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holding that a non-examining source's opinion, including the opinions of state agency medical consultants and medical experts, be given less weight than an examining source's opinion
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No. 03 CV 2914 (JG).
May 19, 2004
CHARLES E. BINDER, Binder Binder, New York, New York, By: Kristine S. Kwon, Attorneys for Plaintiff.
ROSYLNN A. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Michael J. Goldberger, Assistant United States Attorney, Attorneys for Defendant.
MEMORANDUM AND ORDER
Mary Rose Pogozelski brings this action pursuant to 42 U.S.C. § 405(g) to review a final determination of the Commissioner of the Social Security Administration ("the Commissioner") denying her disability insurance benefits under the Social Security Act. The Commissioner has moved for judgment on the pleadings affirming the denial of benefits. Pogozelski has cross-moved for reversal and remand For the reasons stated below, the Commissioner's motion for judgment on the pleadings is denied, and plaintiff's motion is granted.
In her papers, counsel for Pogozelski states that she seeks a "reversal" of the decision. Although she does not explicitly ask for a remand, I interpret her to do so. She seeks a reversal of the ALJ's decision on step four of the five-step sequential disability analysis with regard to her alleged physical disabilities, but she does not address step five. (See Pl's Mem. Law at 26, 28.) Similarly, with respect to her alleged mental impairments, she requests a reversal on step three of the analysis, but does not address the remaining steps. Although Pogozelski's counsel was more equivocal in describing the nature of the relief she was seeking at oral argument, that does not change the result I reach here.
BACKGROUND
A. Procedural History
Pogozelski applied for Social Security Supplemental Security Income ("SSI") well over a decade ago, on September 3, 1992. She alleged disability since September 2, 1992, based on severe asthma and muscle spasms. (R. 50-53, 91.) She has not worked since November 1991. (R. 32-33, 285.) Her application was denied initially on March 16, 1993, and on reconsideration, on June 14, 1993. (R. 64-68, 79-82.) At Pogozelski's request, there was an administrative hearing on October 27, 1993. (R. 83, 29-49.) In a decision dated May 27, 1994, Administrative Law Judge ("ALJ") Seymour Fier found that despite certain limitations (i.e., no heavy lifting, no prolonged walking and standing, no working around dust and fumes), Pogozelski could return to her past work as an owner/operator of a video store, and thus she was not disabled. (R. 20.) The Appeals Counsel denied her request for review on November 21, 1994. (R. 2-6.)
"R." refers to the pages of the administrative record.
Pogozelski then brought an action in this district. By order dated January 2, 1996, Judge Sterling Johnson denied the parties' cross-motions for judgment on the pleadings and remanded for further proceedings. (R. 355-56.) He made this determination "[b]ecause further details regarding the typical daily physical activities required by plaintiff's past relevant work are necessary to ascertain whether [her] medical condition renders her unable to perform that job." (R. 359.) He also stated that the medical opinions of Pogozelski's physical abilities seemed to indicate that she would not be able to perform her past relevant work, at least as she had described it in her application. (R. 358-59.) Pursuant to Judge Johnson's order, on September 13, 1996, the Appeals Council vacated ALJ Fier's decision and remanded for further proceedings. (R. 361-62.) On remand, ALJ F. Keith Varni was assigned to the case.
On May 21, 1997, Pogozelski submitted additional medical evidence asserting "anxiety, depression, [and] panic" since 1991. (R. 376.) On May 23, 1997, ALJ Varni ordered that the case be remanded to the California State Agency ("state agency") for a disability determination, specifically, for development of the record relating to Pogozelski's newly alleged mental impairments of depression and anxiety. (R. 375-77.) In August 1997, after that review occurred, the Commissioner denied plaintiff's application based on depression and anxiety. (R. 380-88.) The Commissioner found that the medical evidence showed that Pogozelski suffered from "mild depression," but that her "mental capacity d[id] not significantly interfere with [her] ability to work." (R. 380.) Pogozelski then requested a second administrative hearing. (R. 378.)
At that point in time, Pogozelski had moved to California to live close to, and eventually with, her family.
On December 2, 1998, Pogozelski and her representative appeared before ALJ Varni for a second administrative hearing. (R. 283-330). In an opinion dated January 26, 1999, ALJ Varni ruled that she was not disabled. (R. 261-72.) Pogozelski promptly sought review, but it was not until more than three years later, on April 17, 2003, that the Appeals Council declined to review the decision. (R. 258, 243-44.) Pogozelski then brought this action.
B. Medical Evidence
Pogozelski has an extensive history of problems with asthma, muscle spasms, anxiety and depression. Because ALJ Varni failed to give appropriate deference to Pogozelski's treating physicians and incorrectly weighed the balance of the evidence, I outline below, in some detail, the medical evidence supporting her claim of disability with respect to her physical and mental conditions.
1. Doctor John Joseph — Pogozelski's Treating Internist
Dr. John Joseph, a board certified internist, began treating Pogozelski in 1987 for asthma, anxiety disorder, and muscle spasms of the neck and upper back. (R. 108-09.) In August of 1992, Dr. Joseph noted that her severe asthma required daily use of a nebulizer for bronchodilator therapy. He prescribed her various medications. (Id.) In November of 1992, he recorded her symptoms as chronic wheezing, coughing and shortness of breath. He noted that during that year alone she suffered seven acute asthma attacks, which required emergency room visits. (R. 110-11.) In July of 1992, Dr. Joseph tested her pulmonary function and found that her one-second forced expiration volume was 45% of predicted. (Id.) On October 26, 1992, she tested positive for wheezing. (R. 111.) At that time, his assessment was that she was limited to less than two hours of standing and/or walking per day, that she could occasionally lift and carry five to ten pounds, and that she had a limited ability to push and pull due to muscle spasms. (R. 112.)
These medications were: Slo-bid, Ventolin, Ventolin inhaler, Flexeril, Valium, Alupent solution for nebulizer and Atrovent inhaler. (R. 108-09.)
In June of 1993, Dr. Joseph continued to treat Pogozelski for asthma, severe spasms, and a stress-anxiety disorder, and she continued to take various medications under his direction. He opined that she was unable to work due to her asthma and spasm conditions, but that her home use of a nebulizer had decreased her need for emergency hospital care. (R. 131, 145.) He further posited that her stress-anxiety disorder intensified her asthma. (R. 145.) One month later, he noted that he continued to treat her for her physical conditions, as well as for a stress-anxiety disorder. At that time, she was using a pulmonary nebulizer three or four times daily, as well as a purified air filter and an air conditioner 24 hours per day. (R. 133.) His determination was that she could not work and was completely disabled.
In 1994 and 1995, Dr. Joseph continued to adhere to his conclusion that Pogozelski remained totally disabled. (R. 242, 369.) He also noted that her anxiety disorder caused her to experience severe muscle spasms. (R. 242.) During this period, he reported that she continued to use her nebulizer at home as well as an air filter and air conditioning. (R. 369.)
In 1996, Dr. Joseph reported that her severe bronchial asthma and anxiety disorder were interrelated and that she remained totally disabled. (R. 403-04.) He further reported that her anxiety caused severe muscular spasms for which she took tranquilizers and muscle relaxants. (Id.)
2. Dr. Howard Finger — Administration's Examining Consultant
Dr. Howard Finger, a physician, conducted an examination of Pogozelski at the end of 1992. In his opinion, her respiratory excursions were fair and she had no wheezes, but her breath sounds were diminished bilaterally. He found her to be alert and in no acute distress. (R. 113-114.) Pulmonary function testing revealed a moderate restriction. (R. 114, 116-17.) A chest x-ray revealed mild interstitial prominence. The radiologist cautioned that one "cannot rule out C[hronic] O[bstructive] P[ulmonary] D[isease]." (R. 122.) An x-ray revealed a developmental anomaly in the upper cervical spine. (R. 122.) Based on all of this information, Dr. Finger diagnosed Pogozelski's condition as moderate chronic bronchial asthma, possible mild chest restriction, chronic low back disorder, chronic neck pain, and controlled hypertension. Last, he determined that she had no gross difficulty in sitting, although she was moderately limited in the length of time she could stand, in the distance she could walk, and in her ability to lift and carry weight. (R. 115, 123-25.)
3. Dr. Gerald Greenberg — Administration's Nonexamining Consultative Internist
On January 12, 1994, in response to written interrogatories sent by ALJ Fier after Pogozelski's first hearing, Dr. Gerald Greenberg, a board-certified internist, assessed her impairments. He stated that she suffered from and took medication for asthma, muscle spasms, and anxiety. He rated her response to bronchodilators as fair to good. (R. 231-33, 239.) He found that Pogozelski had a moderate limitation in her ability to stand for prolonged periods due to muscle spasms, and that the spasms and her asthma caused her to be similarly limited in her ability to walk. Dr. Greenberg concluded that she could not engage in sustained work activity at a "moderate" level of exertion. He further determined that while she could perform sedentary work, as to light work, a "[c]ombination of symptoms and frequency could credibly limit this level of activity on a regular, reliable basis." (R. 234.) He described the degree of her impairments as moderate and partial. As to her prognosis, he explained that asthma is a chronic, intermittent disease. (R. 234-35.)
Dr. Greenberg also completed a Medical Assessment of Ability to Do Work-Related Activities (Physical) Form for Pogozelski. In it, he wrote that she could only lift and carry ten to fifteen pounds occasionally, and two to three pounds frequently. (R. 236.) He evaluated her as being able to stand and/or walk for a total of two hours in an eight-hour day, for periods of one-half hour at a time. (R. 237.) Dr. Greenberg also concluded that she could not push or pull more than ten to fifteen pounds, and that her asthma restricted her from engaging in activities involving temperature extremes, chemicals, dust, fumes, and humidity. (R. 238.)
Dr. Greenberg first wrote (on the line above) that Pogozelski could occasionally lift and carry twenty-five pounds and could frequently lift and carry ten to fifteen pounds. (R. 236.)
4. Dr. Richard Tanzer — Pogozelski's Treating Physician
For at least one month in 1997, Dr. Richard Tanzer treated Pogozelski for complaints of anxiety and depression at the Perris Family Clinic Care Center. His diagnosis was anxiety and depression, for which he prescribed anti-anxiety medication and psychotherapy. In his opinion, she was unable to continue her former employment or any other type of full-time work due to her conditions, and had been disabled since November of 1991. His prediction for her recovery was that it was poor, and that her condition would probably last indefinitely. (R. 371-72, 414.)
During the course of his treating Pogozelski for these ailments, Dr. Tanzer completed a Residual Functional Capacity Form. In that form, he assessed Pogozelski as able to sit for up to one hour and stand or walk for up to one hour in an eight-hour day, and to be able to occasionally lift and carry up to five pounds. He also determined that she was moderately restricted from being around moving machinery, being exposed to changes in temperature and humidity, driving a car, and being exposed to dust, fumes and gases. He noted that her condition caused pain, and the medications he prescribed caused drowsiness, nausea and impaired concentration. Last, he opined that she would encounter problems with even low levels of stress. (R. 373-74.)
5. Dr. Sumarli — Pogozelski's Examining Physician
There is disagreement between the parties as to whether or not Dr. Sumarli, who saw Pogozelski on only two occasions, was a treating physician. I need not resolve this dispute because it does not impact on the result that I reach.
Dr. Sumarli, also of the Perris Clinic, examined Pogozelski in December of 1997 in connection with her anxiety and depression. (R. 462.) He too concluded that she was unable to return to her past job or to any other work due to her anxiety and depression (for at least six months). (Id.) After examining Pogozelski on January 12, 1998, Dr. Sumarli completed a Residual Functional Capacity Form. He indicated that she could sit, stand or walk for up to two hours in an eight-hour day, she could frequently lift and carry up to five pounds and could occasionally lift and carry up to twenty pounds, and she was able to use her hands for grasping, pushing, pulling, but not fine manipulations. Dr. Sumarli also indicated that Pogozelski could not be exposed to marked changes in temperature or humidity, dust, fumes and gas. In his opinion, she had difficulty with even low levels of stress. With respect to the impact of her medications, he stated that they caused drowsiness, nausea, impaired concentration, irritability and dry mouth. (R. 460-61.)
6. Dr. Reynaldo Abejuela — Administration's Examining Pyschiatrist
On July 14, 1997, Dr. Reynaldo Abejuela, a psychiatrist, performed a consultative examination of Pogozelski. (R. 415-20.) His assessment was that she appeared mildly depressed and anxious, but her insight was adequate, her attention span and concentration were intact and her occupation and social functioning were not severely impaired. (R. 417-19.) His medical diagnosis was depressive disorder with mild anxiety and asthma, and added that her asthma served as a psychosocial stressor. (R. 417-18.) Last, he found that she could do simple and repetitive tasks in an eight-hour period and that her prognosis was fair. (R. 419.)
7. Jack Flournoy — Pogozelski's Treating Therapist
Jack Flournoy is a Marriage, Child, and Family Counselor. He began treating Pogozelski for her mental problems in March of 1997, and saw her twice monthly until at least December of 1997. (R. 459.) He noted that her concentration was "poor," especially when her anxiety was elevated, and that she took Valium for her panic attacks. (R. 456, 459.) Relatedly, he found that she would become quite upset when confronted with tasks requiring concentration. (R. 458.) He diagnosed her with generalized anxiety disorder and major depressive disorder which was recurrent and moderate. (R. 459.) He opined that "she would not be able to function in a normal work environment." (R. 458.)
In a January 1998 Mental Residual Functional Capacity Assessment, Flournoy found Pogozelski to be mildly limited in her ability, among other things, to complete simple instructions, to make simple work-related decisions, and to interact with others. He found that her mental impairments significantly affected her ability to carry out detailed instructions, to sustain an ordinary routine, and to accept instructions and respond appropriately to criticism from supervisors. Flournoy found Pogozelski to be effectively precluded from performing the following tasks in a meaningful manner: maintain attention and concentration for extended periods; perform activities within a schedule and maintain regular attendance; and complete a normal work week. (R. 452-53.) He also noted that under any type of stress, her anxiety became elevated to the point of incapacitation. (R. 454.)
In a November 1998 report, Flournoy recorded that Pogozelski experienced panic attacks and had "severe anxiety and depression." He described her panic attacks and anxiety as "debilitating." (R. 489-90.) His diagnoses and evaluations of her abilities remained consistent. (R. 452, 486-87.)
8. Consultants
On October 16, 1997, Dr. Schenk, a consultative nonexamining physician, completed a Residual Functional Capacity Form provided by Pogozelski's attorney. In it, Dr. Schenk opined that in an eight-hour day, Pogozelski could sit up to two hours, stand or walk up to two hours, frequently lift and carry up to five pounds, and occasionally lift up to fifty pounds. He determined that she was totally restricted from engaging in activities involving exposure to dust, fumes and gases and moderately restricted from engaging in activities involving exposure to marked changes in temperature and humidity. Dr. Schenk further stated that her condition caused pain, that she had difficulty with even low levels of stress, and that her prescribed medications caused her drowsiness and impaired concentration. (R. 432-33, 438.)
Dr. Weber, the Administration's nonexamining consultant, completed a Residual Functional Capacity Assessment of Pogozelski in February of 1993. In his opinion, she had no limitations in her ability to sit, stand, walk, lift, carry, push or pull, and she had no postural limitations. He determined that the only restriction in her ability to work was that she needed to avoid concentrated exposure to dust and fumes. (R. 54-61.)
Dr. Batchokfs completed a Mental Health Assessment Form on March 6, 1997, which was provided by Pogozelski's attorney. He found that her Global Assessment of Functioning was rated as 50, which translates to "serious symptoms" (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or "any serious impairment in social, occupational, or school functioning" (e.g., no friends, unable to keep a job). (R. 467, 469; Pl's Mem. Law at 10 n. 7 (quoting Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 30-32).) He referred her to community counseling resources. (R. 466.)
On a Psychiatric Review Technique Form dated October 9, 1997, nonexamining consultant, Dr. Gross (a review psychiatrist for the state agency) opined that Pogozelski's unnamed affective disorder was non-severe. (R. 422.)
C. The Vocational Expert
Vocational expert Joseph Mooney provided testimony at Pogozelski's second hearing in 1998. He described her past relevant work as a video store operator as semi-skilled and light. (R. 319.) ALJ Varni asked him to assess what work Pogozelski could perform, based on her age, education and work history, and further based on her own description of her residual functional capacity (i.e., "standing 15 minutes [at a time], walking two blocks, lifting five pounds and sitting one hour"). Mooney responded that, based on that set of circumstances, Pogozelski could not perform her past relevant work and had no transferable skills. He rated her "limitations . . . [as] equat[ing] to considerably less than sedentary work." (R. 320.) Mooney held the same opinion when asked to assume the validity of Dr. Tanzer's 1997 assessment that Pogozelski could perform "no more than two hours [of work] a day." (R. 322.)
ALJ Varni then asked Mooney to assume different circumstances; specifically, that Pogozelski could perform a full range of sedentary work. With respect to her ability to perform her past relevant work (which required light exertion), Mooney's conclusion was no. He did opine, however, that her skills would transfer, with minimal vocational adjustment, to the position of a retail sales clerk who could perform the job from a seated position. (R. 320.) He stated that there were at least 2,000 positions of that description in southern California (where Pogozelski was living at the time) and over 20,000 nationally. (R. 321.) Mooney believed that she could perform this type of work even if she had to avoid exposure to heavy concentrations of respiratory contamination and pollution. (R. 321-22.)
Mooney also told the ALJ that if Pogoleski had to lie down for three to five hours during the normal eight-hour workday, "[s]he would not be able to perform competitive employment," including the work of a seated sales clerk. (R. 321.)
Pogozelski's attorney asked Mooney what work Pogozelski would be capable of performing based on Dr. Greenberg's assessment,i.e., she could stand and walk for only two hours during an eight-hour day. Mooney agreed that, based on those limitations, she "would be effectively precluded from gainful employment." (R. 322.)
D. Plaintiff's Testimony — Personal and Work History
This history has been compiled from Pogozelski's testimony at the October 27, 1993 and December 2, 1998 administrative hearings.
Mary Rose Pogozelski is now 54 years old. (R. 284, 410.) Her educational background is minimal; she did not graduate from high school. (R. 31, 95.) Her husband purchased a video store in 1985, where she worked until 1991. One month after the store was purchased, Pogozelski's husband died. However, he had outfitted the store's office to accommodate Pogozelski's health problems. In the store's office was a bed, a special chair, an air purifier, an air cooler, and an oxygen machine. He also installed a camera in the office that allowed Pogozelski to see what was going on in the store, as she could not work at the counter. While she was at work, Pogozelski commonly spent about three hours per day lying down. (R. 31-33, 287-91.) Pogozelski operated the video store as the sole owner until 1991. She paid and supervised employees, reviewed videos, ordered movies, hired employees and made telephone calls. (R. 95.) In 1991, she was forced to surrender the business due to local competition and her inability to continue to make the lease payments. (R. 31-33.)
Before she moved in with her sister and her sister's family in 1998 (R. 312), Pogozelski had her home set up with a nebulizer and the medicine she needed to manage her asthma, so as to avoid the need for hospitalization. After she closed her store in 1991, she did not seek other work because, as she put it, "I see how I am with the simplest things in the house." (R. 38.) Her aunt, Olga Adamowicz, confirmed this at the first hearing: "every day I see her deteriorating a little bit more and more, and she's unable to do anything, unable to work, unable to go out. She needs things from the stores. There's always somebody that has to go to the stores for her." (R. 44.)
In 1998, Pogozelski related that she experienced "severe pain attacks . . . severe depression" and that her asthma was "horrendous with the spasms." (R. 296.) She suffered spasms daily, which were prolonged when she experienced stress. (R. 298-99.) In her estimation, her health had deteriorated since 1991 and her depression aggravated her physical problems in a "viscous[sic] cycle." (R. 298-300, 304.) She stated that she encountered difficulty in coping with life and felt like she was a total burden. She spent about 95% of her time in her room in order to avoid severe panic attacks. (R. 291, 298.)
In terms of her daily activities, in 1998 Pogozelski reported that she had been spending between three and five hours a day lying down, that she could only walk about two blocks, sit up to an hour, and stand for about fifteen minutes at a time. (R. 297, 311.) When not on "the heavy medication," which rendered her unable to do anything, she prayed, read, and sewed. (R. 299-300.) She attended a one-hour church service on Sundays and was taken shopping by her mother once a week. (R. 313-14.) Pogozelski had not driven in about five years, and did not participate in household chores. She experienced great difficulty in sleeping and was commonly awake every hour: "It's not a peaceful, restful sleep by no means." (R. 316.)
It appears that Pogozelski was referring to Flexeril which, she testified, helped with her muscle spasms but made her very sleepy. (R. 305.)
E. The ALJ's Decision
On December 2, 1998, ALJ F. Keith Varni held an administrative hearing at which Pogozelski (who was represented by counsel) and Mooney, the vocational expert, testified. ALJ Varni issued his decision on January 26, 1999.
ALJ Varni determined that Pogozelski had a severe impairment consisting of asthma, but that it did not meet the criteria of any impairment listed in the regulations. (R. 271.) He read the administrative record as demonstrating that Pogozelski's "asthma is adequately controlled . . . [it] has mediated no pulmonary changes detectable by x-rays[,] [a]ir exchange is not severely impaired, wheezes are generally no more than slight, . . . [and] there is no evidence of significantly limited range of motion [or] persistent spasm." (R. 264-65.) Despite her impairments, he stated, she retained the residual functional capacity for "light exertional work activity with the usual respiratory precautions of no exposure to heavy concentrations of respiratory contamination or pollution." (R. 265). The ALJ went on to conclude that Pogozelski's impairments did not prevent her from returning to her past work as a video store owner/operator both "as actually and usually performed," because this past work did not exceed the exertional requirements of light work, for which she had the residual functional capacity. (R. 270, 272.) Finally, ALJ Varni adopted Mooney's opinion that even if Pogozelski's functional abilities were only at the sedentary level (as she claimed), she "could readily transfer skills to thousands of clerically-oriented jobs." (R. 269-70.)
To support his findings, ALJ Varni appears to have relied principally on Dr. Finger, the Administration's examining consultative physician, and Dr. Greenberg, the Administration's nonexamining consultative internist. ALJ Varni recounted that Dr. Finger found no muscle spasms, no positive neurological signs, and noted only controlled hypertension without any signs of end organ damage. (R. 263.) He relied on the examiner's assessment that she had no difficultly with sitting, only a mild impairment with standing and only a moderate limitation in walking, lifting and carrying. (R. 263.) As to Dr. Greenberg, ALJ Varni adopted his assessment that Pogozelski could perform at least sedentary work with slight environmental restrictions. (R. 263.)
By contrast, ALJ Varni made it clear that he placed little value on the findings of Dr. Joseph, Pogozelski's treating internist. In particular, ALJ Varni found that while Dr. Joseph reported fibrositis with muscular spasms in her neck in upper back, his physical examination revealed only wheezing and a diagnosis of bronchial asthma. Moreover, the ALJ stated that while he and Pogozelski reported frequent asthma attacks that sent her to the hospital, he could find only one such recorded hospital visit, and in any event, it appeared that her use of a home nebulizer reduced the need for such visits. (R. 263, 266, 270.) Last, the ALJ found that Dr. Joseph's opinion was contradictory; he opined that she was totally disabled but believed that she could perform sedentary work. (R. 263, 270.) Based on the above, ALJ Varni refused to treat Dr. Joseph's views as controlling, and indeed, appeared not to give them any weight at all. (R. 270.)
ALJ Varni similarly discredited the residual functional capacity assessments, and expressions of disability, from Dr. Tanzer and Dr. Sumarli. Although Dr. Tanzer was treating Pogozelski for her mental conditions, and Dr. Sumarli examined her for such complaints twice, they assessed her physical capabilities as well. In the ALJ's opinion, they "provided egregiously restrictive limitations without any supporting objective findings or treatment records." (R. 270.) To support this assessment, he pointed to clinical physical examinations in 1996, 1997 and 1998 that were within normal limits except for slight expiratory wheezes, and a September 8, 1997 chest x-ray that was "within normal limits and revealed no cardiopulmonary abnormality." (R. 263-64.) ALJ Varni doubted whether they would even be considered treating physicians under 20 C.F.R. 416.927(d)(2), based on their minimal treatment period of one month. (R. 270.) Thus, he concluded that their opinions of disability were "not controlling and worthy of minimal probative value." (R. 270.)
ALJ Varni found that Pogozelski's described mental impairments were not severe. (R. 269, 271.) In so doing, he relied primarily on the evaluations of Dr. Abejeula, the Administration's examining consultative psychiatrist, and Dr. Gross, the state agency nonexamining psychiatrist, who both determined that her mental ailments of depression and anxiety were mild. By contrast, he completely discredited the findings of Pogozelski's treating therapist, Flournoy, because, in the ALJ's opinion, they were conclusory and exaggerated and, in any event, as a mere therapist, his observations could not overcome those of the psychiatrists. Furthermore, the ALJ speculated that Flournoy's opinion was colored by a financial motive and so doubted his credibility. With respect to Dr. Tanzer and Dr. Sumarli, the ALJ similarly found their findings to be exaggerated and thus worthy of only minimal probative value.
Finally, ALJ Varni rejected, entirely, Pogozelski's own statements about her impairments, essentially characterizing her testimony as incredible.
DISCUSSION
A. The Standard of Review
The role of a district court in reviewing the Commissioner's final decision is limited. "A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by `substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); see also 42 U.S.C. § 405(g). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotations and citation omitted). If substantial evidence supports the ALJ's findings, the decision is binding, Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), and this Court cannot "substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quotations and citation omitted). However, in deciding whether the Commissioner's conclusions are supported by substantial evidence, the reviewing court must "first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purpose of the Act.'" Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of HEW, 463 F.2d 38, 43 (2d Cir. 1972)).
B. Establishing a Disability
"To receive federal disability benefits, an applicant must be `disabled' within the meaning of the Act." Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423(a), (d). A claimant is "disabled" within the meaning of the Act when he can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 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).
Both the Commissioner and the courts of the Second Circuit use the same five-step regulatory analysis to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132 (citing the five steps with approval); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (same). First, the claimant must not currently be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must show a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities. 20 C.F.R. § 404.1520(c). Third, the claimant must establish either that the impairment is listed in Appendix 1 of the regulations or that the impairment is equivalent to a listed impairment. 20 C.F.R. § 404.1520(d). Fourth, if the impairment is neither listed in the Appendix nor the equivalent of an impairment listed in the Appendix, the claimant must show that he or she has no residual functional capacity to perform his or her past work. 20 C.F.R. § 404.1520(e). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy that the claimant could perform. 20 C.F.R. § 404.1520(f). The claimant has the burden of proving the first four steps; the Commissioner bears the burden of proof on the last step. Shaw, 221 F.3d at 132.
In making the required determinations, the Commissioner must consider (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and work experience. Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Further, the ALJ conducting the administrative hearing has an affirmative duty to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. 20 C.F.R. § 404.900(b) (1999) (expressly providing that the social security authorities "conduct the administrative review process in an informal, nonadversary manner"); Sims v. Apfel, 530 U.S. 103, 110-11 (2000); Shaw, 221 F.3d at 134.
C. Pogozelski's Mental Conditions
At step three, ALJ Varni determined that Pogozelski's mental conditions of anxiety and depression were not severe. In so doing, he erred because his conclusion was not based on substantial evidence and was the product of legal error. Separate and apart from this failure, ALJ Varni neglected to consider the combined effect of her mental and physical ailments on her ability to work.
1. Severity of Mental Impairments
Social Security Ruling ("SSR") 96-3p provides, in pertinent part, that "an impairment(s) that is `not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." From the standpoint of a mental impairment, basic work activities include: understanding, carrying out and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b)(3)-(6).
With respect to Pogozelski's mental disorders, Flourney was the main treating therapist. As stated in detail above, in his opinion, Pogozelski's anxiety and depression markedly impaired the critical mental functions necessary for simple work activity. Pogozelski also sought aid from two treating doctors as well, Dr. Joseph and Dr. Tanzer, and was examined by Dr. Sumarli and Dr. Batchokfs for this condition. As stated in detail above, they all agreed that her mental impairments of anxiety and depression interfered significantly with her ability to work and were much more pronounced than slight.
As noted earlier, the ALJ questioned whether Dr. Tanzer would be considered a "treating" doctor inasmuch as he treated Pogozelski for only one month. The record reflects, however, that Pogozelski saw him about a dozen times. (R. 301.) Furthermore, the pertinent regulation, 20 C.F.R. § 416.927(d)(2)(i), does not support the ALJ's characterization. See id. ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.")
ALJ Varni dismissed the above opinions, however. He doubted the treating therapist's assessment based on a speculative theory not supported by the record:
It is interesting that the claimant testified that although the counselor's usual fee is $150 per session, out of the goodness of his heart he charges her only $15 a session. . . . Mr. Flournoy certainly has a financial interest in seeing that the claimant obtains some source of payment. . . . Therefore, his rather glowing reports of significant mental functional limits must be assessed in light of such possible self-interest.
(R. 267.) The rest of the ALJ's commentary concerning Flournoy's opinion are similar to this one. One in particular bears quoting because it illustrates not only the lack of weight the ALJ gave the opinion, but how little he understood it:
Mr. Flournoy reported the claimant's tense demeanor and hunched-over appearance . . . which was certainly not apparent at the hearing on remand Appropriate grooming and dress were conceded. . . . [I]t was apparent that the claimant was punctilious about her appearance. She had tinted hair, wore five white metal finger rings, a large yellow metal wrist watch, and acrylic nails of considerable length.
(Id.) This comment might have been more understandable if Flournoy had reported that Pogozelski was so depressed and anxious that she was unable to groom herself. But this is not the case; quite to the contrary, Flournoy specifically reported that she was capable of self-care and hygiene. (R. 457.)
The ALJ concluded that Flournoy's opinions were "worthy of little, if any, probative value" because his narrative reports were conclusory and unsupported. This characterization is not correct, as can be seen in the record evidence cited to above. Moreover, although not a physician, and thus not entitled to the level of deference accorded under the "treating physician rule," some weight should still have been accorded to Flournoy's opinion based on his familiarity and treating relationship with the claimant. See Mejia v. Barnhart, 261 F. Supp. 2d 142, 148 (E.D.N.Y. 2003) ("Although a psychotherapist's report is not an `acceptable medical source' under 20 C.F.R. § 404.1513(a), as the report of a primary treatment provider, [the therapist's] report should have been accorded more than `little' weight as `an other medical source' pursuant to 20 C.F.R. § 404.1513(d)(1)."); cf. White v. Commissioner, 302 F. Supp. 2d 170, 176 (W.D.N.Y. 2004) (ALJ erred in not giving appropriate weight to claimant's social worker as "other source" evidence under 20 C.F.R. § 416.913(a), particularly "given that he . . . had a regular treatment relationship with plaintiff."); Rivera v. Bowen, 665 F. Supp. 201, 206 (S.D.N.Y. 1987) (even if chiropractor or physical therapist cannot be considered treating physicians, all courts agree that their opinions must be accorded some weight).
Dr. Tanzer's opinion, as the opinion of a treating physician, should have been accorded controlling weight, or if not, the ALJ was still required to apply the factors specified in the regulations concerning treating physicians (see 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2), discussed infra), to determine the degree of weight it deserved. The failure to follow this rule, standing alone, requires demand See Mejia, 261 F. Supp. 2d at 148 (citing e.g., Schaal, 134 F.3d at 496, 505 (2d Cir. 1998)).
Instead, ALJ Varni gave Dr. Tanzer's opinion short shrift. The only apparent substantive mention of Dr. Tanzer's opinion by the ALJ was the residual functional capacity assessment, which ALJ Varni characterized as being "egregiously restrictive" in terms of Pogozelski's limitations, and without any supporting objective findings or treatment records. In my view, the record evidence reveals that there was supporting evidence for Dr. Tanzer's conclusions. (See supra.) In any event, before discounting entirely this treating physician's opinion, the ALJ should have developed the record by requesting his treatment records or other support for his findings. See Schaal, 134 F.3d at 505 ("even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte."); see also Rosa v. Callahan, 168 F.3d 75, 79 (2d Cir. 1999) (stating that an ALJ "cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record").
Instead, ALJ relied almost entirely on the opinion of Dr. Abejeula, who, in sharp contrast to Dr. Tanzer and Flournoy, only examined Pogozelski one time. As related above, Dr. Abejeula concluded that she was mildly depressed and mildly anxious, but his overall assessment was that Pogozelski's "occupational and social functioning are not severely impaired." (R. 419.) However, ALJ Varni wrongly accorded this opinion more than limited weight.See Gonzalez v. Apfel, 113 F. Supp. 2d 580, 589 (S.D.N.Y. 2000) (consulting doctor's single examination of claimant only deserved limited weight) (citing Crespo v. Apfel, No. 97 CIV 4777, 1999 WL 144483, at *7 (S.D.N.Y. Mar. 17, 1999) ("In making a substantial evidence evaluation, a consulting physician's opinions or report should be given limited weight" because "they are often brief, are generally performed without benefit or review of the claimant's medical history and, at best, only give a glimpse of the claimant on a single day.") (citations omitted)).
To a lesser extent, ALJ Varni appeared to rely on Dr. Gross, a state psychiatrist. Dr. Gross rendered an opinion that Pogozelski's affective disorder was not severe based on his review of the medical evidence. His opinion should not have been accorded the weight given to it by the ALJ, however, as he did not examine Pogozelski. See id. at 589 (opinions of nonexamining sources entitled to even less weight than an examining consultative physician's opinion) (citing 20 C.F.R. § 416.927(d)(1) (directing that a nonexamining source's opinion, including the opinions of state agency medical consultants and medical experts, be given less weight than an examining source's opinion)).
On remand, the assigned ALJ shall re-examine the evidence as to Pogozelski's mental impairments with due consideration of these precepts.
2. Combination of Impairments
ALJ Varni also failed to consider the combined effect of Pogozelski's mental and physical conditions. As the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the [Social Security Administration] must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995); see, e.g., De Leon v. Sec'y of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984). Dr. Joseph, Pogozelski's treating doctor for her physical and mental ailments, believed that her anxiety disorder exacerbated her asthma and contributed to her total disability. Even the Administration's examining consultative psychiatrist, Dr. Abejuela, stated that her asthma condition served as a psychological stressor. Pogozelski herself thought that her depression aggravated her physical problems in a vicious cycle.
ALJ Varni's failure to explore the interaction of all of Pogozelski's impairments, especially in light of the fact that one of her treating doctors raised the issue, was erroneous. See Camacho v. Apfel, No. 97 CV 6151, 1998 WL 813409, at *7 (E.D.N.Y. July 22, 1998) ("`[i]f an adjudicator is unable to determine clearly the effect of . . . [a] combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step. Rather, it should be continued. . . .'") (quoting SSR 85-28 from Bowen v. Yuckert, 482 U.S. 137, 158 (1987)). Thus, on remand, the assigned ALJ shall consider the combined effect of these frailties regardless of whether her mental condition is ultimately found to be "not severe."
D. "Past Relevant Work"
ALJ Varni erred in determining that Pogozelski could return to her past relevant work as a video store owner/operator because he neglected to adequately develop the record to ascertain exactly what her past relevant work consisted of, and whether or not it could be deemed "substantial gainful activity."
Work experience is considered "relevant" for these purposes "when it was done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." Melville v. Apfel, 198 F.3d 45, 53 (2d Cir. 1999) (quoting SSR 82-62) (emphasis omitted). The Social Security Act delegates to the Commissioner the authority to prescribe, by promulgating regulations, "the criteria for determining when services performed or earnings derived from services demonstrate an individual's ability to engage in substantial gainful activity." 42 U.S.C. § 423(d)(4)(A). The Social Security Administration ("SSA") regulations require an evaluation of "how well the claimant performed her duties, whether those duties were minimal and made little or no demand on her, what her work was worth to the employer, and whether her income was tied to her productivity." Melville, 198 F.3d at 53.
The issue of whether a claimant's job constituted "sheltered employment" is a factor in determining whether prior work was substantial gainful activity. Sarchese v. Barnhart, No. 01-CV-2172, 2002 WL 1732802, at *10 (E.D.N.Y. July 19, 2002). Earnings are generally the "primary consideration" in determining whether work activity was "substantial" and "gainful." 20 C.F.R. § 404.1574(a)(1). However, another SSA regulation on substantial gainful activity, 20 C.F.R. § 404.1574(a)(2), indicates that when the claimant was working in a "sheltered or special environment," she may not have actually been "earning" the amount that she was being paid, that is, the actual wages paid may have been more than "the reasonable value of the actual services performed." In such circumstances, the SSA will subtract the value of the subsidy to the employee from her earnings in determining substantial gainful activity. Indeed, if a claimant's actual earnings, minus any subsidy, were less than a certain sum per month, depending on the year in question, the regulations create a presumption that she did not engage in substantial gainful activity. See 20 C.F.R. § 404.1574(b)(4).
Incredibly, the ALJ stated that "[t]here [wa]s no documentation of any employer accommodation." (R. 265.) Yet, the record evidence reflects that Pogezelski worked unsupervised, could work for a limited period of time, and could lie down when she felt tired, winded, or unwell in any way. She has explained that although she carried out certain job-related tasks (i.e., paying and supervising employees, reviewing videos, ordering movies, etc.), she would commonly spend about three hours per work day lying down to alleviate asthma attacks and muscle spasms. Indeed, her office was set up as a virtual hospital room, complete with a bed and an oxygen machine. That description, with no other contrary evidence, suggests that Pogozelski's ability to perform "substantial gainful work" is questionable, or at the very least, that her past relevant work was not that of a typical video store operator.
Nevertheless, there is not enough evidence in the record for me to determine whether Pogozelski's earnings were, in effect, subsidized as part of her own business, and whether she would have earned less doing the same work for another business. The ALJ's failure to develop the record in this regard was erroneous.See Melville, 198 F.3d at 53-54; Sarchese, 2002 WL 1732802, at *9. It is troubling to have to remand on this issue, in light of the fact the case was remanded once before on the issue of Pogozelski's past work, and whether or not she was capable of returning to it.
Such an inquiry is also critical to the assigned ALJ's step five assessment. See Melville, 198 F.3d at 52 (explaining that the inquiry at step four impacts on the step-five inquiry into whether the claimant can perform other kinds of substantial gainful work because under the statutory definition for disability, a claimant is not disabled unless she is "not only unable to do [her] previous work" but also unable to "engage in any other kind of substantial gainful work which exists in the national economy.") (quoting 42 U.S.C. § 1382c(a)(3)(B));Sarchese, 2002 WL 1732802, at *10 n. 12. The SSA regulations provide examples of work that is done under "special conditions," which may indicate that the work does not show the ability to do substantial gainful activity. 20 C.F.R. § 404.1573(c). These examples include being allowed "to work irregular hours or take frequent rest periods"; and being given the opportunity to work despite a medical impairment "because of family relationship, past association with your employer, or your employer's concern for your welfare." Id.
E. Residual Functional Capacity
Regardless of whether the occupation of video store operator was the correct articulation of Pogozelski's past relevant work, ALJ Varni incorrectly determined that she could perform light work, and thus could return to her occupation as it is usually performed in the national economy. In reaching that conclusion, the ALJ erred by not following the treating source rule, by not properly considering Pogozelski's subjective symptoms of pain, and by misinterpreting the vocational expert's testimony. Upon remand, the ALJ shall apply the correct legal standards and develop the record, where necessary, in order to properly determine Pogozelski's residual functional capacity, which appears (at least on this record) to be either sedentary or something less than that.
1. The Treating Physician Rule
"The law gives special evidentiary weight to the opinion of the treating physician." Clark v. Commissioner, 143 F.3d 115, 118 (2d Cir. 1998). Specifically, the SSA regulations state:
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply [various] factors . . . in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [a claimant's] treating source's opinion.20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). The factors that an ALJ must apply when a treating physician's opinion is not given controlling weight include: "(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." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2)). "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand" Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (quoting Schaal, 134 F.3d at 505).
Pogozelski had one treating doctor for her physical ailments, Dr. Joseph, who is a board-certified internist. Dr. Joseph's records of his consultations regarding Pogozelski's asthma and muscle spasms go back to 1987. From 1992 to 1996, Dr. Joseph completed several summary reports on Pogozelski's condition, confirming that her conditions included severe bronchial asthma and muscle spasms, as well as anxiety. He also documented the lengths to which Pogozelski went to accommodate her asthma.
Based on his long experience with Pogozelski, Dr. Joseph found that she was limited in each of the four categories of physical abilities — lifting and carrying, standing and/or walking, sitting, and pushing and/or pulling. In each category, Dr. Joseph reported the greatest restriction on Pogozelski's physical abilities: less than two hours per day of standing or walking; occasionally lifting and carrying five to ten pounds; and a limited ability to push and pull. In no way did Dr. Joseph's evaluation even remotely approach ALJ Varni's finding of light work capacity, which requires a much greater capacity.
Light work is defined as:
[L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.Gonzalez, 113 F. Supp. 2d at 587 n. 12 (quoting 20 C.F.R. § 416.967(b)).
Dr. Joseph did not consider Pogozelski able to perform even sedentary work. See SSR 83-10 (defining sedentary work as requiring standing and walking "occasionally" which in turn is defined as "periods of . . . no more than 2 hours of an 8-hour workday"); see also Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) ("sedentary work `generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day.'") (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (citing SSR 83-10)); McKissick v. Barnhart, No. 01 CV 1550, 2002 WL 31409933, at *11 (E.D.N.Y. Sept. 30, 2002) (less than sedentary where, among other things, ability to stand or walk was less than two hours per day). ALJ Varni's view that Dr. Joseph's assessment of the level of work Pogozelski could perform at "sedentary" was a misinterpretation of Dr. Joseph's findings.
ALJ Varni accorded little, if any, weight to the opinion of Dr. Joseph, and his reasons for doing so are insufficient. As just discussed, he dismissed Dr. Joseph's conclusions, in part, because his expressions of disability were inconsistent with his functional assessment for sedentary work. This was error, as explained above, since his evaluation called for less than sedentary work.
ALJ Varni's other reasons for finding that Dr. Joseph's opinion should neither control nor be given greater weight are also lacking. He states that Dr. Joseph's "functional assessment includes limitations which are supported neither by his own or any other objective medical findings of record" and were in fact inconsistent with them. (R. 270.) Specifically, he refers to the fact that while Dr. Joseph's reports discuss bronchial asthma, anxiety disorder and muscle spasms, the "scant medical findings" he offers relate only to her asthma. (Id.)
Dr. Joseph's diagnosis was supported by the record evidence. For example, Dr. Joseph cited to pulmonary function testing, and examinations where Pogozelski tested positive for wheezing. Furthermore, pulmonary function testing done by Dr. Finger (the Administration's examining consultant) confirmed a moderate restriction in her pulmonary capacity and revealed that chronic obstructive pulmonary disease could not be ruled out. Dr. Greenberg essentially agreed with Dr. Joseph's assessment of her exertional abilities, stating that in an eight-hour day, the most she could stand or walk was a total of two hours, in increments of one-half an hour, due to her asthma and muscle spasms. In saying otherwise, ALJ Varni impermissibly substituted his own judgment for "competent medical opinion." Gonzalez v. Apfel, 113 F. Supp. 2d 580, 590 (S.D.N.Y. 2000) (quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)). In any event, to the extent that Dr. Joseph's opinions diverged from other record evidence, they did not diverge to such a great extent as to warrant the ALJ's total disregard of his opinion. Moreover, if the ALJ found Dr. Joseph's clinical findings to be inadequate, it was his duty to seek additional input from him. See Aronis v. Barnhart, No. 02 Civ. 7660, 2003 WL 22953167, at *6 (S.D.N.Y. Dec. 15, 2003).
The ALJ failed to consider all of the relevant factors discussed above in his apparent decision not to accord any weight, much less controlling weight, to Dr. Joseph's opinion. ALJ Varni certainly did not concern himself with the first factor — the length of time, nature and extent of the treatment relationship. He also misapplied the second and third factors.
Thus, on remand, the assigned ALJ shall accord Dr. Joseph's opinion controlling weight, or if not, shall explain why and what weight it will be given.
2. Other Medical Evidence of Residual Capability
As noted earlier, Pogozelski had a treating doctor for her mental ailments who also performed evaluations of her physical health, Dr. Tanzer. As he was only treating Pogozelski for her anxiety and depression conditions, ALJ Varni justifiably did not give his opinion as to her physical capabilities the same weight as a doctor who treated her for those physical ailments. Nevertheless, based on his familiarity and treating relationship with the claimant, ALJ Varni should have accorded Dr. Tanzer's assessment of her physical capabilities at least some weight.
See 20 C.F.R. § 416.927(d)(2)(ii) ("We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source.")
Not only is the ALJ's finding of Pogozelski's capacity for "light" work in direct conflict with the opinion of Dr. Joseph, but it is even in conflict with the Administration's own medical advisor, Dr. Greenberg. Dr. Greenberg opined, in response to an interrogatory concerning Pogozelski's ability to do light work, that her "[c]ombination of symptoms and frequency could credibly limit this level of activity on a regular, reliable basis." (R. 234.) This comment is not even mentioned by the ALJ, however. This is error. See Rivera v. Bowen, 665 F. Supp. 201, 205 (S.D.N.Y. 1987) ("[A]lthough the ALJ is not required explicitly to reconcile every conflicting shred of medical testimony, he cannot pick and choose evidence that supports a particular conclusion.") (citations and quotation omitted). In any event, to the extent that ALJ Varni interpreted Dr. Greenberg's report as whole-heartedly supporting an exertional level consistent with light work, he wrongly accorded it more than limited weight. See Gonzalez, 113 F. Supp. 2d at 589 (consulting doctor's single examination of claimant only deserved limited weight).
3. Pogozelski's Subjective Symptoms of Pain
In resolving whether a claimant is disabled, the Commissioner must consider subjective evidence of pain or disability testified to by the claimant. See 20 C.F.R. § 404.1529(a). "Statements about a claimant's pain cannot alone establish disability; there must be medical evidence that shows that the claimant has a medically determinable impairment that could reasonably be expected to produce the pain or other symptoms alleged." Davis v. Massanari, No. 00 Civ. 4330, 2001 WL 1524495, at *6 (S.D.N.Y. Nov. 29, 2001) (citing e.g., 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(a)). In order to assess the scope of any functional limitations resulting from a medically determinable impairment, the Commissioner must evaluate the intensity and persistence of the claimant's subjective symptoms, including pain, considering the claimant's credibility in light of "all of the available evidence." Id. (citing 20 C.F.R. § 416.929(c)(1); SSR 96-7p); Sarchese v. Barnhart, No. 01-CV-2172, 2002 WL 1732802, at *7 (E.D.N.Y. July 19, 2002). Indeed, the regulations acknowledge that "[s]ince symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, [the ALJ shall] . . . carefully consider any other information [that the claimant] may submit about [her] symptoms." 20 C.F.R. § 404.1529(c)(3).
Seven factors must be considered in evaluating a claimant's subjective complaints: (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 received 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 (e.g., lying flat on his or her back, standing for fifteen to twenty minutes every hour, or sleeping on a board); and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
Because the ALJ has discretion to evaluate the claimant's credibility in this regard, if the ALJ's decision to ignore plaintiff's subjective complaints of pain is supported by substantial evidence, then this Court must uphold that determination. Aronis, 2003 WL 22953167, at *7. However, the ALJ must set forth his or her reasons for discounting a plaintiff's subjective complaints with "sufficient specificity to enable [the district court] to decide whether the determination is supported by substantial evidence." Miller v. Barnhart, No. 02 Civ. 2777, 2003 WL 749374, at *7 (S.D.N.Y. Mar. 4, 2003) (quotations and citation omitted).
Here, the ALJ rejected Pogozelski's testimony as "quite hyperbolic, self-serving, and exaggerated in its limits" (R. 266), but did not follow the appropriate process (as outlined above) for making such a determination. In addition, he persisted in mischaracterizing the record evidence and in dwelling on issues that were irrelevant. In short, the ALJ failed to seriously consider many of Pogozelski's complaints of pain, preferring instead to dismiss them out of hand
For instance, he rejected her complaints of lifelong pain, which concentrated mostly in her neck, back and lower extremities, because there was "no established pathology" for it, and because she had "conceded" relief from the use of Flexeril, a muscle relaxer. (R. 265-66.) Not only was the ALJ wrong in his reading of the record — the Administration's own doctors diagnosed her with muscle spasms — but he did not account for her stated side effects of almost total lethargy and sleepiness from the medication, which significantly limited her ability to function.
The ALJ dismissed her subjective complaints about her asthma condition because, in his opinion, her asthma was controllable inasmuch as it did not require any hospitalizations. Yet he ignored the fact that her daily use of a nebulizer, and the presence in her work place of an oxygen machine and an air purifer, might have obviated any need for hospitalization.
The ALJ stated that Pogozelski was "well able" to run her video rental company, and that there was "no documentation" of any employer accommodation. This was not a fair assessment of the record. Pogozelski was not "well able" to run her business; she had to close it due to competition and back rent of over $40,000. The "no documentation" observation is difficult to comprehend; the uncontroverted record evidence reveals that Pogozelski's video-store office was set up as a virtual hospital room.
Some comments by the ALJ were simply offensive. For example, he asserted that "[Pogozelski's] assertion of lying down 5 times a day for a total of 3 to 5 hours may describe a pleasant way to while away the day in lieu of employment; however, it neither describes nor provides any impairment-related limitation documented in this record." (R. 265-66.) Others were nonsequiturs: "I see no objective reason this claimant cannot perform light exertional work. . . . Her height and weight are certainly sufficient for [it]." (R. 265.)
Similarly misguided was the ALJ's characterization of Pogozelski's daily activities as active: "The claimant attempted to portray a completely inactive and unproductive lifestyle initially saying that she did nothing but pray and eat. She later expanded that somewhat to include shopping once a week, faithful church attendance once a week, reading, watching the prayer channel on television, and sewing." The full range of activities described by the ALJ hardly describe an "active" person.
I am mindful of the fact that "`[i]t is the function of the Commissioner, not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant.'" Sarchese, 2002 WL 1732802, at *7 (quoting Aponte v. Sec'y, Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (second alteration in original) (quotation omitted)). However, I conclude that the ALJ did not objectively assess the credibility of Pogozelski, and his extremely critical remarks do not constitute the type of substantial evidence needed to discount a plaintiff's subjective complaints of pain. On remand, the assigned ALJ shall fully reconsider the evidence of record in accordance with the legal standard set out above.
4. Vocational Evidence
The vocational expert's opinion undermines ALJ Varni's conclusion that Pogozelski could return to work as a video store owner/operator. Mooney described her past relevant work as requiring a light exertional ability. During the hearing, ALJ Varni asked Mooney if Pogozelski could return to her past relevant work, "assum[ing] her . . . vocational background, her age, education and work experience and assum[ing] her own assessment of residual functional capacity which was for standing 15 minutes, walking two blocks, lifting five pounds and sitting one hour." (R. 319.) Mooney replied that she could not do so and that no skills would transfer because her "limitations would equate to considerably less than sedentary work." (R. 320.) Moreover, when ALJ Varni asked Mooney to assume that she could perform a full range of sedentary work, Mooney held fast to his conclusion that she could not return to her past relevant work. (R. 320.) Accordingly, it was error for ALJ Varni to adopt Mooney's opinion and then conclude that Pogozelski could perform her past relevant work.
F. Disposition
"Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quotation and citation omitted). "It is not the function of a reviewing court to decide de novo whether a claimant was disabled, or to answer in the first instance the inquiries posed by the five-step analysis set out in the SSA regulations."Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal citation omitted).
I am sensitive to the fact that Pogozelski initially filed her claim in 1992, and that there have been significant delays in adjudication. Courts have found that such circumstances can obviate the need for remand where there is persuasive evidence of disability and no purpose would be served by further development of the record. See Rosa, 168 F.3d at 82-83; Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998); Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (where the record contains "persuasive proof of disability, and a remand for further evidentiary proceedings would serve no purpose," the appropriate disposition is to remand solely for calculation of benefits). However, the mere fact of a lengthy delay in adjudication cannot substitute for substantial evidence of disability, where, as here, there is not unequivocal or substantial evidence of disability. See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996) (reversing district court's retroactive award of benefits because claimant failed to present substantial evidence of disability, even though claim had been twice remanded to Commissioner and had been pending for ten years; "The district court . . . voiced outrage at alleged improprieties in the administrative hearing and the ten-year delay since [the claimant] first filed her petition. While we have sympathy for the district court's reaction, we cannot decorate such sentiments with the force of law."). Accordingly, because ALJ Varni did not adequately develop the administrative record and applied the wrong legal standards, I believe it is appropriate to remand this case. Nevertheless, based on the lengthy delay in adjudication, I urge the Commissioner to proceed expeditiously, and implore her to make all possible efforts to render a decision within 90 days from the entry of judgment.
Even if I agreed that Pogozelski has conclusively established her burden at step four and that no further analysis was needed on that score, I would still have to remand based on the above principles. Once the inquiry reaches step five, the burden of proof shifts to the Commissioner from the claimant.Curry v. Apfel, 209 F.3d 117, 123 n. 1 (2d Cir. 2000). The Commissioner will apply the medical vocational guidelines provided in 20 C.F.R. Part 404, Subpart P, App. 2 ("the grids") to the claimant's residual functional capacity, age, education, and work experience in order to determine what type of work in the national economy the claimant is capable of performing.Rosa, 168 F.3d at 78. In so doing, the Commissioner must consider four factors: (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).
During oral argument, Pogozelski's counsel argued that the evidence was sufficient for me to make a finding of disability on the administrative record, without the need for a step-five evaluation. She also stated, however, that she would be "open" to a remand for purposes of a step-five evaluation — perhaps in acknowledgment of the underdeveloped record in this regard.
Here, the ALJ only superficially explored this issue; he adopted the vocational expert's opinion that "with a sedentary residual functional capacity the claimant could not return to her past relevant work, but could readily transfer skills to thousands of clerically-oriented jobs." (R. 269-70.) He did not complete an application of the medical vocational guidelines provided in the grids to Pogozelski's residual functional capacity, age, education, and work experience in order to determine what type of work she could perform (if any). Remand is especially appropriate here because there is conflicting evidence as to Pogozelski's residual functional capacity; although it clearly is not light, the current record would appear to support a finding of ether sedentary or less than sedentary. In sum, the ALJ's errors in the preceding steps of the disability analysis precluded any proper determination of step five. See, e.g., Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 2000) (remand for further proceedings especially needed where false step four determination precludes any examination under step five.)
CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied. Pogozelski's motion is granted, and the case is remanded to the Commissioner for consideration of the following issues: (1) was Pogozelski's mental impairment "severe"; (2) what was Pogozelski's "past relevant work," taking into account the definition of "substantial gainful activity"; (3) what was the effect of the combined impairments (mental and physical) on Pogozelski; and (4) what was Pogozelski's residual functional capacity. The inquiry on remand must include a proper application of the "treating physician rule" and a proper evaluation of Pogozelski's subjective discussion of her symptoms, including pain, that bear on her ability to perform her "past relevant work" or substantial gainful activity in general, as per SSR 96-7p and 20 C.F.R. § 404.1529.
Due to the inordinate delay in this case, the Commissioner shall make every effort to resolve the claim as soon as is possible, and shall strive to do so within 90 days from the date of entry of judgment. Furthermore, I direct the Commissioner to assign the case to an ALJ other than ALJ Varni on remand The Clerk of Court is directed to enter judgment consistent with this order and to close the case.
So Ordered.