Opinion
No. 04 Civ. 949 (SHS).
December 23, 2004
OPINION AND ORDER
Plaintiff Nolene Rodriguez applied for Social Security disability benefits on June 19, 2000 due to a back injury. (R. 62-64). His claim was denied both initially and upon reconsideration. Rodriguez then requested an administrative hearing, which was held before administrative law judge Robin J. Arzt (the "ALJ") on January 15, 2002. (R. at 35-40, 45). ALJ Arzt issued her decision on March 28, 2002 — finding that although Rodriguez was "severely" impaired within the meaning of the relevant Social Security regulation, 20 C.F.R. § 404.1520(c), he was not and had not been disabled. (R. at 31-32). That decision became the final ruling of the Commissioner of Social Security on December 8, 2003, when the Appeals Council denied Rodriguez's request for review. (R. at 5-7, 32).
"R. ___" refers to the administrative record filed by the Commissioner of Social Security as part of her answer.
The following month, Rodriguez commenced this action pursuant to 42 U.S.C. § 405(g) to seek judicial review of that decision denying his claim for disability benefits. He is represented by counsel and contends principally that the Commissioner's determination must be reversed because the ALJ did not assign proper weight to his treating physician's medical opinion.
The Commissioner has now moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings. Rodriguez opposes that motion and seeks judgment in his favor. Because the ALJ's March 28, 2002 decision involved an improper application of the "treating physician rule," the Commissioner's disability determination is reversed and the matter is remanded for further proceedings. Accordingly, the Commissioner's motion is denied and Rodriguez's cross-motion is granted.
Although plaintiff has not formally cross-moved pursuant to Rule 12(c), the Court deems his request in his opposition memorandum for "a fully favorable decision . . . or, in the alternative, that the case be remanded for further development of the record" to constitute a cross-motion for judgment on the pleadings. (Plaintiff's Opp. Mem. at 10).
BACKGROUND
Rodriguez was born on June 7, 1956. (R. at 184). He is a veteran of the U.S. Marine Corps and has a high school general equivalency diploma, i.e., a GED. (R. at 18, 186). From July 1990 until May 2000, Rodriguez worked as a counter person in the parts department of B.M.W. of Manhattan. (R. at 99, 186). That position required Rodriguez to spend most of his workday standing, to frequently lift objects weighing twenty-five pounds, and sometimes to lift objects weighing more than fifty pounds. (R. at 80, 187). Prior to being employed at B.M.W. of Manhattan, Rodriguez had worked as a peace officer for the New York City Parks Department and as a truck driver. (R. at 31, 189-91).
A. Rodriguez's Physical Conditions Prior to Alleged Onset of His Disability
The first reference to back pain in Rodriguez's medical records is in a June 12, 1997 note from Dr. M.S. El-Dakkak — apparently, Rodriguez had experienced pain in his lower back after moving car batteries and had, as a result, missed ten days of work. (R. at 100, 197-98). Dr. El-Dakkak diagnosed Rodriguez with a herniated disc at the L5-S1 section of his lumbar spine and deemed him "not fit for lifting a heavy weight." (R. at 100). Although Rodriguez returned to work after ten days, he began to receive treatment for his back ailment at NeuroCare Associates starting in November 1997, primarily under the care of Dr. Lyzette Velazquez. (R. at 144-67).
Rodriguez continued to suffer from lower back pain. In December 1997, he reported pain radiating to his left leg, as well as muscle spasms in his right leg. (R. at 147). Neuromuscular tests suggested lumbar radiculopathy; and an MRI of Rodriguez's lower back, performed on December 31, 1997, revealed "broad based disc herniation at the L4/5 level compressing the underlying thecal sac," as well as a "central and left paracentral disc herniation at L5/S1 level which is in the region of the S1 nerve roots." (R. at 109). In response to that diagnosis, Dr. Velazquez prescribed a number of work restrictions and referred Rodriguez to a chiropractor for regular treatment. (R. at 147, 175). Rodriguez was also given a prescription for Daypro and a lumbar brace in April 1998. (R. at 148). After experiencing pain in his legs in June and September of that year, he was instructed to stay out of work by Dr. Velazquez first for a week, then for two months. (R. at 150, 198).
Radiculopathy refers to a "disease of the nerve roots or nerve." See Dorland's Illustrated Medical Dictionary (29th ed. 2000) at 1511.
In November 27, 1998, Rodriguez underwent another MRI, which showed "no significant interval change" from the 1997 MRI and identified disc disease at L4-L5 and L5-S1. (R. at 177). Dr. Velazquez then referred him for a December 1998 consultation with a neurosurgeon, Dr. Stephen Onesti. (R. at 102, 152). Dr. Onesti diagnosed Rodriguez with lumbar radiculopathy at L4-L5 and L5-S1 but advised against surgery; instead, he recommended that Rodriguez should "return to work, full duty." (R. at 102, 153). After returning to work as recommended, Rodriguez continued to experience lower back pain as well as cramping in his legs and occasional numbness in the left leg. (R. at 153-55). In October 1999, he complained of severe lower back pain and leg numbness after moving car batteries and missed two additional months of work due to that injury. (R. at 155, 198). In March 2000, Dr. Velazquez noted that Rodriguez was doing well at work but continued to have fluctuating lower back pain. (R. at 158).
B. Rodriguez's Medical Conditions After the Alleged Onset of His Disability
On May 10, 2000, Rodriguez experienced "a very hot feeling" in his back while reaching for an object at work and went to St. Lukes Hospital. (R. at 159). The following day, he was treated by Dr. Velazquez, who noted the following symptoms from her examination: severe lumbar tenderness, left sciatic notch tenderness, severe numbness of left foot with weakness, pain in lifting the left leg at ten degrees, the absence of a left foot ankle jerk, and a limp in his walk. (R. at 159-60). Dr. Velazquez found that Rodriguez had suffered a "re-injury of his lower back with left sciatica L5-S1, nerve impingement" and instructed him to remain out of work until June 30, 2000. (Id.). Rodriguez has not performed substantial gainful work activity since May 10, 2000. (R. at 31, 195-98).
Over the next several months, Rodriguez's did not experience any significant improvement of his lower back. (R. at 161-63). At a June 1, 2000 consultation, Dr. Velazquez noted that Rodriguez's back pain had made sleeping difficult. (R. at 161). In October, Dr. Velazquez noted complaints of severe exacerbation of his lumbar radiculopathy, a bad reaction to hydrocodone, an analgesic, and that another analgesic, the recently maligned Vioxx, had not alleviated Rodriguez's back pain. (R. at 163).
Dr. Velazquez referred Rodriguez to Dr. Jeffrey Spivak, another neurologist, in August 2000 for surgical consultation. (R. at 143, 162-63). At the request of Dr. Spivak, Rodriguez underwent another MRI of the lumbar spine. (R. at 131, 143). The radiologic consultation of that MRI by Dr. Andrew Litt showed symptoms of degenerative change with small central annular tears at L4-L5 and L5-S1 but no focal disc herniations or nerve root compression. (R. at 131, 143). After considering that MRI and Rodriguez's age, Dr. Spivak advised against spinal fusion surgery because it could be functionally disabling. (R. at 143). Instead, Dr. Spivak recommended that Rodriguez undergo intensive physical therapy and participate in the Hospital for Joint Diseases Spine Center's "return to work" therapy program. (Id). He also offered to re-evaluate his diagnosis if pain persisted for a year following the injury. (Id).
In connection with his application for disability benefits from the State of New York, Rodriguez underwent an EMG test on September 26, 2000. Dr. Hal Gutstein, a colleague of Dr. Velazquez at NeuroCare Associates, interpreted the EMG results in a medical report he submitted to the New York State Department of Temporary and Disability Assistance. (R. at 101-2). In that medical report, Dr. Gutstein found evidence of L5-S1 nerve root dysfunction bilaterally, diagnosed Rodriguez with "chronic lumbar spine derangement with radiculopathy due to bulging herniations of the discs at L4-5 and L5-S1 with nerve root impingement," which would materially affect all functions of the lumbar spine, and also opined that the prognosis of recovery was poor. (Id).
EMG is the abbreviation for electromyography, which is "an electrodiagnostic technique for recording the extracellular activity of skeletal muscles at rest, during voluntary contraction, and during electrical stimulation." See Dorland's Illustrate Medical Dictionary (29th ed. 2000) at 577.
After receiving Dr. Gutstein's report, the New York State Office of Temporary and Disability Assistance requested an additional examination by a neurologist as well as an X-ray of the lumbosacral spine. (R. at 112-13). That neurological examination was performed by Dr. Andrew Ivanson of HS Systems, Inc. on November 2, 2000. (R. at 113). After administering a series of clinical tests, Dr. Ivanson found mild to moderate limitation in Rodriguez's range of motion, pain in lifting the left leg at seventy degrees, as well as numbness in the left calf area. (R. at 114-15). Dr. Ivanson observed that Rodriguez was able to bend forward, squat, and walk on heels and toes without apparent difficulty. (R. at 114). Rodriguez's motor skill was, according to Dr. Ivanson, normal in all four extremities, his muscle strength was full, and his deep tendon reflexes were unremarkable. (Id.) Dr. Ivanson also observed no limitation for sitting, and moderate limitation for standing, walking, traveling, pushing, pulling and lifting. (Id.).
After considering the results of a MRI and an EMG test provided by Rodriguez, Dr. Ivanson did not find any big disc herniation but found prolonged H-waves bilaterally. (R. at 115). Dr. Ivanson concluded with a guarded prognosis, stating that Rodriguez "should proceed with surgical treatment" if he did not improve with conservative treatment. (Id.). Dr. Ivanson also recommended that Rodriguez should "follow the advice of the neurologist." (Id.). An X-ray of Rodriguez's lumbosacral spine was taken in conjunction with the examination by Dr. Ivanson and showed, according to the radiological consultation of Dr. Lawrence Liebman, lumbar straightening and "mild narrowing of the L4-L5 disc space." (R. at 116).
A physical residual functional capacity assessment form was also completed for Rodriguez by Dr. Ford, a medical consultant for the Social Security Administration, on December 1, 2000. (R. at 118-24). In that report, Dr. Ford, who did not conduct an examination of Rodriguez, checked off boxes indicating that Rodriguez could occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk six hours per day, sit about six hours per day, and his ability to push and pull was not limited. (R. at 119). Dr. Ford also checked off boxes indicating that no postural or manipulative limitations were established. (R. at 120-21). Although he wrote in his report that he examined the treating or examining source statement regarding Rodriguez's physical capacities, those documents apparently did not include Dr. Velazquez's clinical notes, which were not submitted to the Administration until February 21, 2002, in response to a subpoena issued by the ALJ. (R. at 123, 144). Additionally, the report also stated that Dr. Ford's findings were not significantly different from "treating/examining source conclusions about the claimant's limitations or restrictions." (R. at 123). Dr. Mohammad Husain then reviewed and affirmed Dr. Ford's conclusions. (R. at 124).
During this period, Rodriguez continued to receive treatment from Dr. Velazquez. On November 21, 2000, he was given several clinical tests by Dr. Velazquez, who found tenderness at the left sacroiliac joint, 2/4 reflexes and severe pain with a ten degree leg raise. (R. at 163). In January 2001, Dr. Velazquez noted that Rodriguez was doing stretch exercises for his lower back under Dr. Spivak's care and was also undergoing pain management. (R. at 164). Two months later, Dr. Velazquez recorded a poor response to therapy and epidural shots, (id.) and on May 16, she noted that Rodriguez reported another exacerbation of his lower back pain, as well as pain in the right leg and numbness in the buttocks.
Dr. Velazquez also provided her medical assessment of Rodriguez's ability to perform work-related activities. In that report, she opined that Rodriguez could not occasionally lift more than twenty pounds, could not stand and/or walk for more than 1.5 hours in an eight hour workday, and was unable to stand or walk for more than thirty minutes without interruption. (R. at 128). She also wrote that Rodriguez could not sit for more than thirty minutes in an eight-hour workday and no more than 15-20 minutes without interruption and that he could not climb more than twenty minutes, and could not stoop, kneel, balance, crouch or crawl at all. (Id.). "Lower back pain" was the medical condition Dr. Velazquez cited as the cause for each of those work-related limitations. (R. at 128-29). Additional findings were "lumbar tenderness with some limitation" and "pain down his right leg." (R. at 130). Rodriguez had several additional appointments with Dr. Velazquez after she issued the May 2001 medical assessment. In her notes from those sessions before February 2002, when the record ends, Dr. Velazquez described more reports of lower back pain and occasional numbness, pain, or leg cramping. (R. at 165-67).
At the January 2002 administrative hearing before the ALJ, Rodriguez testified that he could drive himself when his leg permitted, but that the 15-20 minute drive to the hearing was his longest drive in several months prior to the hearing. (R. at 185). He also testified that he had not been on a bus or a train for about a year. (Id.). He stated that he could sit for fifteen to twenty minutes if he shifted his weight, or even longer on a good day, but that his leg would be numb when he stood up. (R. at 196).
C. The ALJ's March 2002 Decision
In her March 28, 2002 decision, the ALJ determined that Rodriguez "ha[d] not been under a disability at all times since May 12, 2000, the alleged onset date of disability, through the date of" her decision. (R. at 27). In reaching that determination, the ALJ followed the five-step sequential evaluation procedure set forth in the relevant Social Security regulation, 20 C.F.R. § 404.1520, which is described in greater detail infra. In the first three steps, her findings were: 1) Rodriguez had not performed substantial gainful activity after May 12, 2000; 2) his lower back disorder was "severe;" and 3) that impairment did not present severity equivalent to a condition that automatically qualified him as disabled. (R. at 27-28). Those findings are not in dispute.
In step four, the ALJ determined that Rodriguez could not return to his previous position, but possessed sufficient residual functional capacity for sedentary work. (R. 29-30). That determination was based on her evaluation of medical evidence and Rodriguez's testimony regarding his physical condition. In the first category, the ALJ listed several sets of objective medical evidence — a September 21, 2000 MRI of Rodriguez's lower back, a September 26, 2000 NCV/EMG study of the nerve activities of his lower extremities, and a November 2, 2000 neurological examination by Dr. Andrew Ivanson. (R. at 28). Other medical evidence considered by the ALJ include "clinical notes" from "May 2000 through February 2002" by Dr. Velazquez, the treating physician, the June 12, 1997 examination note of Dr. El-Dakkak, and four evaluations of Rodriguez's residual functional capacity: the September 2000 evaluation by Dr. Gutstein, the November 2000 evaluation of Dr. Ivanson, the December 2000 evaluation of Dr. Ford, the "State Agency reviewing physician," and a May 16, 2001 evaluation by Dr. Velazquez. (R. at 29-30).
In a social security disability proceeding, "objective medical evidence" refers to medical signs, which are "anatomical, physiological, or psychological abnormalities [that] can be observed . . . [and] shown by medically acceptable clinical diagnostic techniques," and laboratory findings, which are "anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques." See 20 C.F.R. § 404.1512 (referring to 20 C.F.R. §§ 404.1512(b) and 404.1528(c)).
The ALJ "accorded significant weight" to Dr. Ivanson's November 2000 evaluation of Rodriguez's residual functional capacity. (R. at 29). The ALJ also determined that the evaluations of Dr. Velazquez and Dr. Gutstein were not "entitled to controlling weight" because "their reports [were] not well-supported by medically acceptable clinical and laboratory diagnostic techniques . . . and inconsistent with other substantial evidence in the record." (Id.). She did not, however, set forth precisely what weight she accorded those evaluations or her reasons for assigning them such weight. As for Dr. Ford's evaluation, the ALJ gave it "little weight" because it was "made by non-examining physicians for whom the whole record considered in this decision was not available." (R. at 31).
Finally, the ALJ also gave little weight to Mr. Rodriguez's testimony concerning his back condition because she found his statements were "not supported by the balance of the record." (R. at 29). She specifically provided two bases for that assessment: first, certain inconsistencies between Rodriguez's testimony at the January 2002 hearing and his statements to Dr. Ivanson at the November 2000 examination; and second, that Dr. Velazquez's clinical notes "only" indicated "exacerbations of back pain." (Id.).
LEGAL STANDARD
A. The Procedure for the Commissioner's Determination of a Claim
To qualify for disability benefits, an individual must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Administration has promulgated a five-step sequential evaluation process for determining the merit of a claim for disability benefits. See 20 C.F.R. § 404.1520. This evaluation process has been described by the Second Circuit as follows:
The first step of this process requires the Secretary to determine whether the claimant is presently employed. If the claimant is not employed, the Secretary then determines whether the claimant has a "severe impairment" that limits her capacity to work. If the claimant has such an impairment, the Secretary next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the Secretary will find the claimant disabled. However, if the claimant does not have a listed impairment, the Secretary must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the Secretary determines whether the claimant is capable of performing any other work. If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the Secretary to prove in the fifth step that the claimant is capable of working.Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (internal quotation omitted).
The key inquiries here concern the fourth and fifth steps in that evaluation process. To evaluate a claimant's residual functional capacity in step four, the Commissioner may examine objective medical facts and "statements and reports from [the claimant] and his physicians, relevant to how his impairments and related symptoms affect his ability to work." See Butts v. Barnhart, 388 F.3d 377, 380 (2d Cir. 2004) (citing 20 C.F.R. § 404.1529). In her evaluation of the medical evidence, the "treating physician rule," codified in the Social Security regulations at 20 C.F.R. § 404.1527(d)(2) and § 416.927(d)(2), requires the Commissioner to give deference to the opinion of a claimant's treating physician unless that opinion is unsupported or contradicted by other evidence in the record. A claimant's subjective complaints of pain or discomfort may also be taken into account. An ALJ's evaluation of subjective statements must be made in conjunction with her assessment of medical evidence because credibility findings are required "[w]here there is conflicting evidence about a claimant's pain."See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
At step five, the Commissioner bears the burden to prove the existence of "other work which the claimant could perform." See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000). This burden may be discharged by an ALJ through the use of Medical Vocational Guidelines contained in the Social Security regulations at 20 C.F.R. Part 404, Subpart P, App. 2 (the "Grid"). See Garvin v. Barnhart, 254 F. Supp. 2d 404, 410 (S.D.N.Y. 2003). A determination on the basis of the Grid is only dispositive, however, if a claimant does not suffer from "significant nonexertional impairments," i.e., impairments not related to the claimant's strength. See Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); Garvin, 254 F. Supp. 2d at 410. A claimant can show his or her non-exertional impairments through both medical evidence and subjective statements of medical condition.
Procedurally, the non-adversarial nature of a hearing on disability benefits imposes an affirmative obligation on the ALJ to develop the administrative record. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). That obligation exists even where a claimant is represented at the hearing. See Shaw, 221 F.3d at 131.
B. Standard of Review
When a court reviews a decision made by the Commissioner, it is not to make a de novo determination of the existence of an alleged disability. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). Rather, the court may reverse an ALJ's decision only if that decision is "based upon a legal error or is not supported by substantial evidence" in the record. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence" demands "more than a mere scintilla" of evidence; rather, it envisions "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rosa, 168 F.3d at 77.
When a court finds the Commissioner's determination to be based on a legal error or a lack of substantial evidence, it can remand the case in one of two fashions. The Second Circuit delineated the difference between those two approaches as follows: first, if "there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the action should be] remanded to the [Commissioner] for further development of the evidence"; on the other hand, "where [there is] no apparent basis to conclude that a more complete record might support the Commissioner's decision, [the proper course is] simply to remand for a calculation of benefits." Rosa, 168 F.3d at 83; Butts, 388 F.3d at 385-87.
DISCUSSION
A. The ALJ Erred in Applying the "Treating Physician Rule"
Social Security regulations dictate that if a treating source's opinion "is well supported by acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] record, [the Commissioner] will give it controlling weight." 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). When the Commissioner does not accord a treating source controlling weight, the following factors are to be considered in making a determination of what weight should be given to the treating source's opinion:
(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion, i.e., "the more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight" that opinion is given; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; if it is, it will be accorded greater weight; and (v) other relevant but unspecified factors.Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); see 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). To enable a claimant to understand the basis for a decision regarding his or her disability claim, the Commissioner must "articulate the weight that [she] gave to the treating doctor's conclusions and to good reasons for that weight." See Reyes v. Barnhart, 226 F.Supp. 2d 523, 529 (S.D.N.Y. 2002); Snell, 177 F.3d at 133.
Here, the ALJ declined to assign controlling weight to Dr. Velazquez's opinion, stating that that opinion was "not well-supported by medically acceptable clinical and laboratory diagnostic techniques, and since [her] reports are inconsistent with the other substantial evidence in the record." (R. at 30). After determining that Dr. Velazquez's opinion was not entitled to controlling weight, the ALJ did not, however, articulate what weight she in fact accorded Dr. Velazquez's opinions and why. In contrast, she expressly accorded "significant weight" to Dr. Ivanson's opinion. (R. at 29). Ultimately, moreover, the ALJ diverged from Dr. Velazquez's medical assessment of plaintiff's residual capacity and concluded instead that "based upon the objéctive clinical evidence, including the MRI study that does not show herniations or nerve root compression, I find it reasonable the claimant can perform sedentary work activity." (R. at 30).
Rodriguez contends, in addition, that Dr. Kazdan was also a treating physician and thus his opinions were entitled to greater weight. This argument is incorrect. As a chiropractor, Dr. Kazdan is not a treating source under the relevant Social Security regulations; see Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995); 20 C.F.R. §§ 404.1527(a)(2); 404.1513(a); thus, it was within the ALJ's discretion to determine what weight, if any, to accord to Kazdan's opinions. See Diaz, 59 F.3d at 314-15.
It is unclear from the face of the ALJ's opinion whether she made any implicit determination as to the appropriate weight Dr. Velazquez's opinion should receive. Thus, it is appropriate for this Court to conduct a searching review of the record to ensure that Rodriguez had not been deprived of the benefits of the treating physician rule. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) ( per curiam). Based on that review, the Court cannot discern whether the ALJ had considered the relevant factors delineated in 20 C.F.R. §§ 404.1527(d)(2) and "applied the substance of the treating physician rule" in evaluating Dr. Velazquez's opinion. The failure to follow the procedure set forth in the relevant regulations constitutes legal error and is grounds for a remand. See id.; Schaal, 134 F.3d at 505;Reyes, 226 F. Supp. 2d at 530.
Moreover, had the ALJ applied the five factors to determine the proper weight to be accorded to Dr. Velazquez's opinion, she would have found several points supporting Dr. Velazquez's evaluation of Rodriguez. First, the ALJ would have noted that, according to Dr. Velazquez's notes, she saw Rodriguez thirty-two times over the course of four-and-a-half years prior to issuing her medical opinion on May 16, 2001. (R. at 146-65). That relationship provided Dr. Velazquez with a "detailed, longitudinal picture" of a claimant's medical impairments that "may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone, or from reports of individual examinations, such as consultative examinations." 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). It is precisely this unique perspective that favors according more weight to Dr. Velazquez's opinion. See id.
Second, and contrary to the ALJ's conclusion, there was objective medical evidence in support of Dr. Velazquez's opinion. Although Dr. Velazquez did not perform objective clinical tests at every appointment, she did administer a series of tests over the course of Rodriguez's disability, including on November 21, 2000, when she noted tenderness at the left sacroiliac joint, along with severe pain at ten-degree leg raising and 2/4 reflexes. (R. at 163). At that appointment, Dr. Velazquez conducted some of the same testing procedures as Dr. Ivanson had approximately three weeks prior, including a straight leg raising test, reflex testing, and palpation. (R. at 114). Yet her results were different. Moreover, Dr. Ivanson's own testing confirmed numbness in the left calf, consistent with Rodriguez's complaints and Dr. Velazquez's notes. (R. at 115). Nonetheless, the ALJ came to the conclusion that "Dr. Velazquez's clinical notes do not include clinical findings that support such a restricted functional capacity assessment." (R. at 30).
Third, a comprehensive review of the medical record does not support the ALJ's characterization that Dr. Velazquez's opinion was "inconsistent" with the record as a whole. As an initial matter, Dr. Ivanson, whose opinion was accorded "significant weight," also characterized his prognosis as "guarded" and suggested surgery if Rodriguez did not improve with conservative treatment. (R. at 115). Moreover, Dr. Ivanson also recommended that the advice of "the neurologist" (presumably referring to the treating neurologist — Dr. Velazquez) should be followed. (Id.). Dr. Spivak, a consulting neurologist whose opinion was not acknowledged by the ALJ, also provided a guarded prognosis and offered to re-evaluate Rodriguez if his pain persisted for more than a year. (R. at 143). Those guarded opinions clearly evince an uncertainty about the progression of Rodriguez's back condition, which could account for the differences between Dr. Ivanson's opinion issued in November 2000 and Dr. Velazquez's opinion issued on May 16, 2001. Poor responses to treatment as well as exacerbations of pain may also explain the difference between those two opinions. Thus, to characterize Dr. Velazquez's opinion as inconsistent with the record is a conclusion not supported by substantial evidence. (R. at 163-65). Finally, Rodriguez also testified that Dr. Velazquez is a neurologist. (R. at 181). Generally, an ALJ should give the opinion of such a specialist additional weight. See 404 CFR § 1527(d)(5).
In sum, after an independent review of the record as well as the ALJ's decision, this Court is unable to conclude that the ALJ has correctly applied the treating physician rule. The ALJ did not indicate what, if any weight, she attached to Dr. Velazquez's medical assessment, and failed to set forth "good reasons" for that conclusion. As the Second Circuit recently counseled, a court should "not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physicians opinion and [would] continue remanding when we encounter opinions from ALJ's that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion." Halloran, 362 F.3d at 33. Furthermore, in light of the court's own review of the record, the ALJ's failure to consider certain medical evidence raises the concern that the ALJ's determination to dismiss the medical opinion of Dr. Velazquez is not supported by substantial evidence.
For those reasons, this case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) to determine and articulate, in accordance with the requirements of 20 C.F.R. §§ 404.1527(d)(2), the proper weight to be given to Dr. Velazquez's opinion.
B. It Is Premature to Address Plaintiff's Remaining Claims In Lieu of the Remand
Rodriguez also contends that the Commissioner's disability determination must be reversed because the ALJ erred in not crediting Rodriguez's hearing testimony and in failing to use a vocational expert at step five. Because determinations as to the proper weight to be given to Rodriguez's subjective complaints and as to the existence of any non-exertional impairment cannot be made in isolation from the medical evidence, see Snell, 177 F.3d at 135, Richardson v. Apfel, 44 F. Supp. 2d 556, 564 (S.D.N.Y. 1999), the Commissioner should have the initial opportunity to answer those questions in conjunction with the reexamination of the medical evidence upon remand. Thus, it is premature for this Court to address those remaining claims. See Rosa, 168 F.3d at 83.
CONCLUSION
For the reasons set forth above, defendant's motion for judgment on the pleadings is denied and plaintiff's cross-motion is granted. The Commissioner's final determination that Mr. Rodriguez is not entitled to disability benefits is reversed and this case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order.
SO ORDERED.