of the auxiliary vein and transection of the nerve branch of the brachial plexus; (ii) RSD of the upper left extremity; (iii) a loss of function of the left arm and hand; (iv) auxiliary vein thrombosis; (v) paraesthesias in the left hand and forearm; (vi) allodynia and hyperalgesia in the left middle finger; (vii) an inability to move his arm and fingers; (viii) severe swelling of the left hand; and (ix) numbness. (Tr. 64). In explaining how his conditions limited his ability to work, Martinez asserted (a) having chronic pain with lack of strength and mobility in the upper left extremity; (b) being on a strong prescription pain medication and occupational therapy regimens; (c) having trauma anxiety, emotional distress, depression, severe and intense pain in the left hand and arm; and (d) having a severe burning sensation of the left hand. (Tr. 64).
At his hearing before the ALJ, Martinez testified that he had completed high school and had not received an associate or bachelor degree from a college. (Tr. 307). With respect to his employment history, Martinez stated that, at the time of the onset of his disability, he worked as an administrative assistant, managing online supply orders. (Tr. 308-09). He held that position for about two months before June 1, 2001. (Tr. 308). Martinez testified that from 1997 to 2001, he worked for the City of New York in the human resources field, and was assigned the task of compiling statistics about waste management. (Tr. 309-10). Prior to his position with the City of New York, Martinez was self-employed as an industrial painting contractor. (Tr. 310-12).
In describing his typical daily activities, Martinez testified that he was able to take care of his personal needs, such as showering and dressing, without assistance. (Tr. 314). He stated that his father brought him to the hearing because, although he could still operate a motor vehicle, he could not drive long distances due to his limited attention span. (Tr. 315-16). Martinez explained that his wife prepared food for him and that, typically, when she was working, he did not eat. (Tr. 316-17). He stated that, during the day, he walked his dog or sat outside for short durations of time. (Tr. 317). Martinez also testified that he attended church services regularly, which lasted about 35-40 minutes. (Tr. 318). Martinez stated that, because he had problems concentrating, he did not read much. (Tr. 320-21). Martinez indicated he had difficulty remembering things and had to write notes to himself about his appointments with his doctors or had to have his wife contact him from work to remind him about the appointments. (Tr. 321). Martinez reported that he had trouble following the plot of a television program(s), because he would doze off, or forget, or think about something else while watching. (Tr. 321-22). As a consequence, Martinez testified that typically, he would record the television program(s) if he wanted to watch it. (Tr. 321). According to Martinez, during the daytime, he would sit in his chair and keep his feet elevated if he was in pain. (Tr. 322). In addition, at approximately 3:00 p.m., when he could not stay awake, Martinez stated he would nap for a period between 60 and 90 minutes. (Tr. 322).
Martinez testified that, in connection with the treatments he received from psychiatrists or psychologists in New York, he was prescribed various medications. (Tr. 312-13). At the time of the administrative hearing, he was taking Zoloft. (Tr. 313). Martinez described the pain he experienced. (Tr. 314-22). He explained that the pain in his hand was constant and it felt as if "the kids were hanging on it." (Tr. 314). Martinez explained further that, sometimes, he had pain in the area of his surgical incision, at the point where his nerve was accidentally cut. (Tr. 314-15). Moreover, Martinez stated the pain caused him to have sleeping difficulties, which necessitated that he take pain medication to help him fall asleep. (Tr. 318-19).
Martinez experienced depression. (Tr. 319). He testified that, sometimes, he slept a great deal and had crying spells. (Tr. 319-20). Martinez stated that he felt he was not able to function and he wished that "they'd take the arm off" so that he would not have to take the medication. (Tr. 320). Martinez testified that he would develop a rash when under stress or pressure and that stress or pressure affected his level of pain. (Tr. 322).
A vocational expert testified during Martinez's hearing before the ALJ. (Tr. 323-31). He opined, based on a hypothetical question the ALJ posed to him, that a right-hand dominant person of Martinez's age and education, who does not have the function or use of his left arm, would not be able to perform a full range of clerical duties, but would be able to perform service-sector jobs such as usher, lobby attendant, ticket taker, and amusement or recreation attendant. (Tr. 324-26). All of those positions are within the light, unskilled exertional level classification. (Tr. 325-36). The vocational expert also testified that a person, whose pain interfered with his ability to maintain attention and concentration adequately, so as to complete tasks sufficiently in a timely manner 34% to 66% of the time, would not be able to perform any of the above-noted service-sector jobs. (Tr. 326). Furthermore, according to the vocational expert, a person who needed to rest frequently without restriction, for periods that sometimes exceeded 20 minutes per hour, could not do any full-time competitive work. (Tr. 327-28).
B. Medical Evidence
In March 2001, during a surgical procedure to drain an abscess under Martinez's left arm, Martinez suffered an accidental laceration of the axillary vein and transection of the ulnar nerve, both of which were repaired. (Tr. 256-57). During the postoperative period, Martinez was treated for severe dermatitis and he developed a brachial vein thrombosis manifested by swelling. (Tr. 256-57).
Dr. Robert A. Spindel ("Dr. Spindel") treated Martinez from April 2001 to October 2001. (Tr. 112-77). On October 30, 2001, Dr. Spindel concluded that Martinez remained totally disabled due to pain, depression, and a lack of function in his left upper extremity. (Tr. 167). Dr. Spindel also found that Martinez's medications had a disabling effect on his ability to concentrate. (Tr. 167).
On December 13, 2001, Dr. Mark Goloff ("Dr. Goloff"), an attending psychologist at the Beth Israel Medical Center, generated a Psychological Pain Assessment, noting that Martinez was referred to him to be evaluated for cognitive behavioral therapy in conjunction with treatment for chronic pain. (Tr. 90). Martinez told Dr. Goloff that his pain had been excruciating and disabling. (Tr. 90). He recounted being restricted in his daily activities and staying home most of the day, working on his computer to set up a business with his wife to sell baked goods. (Tr. 90). Dr. Goloff noted that Martinez utilized active coping behaviors for his pain, which he characterized as overwhelming and devastating. (Tr. 90). Martinez told Dr. Goloff that his concentration was poor during the day but better at night, and that his short-term memory worsened because of the pain. (Tr. 91). Martinez exhibited depressed mood and was diagnosed with anxiety disorder and adjustment disorder with depressed and anxious mood. (Tr. 92). Dr. Goloff recommended cognitive behavioral therapy for pain management, relaxation training for pain and anxiety management and behavior regulation of sleep disorder. (Tr. 92).
On February 25, 2002, Dr. Neal Mesnick ("Dr. Mesnick") conducted an orthopedic disability examination of Martinez. (Tr. 93-95). Martinez reported to Dr. Mesnick that he was limited in lifting and needed assistance with dressing, bathing, shopping and cleaning, but that he was able to sit, stand, ambulate, climb stairs and bend. (Tr. 93). Martinez indicated his daily activities consisted of reading and keeping medical appointments. (Tr. 93). Dr. Mesnick found there was atrophy of the intrinsic muscles of Martinez's left hand, decreased sensation in his left upper extremity and left-side hypermyesthesia allodynia. (Tr. 94). He diagnosed Martinez with RSD of the left upper extremity. (Tr. 95). Concerning Martinez's ability to do work-related activities, Dr. Mesnick noted that Martinez was severely limited in lifting or carrying, pushing and pulling and in fine manipulation movements, using the left upper extremity. (Tr. 95).
On April 8, 2002, a Physical Residual Functional Capacity Assessment was conducted by a state-agency physician. (Tr. 185-92). Concerning exertional limitations, the assessment indicated allodynia at the left wrist and a reduction in residual functional capacity ("RFC") due to an inability to lift and carry or manipulate with the left arm. (Tr. 186). It noted that Martinez can lift and/or carry a maximum of 20 pounds occasionally, lift and/or carry a maximum of 10 pounds frequently and sit for approximately 6 hours in an 8-hour workday. (Tr. 186). The assessment also noted that Martinez's left arm was not used in pushing or pulling and that, essentially, he had no use of his left arm. (Tr. 186). The assessment indicated that Martinez had symptoms of sleep disturbance secondary to his left hand pain. (Tr. 190). The state-agency physician found no postural, visual, communication or environmental limitations. (Tr. 187-89). However, the physician found that Martinez could walk and arise without difficulty. (Tr. 190). The state-agency physician found further, that Martinez had no pain about the shoulders, neck or elbows, and was not incapacitated by pain to the point that he could not perform any activities. (Tr. 190).
On July 12, 2002, Dr. Jeffrey Kee Low ("Dr. Low") indicated that Martinez was not able to return to work at that time and that it was undetermined when he could be expected to be able to return to work. (Tr. 196). Dr. Low recommended that Martinez find a pain management specialist. (Tr. 196). In a report, dated July 9, 2002, Dr. Spindel also noted that Martinez could not return to work at that time. (Tr. 194).
On June 3, 2003, Dr. Richard Schuster ("Dr. Schuster"), of Comprehensive Rehabilitation Consultants, Inc., conducted an evaluation to assess the effects of Martinez's condition upon his vocational potential, his future rehabilitation needs and his quality of life. (Tr. 255). He issued a report, based on approximately seven hours of interviews and tests. (Tr. 255-74). Dr. Schuster reviewed Martinez's medical records, which he listed and analyzed specifically in the medical summary section of his report. (Tr. 255-63). Martinez advised Dr. Schuster that he spent his time at home, doing whatever minor chores he could, such as taking his children to school. (Tr. 264). Martinez reported that he fatigued rapidly and it was an effort to force himself to stay awake and function. (Tr. 264).
Martinez informed Dr. Schuster he experienced constant and severe pain, even with medication, his sleep was disrupted and he was chronically fatigued. (Tr. 266-67). Dr. Schuster stated that Martinez's ability to focus, memorize and concentrate were affected negatively and he was distractible, unobservant and not focused. (Tr. 266). Dr. Schuster indicated that Martinez performed assignments requiring sustained mental focus poorly, highlighting Martinez's difficulties with mental focusing and/or internal working memory. (Tr. 267-68). Dr. Schuster noted bimanual limitations in Martinez due to the impaired performance of his left hand and a dichotomy of grip strength, with the right hand strength at 70% and the left hand grip strength below 1%, when compared to his peers. (Tr. 268). The tests administered by Dr. Schuster indicated that Martinez had symptoms of anxiety, such as agitation, cognitive stress, irritability and impatience, as well as dysphoria, discouragement and frustration. (Tr. 268).
In assessing the vocational implications of Martinez's conditions, Dr. Schuster indicated that the combination of an upper extremity limitation with severe chronic pain and a heavy medication regimen posed a significant vocational impediment. (Tr. 269). Dr. Schuster opined that if symptoms persisted or were exacerbated, chronic unemployment would continue. (Tr. 270). Labor market analysis testing, conducted based on the assumption that Martinez's abilities would improve, yielded no more than 12 occupational titles, suggesting a "particularly grim vocational outlook." (Tr. 270-71). Dr. Schuster added that, the longer Martinez's condition persisted, the more likely it would be that significant pain control would not be achieved and, further, that psychological ramifications would exacerbate, making Martinez's prognosis even more increasingly grim. (Tr. 271). He concluded the most probable vocational outcome for Martinez would emphasize chronic unemployment. (Tr. 271). Additionally, he noted that if physicians deemed Martinez's situation was likely to remain the same or deteriorate, any chance he had to participate in the work force would remain "sabotaged." (Tr. 271).
In a report dated October 6, 2003, Dr. Rebecca Deal ("Dr. Deal"), a licenced psychologist, noted that Martinez reported, among other things, depression, sleep disturbance, agitation, anhedonia, loss of energy and forgetfulness. (Tr. 252). Martinez informed Dr. Deal that he "rides [a] bike, does light weights and "pul[l] legs," and tries "to force himself to do things." (Tr. 251). In a report dated October 28, 2003, Dr. Deal noted that Martinez had lingering memory problems, pain and trouble reading/comprehending. (Tr. 250).
In a subsequent report, executed on December 17, 2003, Dr. Deal indicated that Martinez complained of depression, chronic anxiety, sleep disturbance, fatigue, anhedonia, poor concentration and low self-esteem. (Tr. 247). With respect to his functional abilities, Martinez reported that he walked occasionally, read limitedly due to poor concentration, did not cook, drove limitedly and supervised his children on a minimum level. (Tr. 248). Dr. Deal noted that depression and anxiety limited Martinez's work-related skills and that Martinez hoped to return to work, eventually. (Tr. 248).
On March 12, 2004, Dr. Deal issued several assessments of Martinez's condition. (Tr. 275-84). In an Anxiety Related Disorders Assessment, she noted anxiety disorder, mild restrictions of daily activities, mild difficulties in maintaining social functioning, moderate deficiencies of concentration and no episodes of decompensation. (Tr. 276). In an Affective Disorders Assessment, Dr. Deal found major, recurrent depressive disorder, including depressive syndrome, which was characterized by anhedonia, sleep disturbance, psychomotor agitation, decreased energy, feelings of guilt or worthlessness and difficulty concentrating or thinking. (Tr. 278). She indicated that Martinez's restrictions of daily activities, difficulties in maintaining social functioning and difficulties in maintaining concentration were of moderate severity. (Tr. 279). In a Fatigue Questionnaire, Dr. Deal described Martinez's fatigue level as moderate, and consistent with the diagnosis and clinical findings. (Tr. 281). In order to avoid incapacitating fatigue, she indicated that an alteration of Martinez's daily activities would be required. (Tr. 281). She noted that, 34%-66% of the time, fatigue interfered with Martinez's ability to maintain the attention and concentration needed to complete tasks in a sufficient and timely manner. (Tr. 281). She also noted that stress contributed to the severity of Martinez's fatigue and that his fatigue would interfere with his ability to deal with the stress associated with work and to maintain reliable attendance in a work setting. (Tr. 281). In a Pain Questionnaire, Dr. Deal indicated that Martinez suffered from moderately severe pain, which she found was consistent with her objective findings. (Tr. 283). She concluded that the severity of the pain interfered with Martinez's ability to maintain the level of attention and concentration needed to complete tasks sufficiently and in a timely manner frequently, 34%-66% of the time. (Tr. 283). In a Mental Abilities Critical for Performing Unskilled Work report, Dr. Deal noted Martinez's inability to remember work-like procedures, maintain attention for extended periods of two-hour segments, maintain regular attendance and be punctual within customary tolerances, complete a normal workday without interruptions from psychologically-based symptoms and perform in a consistent pace without unreasonable rest periods. (Tr. 286). She noted also that Martinez was not able to sustain, on a weekly basis, other activities such as understanding, remembering and carrying out short and simple instructions. (Tr. 286). Dr. Deal indicated that Martinez's memory for procedures, attention, attendance/punctuality were impaired and he was unable to complete a workday without interference from his symptoms. (Tr. 287). Additionally, according to Dr. Deal, Martinez's symptoms may interfere with recognizing hazards. (Tr. 287).
On May 10, 2004, upon a referral from the state of Florida Department of Health, Division of Disability Determination, Dr. Eduardo Ysern ("Dr. Ysern"), a licensed psychologist, conducted a General Personality Evaluation with Review of Medical Data. (Tr. 288-93). The purpose of the evaluation was to help determine Martinez's eligibility for disability benefits. (Tr. 288). Dr. Ysern indicated that he reviewed all the documents provided to him and that Martinez had never been treated by a psychologist, psychiatrist or other mental health professional. (Tr. 288-89). He noted that Martinez was, at that time, using the following medications: Baclofen, Ambien, Neurontin, Zoloft and Topamax. (Tr. 289). Martinez reported to Dr. Ysern that his daily activities included performing personal hygiene and basic needs, with minimal assistance from his wife. (Tr. 289). Martinez indicated he was unable to drive because of the lack of dexterity in his left arm and hand. (Tr. 289). He stated he spent the daytime walking and watching television news broadcasts. (Tr. 289).
A mental status examination was performed. It indicated that Martinez led a sedentary lifestyle, his affect was sad and his mood anxious. (Tr. 289). Martinez reported sleeping eight hours each night with the help of Ambien. (Tr. 289). Dr. Ysern also noted, among other things, that Martinez manifested feelings of hopelessness and helplessness, but that he did not have psychosis and that his concentration and memory were adequate. (Tr. 289). The Millon Clinical Multiaxial Inventory-III ("MCMI-III") test was administered to Martinez. (Tr. 289-91). It yielded a valid MCMI-III profile, showing no severe personality pathology or severe clinical syndromes. (Tr. 289-90). In interpreting the test results, Dr. Ysern found Martinez was in a persistent state of anxiety and depressed mood in agitated form, which resulted from psychosocial losses in job, income, career goals and self-esteem. (Tr. 290). In assessing Martinez's functional capacity, Dr. Ysern indicated that Martinez's memory and concentration were not impaired but that his persistence, pace and social functioning had been affected by depression and anxiety. (Tr. 290). Dr. Ysern noted that, with treatment, Martinez's prognosis was favorable. (Tr. 291).
On May 11, 2004, upon referral by the Office of Disability Determination, Dr. Geeta Narula ("Dr. Narula") issued a Physical Medicine and Rehabilitation Evaluation. (Tr. 294-95). In describing Martinez's medical history, she noted that Martinez was under the care of his primary physician, Dr. Panera, a psychiatrist, Dr. Kane, and was receiving outpatient psychological counseling. (Tr. 294). During a physical examination, Dr. Narula noted that Martinez, among other things: "[held] his left upper extremity in a flexed posture and [did] not move it at all;" was unable to extend his left fingers and thumb; had no grip strength in the left hand; was unable to do any rapid alternating movements; could not hold onto a small object with the left hand; and could not manipulate a button or a doorknob using his left hand. (Tr. 294). Dr. Narula concluded that Martinez was right-hand dominant and essentially had no function in his left upper extremity. (Tr. 295). Additionally, she noted that "[a]t the most, he could be sitting at a desk and could use the upper extremity to stabilize an object, but is otherwise unable to perform any bimanual activities." (Tr. 295). In a supplemental questionnaire, entitled Medical Source Statement of Ability to Do Work-Related Activities (Physical), Dr. Narula indicated that Martinez's left hand and left arm were not functional and that he was unable to use the upper left extremity at all. (Tr. 297-98).
The ALJ's Decision
The ALJ considered whether Martinez was disabled within the meaning of the SSA. (Tr. 22-30). The ALJ noted that the medical evidence indicated Martinez had RSD and affective and anxiety-related disorders. (Tr. 26). The ALJ found that Martinez's impairments, although "severe" within the meaning of the SSA's regulations, 20 C.F.R. §§ 404.1520 and 416.920, were not "severe" enough to meet or were not medically equal to, either singly or in combination, the impairments listed in 20 C.F.R. Pt. 404, Subpt. P Appendix 1. (Tr. 29). The ALJ considered whether Martinez retained the RFC to perform the requirements of his past relevant work or other work existing in significant numbers in the national economy. (Tr. 26-29). By comparing Martinez's testimony with the evidence in the record, the ALJ found that Martinez's testimony was somewhat exaggerated and disproportionate to the diagnostic and clinical findings. (Tr. 26). Furthermore, he concluded that, when considering the definitive laboratory and clinical findings, Martinez's subjective complaints were beyond what would reasonably be expected in terms of intensity, duration or frequency. (Tr. 26, 29). The ALJ determined that Martinez was unable to perform his past relevant work but retained the RFC to perform light work. (Tr. 29-30). The ALJ found that, although Martinez's limitations did not allow him to perform the full range of light work, using Medical-Vocational Rules 202.21 and 202.22 as a framework for decision-making, a significant number of jobs were in the national economy that he could perform, including ticket taker and amusement park attendant. (Tr. 30). The ALJ concluded that Martinez was not under a disability, as defined in the SSA, at any time through the date of his decision. (Tr. 30).
III. DISCUSSION
Standard of Review
Fed.R.Civ.P. 12(c) provides, in pertinent part, that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." "Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings."Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). In determining a motion under Fed.R.Civ.P. 12(c), a court is required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in favor of the nonmoving party. See Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002).
The SSA provides, in pertinent part, that "[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The findings of the Commissioner as to any fact are conclusive, if they are supported by substantial evidence. See 42 U.S.C. § 405(g).
"The court may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Secretary of Health Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984). However, "[i]t is not the function of a reviewing court to decidede novo whether a claimant was disabled, or to answer in the first instance the inquiries posed by the five-step [disability] analysis set out in [the SSA] regulations" or to "affirm an administrative action on grounds different from those considered by the agency." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal citation omitted). "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).
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, 91 S. Ct. 1420, 1427 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217). "The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to [the Commissioner's] inferences and conclusions, which must be affirmed even where the Court's own analysis may differ." Toribio v. Barnhart, No. 02 Civ. 4929, 2003 WL 21415329, at *2 (S.D.N.Y. June 18, 2003).
A failure, during the administrative process, to adhere to procedural requirements imposed by the regulations promulgated under the SSA is treated as a legal error. See Thomas v. Barnhart, No. 01 Civ. 518, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002). The ALJ has an affirmative "obligation to develop the record in light of the non-adversarial nature of the benefits proceedings, regardless of whether the claimant is represented by counsel." Shaw, 221 F.3d at 131; see Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982). "Other areas of legal error include misapplication of the five-step sequential analysis or failure to properly apply the 'treating physician rule.'" Van Dien v. Barnhart, No. 04 Civ. 7259, 2006 WL 785281, at *9 (S.D.N.Y. Mar. 24, 2006) (citing 20 C.F.R. §§ 404.1520; 416.920; 404.1527(d)(2); 416.927[d][2]).
Determination of Disability
To receive federal disability benefits, a claimant must be disabled within the meaning of the SSA. A claimant must establish "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment must be of "such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A physical or mental impairment must be demonstrable by "medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). In determining whether a claimant's impairment constitutes a disability under the SSA, the Commissioner must "consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(B).
The regulations promulgated under the SSA require the Commissioner to apply a five-step sequential evaluative analysis to determine disability. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has described this sequential procedure in Shaw, 221 F.3d at 132, as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a 'severe impairment' which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a 'severe impairment,' the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not 'listed' in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.
Both objective and subjective factors must be considered by the Commissioner when determining disability; they include: "(1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family or others; and (4) the claimant's educational background, age, and work experience."Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983).
Here, the ALJ followed the five-step sequential procedure set forth in the regulations. First, the ALJ found that Martinez has not engaged in substantial gainful activity since the alleged onset of his disability. Second, the ALJ determined that Martinez's RSD and affective and anxiety-related disorders are "severe impairments" within the meaning of the SSA. Third, the ALJ found that these medically determinable impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P Appendix 1. Fourth, the ALJ found that, although Martinez retained the RFC to perform light work, according to the testimony of a vocational expert, he was unable to perform any of his past relevant work. Fifth, the ALJ determined that a significant number of jobs exist in the national economy Martinez could perform, such as ticket taker or amusement park attendant. Accordingly, the ALJ found that Martinez was not "disabled" within the meaning of the SSA. If "substantial evidence" to support the Commissioner's findings exists, they are conclusive and may not be questioned by a district court. See 42 U.S.C. § 405(g); Bush v. Shalala, 94 F.3d 40, 45 (2d Cir. 1996).
Martinez contends the ALJ's decision was contrary to law because: (1) the ALJ lacked substantial evidence to find that Martinez's testimony regarding his symptoms and limitations was not credible; (2) the ALJ 's determination of Martinez's RFC was not based on the substantial evidence and the ALJ provided no legitimate reason for rejecting his treating physician's opinions; and (3) the ALJ lacked substantial evidence to conclude that Martinez could perform substantial gainful activity and based his determination on Martinez's physical impairments solely, while disregarding his psychological impairments. The Commissioner contends the ALJ's decision was supported by substantial evidence and that he considered the treating physician's opinions properly.
1. Credibility
Martinez maintains the ALJ erred in assessing his credibility when, after "considering the claimant's testimony versus the evidence in the record," he found Martinez's "testimony somewhat exaggerated and disproportionate to the diagnostic and clinical findings." More specifically, Martinez contends, the ALJ wrote incorrectly in his decision that Martinez stated he "was a one-arm person but admitted to Dr. Deal that he was able to ride a bike, lift weights and do pull-ups with his right upper extremity." According to Martinez, the only reference to a one-armed person in the record is found in Dr. Schuster's report, describing Martinez as sometimes "so frustrated that he feels he should cut off his arm; at least at that juncture he would be able to function more effectively as a one-handed person." Martinez maintains Dr. Deal's report states that Martinez "does light weights" and "pul[l] legs" and that "nowhere in the record does it say that Mr. Martinez does 'pull-ups with his right upper extremity.'"
Further, while Martinez concedes he told Dr. Ysern that he could not operate a motor vehicle because of the loss of dexterity in his left arm, he explained at the hearing that, although he could drive, he was limited in the distance he could drive because "sometimes [he gets] in a trance and [he] attempt[s] to like doze off." Martinez challenges the ALJ's finding that Martinez's statements about his difficulties with concentration and memory were inconsistent with Dr. Ysern's report that "[c]oncentration and memory were adequate." He asserts Dr. Ysern spent ten minutes with him and his report does not indicate that a memory test was administered. Martinez contends a thorough review of the record reveals numerous notations reflecting Martinez's poor concentration and memory difficulties and Dr. Ysern's findings "differ significantly from the record as a whole."
Martinez also challenges the ALJ's reliance on Dr. Mesnick's report, in which he noted that Martinez's daily activities included reading and going to appointments with doctors, to demonstrate that Martinez's testimony, that he cannot read much due to his difficulty concentrating, was exaggerated and disproportionate to the diagnostic and clinical findings. Martinez contends Dr. Mesnick conducted an orthopedic disability examination of him, and not a psychological evaluation. In addition, Dr. Mesnick made no indication in his report about what Martinez might have meant when he made the statement about reading, a matter which was not the focus of that evaluation.
According to Martinez, the overwhelming evidence in the record regarding his symptoms, including the subjective evidence of pain he presented and the objective medical evidence, were entitled to be given "great weight," leading to a favorable credibility finding. The Commissioner contends substantial evidence in the record, including Martinez's inconsistent statements support the ALJ's finding that Martinez's subjective complaints of pain were not sufficiently credible.
The SSA's regulations provide that, in determining the extent to which symptoms, such as pain, affect the claimant's capacity to perform basic work activities, the ALJ will consider, inter alia, the claimant's statements about the intensity, persistence and limiting effects of the symptoms, and evaluate them in relation to the objective medical evidence in the record. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). The ALJ must also consider the consistency of an individual claimant's statements concerning pain and other symptoms and whether those statements jibe with laboratory findings and other medical-source information in the record. Inconsistencies in a claimant's statements over time do not mean, necessarily, that the statements are incredible because a claimant's symptoms may improve or worsen over time. In any event, "[w]hile an ALJ 'has the discretion to evaluate the credibility of a claimant [respecting the subjective element of pain] and to arrive at an independent judgment [regarding that pain, he must do so] in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'"Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).
(i) One-Armed Person and Doing Pull-Ups
Martinez is correct when he asserts the ALJ erred in stating that Martinez identified himself as a "one-armed person" and that he told Dr. Deal that he can "do pull-ups with his right upper extremity." While there is a possibility that an inference could have been drawn that Martinez was a "one-handed" person from Dr. Narula's report, because she concluded in her recommendation that Martinez was "right hand dominant" and "essentially ha[d] no function in the left upper extremity," her conclusion was formulated after conducting a physical examination of Martinez, during which she administered a variety of tests to him, including holding a glass, gripping and lateral pinching. (Tr. 294). No evidence exists in the record that Martinez ever stated that he is a "one-armed" person.
The record also fails to contain evidence supporting the ALJ's statement that Martinez admitted to Dr. Deal he could do "pull-ups with his right upper extremity." Dr. Deal's note, dated October 6, 2003, is illegible and it is not certain whether the words she used are "pull ups," "pul[l] legs," or something else. Furthermore, in the section of her report labeled Recreation/Exercise, where the words "pull ups" are alleged to appear, Dr. Deal did not indicate what extremity Martinez used to perform this activity and the record is devoid of evidence indicating that Martinez made any statements to that effect to Dr. Deal or anyone else. Thus, inasmuch as the ALJ had no evidence in the record supporting either the proposition that Martinez stated he is a one-armed person or that he admitted to Dr. Deal he could do pull-ups with his right upper extremity, the ALJ considered these alleged statements erroneously as a basis for discrediting Martinez's credibility.
(ii) Ability to Drive
In assessing Martinez's credibility, the ALJ considered Martinez's testimony, given on March 23, 2004, that he was able to drive and his statement to Dr. Ysern, made on May 10, 2004, that he could not drive, inconsistent because of the loss of dexterity he experienced in his left arm and hand. Dr. Narula's report, which was prepared one day after Dr. Ysern's evaluation was made, is the most recent medical evidence in the record and it is silent with respect to Martinez's ability to drive. Dr. Narula's detailed description of Martinez's left upper extremity indicates, among other things, that Martinez had a limited range of motion and that Martinez holds his left upper extremity in a flexed posture without moving it at all. Dr. Narula's conclusions that Martinez has no function in his left upper extremity and that, at most, he could use it to stabilize an object, but not to perform any bimanual activities, is in consonance with Martinez's statement to Dr. Ysern from the previous day that, at that time, he was unable to drive. No inconsistency exists where, two months after Martinez stated he could drive, but not too far, he abandoned driving entirely due to a loss of function in his left upper extremity. Moreover, the medical reports of Dr. Ysern and Dr. Narula make Martinez's statement that, at that time, he was unable to drive credible. Thus, in light of the medical findings, the ALJ had no evidence in the record to support his conclusion that Martinez's statements about his ability to drive were inconsistent.
(iii) Concentration and Memory
In assessing credibility, the ALJ compared Martinez's allegations of "severe concentration/memory deficits and inability to remember" with Dr. Ysern's finding that Martinez had "no significant problems with concentration and memory." The ALJ concluded that "Dr. Ysern's findings do not differ significantly from the diagnostic and clinical findings in the record." The ALJ also considered Martinez's allegation that he could not concentrate sufficiently to read and his statement to Dr. Mesnick that his daily activities consisted of reading and going to appointments with his doctors. The ALJ concluded that Martinez "demonstrated sufficient concentration and physical abilities to work on his computer setting up a web site and catalog so that he and his wife could start their own business."
According to Martinez, a ten-minute appointment with Dr. Ysern and a thirty-minute true/false test administered at that time were insufficient to assess his level of concentration and the function of his memory. He has pointed to various instances in the record where his poor level of concentration and his memory deficiencies are documented. For example, Martinez notes that he stated to Dr. Goloff, during his December 13, 2001 evaluation, that: (a) his concentration was poor during the day, but was better at night; (b) he had been very forgetful; and (c) his short-term memory has worsened. Furthermore, on March 1, 2002, Dr. Goloff completed the State Agency form in which he indicated that Martinez was limited with respect to sustained concentration and persistence and noted that "pain [and] sleep deprivation may interfere."
Martinez also notes that in his June 3, 2003 report, Dr. Schuster documented that Martinez's "focusing, memory and concentration [were] negatively affected" and that Martinez was "distractible, unobservant and not focused." Moreover, Martinez argues, Dr. Schuster's report indicated that Martinez performed poorly on assignments requiring sustained mental focusing and, further, that Martinez's "capacity to execute oral math examples was barely above mentally defective levels, highlighting difficulties with mental focusing and/or internal working memory."
In addition, the psychologist with whom Martinez has treated most recently, Dr. Deal, indicated in her October 28, 2003 notes that Martinez had "lingering memory problems and pain" and he had "trouble reading/comprehending." On December 17, 2003, Dr. Deal documented Martinez's "poor concentration" based on a mental status review. In a report dated March 12, 2004, Dr. Deal indicated Martinez had moderate deficiencies with respect to concentration, persistency and pace, as well as frequent bouts of fatigue and pain, which interfered with his ability to maintain attention and concentration sufficiently to complete tasks in a timely manner. More specifically, in assessing those of Martinez's mental abilities that are critical for performing unskilled work, Dr. Deal opined he lacked a substantial ability to perform basic work-related activities on a sustained basis, such as remembering work-like procedures and maintaining attention for extended periods lasting two hours. Additionally, Dr. Deal found that Martinez's memory for procedures and his attention span were impaired. Dr. Deal concluded that Martinez could not complete the workday without interference from his symptoms.
Dr. Ysern's finding, during a general personality evaluation, that Martinez's "[c]oncentration and memory were adequate" is, given the quantum of contradictory medical evidence in the record, a "mere scintilla" of evidence and the ALJ relied upon it to justify his finding that an inconsistency exists between Martinez's allegations about his mental state and the medical evidence in the record concerning Martinez's concentration level and his memory deficiencies. The Court finds that Dr. Ysern's statement concerning Martinez's concentration and memory differs significantly from the consistent and long history of diagnostic and clinical findings in the record that establish Martinez's difficulties with concentration and memory. Therefore, the Court finds further that the ALJ did not have before him information sufficient to support a conclusion that an inconsistency existed between Martinez's allegations of concentration and memory inadequacies and the record evidence.
Moreover, in light of the medical evidence in the record, discussed above, noting Martinez's concentration and memory deficiencies, it was not inconsistent, as the ALJ concluded, for Martinez to state, in February 2002, that reading was his daily activity and to testify, in March 2004, that he could not concentrate sufficiently to read. Additionally, while the ALJ considered properly evidence of Martinez's attempt to set up his own business, when determining whether Martinez's ability to concentrate was impaired, that evidence, when compared with the substantial medical findings of concentration and memory deficiencies, is not adequate to support the ALJ's finding that Martinez's subjective complaints of concentration and memory difficulties were not credible.
Based on the record as a whole, the Court concludes that the ALJ's finding, that Martinez's testimony was exaggerated and disproportionate to the diagnostic and clinical findings, and his decision to discredit Martinez's subjective complaints about pain and his other symptoms, because he found them to be beyond what would be expected in terms of intensity, duration, or frequency, are not supported by substantial evidence in the record.
2. Residual Functional Capacity
The applicable regulations provide that, in determining disability, the ALJ will assess the claimant's RFC based on all relevant evidence in the case record and, at step five of the sequential disability evaluation analysis, will use that assessment "to decide if [the claimant] can make an adjustment to any other work that exists in the national economy." 20 C.F.R. §§ 404.1545(a)(5), 416.945(a)(5).
(i) Using Left Upper Extremity as a "Helping Hand"
Martinez asserts Dr. Mesnick's report did not indicate that he could use his left upper extremity as a "helping hand" or that he could do light work. Martinez also notes that Dr. Narula's recommendation indicated that "[h]e essentially has no function in the left upper extremity. At most, he could be sitting at a desk and could use the upper extremity to stabilize an object, but is otherwise unable to perform any bimanual activities." Martinez maintains Dr. Narula's report did not indicate that he could use his left hand as a "helping hand" and that Dr. Narula stated only that "'[s]itting at a desk' would, at most, be sedentary work." The Commissioner asserts the ALJ acted properly when he relied on the opinions of Drs. Narula and Mesnick, which constitute substantial evidence supporting the ALJ's findings.
Martinez is correct when he asserts the ALJ's finding that he could "use his left upper extremity only as a helping hand" is inconsistent with the opinions expressed by Drs. Mesnick and Narula. The record makes clear that, in his February 2002 assessment of Martinez's upper extremities, Dr. Mesnick indicated, among other things, he observed atrophy of the left hand muscles, decreased sensation, control and coordination in the left upper extremity, and hypermyesthesia allodynia on the left. He also noted the severe limitations Martinez had with (a) his left wrist and fingers (b) his lifting, carrying, pushing and pulling abilities and (c) his fine manipulation using his left upper extremity concluding: "Prognosis poor."
In May 2004, Dr. Narula noted, among other things, that Martinez held his left upper extremity in a flexed posture, did not move it at all and had limited range of motion with respect to his left arm, wrist and fingers. Dr. Narula stated that Martinez had zero grip strength in the left hand and was unable to: perform any fine finger coordination activities; do a lateral pinch; do any rapid alternating movements; or manipulate a button or a doorknob with his left hand. She also noted that the sensation in Martinez's left upper extremity was decreased to touch and pinprick, the whole extremity was cold to the touch, there was excessive sweating at his left palm, and there was a purplish discoloration of the left hand when compared to the right hand. Dr. Narula concluded that Martinez was right-hand dominant and had no function in his left upper extremity. She stated: "At most, he could be sitting at a desk and could use the upper extremity to stabilize an object, but is otherwise unable to perform any bimanual activities."
Assuming that Dr. Narula meant that Martinez could use his left upper extremity, at most, "to stabilize an object," this statement does not support an inference that he could use it to do any other task or use it as a "helping hand" in performing any task. Neither Dr. Mesnick nor Dr. Narula opined that Martinez could use his upper left extremity as a "helping hand" to perform any type of work. Moreover, contrary to the ALJ's finding, neither Dr. Mesnick nor Dr. Narula opined that Martinez could perform light work using his right upper extremity "for all major functioning." Dr. Mesnick did not address Martinez's ability to perform light work and, while Dr. Narula's statement that, at most, Martinez "could be sitting at a desk" may imply that Martinez might be able to perform sedentary work, she, too, never addressed his ability to perform light work. The Court finds that the ALJ's finding, that Martinez could use his left upper extremity as a "helping hand," is not based on substantial evidence in the record.
(ii) Failure to Consider Nonexertional Limitations
Martinez contends the ALJ failed to consider his additional nonexertional impairments that result from his pain, fatigue and depression, when he rendered the RFC determination. The Commissioner asserts the ALJ considered the plaintiff's additional nonexertional impairments properly and found, based on substantial evidence in the record, that Martinez's mental limitations were not disabling.
In assessing RFC, the ALJ must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not severe. See 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. § 404.1545. The ALJ must also consider both the remaining exertional and nonexertional capacities and both capacities must be addressed in terms of work-related functions. See 20 C.F.R. Pt. 404 Subpt. P App. 2 § 200.00(e)(2).
Here, in determining Martinez's RFC, the ALJ considered Martinez's exertional capacity by assessing his ability to lift, carry, walk, stand or sit. The ALJ did not consider Martinez's abilities to push and to pull. The ALJ considered further Martinez's nonexertional capacity by assessing his ability to sustain a 40-hour workweek, his limitations in concentration, persistence or pace as they affect his ability to understand, remember and carry out instructions, and his response to stress and change in the workplace. The ALJ rejected Dr. Deal's opinion that Martinez was unable to sustain a 40-hour workweek, finding that Martinez had a slight inability to understand, remember and carry out simple instructions and a moderate inability to understand, remember and carry out detailed instructions.
However, after rejecting Dr. Deal's assessment, the ALJ failed to describe the maximum amount of each work-related activity Martinez can perform based on the evidence available in the record. Moreover, after rejecting Dr. Deal's opinion, the ALJ failed to describe how the evidence supports his conclusions and failed to make citation to specific medical facts and nonmedical evidence in the record to support his findings. Instead, the ALJ supported his findings by relying on a conclusory statement that "Dr. Deal relied more on subjective complaints than clinical findings and she did no psychological testing." The ALJ's reliance on this statement, without more, does not compart with the obligations imposed on him by the applicable statute and regulations.
(iii) Cumulative Effect of Multiple Impairments
Martinez asserts, the ALJ failed to assess how the combination of his hand deficiencies, pain and fatigue interacted with his severe depression and anxiety, thus failing to address the cumulative effect of these multiple impairments on him. The Commissioner contends, the ALJ considered properly Martinez's RFC based on the totality of the medical and nonmedical evidence, finding that Martinez's mental limitations were not disabling.
All the claimant's complaints must be considered together in determining work capacity. See De Leon v. Secretary of Health and Human Services, 734 F.2d 930, 937 (2d Cir. 1984). Here, the ALJ considered separately Martinez's exertional capacity to perform some of the seven strength demands and his nonexertional capacity to perform mental activities. However, while the ALJ considered the effect of affective and anxiety-related disorders on Martinez's nonexertional capacity, it does not appear that the ALJ considered separately Martinez's impairments related to pain, fatigue and depression or the cumulative effect of all Martinez's impairments on his RFC.
(iv) Rejecting the Treating Physician's Opinion
Martinez asserts that, in the absence of contradictory medical opinions, the ALJ rejected the opinion of his "treating physician," Dr. Deal, a licensed psychologist, and substituted his own judgment for Dr. Deal's, without providing legitimate reasons for doing so. The Commissioner contends the ALJ acted properly when he discredited portions of Dr. Deal's opinion concerning whether Martinez could not sustain a 40-hour workweek, because they were contradicted by the evidence in the record, such as Martinez's ability to operate a motor vehicle, work on his computer, attend church services, read, perform household chores, take care of his children, walk his dog, work out by riding a bicycle and lift weights.
SSA regulations give controlling weight to the medical opinion of a claimant's treating physician if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). "In analyzing a treating physician's report, 'the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.'" Rosa, 168 F.3d at 79 (quoting McBrayer v. Secretary of Health and Human Services, 712 F.2d 795, 799 [2d Cir. 1983]). When the ALJ does not give controlling weight to the treating physician's opinion, the ALJ must consider the following factors in determining the weight to give that opinion: (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; (iv) whether the opinion is from a specialist; and (v) other relevant factors. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Additionally, the ALJ must "always give good reasons" for the weight given the claimant's treating physician's opinion. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
In the case at bar, the ALJ found no basis for Dr. Deal's finding that Martinez could not sustain a 40-hour workweek because of his symptoms where, at the same time, "she found only a mild restriction in activities of daily living and mild difficulties in social functioning, but moderate limitations in concentration, persistence, or pace." The ALJ concurred in Dr. Deal's opinion, that Martinez had been and was "experiencing some difficulties with concentration/memory because of his symptoms." However, the ALJ found Martinez's daily activities, such as driving, working on his computer and attending church services, have not been restricted significantly. The ALJ rejected Dr. Deal's finding that Martinez could not sustain a 40-hour week due to his moderate limitations in concentration, persistence or pace, because Dr. Deal "relied more on subjective complaints than clinical findings and she did no psychological testing." The ALJ found, instead, that those limitations resulted only in: (a) a slight inability to understand, remember and carry out simple instructions; and (b) moderate difficulties in understanding, remembering and carrying out detailed instructions.
While Dr. Deal indicated that the restrictions of Martinez's daily activities and his difficulties in maintaining social functioning were of a mild severity level, these findings pertained only to the portion of the report directed to assessing anxiety-related disorders. With respect to her assessment of Martinez's affective disorders, Dr. Deal found, during the same evaluation session, that the restriction of Martinez's daily activities and his difficulties in maintaining social functioning were of a moderate severity level. The ALJ disregarded this finding. The ALJ's conclusion, that Dr. Deal relied more on Martinez's complaints than clinical findings, is not supported by Dr. Deal's report. While the report does not indicate that Dr. Deal conducted psychological testing at that time, it demonstrates unambiguously that Dr. Deal's determinations were based on clinical findings, including the diagnoses of an anxiety disorder, a major depressive disorder and a medically documented persistence of clinical signs and symptoms. Moreover, Dr Deal's specific clinical findings about the severity level of Martinez's symptoms, that the ALJ discredited, were based on clinical evidence she adduced, not on Martinez's complaints, because this evidence was part of a healthcare professional's "assessment," and not part of the "questionnaires" administered about fatigue, pain, medication and rest. The ALJ's rejection of Dr. Deal's finding, because it relied more on Martinez's "subjective complaints than on clinical findings," is contradictory because clinical findings include a healthcare professional's assessment of both subjective complaints and objective evidence, such as physical manifestations. See THE SLOANE-DORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY 270 (1983).
A clinical finding is an observation made during a direct medical examination of a patient. See THE SLOANE-DORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY 149, 287 (1987).
When the ALJ's decision is not favorable to a claimant, it "must contain specific reasons for the weight given to a treating source's medical opinion. See 20 C.F.R. § 404.1527(d)(2). The ALJ's determination to base his rejection of Dr. Deal's finding, that Martinez was unable to sustain a 40-hour workweek, on his own finding, that Martinez's daily activities have not been significantly restricted, is erroneous because the Court has found that the ALJ's determination of Martinez's abilities to perform daily activities was not based on substantial evidence, as discussed above. Therefore, the Court finds that the ALJ substituted his own judgment for Dr. Deal's impermissibly and that the ALJ erred when he failed to adopt Dr. Deal's opinion without showing that it was not well-supported and not inconsistent with the other substantial evidence in the record.
3. Substantial Gainful Activity
Martinez contends the ALJ's finding, that he was capable of performing substantial gainful activity by doing light work, is erroneous because it was based on flawed hypothetical questions posed to the vocational expert who testified at Martinez's hearing. Martinez asserts, the ALJ's hypothetical questions failed to take into account his psychological impairments. He contends further, that a few questions the ALJ asked, directed at Martinez's psychological impairments, were not based on the evidence in the record. The Commissioner contends the hypothetical questions the ALJ put to the vocational expert reflected accurately Martinez's vocational factors and his RFC. Furthermore, according to the Commissioner, the vocational expert's testimony provided substantial evidence that supports the ALJ's finding that Martinez is not disabled.
At step five of the sequential disability evaluation analysis, the ALJ must consider information about the claimant's vocational background together with the claimant's RSD before making a disability determination. See 20 C.F.R. §§ 404.1545(a)(5)(ii), 416.945(a)(5)(ii). An ALJ has the discretion to use the services of a vocational expert if the issue in determining disability is whether a claimant's skills can be used in other work and the specific occupations in which they can be used. See 20 C.F.R. §§ 404.1566(e); 416.966(e). Before relying on a vocational expert's evidence to support a disability determination, the ALJ must identify and obtain a reasonable explanation for any conflicts between occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles, including its companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles. "The [vocational expert's] testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job." Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). "Proper use of vocational testimony presupposes both an accurate assessment of the claimant's physical and vocational capabilities, and a consistent use of that profile by the vocational expert in determining which jobs the claimant may still perform." Lugo v. Chater, 932 F. Supp. 497, 504 (S.D.N.Y. 1996).
At the hearing, the ALJ posed to the vocational expert an unintelligible hypothetical question containing assumptions that were not supported by evidence in the record. The ALJ asked the vocational expert, among other things, the following:
So assume that they have gross dexterity but absent, almost no, absent fine dexterity of the left hand but the right hand is dominant. Assume that the left hand could be used occasionally for sort of a helping hand which means just simply to be a stop for them, a person could shovel something up and pick it up. So assuming basically that the Administration has assumed this person is a one-handed person for all practical purposes. They've conceded that but assume that having said that and the other limitations I gave you, would there be any light — well, first of all, the sedentary jobs that you just described, could that person do that as a one-handed person?
(Tr. 324). Upon hearing the question, the vocational expert stated he was confused by it because the ALJ first stated that "there was pain and there was gross dexterity" but then the ALJ said there was "a one-handed person, so which is it?" The ALJ replied erroneously: "The Administration said he was a left-handed person." In an attempt to clarify the hypothetical question, the vocational expert asked: "You mean he's right-hand dominant, he does not have function or use at all in his left hand?" to which the ALJ replied: "That's what they say."
The record does not demonstrate that the Social Security Administration ("Administration") assumed or stated that Martinez is a "one-handed person" or a "left-handed person." In its initial determination of Martinez's disability, the Administration found Martinez was not disabled and explained its determination by stating: "Claimant retains the capacity to perform one armed, light work. 3 jobs claimant should be able to perform include: usher[,] order caller[,] ticket taker[.]" The ALJ stated inaccurately that the only nonexertional limitation the hypothetical person referenced in his question to the vocational expert had was related to "pain in the left arm and hand," without taking into account Martinez's affective and anxiety-related impairments. Moreover, when Martinez's attorney added the nonexertional limitations to the hypothetical question, the vocational expert replied that a person with those additional limitations would not be able to perform the jobs he described. Additionally, after the ALJ told the vocational expert that he was going to send Martinez for a test, like "an MMOI," he then added an assumption to the hypothetical question, that a Minnesota Multiple Personality Inventory ("MMPI") report was generated demonstrating a slight impairment with simple work-related instructions, a moderate impairment with detailed work-related instructions and a change in routine work setting. Thereafter, the ALJ asked the vocational expert whether a person with those additional limitations would be able to perform the jobs the vocational expert identified. Notwithstanding the vocational expert's answer expressing uncertainty about the effect the additional limitations would have on productivity in the identified jobs, no evidence exists in the record to support the assumption that a MMPI report was, in fact, generated.
When the vocational expert provided evidence of the requirements for the amusement and recreation attendant occupations, including that these occupations require that a person "in some cases operate[s] rides," the ALJ had an affirmative responsibility to ask about any possible conflict between the vocational expert's evidence and information provided in the DOT. The ALJ failed to do so. In fact, had the ALJ compared the DOT information on the amusement and recreation attendants' occupational titles, he would have found that DOT section "34 Amusement and Recreation Service Occupations" includes a variety of attendant occupational titles, some of which include cleaning equipment, performing repairs, operating machines, fastening safety devices for patrons and rendering assistance to patrons with special needs, as well as in emergency situations. A cursory review of the various requirements, listed in the DOT for the relevant occupational titles, makes clear that some of them would not be consistent with the evidence about the job requirements provided by the vocational expert.
The ALJ committed a legal error by: (a) including in his hypothetical question assumptions not supported by evidence in the record; (b) failing to provide an accurate assessment of Martinez's capabilities to the vocational expert; and (c) relying on the vocational expert's testimony without inquiring about the inconsistencies between the occupational evidence provided by the vocational expert and the pertinent information in the DOT.
In the instant case, the Court finds that the lack of substantial evidence in the record supporting the defendant's determination and the errors discussed above warrant a remand of the plaintiff's disability benefits claim to the Commissioner for additional administrative action.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, made pursuant to Fed.R.Civ.P. 12(c) be granted; and (2) the defendant's cross-motion for judgment on the pleadings, made pursuant to Fed.R.Civ.P. 12(c), be denied. I recommend further that the matter be remanded to the Commissioner.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).