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remanding for function-by-function analysis where the ALJ found claimant could perform all sedentary work and therefore her past work as an administrative assistant, without considering evidence her right hand was functionally impaired and she had difficulty writing
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1:00 Civ. 9621 (JSR)(FM)
January 21, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF
I. Introduction
Pursuant to Section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), plaintiff Carol Murphy ("Murphy") seeks review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance and Supplemental Security Income ("SSI") benefits. The case comes before the Court on cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, I recommend that Murphy's motion be granted insofar as it seeks a remand of this case for further proceedings, and that the Commissioner's cross-motion be denied. Additionally, if this report and recommendation is accepted, the case should be closed.
II. Background
A. Procedural History
On or about July 7, 1995, Murphy filed applications for disability insurance and SSI benefits which alleged that she had been disabled since June 15, 1994. (Tr. 91). These applications both were denied initially on August 15, and upon reconsideration on December 5, 1995. (Id. at 94-96, 98-100). In late December 1995, Murphy requested a de novo hearing before an administrative law judge ("ALJ"), which was held on November 22, 1996. (Id. at 40-89, 102). Following that hearing, on June 24, 1997, the ALJ issued a written decision in which he concluded that Murphy was ineligible for benefits. (Id. at 31-35). The ALJ's decision became the Commissioner's final decision after the Appeals Council denied further review on October 26, 2000. (Id. at 4-5).
The administrative record furnished to the Court contains several gaps. For example, Murphy's application for SSI benefits is missing. Nonetheless, the List of Exhibits in the record indicates that the SSI application was submitted on the same day as the application for disability benefits.
Citations to "Tr. ___" refer to the certified copy of the administrative record filed by the Commissioner as part of the Answer.
The Appeals Board initially denied review on June 23, 1999. Thereafter, the Board vacated that decision and issued a new decision on October 26, 2000 because it had failed to consider and make part of the record certain additional evidence submitted by Murphy. (See id. at 4-15).
On or about December 19, 2000, Murphy filed a timely action in this Court seeking review of the Commissioner's decision. (Docket No. 1).
B. Relevant Facts
1. Non-Medical Evidence
a. Murphy's Testimony
Murphy was born on M arch 9, 1946. (Tr. 45). She has a bachelor's degree in psychology and has completed an additional thirty credits of graduate work. (Id. at 48, 111). Over the fifteen-year period prior to the hearing, Murphy worked in the education field, both as a teacher of children and adults and as an administrative assistant. (Id. at 49-55, 111). Murphy testified that she began to experience pain on her right side after an incident in 1991 during which a student assaulted her and caused her to fall. (Id. at 58). She explained that she resigned from teaching in June 1994 because the pain had increased to the point that she "couldn't do it anymore." (Id. at 55).
Murphy stated that she had constant pain on her right side, particularly in her right hand and neck, and in her lower back. (Id. at 57). She testified that the pain would often radiate into her right leg, and that her fingers, feet, and toes would tingle. (Id.). Murphy said that the pain in her right side and lower back was constant and "excruciating," and that the radiating pain in her leg occurred "four or five times a day." (Id. at 58, 59). She indicated that she w as hospitalized for approximately ten days in September 1995 for the pain in her right side, headaches, and nausea. (Id. at 60).
Murphy testified that she was no longer taking medication to relieve her pain because it had elevated her blood pressure. (Id. at 60, 81). She stated that she wore a cervical collar for about 75 percent of the day and used a cane to help her walk. (Id. at 62). She testified that she also wore a brace on her right hand to support her wrist, on which two surgeries had been performed in an attempt to address her symptoms of carpal tunnel syndrome and ulnar entrapment. (Id. at 61, 63).
Murphy testified that she resided with her children in a two-story house. (Id. at 45-46). She stated that she occasionally would drive no longer than five to ten minutes to visit her doctors. (Id. at 76). She also stated that she went shopping once a week with the assistance of a daughter and cooked a few times a week using a microwave oven. (Id. at 77, 83). Murphy indicated that she had occasional difficulty washing and dressing, and that she sometimes needed her daughter's help to tie her shoes. (Id. at 78). She also stated that, because she was unable to grasp objects with her dominant right hand, she was unable to type or write for any extended period. (Id. at 82). W hen asked to assess her work-related abilities, Murphy indicated that she would be able to sit and stand for twenty minutes at a time and would be able to walk approximately one and one-half blocks before having to stop. (Id. at 86). She also stated that she could lift about five pounds. (Id.).
b. Chiropractor's Report
In an undated report to the New York State Department of Social Services ("NYSDOSS"), Dr. Vito Guarino, a chiropractor who treated Murphy between August and November 1995, indicated that she complained of weakness in her right arm, cervical pain, arm to hand paresthesia, right thigh to buttock pain, and an inability to walk without a cane. (Id. at 125). He reported that Murphy experienced grip weakness in her right hand. (Id. at 126). Dr. Guarino further noted that Murphy had a limited range of motion in her right shoulder, neck, and back, and a significant abnormality in her gait. (Id. at 127-33). He diagnosed Murphy as suffering from right "sciatic neu[ro]pathy" and right "brachial neu[ro]pathy," (id. at 125), indicating that she could not lift any weight, could stand or walk "less than 2 hours per day," and could sit "less than 6 hours per day." (Id. at 133). He also noted that weakness in Murphy's right arm limited her ability to push or pull and that she had "postural" difficulties as a consequence of a "malposition[ed] lumbar spine." (Id.).
"Paresthesia" is an abnormal sensation, such as a feeling of burning or prickling. Sloane-Dorland Annotated Medical-Legal Dictionary ("Sloane-Dorland Dictionary") 533 (1987).
The term "neuropathy" refers to "functional disturbances and/or pathological changes in the peripheral nervous system." Id. at 496.
2. Medical Evidence
a. Hospitalization and MRI Results
On September 19, 1995, Murphy was admitted to New Rochelle Hospital, where she remained for ten days after complaining about high blood pressure and pain on the right side of her body. (Id. at 146-69). The admitting diagnosis was "cervical spondilitis [sic]." (Id. at 146).
"Spondylitis" is an inflammation of the vertabrae. Id. at 661.
Dr. Jerome Gristina, a consultant in physical medicine and rehabilitation, examined Murphy during her hospital stay, noting that her reflexes were equal and active and her nerve conduction studies were "within normal limits," although her sensation to pinprick was reduced in the right upper and lower extremities. (Id. at 154). His report indicated that her motor power in these extremities was 4/5, although there was no evidence of muscle wasting. (Id.). Dr. Gristina also observed that Murphy had difficulty raising her right leg because of back pain and that there was tenderness in the "midline lumbosacral area and cervical area." (Id.). He prescribed physical therapy for her complaints. (Id.).
While Murphy was hospitalized, an MRI examination on September 21, 1995 revealed a "mild right paracentral L5-S1 disc bulge" which "mildly displace[d] the right S1 root." (Id. at 136). The MRI also disclosed a "C5-C6 right lateral protrusion of bone and osteophyte material, mildly deforming the ventral right lateral cord and moderately narrowing the foramen." (Id. at 138). However, the examination did not show any disc herniation, spinal stenosis, or "intrinsic signal abnormalities of the cord." (Id. at 137-38).
An intervertebral foramen is a passage through which nerves travel to reach soft tissue. See Sloane-Dorland Dictionary at 295.
Murphy's hospital discharge summary was consistent with the results of the MRI study, but also noted that she suffered from a Vitamin B12 deficiency which was being addressed. (Id. at 147). The discharge summary stated that she was discharged from the hospital on September 25 "in stable condition" and was to be followed on an outpatient basis by her private physician. (Id.).
b. Dr. Essien
On September 30, 1995, Dr. Ralph Essien, Murphy's personal physician, prepared a "to whom it may concern" letter which indicated that Murphy was "suffering from a disabling neurological condition." (Id. at 145). The letter also noted that Murphy was "unable to put to full use her extremities for labor." (Id.).
Following an examination on October 23, 1995, Dr. Essien diagnosed Murphy as having cervical spondylitis, hypertension, hypercholesterolemia, and a Vitamin B12 deficiency. (Id. at 141; see also Pl.'s Mem. at 8). He reported to NYSDOSS that Murphy demonstrated weakness on her right side and complained of pain associated with that weakness. (Id. at 141-42). He also noted that she had decreased muscle tone on her right side and was unable to walk without a cane. (Id. at 142). Dr. Essien indicated that Murphy could lift five to ten pounds and could "stand and/or walk" for up to six hours per day. (Id. at 143). He also reported that she was limited in her ability to push and pull, but he did not provide any further specifics. (Id. at 144). Finally, he observed that Murphy's ability to perform work was also limited by a "gait problem." (Id.).
c. Dr. Klass
The record before the ALJ also included several letters written by Dr. Stephen C. Klass, a doctor retained by the workers compensation insurance carrier for Murphy's employer. (Id. at 170-74). In a June 28, 1995 letter, Dr. Klass reported that, during examinations on May 1 and June 16, 1995, Murphy complained of numbness in her right arm and pain in her right side. (Id. at 173). He noted further that Murphy appeared to move about "without any degree of discomfort" and that he was uncertain as to whether her condition was "real" or "unreal." (Id.). Thereafter, in letters to NYSDOSS dated October 19 and November 10, 1995, Dr. Klass reported the results of the scans previously done at New Rochelle Hospital, but did not comment on them. (Id. at 170-72).
d. Dr. Barone
Dr. Richard P. Barone began treating Murphy for carpal tunnel syndrome in 1991 after the accident at her school. (Id. at 189, 194). In a letter dated October 28, 1996 to Meir Freund, Esq., Murphy's attorney, Dr. Barone reported that Murphy's right hand was "missing a lot of function" and that she suffered from "ongoing symptoms of the right [u]lnar nerve entrapment." (Id. at 194). He also reported that Murphy was continuing to complain about neck and back pain. (Id.). He noted the results of the New Rochelle Hospital tests, concluding that she could not "function at any job under any circumstances" because she experiences pain in all positions. (Id.). Finally, he observed that Murphy's distal nerve entrapments did "not allow for reasonable hand activity of any kind." (Id.). He stated that Murphy could no longer take pain medication because of her elevated blood pressure. (Id.).
Subsequently, on September 19, 1997, Dr. Barone completed a medical assessment of Murphy's ability to perform work-related physical activities, in which he reported that she could lift less than one to two pounds due to her weakened grip, muscle spasms, and tingling in her neck, arm, hand, and cervical spine. (Id. at 196). He also indicated that Murphy was limited in reaching, handling, and pushing/pulling, and that she was sensitive to temperature extremes and vibration. (Id. at 197). Dr. Barone concluded that because of the problems with her right neck, back, and side, Murphy could not "sit, stand, push, pull, read, write or do any activity without pain." (Id. at 198). He indicated that she could sit, stand, and walk for one hour at a time and for a maximum of one hour per work day. (Id. at 195).
This report was submitted as additional medical evidence when Murphy appealed the ALJ's June 24, 1997 decision to the Appeals Board.
e. Dr. Kuiper
On June 19, 1997, Dr. Willem T. Kuiper, a specialist in physical medicine and rehabilitation, examined Murphy. (Id. at 199). He observed that Murphy's cervical paraspinal muscles, as well as her dorsal and lumbrosacral paraspinal muscles, were tight and tender, and that she had a decreased range of motion. (Id.). He also noted that her right wrist was tender. (Id.). Dr. Kuiper's diagnosis was that Murphy suffered from:
Dr. Kuiper's report also was submitted as additional evidence when Murphy sought review of the ALJ's decision by the Appeals Board.
Derangement of the cervical spine with clinically right sided radiculopathy. Derangement of the lumbrosacral spine with clinically right sided radiculopathy. Traumatic arthritis of the right wrist with carpal tunnel syndrome.
(Id. at 200). He noted that she complained of recurrent headaches, blurred vision on the right, ringing in her ears, light-headedness when turning her head, "phobias for people behind her," twitching in the right side of her face, pain in her neck radiating into both arms, numbness and tingling in both hands, and pain in her upper and lower back radiating into her right leg. (Id. at 199). He also reported that Murphy had difficulty sitting, standing, or walking, could not lift anything heavier than ten pounds, and walked with a cane. (Id.). Dr. Kuiper concluded that Murphy had a permanent partial disability. (Id. at 200).
3. ALJ's Findings
After hearing Murphy's testimony and reviewing the medical evidence, the ALJ found that Murphy had not engaged in any substantial gainful activity since June 15, 1994, at which time she met the disability insured status requirements of the Act. (Id. at 34). However, the ALJ further determined that Murphy's impairment did not meet the standards of any impairment listed 20 C.F.R. § 404, Appendix 1, Subpart P, and that her allegations regarding her pain and functional limitations were "not credible." (Id.). He also found that while Murphy was limited in her ability to lift or carry more than ten pounds or to stand or walk for an extended period, her past relevant work as a teacher and administrative assistant did not require that she perform such activities. (Id.). The ALJ therefore determined that Murphy was not disabled. (Id. at 35).
III. Applicable Law
A. Disability Determination
"Disability" is defined in the Act as an "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). In making a determination as to a claimant's disability, the Commissioner is required to apply the familiar five-step sequential process set forth in 20 C.F.R. § 404.1520 and 416.920. The Second Circuit has described that process as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). Accord Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).
The claimant bears the burden of proof with respect to the first four steps of this process. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the Commissioner finds that a claimant is disabled or not disabled at an early step in the process, she is not required to proceed with any further analysis. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). However, if the analysis reaches the fifth step of the process, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
B. Standard of Review
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment on the pleadings if it establishes that no material facts are in dispute and that it is entitled to judgment as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Caraballo ex rel. Cortes v. Apfel, 34 F. Supp.2d 208, 213 (S.D.N.Y. 1999) (Sweet, J.) (internal citations omitted).
The Act, in turn, provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The term "substantial" does not require that the evidence be overwhelming, but it must be "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)) (internal quotation m arks omitted).
A reviewing court is not permitted to review the Commissioner's decision de novo. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, where the Commissioner's determination is supported by substantial evidence, the decision must be upheld. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Ortiz v. Barnhart, 2002 WL 449858, at *4 (S.D.N.Y. Mar. 22, 2002) (Sweet, J.). Although one would expect the deferential "substantial evidence" standard to result in frequent judicial affirmances of the Commissioner's decisions, disability determinations have in fact proved to be "surprisingly vulnerable to judicial reversal." Thomas v. Barnhart, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002). As Judge Lynch explained in Thomas:
This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. For example, the substantial evidence standard might lead one to expect that a district court must affirm the decision of an ALJ who accepts the medical judgment of a consultative physician who unequivocally finds a claimant fit for work. Yet, the Commissioner has adopted regulations that give greater, and under some circumstances controlling, weight to the opinion of a claimant's treating physician, and set forth a particular methodology that must be followed in deciding whether to accept or reject such an opinion. . . .
In light of rules such as these, a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully evaluated to determine whether the Commissioner fully complied with all the relevant regulations.
Id.
IV. Discussion
A. Residual Functional Capacity ("RFC") Assessment
Murphy contends that the Commissioner's finding that she is able to engage in sedentary work of the type that she previously performed is not supported by substantial evidence. Specifically she argues that the ALJ failed to (1) accord proper weight to the opinions of her treating physicians, (2) consider the reports of her chiropractor, (3) consider her inability to walk without the assistance of a cane, or (4) properly weigh the credibility of her testimony regarding her pain. (Pl.'s M em. at 7-22). She urges the Court to remand solely for the purpose of calculating benefits. (Id. at 22-24).
1. Opinions of Treating Physicians
With respect to her treating physicians, Murphy contends that the ALJ mischaracterized Dr. Essien's opinion and "failed to articulate any reasons for failing to fully credit the opinion as [it] exists in the record." (Id. at 9-10). She also maintains that the ALJ's reasons for discrediting Dr. Barone's opinions were insufficient. (Id. at 12-13).
An ALJ is required to give a treating physician's medical opinion controlling weight if it is well-supported by medical findings and not inconsistent with the other substantial evidence in the administrative record. See Rosa, 168 F.3d at 78-79; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). An ALJ who does not give the treating physician's medical opinion controlling weight must provide "good reasons" for that decision and explain the factors that were applied to determine the amount of weight given to the opinion. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Among the factors the ALJ must consider are the length of the treatment relationship and frequency of examination, the nature and extent of the treatment relationship, the extent to which the opinion is supported by medical and laboratory findings, the physician's consistency with the record as a whole, and whether the physician is a specialist. Id. §§ 404.1527(d)(2)(i) (ii), (3)-(6), 416.927(d)(2)(i) (ii), (3)-(6). However, the ALJ is not required to give controlling weight to a treating physician's opinions as to the ultimate issue of whether the claimant meets the statutory definition of disability. Id. §§ 404.1527(e)(1) (3), 416.927(e)(1) (3). See also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (quoting 20 C.F.R. § 404.1527(e)(1)). If the ALJ fails to apply the correct standard in weighing a treating physician's opinion and fails to give good reasons for rejecting the opinion, a remand for further fact finding is the appropriate remedy. Schaal, 134 F.3d at 506.
The ALJ's decision indicated that he accorded little weight to Dr. Barone's opinion that Murphy could not function "at any job under any circumstances." (Tr. 33). Among other things, he found it "unusual," and therefore not credible, that "Dr. Barone wrote that [Murphy] could [undertake these activities] for one hour each at a time and for one hour each during an entire 8 hour work day." (Id.) (emphasis in original). The ALJ also stated that Dr. Barone's opinion was not supported by "objective clinical findings." (Id.). Assuming that there was some inconsistency in these findings, the ALJ nevertheless failed to indicate the weight, if any, that he accorded to the other aspects of Dr. Barone's opinion, including the findings that Murphy suffered from back and neck pain due to a bulging disc that impinged her spinal cord and had difficulty grasping, pushing/pulling, and reaching. (See id. at 194-95). Additionally, the ALJ failed to apply the factors set forth in 20 C.F.R. § 404.1527(d)(2)-(6), 416.927(d)(2)-(6) to explain the weight he did accord Dr. Barone's opinion. This was error.
The ALJ's reluctance to accept Dr. Barone's findings also stems, at least in part, from Dr. Essien's observation that Murphy could "lift/carry up to 10 pounds occasionally, stand/walk for up to 6 hours in an 8 hour work day, and sit without limitation." (Id. at 33). However, the ALJ failed to address Dr. Essien's other findings indicating that Murphy had cervical spondylitis, had decreased muscle tone on her right side, was unable to walk without a cane, and was limited in her ability to push or pull. (See id. at 141-44). The ALJ also failed to set forth any reasons for not crediting these findings. This, too, was error. See, e.g., Ferraris v. Heckler, 728 F.2d 582, 586-87 (2d Cir. 1984) (case remanded because ALJ failed to consider treating physician's opinion as to claimant's ability to sit for more than one or two hours at a time).
On remand, the ALJ should take care to detail his reasons for not according controlling weight to the opinions of Murphy's treating physicians as to all of the physical activities relevant to her former sedentary work.
2. Chiropractor's Report
Murphy contends that the ALJ also failed to consider — or even mention — the report of her chiropractor, Dr. Guarino, in the course of determining her RFC. (Pl.'s Mem. at 13-14).
The applicable regulations state that a chiropractor is not an "acceptable medical source" who can provide evidence of the existence of a "medically determinable impairment." See 20 C.F.R. § 404.1513(a) (d)(1), 416.913(a) (d)(1). Rather a chiropractor falls into the category of "other sources" that the Commissioner may use to determine the severity of a claimant's impairment and how it affects the claimant's ability to work. Id. Other such sources include school teachers, relatives, and social welfare agency personnel. Id. §§ 404.1513(d)(2)-(4), 416.913(d)(2)-(4). Although the opinion of a treating chiropractor consequently is not entitled to controlling weight, Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995), "chiropractic reports may assist an ALJ in determining a claimant's disability status, and therefore should not be disregarded arbitrarily." Ienuso v. Apfel, 1998 WL 336641, at *6 (S.D.N.Y. June 23, 1998) (Mukasey, J.). Indeed, the regulations require that the Commissioner consider all the relevant evidence, including observations made by persons other than the claimant's treating physicians. See 20 C.F.R. § 404.1545(a), 416.945(a).
In his decision, the ALJ failed to mention Dr. Guarino's report, which indicated, among other things, that Murphy suffered from pain and weakness in her right side, had difficulty grasping objects with her right hand, could not stand for more than two hours per day, could not sit more than six hours per day, was limited in her ability to push and pull, and required the use of a cane to help her walk. (See Tr. 125-26, 133). This evidence, although not entitled to controlling weight, certainly was relevant to the ALJ's determination of Murphy's RFC and, as such, should have been considered. The failure to do so constitutes error.
3. Analysis of Functional Limitations
Murphy also argues that the ALJ improperly failed to consider Murphy's manipulative limitations and need to use a cane in the course of analyzing her RFC. (Pl.'s Mem. at 17).
The regulations require an ALJ to consider all relevant evidence in the record, including the "nature and extent of [the claimant's] physical limitations," in the course of determining a claimant's RFC. 20 C.F.R. § 404.1545(a) (b), 416.945(a) (b). The physical limitations that can have an impact on a claimant's ability to perform past work include limits in walking and other "manipulative or postural functions, such as reaching, handling, stooping or crouching." Id. §§ 404.1545(b), 416.945(b).
Under the regulations, the ALJ also must analyze a claimant's RFC on a function-by-function basis. See Brown v. Barnhart, 2002 WL 603044, at *5 n. 5 (E.D.N.Y. Apr. 15, 2002) (Gleeson, J.) (remand required by ALJ's failure to perform function-by-function analysis); Alwashie v. Apfel, 2001 WL 135768, at *4 (S.D.N.Y. Feb. 16, 2001) (Mukasey, J.)("The RFC should be a function-by-function determination of the claimant's ability to do work-related physical activities such as sitting, standing, walking, carrying, lifting, or pulling. . . ."); Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *3 (July 2, 1996) ("The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities. At step 4 of the sequential evaluation process, the RFC must not be expressed initially in terms of the exertional categories of 'sedentary,' 'light,' 'medium,' 'heavy,' and 'very heavy' work because the first consideration at this step is whether the individual can do past relevant work as he or she actually performed it.").
The record indicates that Drs. Barone and Guarino both found that Murphy was experiencing weakness in her right hand. In 1996, Dr. Barone reported that Murphy's right hand "is missing a lot of function" and that "[s]imple activities [such] as cleaning, brushing teeth, toilet activities, [and] bathing are severely impaired." (Tr. 194). In a subsequent report, Dr. Barone similarly indicated that Murphy had little grip strength in her right hand. (Id. at 196). Dr. Guarino also found that Murphy was experiencing grip weakness in her right hand when he examined her. (Id. at 126). In keeping with these findings, Murphy herself testified that she had difficulty grasping objects with her right hand and could not write for any extended period of time. (Id. at 82). Drs. Essien and Guarino further noted that Murphy had difficulty walking and that she utilized a cane as an aid. (Id. at 125, 142).
Despite this evidence, the ALJ gave no indication that he considered Murphy's limited ability to manipulate her right hand or her use of a cane in the course of determining that she was not limited in her performance of sedentary work. Sedentary work is defined by the regulations as work which "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 404.1567(a), 416.967(a). See also SSR 96-9p, 1996 WL 374185, at *8 (July 2, 1996) ("Most unskilled sedentary jobs require good use of hands and the fingers."). The regulations further note that a sedentary job typically requires occasional walking and standing. 20 C.F.R. § 404.1567(a), 416.967(a). Murphy's manipulative limitations and use of a cane therefore were relevant to the ALJ's determination that she could perform sedentary work. The ALJ's failure to consider all of the relevant evidence regarding Murphy's functional limitations and to perform a function-by-function analysis of her limitations in the course of determining her RFC therefore also compels a remand to the Commissioner for further proceedings.
4. Credibility Determination
Murphy's final contention is that the ALJ improperly analyzed the credibility of her testimony regarding her pain and symptoms. (Pl.'s Mem. at 17).
The regulations set forth a two-step process to evaluate a claimant's testimony regarding her symptoms. First, the ALJ must consider whether the claimant has a medically determinable impairment which could reasonably be expected to produce the pain or symptoms alleged by the claimant. Sarchese v. Barnhart, 2002 WL 1732802, at *7 (E.D.N.Y. July 19, 2002) (Gleeson, J.) (citing SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996)); 20 C.F.R. § 404.1529(b), 416.929(b). Second, if the ALJ determines that the claimant is impaired, he then must evaluate the "intensity, persistence, and limiting effects" of the claimant's symptoms. Id. (internal quotation marks omitted); 20 C.F.R. § 404.1529(c)(1), 416.929(c)(1). If the claimant's statements about her symptoms are not substantiated by objective medical evidence, the ALJ must make a finding as to the claimant's credibility. Sarchese, 2002 WL 1732802, at *7; SSR 96-7p, 1996 WL 374186, at *2. Such an evaluation of a claimant's credibility is entitled to great deference if it is supported by substantial evidence. Bischof v. Apfel, 65 F. Supp.2d 140, 147 (E.D.N.Y. 1999). See also Bomeisl v. Apfel, 1998 WL 430547, at *6 (S.D.N.Y. July 30, 1998) (Mukasey, J.)("findings [as to claimaint's credibility] are entitled to deference because the ALJ had the opportunity to observe the claimant's testimony and demeanor at the hearing").
In assessing the claimant's credibility, the ALJ must consider all of the evidence in the record and give specific reasons for the weight accorded to the claimant's testimony. See Rivera v. Apfel, 1999 WL 138920, at *8 (S.D.N.Y. Mar. 15, 1999) (Mukasey, J.) (ALJ must state specific reasons for rejecting claimant's statements as not credible); Lugo v. Apfel, 20 F. Supp.2d 662, 663 (S.D.N.Y. 1998) (Rakoff, J.)(same); SSR 96-7p, 1996 WL 374186, at *4 ("W hen evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements."). The regulations require the ALJ to consider not only the objective medical evidence, but also:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms . . .; and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (citing 20 C.F.R. § 404.1529(c), 416.929(c)). See Sarchese, 2002 WL 1732802, at *7 (listing factors); Lewis v. Apfel, 62 F. Supp.2d 648, 658 (N.D.N.Y. 1999) (same).
Here, the ALJ found that the conditions described by Murphy did not constitute "an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1. . . ." (Tr. 34). In keeping with the regulations, the ALJ also considered Murphy's allegations of pain and functional limitations, concluding that they were "not credible to the incapacitating extent alleged." (Id. at 33). In reaching this determination, the ALJ relied on Dr. Klass's report stating that Murphy's symptoms were out of proportion to his "objective neurological findings," as well as a portion of Dr. Essien's report stating that there was no evidence of muscle atrophy or sensory deficits. (Id.). However, the ALJ evidently failed to consider other required factors, such as the record evidence regarding the impact of Murphy's impairment on her daily activities and the location and frequency of her pain. This, too, requires a remand so that they ALJ can consider whether the objective medical evidence and the other factors listed in the regulations support Murphy's testimony as to her pain, symptoms, and functional limitations. See, e.g., Lewis, 62 F. Supp.2d at 658 (remanding case to Commissioner where ALJ failed to discuss the additional factors in analyzing the claimant's statements as to pain and failed to "provide a 'narrative discussion' of the weight that he accorded to [the claimant's] statements").
B. Proper Relief
Notwithstanding the flaws in the ALJ's decision, Murphy contends that the case should be remanded "solely for the purpose of calculating benefits." (Pl.'s Mem. at 22). Pursuant to 42 U.S.C. § 405(g), a district court reviewing the Commissioner's final decision has the power "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for rehearing." A remand solely for the calculation of benefits is warranted only when a rehearing would serve no purpose. See Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000) (quoting Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998)). However, if the record is incomplete or the ALJ has applied the wrong legal standard, the case should be remanded for a rehearing. See Curry, 209 F.3d at 124; Zimmerman v. Massanari, 212 F. Supp.2d 127, 133-34 (W.D.N.Y. 2002).
In this case, the ALJ's decision failed to comply with the Commissioner's regulations in several respects. Nevertheless, on the present record, the Court cannot say that the ALJ will necessarily find, after a more searching analysis, that Murphy is disabled and entitled to benefits. Accordingly, the case should be remanded to the Commissioner for a further hearing, not simply for the calculation of benefits.
In making this recommendation, I am mindful of the extensive delays endured by Murphy during the disability determination process, her subsequent appeals, and the pendency of this case. However, delay alone is not a sufficient basis for the Court to remand a Social Security appeal solely for the calculation of benefits. Bischof, 65 F. Supp.2d at 148 (citing Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996)). Nonetheless, because of the prior delays, the Commissioner should be instructed to make every effort to expedite the rehearing process upon remand.
V. Conclusion
Plaintiff Carol Murphy's motion for judgment on the pleadings should be granted insofar as it seeks remand to the Commissioner for further proceedings in accordance with this Report and Recommendation, and the Commissioner's cross-motion should be denied. Additionally, the Commissioner should be directed to expedite the hearing process following the remand. Finally, if these recommendations are accepted, the case should be closed.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Jed S. Rakoff and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Rakoff. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).