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Guzman v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Feb 3, 2011
09 Civ. 3928 (PKC) (S.D.N.Y. Feb. 3, 2011)

Opinion

09 Civ. 3928 (PKC)

02-03-2011

JULIAN DEJESUS GUZMAN Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant.


MEMORANDUM AND ORDER

:

Plaintiff Julian Guzman seeks judicial review of a final decision by the Commissioner of Social Security (the "Commissioner") denying his application for a Period of Disability and Disability Insurance Benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff asserts that the decision of the Administrative Law Judge ("ALJ") was "erroneous, not supported by substantial evidence on the record, and/or contrary to the law." (Compl. ¶ 9.) Specifically, he alleges that (1) the ALJ failed to apply the treating physician rule properly and (2) the ALJ wrongly assessed Mr. Guzman's credibility. (Pl.'s Mem. 2) Defendant and plaintiff have each moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. For the reasons explained below, the order denying disability benefits is reversed and the case is remanded to the Commissioner for further proceedings. Defendant's motion is denied. I. PROCEDURAL HISTORY

On September 26, 2006, plaintiff applied to the Social Security Administration ("SSA") for disability insurance benefits due to a heart condition, high blood pressure, and high cholesterol. (R. 107) The Alleged Onset Date is September 12, 2006 and the Date Last Insured for his Title II claim is December 31, 2010. (R. 104) On January 22, 2007, the SSA determined that plaintiff's conditions were not severe enough to prevent him from working and denied his application. (R. 56) The SSA notified plaintiff that his claim was disapproved and informed him of his right to request a hearing. (R. 57-59)

Citations to "(R. ___)" refer to the certified copy of the administrative record of proceedings filed by the Commissioner as part of his answer. (Docket No. 7)

Plaintiff then requested a de novo hearing before an Administrative Law Judge ("ALJ"), which was held on April 2, 2008. (R. 19) Plaintiff appeared at the hearing and was represented by counsel. (R. 21)

In a written decision issued April 23, 2008, ALJ Leonard Olarsch denied plaintiff's claim for benefits. (R. 9-15) After applying the five-step sequential test for determining whether an individual is disabled, ALJ Olarsch concluded that plaintiff is not disabled under sections 216(i) and 223(d) of the Social Security Act. (R. 15) He reviewed plaintiff's claims stemming from his heart condition and determined that plaintiff has a severe impairment--coronary artery disease, but still has the residual functional capacity ("RFC") to perform the full range of light work defined in 20 CFR 404.1567(b). (R. 11) He noted that "[plaintiff's] medically determinable impairment could reasonably be expected to produce the alleged symptoms; however, the [plaintiff's] statements considering the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the RFC assessment . . . ." (R. 12)

On June 21, 2008, plaintiff requested review of the ALJ's decision. (R. 5) The SSA Appeals Council denied plaintiff's request to review the ALJ's decision, and ALJ Olarsch's decision became the final decision of the Commissioner on March 13, 2009. (R. 1) This case was then ripe for judicial review.

On March 30, 2009, plaintiff, proceeding pro se, filed a timely action with this Court seeking review of the Commissioner's final decision. (Compl. ¶ 1) A notice of appearance was filed on behalf of plaintiff on September 13, 2010. (Docket #12) Both parties moved for a judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. II. EVIDENCE BEFORE THE ALJ

The Act requires a plaintiff to commence a civil action within sixty days from the date the notice of the Appeals Council's decision is received. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). The date of receipt is presumed to be five days after the date of the Appeals Council's decision. 20 C.F.R. § 422.210(c).

At the hearing before ALJ Olarsch, plaintiff testified about his age, height, weight, background, education, family, work history, daily activities, and physical and psychiatric condition. (R. 21-55) ALJ Olarsch also heard the testimony of a board certified cardiologist and medical expert, Dr. Gerald Galst, regarding plaintiff's physical condition. (R. 41-54) ALJ Olarsch reviewed documentary evidence, including plaintiff's medical records from North Central Bronx Hospital ("NCBH"), a report from Dr. E.B. Balinberg, an internal medicine specialist who performed a consultative physical examination on the plaintiff, and letters from two treating physicians—Dr. David Kaufman, a cardiologist, and Dr. Lori Ciuffo, a primary care physician. (R. 25, 155-96) A. Non-Medical Evidence

Plaintiff was born in February 1959, and was between forty-seven and forty-nine years old during the period at issue. (R. 22, 88) He is five feet eight inches tall and weighs 170 pounds. (R. 22) He lives on the third floor of a walk-up apartment building with his girlfriend and two children, ages 12 and 19. (R. 26-27) He drives a car, can use public transportation, sits without difficulty, and is able to walk to the grocery store around the corner to purchase a few grocery items. (R. 22, 28, 35) He attends church weekly and is involved in church activities. (R. 31-32)

He has an eighth-grade education and worked as a roofer for about fourteen years. (R. 94-103, 112) He stopped working in September 2006, due to his cardiac condition. (R. 108) After a hospitalization at NCBH, he briefly returned to work but stopped working after he experienced "very hard palpitations" in his chest. (R. 23) As a roofer, he "carried materials and roofing products from the ground to the roof and on occasion, lifted materials weighing 100 lbs or more. (R. 109) B. Medical Evidence

ALJ Olarsch reviewed plaintiff's medical records from NCBH, where the plaintiff received ongoing medical treatment. (R. 155-78) These included the records of Drs. Bodhanovic, Ramasamy, Ciuffo, and Christensen. ALJ Olarsch also reviewed letters written by Drs. Kaufman and Ciuffo and an examination conducted by Dr. Balinberg, a consultative examining internal medicine physician. (R. 179-95) Lastly, he considered the testimony of Dr. Gerald Galst, a board certified cardiology expert who heard plaintiff's testimony and reviewed all the medical evidence in the record. (R. 41-42)

1. Treating Physicians' Records

Plaintiff was hospitalized at NCBH from September 5, 2006 to September 6, 2006 for atypical chest pain. (R. 170-78) He presented to the hospital with complaints of sharp, intense, left-sided chest pain. (R. 174) He reported that the pain lasted approximately fifteen minutes before it subsided without any treatment. (R. 174) Upon examination by Dr. Zoran Bodhanovic on September 5, 2006, his blood pressure was 114/73 and he had normal heart sounds. (R. 174) His peripheral pulses were palpable bilaterally and he had no edema. (R. 174) An electrocardiogram ("EKG") revealed normal sinus rhythm without any ST-T changes. (R. 174) His chest x-ray was normal and his vital signs were stable. (R. 174-75)

An echocardiogram was performed on September 6, 2006 and showed (1) normal left ventricular size, wall motion and systolic function, with a 60 percent estimated left ventricular ejection fraction; (2) normal right ventricular size and systolic function; (3) moderate to severe left atrium dilatation, and mild right atrium dilation; (3) a thickened and calcified mitral valve with markedly reduced mobility, and significant subvalvular calcification; (5) mild mitral regurgitation; (6) mild tricuspid regurgitation and (7) no pulmonary hypertension. (R. 170) This test was described by Dr. Elizabeth Natal as "essentially WNL [within normal limits]." (R. 165)

Dr. Bodhanovic summarized plaintiff's hospitalization as "uneventful" and without chest pains during his inpatient treatment. (R. 174) A myocardial infarction was ruled out based on three negative troponin levels. (R. 174) The discharge plan was for the plaintiff to undergo a cardiac stress test and follow-up with his primary care physician. (R. 174)

Plaintiff was readmitted to NCBH from September 13, 2006 through September 22, 2006 for chest pain. (R. 156, 159-69) The chest pain began while performing heavy lifting at work. (R. 159) A stress test was performed on September 15, 2006 and revealed apical ischemia. (R. 159, 168). Plaintiff was described as asymptomatic throughout the test, which required plaintiff to walk for nine minutes on a treadmill. (R. 168-69) The test was terminated because plaintiff reached maximal performance and then reported dizziness, shortness of breath, and fatigue. (R. 168-69) During the test, plaintiff's heart rate reached eighty percent of his predicted maximal heart rate. (R. 169) The test was considered negative for exercise induced ischemic symptoms, ischemic ST-segment changes, and significant arrhythmias. (R. 169) Dr. Ramasamy concluded that plaintiff's "physical working capacity is fair for a man of his age." (R. 169)

Plaintiff underwent a cardiac catheterization on September 19, 2006, which showed minimal disease of the right coronary artery and the obtuse marginal branch. (R. 159) During the catheterization, plaintiff had an episode of atrial fibrillation, but returned to normal sinus rhythm after receiving a dose of Ibutilide. (R. 159, 164) Coumadin, an anticoagulation medication, was prescribed after the plaintiff's episode of atrial fibrillation and in light of his dilated right atrium. (R. 159) His primary diagnosis was coronary artery disease. (R. 159) It was documented that plaintiff was started on Lipitor, a cholesterol medication, but self-discontinued it because he could not refill the prescription. (R. 165, 174) On September 17, 2006, plaintiff's total cholesterol was 110 mg/dl. (R. 166) Dr. Vimala Ramasamy, an attending physician, noted that plaintiff's EKG and physical examination were normal. (R. 159)

Following plaintiff's discharge from NCBH, the patient continued outpatient treatment with Dr. Lori Ciuffo, a primary care physician. (R. 158) On September 25, 2006, Dr. Ciuffo evaluated his anti-coagulation levels, (R. 158) His blood pressure was 112/70 and his heart rate was 64 beats per minute. (R. 158) His primary diagnosis was listed as atrial fibrillation. (R. 158) Also on September 25, 2006, Dr. Diana Christensen, a physician at NCBH, prepared a four-line statement addressing patient's risk for bleeding stemming from his recently initiated Coumadin therapy. (R. 150) The statement reads as follows:

Patient refers [to] his occupation . . . as a roofer. For medical reasons patient was started on [a] blood thinner ([C]oumadin). Patient is at risk for bleeding into the head (brain) if he sustain [sic] significant trauma in the head. Patient was advised to avoid situation[s] were he is at risk of trauma. Patient will be evaluated in 3 months by his cardiologist.
(R. 150) Anticoagulation monitoring continued with Dr. Ciuffo. (R. 157) On October 25, 2006, plaintiff's blood pressure was 104/75 and his heart rate was 72 beats per minute. (R. 155)

In February 2007, two physicians prepared letters regarding plaintiff's medical treatment. (R. 193-94) On February 7, 2007, Dr. Ciuffo stated in a letter addressed "To Whom It May Concern" that plaintiff "is still under treatment with a blood thinner and is not able to do any physical work." (R. 194) Two weeks later, on February 26, 2007, Dr. David Kaufman, a physician at NCBH, also prepared a note addressed "To Whom It May Concern," which stated that the plaintiff "is a patient of mine and is currently under evaluation and treatment in [the] Cardiology Clinic." (R. 193) He also stated that if the reader had "any questions" he could be contacted at the phone number listed in the letter. (R. 193)

Included in the medical records are evaluations completed by Drs. Ciuffo and Kaufman on pre-printed evaluation forms. (R. 184-92) According to defendant, these forms were completed at the request of plaintiff's counsel. (Def.'s Mem. 5) Dr. Ciuffo completed the report on August 24, 2007 and Dr. Kaufman's report is undated, but plaintiff's attorney reports receiving in August 2007. (R. 181)

Dr. Ciuffo listed plaintiff's diagnoses as atrial fibrillation, valvular disease, and high cholesterol. (R. 184) She noted that these diagnoses were confirmed by EKG, a 24 hour Holter monitor test, a stress test, and an echocardiogram. (R. 184) She assessed his functional limitations as being able to sit a total of four hours in an eight hour day, stand a total of one hour in an eight hour day, and occasionally lift and carry a maximum of five pounds for up to two hours in an eight hour day. (R. 185) Dr. Ciuffo included a notation that the plaintiff was taking a blood thinner, "which may cause bleeding if he falls, trips or bumps anything." (R. 185) She also stated that plaintiff has limited cardiac function due to his valve disease. (R. 185) In describing plaintiff's conditions as chronic, she predicted they would last at least twelve months. (R. 186) Dr. Kaufman's report reflected the same functional limitations and was essentially the same as Dr. Ciuffo's report. (R. 186-88) In response to the question, "[a]re Mr. Guzman's symptoms reasonable to expect given his underlying medical condition," both doctors checked "yes." (R. 185, 188)

On April 1, 2008, Dr. Shuchita Khasnavis prepared a letter noting that the plaintiff was diagnosed with atrial fibrillation and needs to go to the clinic every four weeks for blood work. (R. 195) No other statements were made in the letter. (R. 195)

2. Consultative Examining Physician

On December 4, 2006, Dr. E. B. Balinberg, a specialist in internal medicine, performed a consultative physical examination on plaintiff. During his examination, plaintiff reported three episodes of chest pain since his discharge from the hospital on September 22, 2006. (R. 179) He described the pain as a burning sensation, lasting up to ten minutes before subsiding. (R. 179) Plaintiff also described his inability to walk more than two blocks before having to stop due to "hard breathing." (R. 179) He was able to use public transportation and took the train to get to his appointment. (R. 179) He reported that a friend assisted him with shopping and household chores. (R. 179) On examination, his heart was in normal sinus rhythm, his lungs were clear to auscultation, and he had no evidence of congestive heart failure. (R. 179) His sitting blood pressure was 125/75. (R. 179) Dr. Balinberg diagnosed plaintiff with chest pain and noted that his history was suggestive of angina pectoris. (R. 180) He described plaintiff's functional capacity to do work related activities as "a limited ability to run, to walk fast, to climb many stairs, [and] do heavy physical activities." (R. 180)

3. Expert Testimony

Dr. Gerald Galst, a board certified cardiologist, testified at the April 2, 2008 hearing. (R. 41) He was present during plaintiff's testimony and had reviewed all the medical evidence of record, including exhibits submitted the day of the hearing. (R. 41-42) To the best of his knowledge, he had never provided medical treatment to the plaintiff. (R. 42)

After reviewing the available records, Dr. Galst testified that the results of the objective tests indicate that plaintiff "certainly ought to be able to walk more than a few blocks." (R. 44) He testified that plaintiff had minimally obstructive coronary artery disease and very mild mitral stenosis. (R. 44) He noted that plaintiff has an enlarged left atrium due to the mitral stenosis, but had normal pressures in his heart chambers and an overall normal cardiac function. (R. 44, 53) He stated that the plaintiff had a normal EKG and echocardiogram. (R. 43) He described the echocardiogram results as revealing normal coronary artery pressures, a normal ejection fraction, and normal right and left ventricular function. (R. 53) He explained that myocardial infarction was ruled out during both hospitalizations at NCBH. (R. 43) He stated that while plaintiff's stress test did reveal a small area of reversible ischemia involving the tip of his heart, the cardiac catheterization test, which was performed later during the plaintiff's second hospitalization at NCBH and is a more definitive test, did not reveal any obstruction in his coronary arteries that should cause the type of chest pain plaintiff reports. (R. 43-44, 54) Overall, he did not view the objective findings as consistent with the plaintiff's symptomology. (R. 44, 46) Dr. Galst testified that the objective findings "would [not] under normal circumstances be expected to cause the kinds of complaints, fatigue and shortness of breath, that he is, in fact, complaining of," such as his limited capacity to walk. (R. 44) In support of his position, he noted that during plaintiff's stress test, plaintiff was able to walk for nine minutes on the treadmill, which included walking up a fourteen-degree incline at a "pretty brisk rate." (R. 44, 54)

Dr. Galst noted that the plaintiff had a brief episode of atrial fibrillation during his cardiac catheterization, but noted that it "immediately reverted, with no particular treatment, back to a regular rhythm" and he has since maintained a regular heart rhythm. (R. 44) Dr. Glast explained that in response to this episode, plaintiff was started on Coumadin, a long-term anticoagulation treatment. (R. 44) He noted that typically, patients on this type of therapy require monthly monitoring to ensure they are receiving a proper dose of medication, but stated that this type of therapy "should not effect his functional capacity." (R. 44-45) Dr. Galst also noted that the twenty-four hour Holter monitor test did not reveal any significant cardiac abnormality. (R. 49)

The supporting documentation appears to indicate that a dosage of Ibutilide was required to convert plaintiff's heart rate back to normal sinus rhythm. (R. 164) However, any reliance by Dr. Galst's on this misstatement of fact does not appear to be a substantial consideration in forming his opinion considering he was aware of plaintiff's diagnosis of atrial fibrillation and his continued Coumadin therapy. (R. 44-45) The record indicates and Dr. Galst acknowledged that this was plaintiff's only documented episode of atrial fibrillation. (R. 44)

Dr. Galst also highlighted plaintiff's additional diagnosis of elevated cholesterol. (R. 45) Plaintiff's total cholesterol was 110 md/dl on September 17, 2006. (R. 166) Dr. Galst stated that this level was within normal limits and his LDL [low-density lipoprotein] cholesterol level was 34 mg/dl, which he described as "enviable." (R. 45) He also ruled out plaintiff's diagnosis of high cholesterol as a root cause of plaintiff's discomfort. (R. 45)

Dr. Galst also reviewed the two functional capacity reports submitted by Drs, Ciuffo and Kaufman. (R. 45) He disagreed with both reports, which stated that plaintiff, in an eight hour day, was functionally limited to sitting continuously for four hours, standing for one, and lifting not more than five pounds. (R. 46) He opined that none of the objective data from either the echocardiogram or the cardiac catheterization support this conclusion. (R. 46) He also noted that plaintiff himself testified that he does not have any problems sitting. (R. 35, 46) Dr. Galst concluded that plaintiff could perform a full range of light work. (R. 47) III. APPLICABLE LAW

A. Standard of Review

Under Rule 12(c), Fed. R. Civ. P., a movant is entitled to judgment on the pleadings only if the movant establishes "that no material issue of fact remains to be resolved and that [it] is entitled to judgment as a matter of law." Juster Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269 (2d Cir. 1990) (citations omitted). Judgment on the pleadings is appropriate where no material facts are in dispute, and "where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted).

Review of the Commissioner's final decision denying disability benefits is limited. The court may not determine de novo whether the claimant is disabled. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). If the Commissioner's findings are free of legal error and supported by substantial evidence, the court must uphold the decision. See 42 U.S.C. § 405(g) ("The findings of the Commissioner, . . . if supported by substantial evidence, shall be conclusive, and where a claim has been denied . . . the court shall review only the question of conformity with [the] regulations . . . ."); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)). Therefore, a court's review involves two levels of inquiry. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). First, the court must review whether the Commissioner applied the correct legal standards. Tejada, 167 F.3d at 773; see Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987) (citing 42 U.S.C. §405(g) and holding that a court must first review the ALJ's decision for correct legal principals before applying the substantial evidence standard). Second, the court must decide whether the Commissioner's decision is supported by substantial evidence. Tejada, 167 F.3d at 773.

The ALJ's "[f]ailure to apply the correct legal standards is grounds for reversal." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). The ALJ's factual findings supported by substantial evidence are "binding" on this court; however, "where an error of law has been made that might have affected the disposition of the case," this court cannot simply defer to the ALJ's factual findings. Id. Legal error may include failure to adhere to the applicable regulations. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (citing Schaal v. Apfel, 134 F.3d 496, 504-05 (2d Cir. 1998)).

Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)); accord Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam). Relevant evidence includes inferences and conclusions drawn from evidentiary facts. Rivas v. Barnhart, 2005 WL 183139, at *18 (S.D.N.Y. Jan. 27, 2005) (citations omitted). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). When reviewing the evidence supporting the Commissioner's position to determine whether it is substantial, the court should review the record as a whole, and "not look at that evidence in isolation[,] but rather [] view it in light of other evidence that detracts from it." Alston v. Sullivan, 904 F.2d 122, 126 (2d. Cir. 1990) (citation omitted). However, even if there is substantial evidence contrary to the Commissioner's position, the Commissioner's determination will not be disturbed. See DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was substantial evidence for both sides).

When reviewing the factual record, it is not this court's role "to resolve evidentiary conflicts . . .[nor] to appraise the credibility of witnesses, including the claimant"; instead, those are judgments for the Commissioner to make. Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983) (citations omitted). Accordingly, genuine conflicts in the medical evidence are for the Commissioner to resolve. Veino, 312 F.3d at 588 (citations omitted). Courts give great deference to an ALJ's credibility determination because the ALJ had the opportunity to observe plaintiff's demeanor while testifying. Ruiz v. Barnhart, 2006 WL 1273832, at *7 (S.D.N.Y. May 10, 2006); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. Apr. 24, 1995).

Before deciding if the Commissioner's determination is supported by substantial evidence, courts must first be satisfied that the claimant received "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes 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 Health, Educ. and Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). The ALJ has an affirmative duty to fully and fairly develop an administrative record. Echevarria, 685 F.2d at 755. This duty arises from the essentially non-adversarial nature of a benefits proceeding where the Secretary is not represented. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982), "[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history 'even when the claimaint is represented by counsel . . . .' " Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). To this end, "the reviewing court must make a 'searching investigation' of the record to ensure that" the ALJ protected the claimant's rights. Robinson v. Sec'y of Health and Human Servs., 733 F. 2d 255, 258 (2d Cir. 1984) (citation omitted). "If the reviewing court determines that a claimant did not receive a 'fair and adequate hearing' before the ALJ, . . . it must remand the case to the Commissioner . . . ." Watson v. Astrue, 2009 WL 6371622, at * 5 (S.D.N.Y Feb. 4, 2009) (citing Echevarria, 685 F.2d at 755-57). "A finding of gaps in the record or need for further development of the evidence is cause for remand." Batista v. Chater, 972 F. Supp. 211, 217 (S.D.N.Y. 1997) (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).

B. Five-Step Disability Determination

The Social Security Act defines "disability" in relevant part as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Act provides that "an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A); Rosa, 168 F.3d at 77. The Commissioner's determination of a claimant's disability follows a five-step sequential analysis promulgated by the SSA. See 20 C.F.R. § 404.1520. The Second Circuit has described this analysis as follows:

"First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, [second,] the [Commissioner] considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Fifth, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform."
Rosa, 168 F.3d at 77 (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam)); accord Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).

The claimant bears the burden of proof for the first four steps. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000). If the claimant meets his burden on the first four steps, then the burden shifts to the Commissioner at the fifth step to "show there is other gainful work in the national economy which the claimant could perform." Draegert, 311 F.3d at 472 (citing Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983)). Work that exists in the national economy "means work which exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A). At the fifth step, the Commissioner will consider the claimant's RFC and vocational factors, such as age, education, and work experience, to see if the claimant can make an adjustment to other work. 20 C.F.R. §§ 404.1520, 416.920. Typically, the Commissioner meets his burden at this step "by resorting to the applicable medical vocational guidelines (the grids)," laid out in 20 C.F.R. § Part 404, Subpart P, Appendix 2, which take into account these considerations. Rosa, 168 F.3d at 78. "Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy." Rosa, 168 F.3d at 78 (internal citation and quotation marks omitted). When the grid analysis adequately describes a particular claimant's profile, grid determinations are generally dispositive on the issue of disability. Rosa, 168 F.3d at 78. If the claimant can make an adjustment and perform other work, then the claimant is not disabled. 20 C.F.R. §§ 404.1520, 416.920.

When conducting the analysis at step five, the Commissioner considers: "(1) the objective medical facts and clinical findings; (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) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)). A claimant's impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3); see, e.g., Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). The Commissioner "shall consider the combined effect of all the individual's impairments." 42 U.S.C. § 423(d)(2)(B); see Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995) (stating that "the SSA must evaluate [the]combined impact on a claimant's ability to work . . . .")

The subjective experience of pain can support a finding of disability, provided there are "medical signs and laboratory findings which show that [the claimant has] a medical impairment(s) which could reasonably be expected to produce the pain." Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) (quoting 20 C.F.R. § 404.1529(a)). In assessing claimant's subjective complaints of pain, an ALJ will consider: (1) daily activities; (2) the location duration, frequency, and intensity of the pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

After reviewing the medical findings and other evidence in the record, the ALJ "has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment . . . regarding the true extent of the pain alleged by the claimant." Minims v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (quoting McLaughlin v. Sec'y of Health, Educ. and Welfare of the U.S., 612 F.2d 701, 705 (2d Cir. 1980) (citation omitted)). "If the [Commissioner's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." Aponte v. Sec'y, Dep't of Health and Human Servs. of the U.S., 728 F.2d 588, 591 (2d Cir. 1984) (citation omitted). "[D]isability requires more than mere inability to work without pain." Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). The "pain must be so severe . . . as to preclude any substantial gainful employment." Id.

C. Treating Physician Rule

The opinion of a claimant's treating physician "regarding the nature and severity of [claimant's] impairments" will be given controlling weight if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). A lack of specific clinical findings in the treating physician's report does not, by itself, permit the ALJ to discredit the treating physician's report. Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). However, the treating physician's opinion is not afforded controlling weight when the opinion is inconsistent with other substantial evidence in the record, such as the opinions of other medical experts. 20 C.F.R. § 404.1527(d)(2); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). In such a case, a report from a consultative physician may constitute substantial evidence. Mongeur, 722 F.2d at 1039; Carrington v. Barnhart, 2005 WL 2738940, at *9 n.2 (S.D.N.Y. Oct. 19, 2005). "[T]he less consistent [the treating physician's] opinion is with the record as a whole, the less weight it will be given." Snell, 177 F.3d at 133; see 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4).

Further, a treating physician's opinion that the claimant is "disabled" or "unable to work" is not controlling. 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). Additionally, medical opinions regarding whether the claimant's "impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1," medical opinions regarding plaintiff's RFC, and the application of vocational factors are not controlling. 20 C.F.R. § 404.1527(e)(2). Medical opinions on such issues are merely a consideration and not determinative. 20 C.F.R. § 404.1527(e). Such issues are reserved to the Commissioner. Id. Reserving these issues to the Commissioner relieves the SSA of having to credit a doctor's finding regarding these issues, but that "does not exempt [the ALJ] from [his] obligation . . . to explain why a treating physician's opinions are not being credited." Snell, 177 F.3d at 134.

If the treating physician's medical opinion is not afforded controlling weight, the following factors must be considered to determine the weight given to the opinion: (i) the frequency of the examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the treating physician is a specialist. See Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). Furthermore, when the ALJ gives the treating physician's opinion less than controlling weight, he must provide good reasons for doing so. Id.; see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (stating that the ALJ must "set forth his reasons for the weight he assigns to the treating physician's opinion"); Snell, 177 F.3d at 134 ("The requirement of reason-giving exists . . . to let claimants understand the disposition of their cases . . . even - and perhaps especially - when those dispositions are unfavorable.") IV. DISCUSSION

A. ALJ's Decision

Applying the five-step process for evaluating disability claims, see 20 C.F.R. §§ 404.1520, 416.920; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), ALJ Olarsch denied plaintiff's benefit claim. (R. 6-15) At step one, ALJ Olarsch determined that plaintiff has not engaged in substantial gainful activity since September 12, 2006, the alleged onset of his condition. (R. 11) At step two, he found that plaintiff's coronary artery disease was a "severe" impairment, as defined in 20 C.F.R. § 404.1520(c), which "imposes significant . . . limitation on the [plaintiff's] ability to perform physical work-related activities," but he did not, under step three, view plaintiff's heart disease as meeting or equaling one of the impairments listed in Appendix 1 to Subpart P of Part 404, meaning that plaintiff is not per se disabled. (R. 11) At step four, the ALJ determined that plaintiff could not perform his past work as a roofer due to the strenuous physical requirements of this job. (R. 11, 14) At the next and final analytical step, ALJ Olarsch assessed whether plaintiff retained the RFC to perform other work in the national economy and concluded that he could perform the full range of light work defined in 20 C.F.R. § 404.1567(b). (R. 11) Since plaintiff's claim survived the first four steps of the inquiry, the Commissioner had the burden to show, in step five, that there is other gainful work in the national economy that plaintiff could perform. Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (citation omitted). ALJ Olarsch found that the Commissioner had met that burden. In making this determination, he relied heavily on the testimony of Dr. Galst, who reviewed the record and concluded that plaintiff retained the functional residual capacity to perform the full range of light work, defined as work that involves (i) lifting or carrying up to 20 pounds occasionally and 10 pound frequently and (ii) a "good deal of walking or standing" or "sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. §§ 404.1567(b), 416.967(b).

1. Weight Afforded To Treating Physicians' Opinions

Plaintiff argues that the ALJ erred by giving Dr. Galst's expert opinion more weight than the opinions of his treating physicians, Dr. Kaufman and Dr. Ciuffo, and by failing to contact Drs. Kaufman and Ciuffo to obtain additional information before rejecting their opinions. (Pl.'s Mem. 19, 21) He asserts that it was error to rely on Dr. Galst's opinion because his opinion was formed based on reviewing medical evidence that covered a period of just three months, antedating the hearing by over a year, and lacked plaintiff's outpatient medical records. (Pl.'s Mem. 19)

ALJ Olarsch declined to give controlling weight to the conclusions of Drs. Kaufman and Ciuffo, who reported that plaintiff could only sit for a total of four hours and stand for a total of one hour during an eight hour workday, and could "lift and carry 'occasionally'—up to two hours in an eight hour day—a maximum of" five pounds. (R. 13; 185, 188) According to the plaintiff, if ALJ Olarsch accepted the treating physicians' opinions as to what activities plaintiff can still perform despite his cardiac impairments, the Commissioner would be unable to establish that there is work in the national economy that plaintiff can still perform. (Pl.'s Mem. 17) Plaintiff does not elaborate on the basis for this statement, but likely makes this assertion based on how the SSA defines sedentary work and how the medical-vocational grids set forth in 20 C.F.R. § Part 404, Subpart P, Appendix 2 classify individuals who cannot perform sedentary work. Sedentary work is defined under the regulations as work that involves lifting up to ten pounds at a time and occasionally lifting and carrying light objects. 20 C.F.R. § 404.1567(a), 416.967(a). Sedentary work also generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (citing Social Security Ruling 83-10). If the ALJ accepted Dr. Kaufman's and Dr. Ciuffo's opinions, this could support a finding by the ALJ that the plaintiff cannot perform even sedentary work. This is because both treating physicians conclude that the plaintiff cannot stand for two hour or sit for six hours in an eight hour day, a finding inconsistent with how the regulations construe the ability to perform sedentary work, A determination that the plaintiff is unable to perform sedentary work, a significantly different finding than the ALJ's prior finding that plaintiff can perform light work, could certainly change the analysis as to whether the Commissioner met its burden in showing that there is other work in the national economy that plaintiff can still perform. A finding that a claimant cannot perform even sedentary work, however, does always prompt an automatic finding that the plaintiff is disabled. The Medical-Vocational Guideline provides, in part, that "the inability to perform a full range of sedentary work does not necessarily equate with a finding of 'disabled.' Whether an individual will be able to make an adjustment to other work requires an adjudicative assessment of [multiple] factors . . . ." See 20 C.F.R. § Part 404, Subpart P, Appendix 2 Sec. 200.00(h)(3). Here, it is certainly possible that if the ALJ concludes the plaintiff cannot perform even sedentary work, the ALJ, in weighing the multiple factors, could conclude that the Commissioner did not meet its burden of showing that there is other work in the national economy that plaintiff can still perform.

ALJ Olarsch set forth his reasons for not giving controlling weight to Dr. Kaufman's and Dr. Ciuffo's opinions in his decision. First, ALJ's Olarsch concluded that the record contains no evidence to support the "extreme limitations" set forth in their opinions and second, their opinions were inconsistent with other substantial evidence in the record, including the plaintiff's own testimony that he is able to sit without limitation. (R. 14) He questioned whether Dr. Kaufman was in fact a treating physician because he was unable to locate this physician's name in the NCBH medical records. (R. 13) He also noted that Dr. Ciuffo's name was "listed intermittently in records from North Central as an attending physician." (R. 13) Dr. Galst's opinion, the cardiology expert who testified at plaintiff's hearing, was afforded the most significant weight because ALJ Olarsch found his opinion to be well-supported by the medical records, which included results from multiple objective medical tests. (R. 14)

While ALJ Olarsch may have been free not to give controlling weight to Dr. Kaufman's and Dr. Ciuffo's opinions because their opinions could be viewed as inconsistent with other substantial evidence in the record, he failed to assess the weight the treating physicians' opinions should be given in accordance with the factors set forth in the regulations. See Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)) (outlining the factors that must be considered in deciding how much weight to afford treating physicians' opinions when they are not given controlling weight); Social Security Ruling 96-5p (explaining that "[a]djudicators must weigh medical source statements under the rules set forth in 20 C.F.R § 404.1527 and 416.927, providing appropriate explanations for accepting or rejecting such opinions.")

In deciding how much weight to give a non-controlling treating physician's opinion, an ALJ must consider the frequency of the treating physician's examination and the length, nature, and extent of the treatment relationship. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The record, however, does not include any details regarding the frequency or extent of the treatment relationship between Dr. Kaufman and the plaintiff, yet Dr. Kaufman's letter reflects that they had an ongoing treatment relationship. Dr. Kaufman confirmed in his letter submitted to the ALJ that he was treating the plaintiff in the cardiology clinic at NCBH and was willing to answer questions regarding the care he was providing, as evidenced by his statement indicating this along with his phone number. (R. 193) Despite this letter, ALJ Olarsch questioned in his decision whether Dr. Kaufman was even a treating physician based on his inability to locate his name in the NCBH hospital records, but opted to treat him as such based on the plaintiff's assertion that he was a treating physician. (R. 13) The plaintiff explained in his testimony that Dr. Kaufman was his treating cardiologist, but he was not asked to describe in more detail the frequency or extent of this treatment relationship. (R. 45)

The record does not contain any treatment records from Dr. Kaufman and there is no indication that the ALJ made any effort to contact Dr. Kaufman for additional information or details regarding the treatment relationship. Although the ALJ may not have had an affirmative duty to obtain the actual treatment records, he nonetheless needed additional information regarding the treatment relationship in order to apply the factors set forth in the regulations. See 20 C.F.R. § 404.1512(d) (providing that "[b]efore we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application . . . .") Information regarding the treatment relationship could have been developed through the plaintiff's testimony, but it was not. Thus, the ALJ could not have appropriately considered all the factors in deciding how much weight to give Dr. Kaufman's opinion.

Similarly, the record contains scant treatment records from Dr. Ciuffo and there is limited information in the record regarding the treatment relationship between the plaintiff and Dr. Ciuffo. The ALJ indicated in his decision that the basis for the treatment relationship between the plaintiff and Dr. Ciuffo was the physician's role as attending physician while plaintiff was a patient at NCBH. (R. 13) This statement, although true, does not make it clear that the ALJ fully appreciated plaintiff's ongoing treatment relationship with Dr. Ciuffo. The plaintiff testified at the hearing that he was still under Dr. Ciuffo's care at the time of the hearing, but he was not asked to elaborate on the treatment relationship and the record does not provide a complete picture of the treatment relationship. (R. 45) The limited records available from Dr. Ciuffo, two clinic visits from September and October 2006, indicate a frequent and regular pattern of visits but there is no information in the record to clarify whether this regular and frequent pattern continued because plaintiff's testimony on this point was not developed. (R. 157-58)

Failure to assess a treating physicians' opinion in accordance with the factors set forth in the regulations and failure to supplement deficient treating physician medical records constitutes grounds for reversal and remand. See Schaal v. Apfel, 134 F.3d 496, 504, 505 n.9 (2d Cir. 1998) (explaining that it is a flaw for the ALJ not to consider all the factors set forth in the regulations for evaluating treating physicians' opinions and noting that "[t]o the extent that the treatment notes may have been unclear, it was of course the Commissioner's responsibility to clarify the record-all the more so because the Commissioner bears the burden of proof in establishing that plaintiff had the residual functional capacity to engage in sedentary work"); Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (stating that "[a]n ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record."); Ellington v. Astrue, 641 F. Supp. 2d 322, 330-31 (S.D.N.Y. 2009) (finding that "the ALJ should weigh the treating physician's opinion along with other evidence according to the factors" described in 20 C.F.R. § 404.1527(d)(2)-(6) and concluding that "the ALJ committed legal error in not describing how much weight he did accord to [the treating physician's] opinion once he determined that it was not controlling"); Santiago v. Massanari, 2001 WL 1946240, at *12 (S.D.N.Y. Jul. 16, 2001) (reversing and remanding case where ALJ failed to consider the factors set forth in the regulations for evaluating treating physicians' opinions and did not take affirmative steps to supplement deficient treating physician records).

Given the ALJ's failure to apply the factors set forth in the regulations in weighing the treating physicians' opinions, this Court cannot say that the correct legal standard was applied. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (citing Schaal, 134 F.3d at 504-05) (explaining that legal error may include failure to adhere to the applicable regulations). Because this error could affect the disposition of the case, this Court cannot simply defer to the ALJ's factual findings and determine whether they are support by substantial evidence. See Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)) (stating that the ALJ's "[f]ailure to apply the correct legal standards is grounds for reversal"); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) (noting that "[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.")

The regulations also require the ALJ to set forth "good reason" for discrediting the opinions of treating physicians. Schaal, 134 F.3d at 505; 20 C.F.R. § 404.1527(d)(2); see Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (stating that the district court may remand a case for a comprehensive explanation of the ALJ's reasoning if "good reasons" is not articulated in the decision for the weight accorded to a treating physician's opinion). Here, it is difficult to say the ALJ had "good reason" to discredit Dr. Kaufman's and Dr. Ciuffo's opinions given the uncertainty regarding the nature of the treatment relationship and the limited treatment records available for the ALJ to review. ALJ Olarsch noted the opinions of both these treating physicians but disregarded both of them because they failed to demonstrate the reasons for their "extreme limitations" and their opinions were inconsistent with other substantial evidence in the record. (R. 13) He also noted that the treating physicians "do not reference any clinical findings" and instead "only list the tests that were conducted at [NCBH]." (R. 13) However, the medical records upon which Dr. Galst based his opinion and the ALJ based his findings are essentially limited to the records from plaintiff's two brief hospitalizations in September of 2006 and the consultative physical examination performed by Dr. Balinberg. This is a limited period of time that may have provided a less complete picture of plaintiff's functional capacity as compared to the information available to plaintiff's treating physicians. It may well be that the treatment records of these physicians contain additional information that support their conclusions and include other clinical findings, but this information was not available for the ALJ or Dr. Galst to review because the record does not contain any of Dr. Kaufman's treatment records and includes only a two-month span of Dr. Ciuffo's treatment records. See Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (remanding case and noting that "[i]t is entirely possible that [the treating physician] 'if asked,' could have provided a sufficient explanation for any seeming lack of support for his ultimate diagnosis of complete disability") (citing Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)); Schaal, 134 F.3d at 505 (noting that a medical opinion was unsupported by clinical findings and remanding for the purpose of determining what those medical findings were). Although the record does contain records from Dr. Ciuffo dated in September and October of 2006, there are no treatment records from this treating physician, or any other treating physician, from November 2006 through the date of plaintiff's hearing in April 2008. (R. 157-58) Plaintiff testified that he remained under Dr. Ciuffo's and Dr. Kaufman's care at the time of his hearing in April 2008. (R. 45)

The need to provide "good reason" is especially great under these facts. First, two treating physicians who evaluated the plaintiff in 2007 both appear to have independently arrived at the conclusion that plaintiff does not have the functional capacity to sit for more than four hours or stand for more than one hour in an eight hour day, yet it is unclear from the record why the conclusion of the two treating physicians is different from Dr. Galst's when it appears all three physicians referenced the same type of objective tests and possibly the same tests performed during plaintiff's 2006 inpatient hospitalization at NCBH. Both treating physicians, however, rendered their opinions in 2007 based on care, presumably, rendered around that date; whereas Dr. Galst rendered his opinion based mostly on reviewing the limited records from plaintiff's 2006 hospitalization. Because the treating physicians' records are unavailable for review, it is unclear whether the reason for this discrepancy is that plaintiff's condition deteriorated over this period of time. Second, the ALJ noted that "the claimant's medically determinable impairment could reasonably be expected to produce the alleged symptoms." (R. 12) This statement makes it all the more important for the plaintiff to understand why the ALJ found the treating physicians' opinions as to plaintiff's functional capacity not credible when their diagnoses were found to be credible and his cardiac impairment could produce the types of symptoms he alleged. See Ellington v. Astrue, 641 F. Supp. 2d 322, 331 (S.D.N.Y. 2009) (explaining that "it is all the more important for the ALJ to clearly state the reasons he found [the treating physician] to be credible on [the diagnosis] but not credible on the issue of whether [the plaintiff] actually experienced disabling pain" when the ALJ states in his decision that the impairment could produce the type of symptoms alleged.)

Considering plaintiff's attorney's delay in submitting the opinions of Drs. Kaufman and Ciuffo to the ALJ, it is not surprising that details surrounding the treatment relationship were not developed during plaintiff's testimony or that the ALJ did not obtain the treatment records. However, this delay does not obviate the need to ensure the ALJ has the information necessary to appropriately weigh the treating physicians' opinions in accordance with the regulations.

2. Failure To Appropriately Assess Plaintiff's Credibility

Plaintiff also contends that ALJ Olarsch improperly assessed his credibility in concluding that plaintiff can perform the full range of light work. (Pl.'s Mem. 21) Specifically, plaintiff claims that ALJ Olarsch did not afford due weight to his symptoms of pain and physical incapacity. (Pl.'s Mem. 21) ALJ Olarsch noted that although the plaintiff's medically determinable impairment could reasonably be expected to produce the type of symptoms plaintiff reports, he did not find the plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms" to be "credible to the extent they were inconsistent with the RFC assessment." (R. 12) The RFC assessment, performed on January 22, 2007, describes plaintiff's exertional capabilities as able to 1) occasionally lift and/or carry twenty pounds, 2) frequently lift and/or carry ten pounds, 3) stand and/or walk for a total of about six hours in an eight hour workday with normal breaks, 4) sit for a total of about six hours in an eight hour workday with normal breaks, and 5) push and/or pull hand or foot controls without limitation, other than for weight as noted above. (R. 144) In essence, it described plaintiff as having the functional capacity to perform light work. It also noted that plaintiff reported an inability to walk more than two blocks, but described this statement as not credible to the degree alleged. (R. 147)

An ALJ "must consider a claimant's subjective complaints of pain, although such complaints are not conclusive." Morris v. Bowen, 1989 WL 270108, *5 (S.D.N.Y. Jan. 12, 1989). The Act provides, in pertinent part;

An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical
impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.
42 U.S.C. § 423(d)(5)(A). "Thus, 'credible pain testimony' that is associated with a 'clinically demonstrated impairment' may contribute to a determination that a claimant is disabled." Rosado v. Sullivan, 805 F. Supp. 147, 156 (S.D.N.Y. 1992) (citing Cruz v. Bowen, 1987 WL 19965, at * 8 (S.D.N.Y. Nov. 12, 1987)). However, "the ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant." McLaughlin v. Sec'y of Health, Educ. And Welfare, 612 F.2d 701, 705 (2d Cir. 1980) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) (internal alterations omitted)).

Here, because this Court has concluded that the ALJ improperly weighed the medical evidence and the ALJ failed to contact the plaintiff's treating physicians to obtain additional treatment information, we cannot accept the conclusion regarding Mr. Guzman's credibility. This is because an ALJ is to evaluate the claimant's credibility in light of his medical findings. Where the medical findings are improper, the Commissioner must reconsider the plaintiff's testimony in light of the remanding opinion and the evidence developed on remand. Rosa v. Callahan, 168 F.3d 72, 82 n.7 (2d Cir. 1999).

3. Disposition

"Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, [courts] have, on numerous occasions, remanded to the [Comissioner] for further development of the evidence." Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (alterations in original)). It is not for this Court to reweigh the evidence in a social security case. Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). Awarding benefits instead of remanding for further proceedings is only appropriate in cases where there is "overwhelming proof of disability. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Remand to allow further development of the evidence to permit application of the correct legal standard is appropriate in this case.

V. CONCLUSION

Because the ALJ failed to apply the correct legal standard in deciding the appropriate weight to afford plaintiff's treating physicians' opinions and did not articulate "good reason" for discounting their opinions, this case is remanded to the Commissioner for further development of the evidence and application of the correct legal standard. Defendant's motion for judgment on the pleadings is denied.

SO ORDERED.

/s/_________

P. Kevin Castel

United States District Judge Dated: New York, New York

February 3, 2011


Summaries of

Guzman v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Feb 3, 2011
09 Civ. 3928 (PKC) (S.D.N.Y. Feb. 3, 2011)
Case details for

Guzman v. Astrue

Case Details

Full title:JULIAN DEJESUS GUZMAN Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF…

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Feb 3, 2011

Citations

09 Civ. 3928 (PKC) (S.D.N.Y. Feb. 3, 2011)

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