PTSD Recent Decision
II. Disability Determination Under the Social Security Act
The Social Security Act states that a person shall be considered to be disabled for the purposes of receiving SSDI benefits when he or she is "unable to engage in any substantial gainful activity41 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 twelve months." 42 U.S.C. §1382c(a)(3)(A).
Further, a person will be determined to have 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..." 42 U.S.C. §1382c(a)(3)(B).
To be eligible for SSDI benefits, an applicant must be insured for disability benefits, and must therefore establish her disability prior to her last date insured. 42 U.S.C. §§432(a)(1)(A), 423(c); see also Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989).
Regulations promulgated by the Commissioner set forth a five-step process to determine whether an impairment or impairments demonstrate a disability. The Second Circuit has described the five-step process as follows:
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks and citation omitted); see also Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); 20 C.F.R. §416.920(a)(4)(i-v). While the claimant has the burden of demonstrating that she meets all requirements for benefits, 42 U.S.C. §423(d)(5)(A), at step five of the analysis, the burden shifts to the Commissioner to show that the claimant can perform other substantial, gainful work available in the national economy. Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
Further, it is the duty of the ALJ to investigate and develop the facts and arguments both for and against the granting of benefits. See Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir. 2004). Thus, "the ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). Accordingly, "where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history," Rosa, 168 F.3d at 79, and ensure that a claimant's complete medical history is accounted for, "especially the observations and opinions of a claimant's treating physician." Kilkenny v. Astrue, No. 05-CV-6507, 2009 WL 1321692, at *15 (S.D.N.Y. May 12, 2009).
III. Analysis
A. The Commissioner's Determinations
Using the five-step sequential process, the Appeals Council42 found at step one that, for the period from the alleged onset of plaintiff's injuries through her date last insured, plaintiff was not engaged in substantial gainful activity. R. 11, 27. At step two, which requires a determination of whether the claimant has a "severe medically determinable physical or mental impairment... which significantly limits [the claimant's] physical or mental ability to do basic work activities," 20 C.F.R. §404.1520(a)(4)(ii), (c), the Appeals Council found that plaintiff had severe impairments. At step three, however, the Appeals Council found that plaintiff's severe impairments did not meet or equal in severity any of the listed impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P ("the Listing of Impairments"). R. 11, 30. At step four, the Appeals Council assessed plaintiff's residual functional capacity, finding that plaintiff was not precluded from performing her past work as a hotel maid, which required light work. R. 11-12, 30. The Appeals Council noted that this finding reflected the little weight afforded Dr. Kuiper's opinions, which, in light of plaintiff's medical records and testimony, and the testimony of medical expert Dr. Goldman, it found to be inconsistent with Dr. Kuiper's own treatment notes and insufficiently supported by clinical signs or diagnostic studies. R. 12. In adopting the ALJ's findings, the Appeals Council similarly gave little weight to Dr. Sanchez's medical opinion, noting that his treatment relationship with plaintiff began nearly five years after the expiration of her insured status. R. 11, 31. Last, despite the finding of no disability at step four, the Appeals Council completed the sequential analysis, concluding at step five that there were a significant number of jobs in the national economy that plaintiff was capable of performing. R. 11, 13, 31-32.
B. Appeals Council's Application of Treating Physician Rule
Plaintiff claims that the Appeals Council improperly afforded little weight to the opinions of her treating physicians. Specifically, she claims that it failed to provide "good reasons" for the weight afforded and neglected its duty to affirmatively develop the administrative record with regard to the medical evidence informing upon which those opinions were based. There is no dispute that Dr. Kuiper and Dr. Sanchez qualify as plaintiff's treating physicians.
1. Treating Physician Rule
In evaluating medical source opinions, the "treating physician rule" established by SSA regulations43 mandates that "the medical opinion of a claimant's treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record evidence." Shaw, 221 F.3d at 134; 20 C.F.R. §416.927(d)(2). The coincidence of a treating source's evaluation and treatment with the claim for SSDI benefits is not determinative; accordingly, "a treating physician's retrospective medical assessment of a patient may be probative." Perez, 77 F.3d at 48. Thus, if a treating physician's opinion is either not well supported by medically acceptable clinical and laboratory diagnostic techniques or inconsistent with other substantial evidence in the record, it need not be afforded controlling weight.
Where a treating physician's opinion is not accorded controlling weight, the ALJ "must consider various 'factors' to determine how much weight to give the opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Such factors include "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist;" and (v) other factors which tend to support or contradict the opinion. Shaw, 221 F.3d at 134; 20 C.F.R. §404.1527(d)(2)-(6). Given the ALJ's duty to develop the record sua sponte, see Tejada, 167 F.3d at 774, the Appeals Council may not reject the treating physician's conclusions based solely on a lack of clear medical evidence or inconsistency without first attempting to fill the gaps in the administrative record. See Rosa, 168 F.3d at 79. Furthermore, when according the treating physician's opinion less than controlling weight, the ALJ must comprehensively set forth "good reasons" for the weight ascribed. See Halloran, 362 F.3d at 33; 20 C.F.R. §404.1527(d)(2). Remand is appropriate where the ALJ fails to provide "'good reasons' for not crediting the opinion of a claimant's treating physician." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
2. Dr. Kuiper
The Appeals Council declined to afford controlling weight to Dr. Kuiper's opinion based on its determination that Dr. Kuiper's opinion was not well-supported by medical evidence and inconsistent with other substantial evidence. R. 12-13, 31.
i. Medical Evidence Supporting Dr. Kuiper's Opinion
The Appeals Council concluded that Dr. Kuiper's opinion was not supported by objective evidence since his treatment records were sporadic, contained only minimal objective findings, and were devoid of diagnostic tests establishing plaintiff's impairments. R. 11-12, 29-31.
The rejection of a treating physician's opinion because his "limited findings and the intermittent nature of his treatment" could not support a finding of disability "falls far short of the standard for contradictory evidence required to override the weight normally assigned the treating physician's opinion." Shaw, 221 F.3d at 134. Here, the Appeals Council noted the break in treatment from July 1992 to February 1994 and the evidence of only two treatment sessions from July 1995 through January 1996. R. 11-12, 29-32. However, despite the almost two-year gap in Dr. Kuiper's treatment record noted by the Appeals Council, Dr. Kuiper's relationship with plaintiff spans nearly a decade and includes scores of treatment visits and evaluations both during and after the period during which plaintiff was insured. The Appeals Council's conclusory assessment of Dr. Kuiper's treatment relationship with plaintiff as sporadic in determining that his opinion was unsupported by medical evidence amounts to an improper application of the treating physician rule. See Rosa, 168 F.3d at 78-79.
While the ALJ and the Appeals Council are "free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, [they are] not free to set [their] own expertise against that of a physician who testified before [them]." Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). Here, the Appeals Council characterized the range of motion and straight-leg raise tests as only "minimal objective medical evidence" of plaintiff's disability. R. 11-12, 29-31. The only medical opinions offered in the record regarding the straight-leg raise and other range of motion tests—by Drs. Kuiper and Goldman—considered them objective medical evidence. See R. 307-08. Since Dr. Goldman confirmed that the straight-leg raise tests performed by Dr. Kuiper constitute objective medical findings, the Appeals Council's conclusory characterization of those tests as minimal evidence unable to support Dr. Kuiper's medical opinion approaches an improper substitution of its own views for actual medical expertise.
Further, the Appeals Council neglected its duty to supplement the record. "For the [Appeals Council] to conclude that plaintiff presented no evidence of disability at the relevant time period, yet to simultaneously discount the medical opinion of h[er] treating physician, violates [its] duty to develop the factual record, regardless of whether the claimant is represented by legal counsel." Shaw, 221 F.3d at 134 (citing Schaal, 134 F.3d at 505). In concluding that Dr. Kuiper's medical opinion was unsupported by clinical signs or laboratory findings, in part because the record does not include a report of the X-rays Dr. Kuiper cites in his medical notes as establishing plaintiff's injuries, the Appeals Council failed to explain why the report was missing or cite evidence showing that efforts had been made to obtain the reports.44 Without attempting to fill this gap in the record, the Appeals Council could not determine that Dr. Kuiper's medical opinion is not well supported by medical evidence.
ii. Inconsistencies Between Dr. Kuiper's Opinion and Medical Evidence
The Appeals Council further found that Dr. Kuiper's opinion was inconsistent with his own treatment notes, specifically citing Dr. Goldman's conclusion that Dr. Kuiper improperly performed the straight-leg raise testing on plaintiff, and Dr. Goldman's characterization of Dr. Kuiper's treatment plan as inconsistent with his diagnosis of pedicle fracture because it did not include either MRI or CT scans or a custom-made brace.45 R. 12, 30-31. There are several problems with this inconsistency finding. First, while the Appeals Court cites Dr. Goldman as testifying that Dr. Kuiper failed to perform straight-leg raises properly, that testimony does not appear in the record. See R. 296-309, 310-314. Second, that Dr. Goldman questioned Dr. Kuiper's treatment program does not necessarily imply that Dr. Kuiper's treatment program was inconsistent with his own diagnosis. Since "the opinion of the treating physician [is not] to be discounted merely because he has recommended a conservative treatment regimen," the discrepancy between Dr. Goldman's ideal treatment program and Dr. Kuiper's treatment plan does not necessarily render the latter inconsistent with the record. Burgess, 537 F.3d at 129. Further, while Dr. Goldman testified that he could not reconcile Dr. Kuiper's diagnosis of a pedicle fracture with his treatment program, he repeatedly acknowledged that he could not offer an opinion regarding the severity of plaintiff's injuries because the record did not contain the X-ray results cited by Dr. Kuiper. R. 297, 299, 300, 312. Dr. Goldman also testified that plaintiff was indeed prescribed and wore a back brace pursuant to Dr. Kuiper's treatment program, and that Dr. Kuiper's diagnoses of pedicle fracture and radiculopathy and his drug prescriptions were consistent with his assessment of plaintiff's subjective experience of pain and the medically objective straight-leg raise and other range of motion tests. R. 302-03, 304-08. Thus the Appeals Council did not consider the totality of Dr. Goldman's testimony in finding Dr. Kuiper's opinion "inconsistent with other substantial record evidence." Shaw, 221 F.3d at 134.
Further, that the Appeals Council failed to supplement the record by contacting Dr. Kuiper to obtain the X-ray records belies the notion that Dr. Goldman's testimony, self-admittedly incomplete without those records, renders Dr. Kuiper's opinion inconsistent with the record. See Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (ALJ determination vacated and remanded where ALJ failed "to seek out clarifying information concerning perceived inconsistencies between [the treating physician's] two reports."). The Appeals Council's characterization of Dr. Kuiper's opinion as inconsistent with the evidence thus resulted from an improper imposition of its own assessment in place of medical evidence. See Shaw, 221 F.3d at 134-35.
iii. Appeals Council's "Good Reasons"
The Appeals Council's failure to apply the correct legal standard in considering Dr. Kuiper's medical opinion and determining not to afford it controlling weight is grounds for reversal. Pollard, 377 F.3d at 188-89. Thus, whether the Appeals Council's analysis contains "good reasons" for assigning Dr. Kuiper's opinion little weight need not be determined. See Halloran, 362 F.3d at 32-33. It is nevertheless worth mentioning that, while "[g] enuine conflicts in the medical evidence are for the Commissioner to resolve," Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002), the Appeals Council's decision to credit the opinion of Dr. Goldman, a non-treating medical expert, over that of plaintiff's treating physician, is in tension with the regulatory regime, which requires the Commissioner to afford more weight to the opinion of an examining physician than to physicians who have not examined the claimant. See 20 C.F.R. §404.1527(d) (1); see also Hidalgo v. Bowen, 822 F.2d 294, 297 (2d Cir. 1987) ("A corollary to the treating physician rule is that the opinion of a non-examining doctor by itself cannot constitute the contrary substantial evidence required to override the treating physician's diagnosis."); see also Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990) ("The general rule is that...reports of medical advisors who have not personally examined the claimant deserve little weight in the overall evaluation of disability. The advisers' assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant.").
3. Dr. Sanchez
In adopting the ALJ's determination, the Appeals Council concluded that, because Dr. Sanchez's treatment relationship with plaintiff began nearly five years after the expiration of her insured status, his opinion was not probative, and therefore assigned it little weight. R. 11, 31. Dr. Sanchez's opinion was, nevertheless, substantially consistent with Dr. Kuiper's evaluations and diagnoses and supported by significant diagnostic tests. See R. 176-181. Dr. Sanchez concluded that plaintiff's condition was causally related to her work injury of May 27, 1990. R. 176.
It is well settled law in the Second Circuit that "a treating physician's retrospective medical assessment...may be probative," Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996), and thus "while a treating physician's retrospective diagnosis is not conclusive, it is entitled to controlling weight unless it is contradicted by other medical evidence or overwhelmingly compelling non-medical evidence." Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003). Accordingly, simply noting that Dr. Sanchez began treating plaintiff well after the onset of her injury and the expiration of her insured status does not amount to contradictory medical findings or "overwhelmingly compelling non-medical evidence" sufficient to reject the opinion of a treating physician. See Rivera v. Sullivan, 923 F.2d 964 (2d Cir. 1991) (reviewing Second Circuit law on retrospective diagnosis and reversing denial of benefits where retrospective diagnosis of treating physician was not given sufficient weight with regard to degenerative condition). This cursory rejection "suggests that the ALJ failed to engage in meaningful consideration of the treating physician rule" regarding Dr. Sanchez's opnion. Scandura v. Astrue, 07-CV-5098, 2009 WL 648611, at *8 (E.D.N.Y. Mar. 10, 2009); see also Rosa, 168 F.3d at 78-79. The Appeals Council's failure to apply the correct legal standard in assessing Dr. Sanchez's medical opinion is grounds for reversal. Pollard, 377 F.3d at 188-89.
B. Appeals Council's Assessment of Plaintiff's Credibility
Plaintiff also contends that the Appeals Council's determination that her "subjective complaints [were] not fully credible" was improperly conclusory. R. 13. While "[i] t is the function of the [Commissioner], not the reviewing courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant," Aponte v. Secr'y, Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984), and "factual findings by the Commissioner are binding when supported by substantial evidence," Pollard, 377 F.3d at 188-89 (citations omitted), a "finding that the witness is not credible must [] be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). The ALJ must assess the credibility of a claimant's subjective complaints by considering the record in light of symptom-related factors set forth by statute.46 See 20 C.F.R. §404.1529(c)(3).
Here, the ALJ47 found plaintiff's allegations to be "disproportionate to the record," stating that they were not supported by the medical record; plaintiff did not require hospitalization or surgical intervention; her medical treatment was conservative; she chose not to use a back brace; the medication prescribed to her was not unusual; and she engaged in a "reasonable range of daily living activities." R. 31-32. This assessment tracks the factors listed in 20 C.F.R. §404.1529(c)(3). However, for the reasons set forth below, much of it is unsupported by substantial evidence.
First, the ALJ's assessment of plaintiff's credibility relies on his improper evaluation of the opinions of plaintiff's treating physicians. For example, the ALJ takes particular note of the fact that only "minimal physical findings" in the medical record support plaintiff's reported symptoms. R. 30-31. Yet, since the Appeals Council's characterization of the diagnostic tests performed by Dr. Kuiper as "minimal evidence" improperly substitutes its own views for actual medical expertise, and in light of the substantial gaps in the record that the two ALJs and the Appeals Council neglected to fill, this characterization cannot alone serve to discredit plaintiff's subjective allegations. Further, since "the opinion of the treating physician [is not] to be discounted merely because he has recommended a conservative treatment regimen," Burgess, 537 F.3d at 129, neither should a conservative treatment program alone weigh substantially against plaintiff's credibility. In addition, since no evidence exists in the record indicating that hospitalization or surgery were recommended treatment options for plaintiff's alleged condition, that plaintiff did not receive such intervention cannot be dispositive as to her credibility.
Second, the ALJ's credibility assessment also rests on factual error. While he stated that plaintiff chose not to use a back brace, the record shows the opposite. Plaintiff testified that Dr. Kuiper prescribed, and that plaintiff wore, a back brace. See R. 302-03. Dr. Kuiper's medical records include his prescription of a Knight spinal brace in June 1990, when plaintiff first began treatment. R. 156, 163. Plaintiff testified at her 1999 hearing before ALJ Hoppenfeld that, after Dr. Kuiper prescribed the back brace, she was measured and fitted for the brace in early 1991. R. 374-75. ALJ Cofresi thus relied on an incorrect statement of plaintiff's testimony and her medical records in determining that plaintiff was not fully credibile.48
Third, I note that the fact that plaintiff engaged in "a reasonable range of daily living activities" does not amount to substantial evidence negating the credibility of plainitff's subjective complaints. As an initial matter, the ALJ mischaracterized plaintiff's testimony. For example, where he stated that she "maintain[s] her household, and looks after family members...she shops, cooks, and cleans," he neglected to note that plaintiff repeatedly testified as to her limited ability to engage in such activities. See R. 381, 384-85. The Second Circuit "ha[s] stated on numerous occasions that a claimant need not be an invalid to be found disabled under the Social Security Act." Balsamo, 142 F.3d at 81 (citations omitted) ("when a disabled person gamely chooses to endure pain in order to pursue important goals, such as attending church and...shopping for their family, it would be a shame to hold this endurance against h[er] in determining benefits unless h[er] conduct truly showed that [s]he is capable of working."). Without specifying how plaintiff's daily schedule renders the symptoms she alleges non-credible, the ALJ's credibility assessment does not rest on substantial evidence.
Regardless, the ALJ did not meet his obligation to state his reasoning with sufficient specificity. See Williams, 859 F.2d at 260-61. The ALJ offered no discussion as to what factors in his credibility assessment he found to be significant, or how he balanced the various factors. See R. 31-32. Instead, he made the following conclusory statement after listing the factors: "Given these factors, the claimant is not entirely credible." R. 32. The ALJ's failure to substantiate or articulate his credibility finding "fatally undermines [his] argument that there is substantial evidence adequate to support his conclusion that claimant is not under a disability." Williams, 859 F.2d at 261.
C. Appeals Council's Determination of Plaintiff's RFC
Finally, plaintiff claims that the Appeals Council's conclusion that she retains the RFC to perform the full range of medium work required by her previous occupation is unsupported by substantial evidence.
Under step four of the inquiry to determine whether plaintiff's impairments demonstrate a disability, which involves a determination as to "whether, despite the claimant's severe impairment, [s]he has the residual functional capacity to perform h[er] past work," Rosa, 168 F.3d at 77, the Appeals Council is required to base its decision regarding plaintiff's RFC on all relevant evidence in the record. See 20 C.F.R. §404.1545(l)(a). The Appeals Council must, as always, support its determination with "substantial evidence." Green-Younger, 335 F.3d at 105. Although the treating physician rule does not extend to a treating source's opinion regarding a claimant's RFC, see 20 C.F.R. §404.1527(e) ("[T]he final responsibility for deciding...issues [such as RFC] is reserved to the Commissioner. We will not give any special significance to the source of an opinion on [such] issues..."), because RFC is a medical determination,49 I bear in mind that the nether the ALJ nor Appeals Council may substitute its own view of the medical evidence for that of a medical expert. See Balsamo, 142 F.3d at 81; see also Shaw, 221 F.3d at 134.
Neither the ALJ nor the Appeals Council referred to medical evidence supporting its RFC determination that plaintiff could sit, stand, and walk for up to six hours per eight-hour day and occasionally lift and carry as much as 50 pounds. R. 12, 30. The ALJ seems to have arrived at this determination simply by rejecting Dr. Kuiper's medical opinion. R. 30. Significantly, the only RFC assessments contained in the record were completed by plaintiff's treating physicians. Rejecting expert medical opinion, without setting forth adequate reasons based on medical evidence, cannot constitute the "substantial evidence" required to support the Appeals Council's conclusions. See Green-Younger, 335 F.3d at 105.
Further, "[t]he record's virtual absence of medical evidence pertinent to the issue of plaintiff's RFC reflects the ALJ's failure to develop the record, despite his obligation to develop a complete medical history." Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). Even if the Appeals Council could properly discount the opinions of plaintiff's treating physicians, it still had an affirmative obligation to develop the record in order to produce a RFC determination grounded in substantial evidence. See Tejada, 167 F.3d at 774; Rosa, 168 F.3d at 79. The Appeals Council's failure to substantiate its determination and develop the record renders its determination that plaintiff is not disabled unsupported by substantial evidence. See Balsamo, 142 F.3d at 82.
IV. Remedy
Where there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision, we have opted simply to remand for a calculation of benefits." Rosa, 168 F.3d at 83; see also Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (reversing and ordering that benefits be paid where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose."). By contrast, "remand for further development of the evidence" may be appropriate "where there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa, 168 F.3d at 82-83 (citations omitted).
In this case, the ALJ and Appeals Council applied an erroneous legal standard to the assessment and weighing of plaintiff's treating physicians' opinions, failed to develop the record as to plaintiff's medical records, and reached determinations unsupported by substantial evidence. Now, after the ALJs' and Appeals Council's repeated misapplication of the treating physician's rule and failure to supplement the record, and ten years since plaintiff originally filed for SSDI benefits, there is no showing that further development of the record and additional proceedings would result in the evidence required to substantiate a conclusion that plaintiff is not disabled. While, "absent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits," Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996), such a remedy is appropriate where the Commissioner's decision was not based on substantial evidence and further development of the record would not change that result, and there is substantial evidence in the record that plaintiff is disabled. See Rivera v. Barnhart, 379 F.Supp.2d 599, 604 (S.D.N.Y. 2005); see also Balsamo, 142 F.3d at 82. "[W]hen, as here, the reversal is based... on the [Commissioner's] failure to sustain his burden of adducing evidence of the claimant's capability of gainful employment and the [Commissioner's] finding that the claimant can engage in [work as defined by the Regulations] is not supported by substantial evidence, no purpose would be served by our remanding the case for rehearing unless the [Commissioner] could offer additional evidence...and show good cause 'for failure to incorporate such additional evidence into the record in the prior proceeding.' Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983) (citing 42 U.S.C. §405(g)) (denial of benefits reversed and remanded where Secretary failed to sustain burden of proving claimant's RFC). Accordingly, the case is remanded for the calculation of benefits.
CONCLUSION
For the reasons set forth above, this case is remanded to the Commissioner solely for the calculation of benefits. The Clerk is directed to transmit a copy of the within to all parties and the Commissioner.
SO ORDERED.
1. DOT, describing the occupation of cleaner or housekeeper, defines a Specific Vocational Preparation level of 2 as "anything beyond short demonstration up to and including 1 month," and defines the Strength Rating, which reflects the estimated overall strength requirement of the job, of light work as
Exerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.
DICOT 323.687-014.
2. Andrew Pasternak, a vocational expert, testified that while the DOT classified plaintiff's housekeeping position as requiring only light exertional work, plaintiff likely performed work requiring a medium level of physical exertion. R. 342-3. DOT defines the Strength Rating of medium work as
Exerting 20 to 50 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or 10 to 25 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or greater than negligible up to 10 pounds of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Light Work.
DICOT 324.477-010.
3. A spasm of muscles to minimize motion or agitation of sites affected by injury or disease. See Stedman's Medical Dictionary 775 (27th Edition, 2000) ("Stedman's").
4. A characteristic gait adopted so as to avoid pain on weightbearing structures, in which the stance phase of the gait is shortened on the affected side. See Stedman's at 722.
5. Alongside a vertebra of the vertebral column. See Stedman's at 1315.
6. Examination with the hands; touching, feeling, or perceiving by the sense of touch. See Stedman's at 1300.
7. The range through which a joint can be moved, usually its range of flexion and extension. See MdeTerms Medical Dictionary, http://www.medterms.com/script/main/art.asp?articlekey=5208 (last visited July 13, 2007).
8. Movement of a body part away from the median plane. See Stedman's at 2.
9. Turning or movement of a body around its axis. See Stedman's at 1581.
10. Relating to the vertebrae of the lumbar, the part of the back and sides between the ribs and the pelvis, and the sacrum, the segment of the vertebral column forming part of the pelvis. See Stedman's at 1034, 1588.
11. The spinal column is comprised of 33 vertebrae: (from skull to hip) 7 cervical, 12 thoracic or dorsal, 5 lumbar, and 5 sacral. The lumber vertebrae, usually five in number (L1-L5) are the segments of the spinal column located in lumbar region of the back. The sacral vertebrae, five in number (S1-S5), are those segments which fuse to form the sacrum. See Stedman's at 1956-57.
12. Straight-leg raising, also known as a Lasègue test, is a means of diagnosing nerve root compression or impingement, which can be caused by a herniated disc. The patient lies flat while the physician raises the extended leg. If the patient feels pain in the back at certain angles (a "positive test"), the pain may indicate herniation. Herniation is when a disc, the soft tissue between vertebrae, protrudes from its normal position, thereby pressing on the nerves and causing pain. See Stedman's at 814; see also MediLexicon, http://www.medilexicon.com/medicaldictionary.php?t=90845 (last visited July 13, 2009).
13. The two cruciate, or cross shaped, ligaments of the knee attach to the tibia to the femur and prevent displacement of those bones relative to one another. The collateral ligament helps to stabilize the knee joint's hingelike motion. See Stedman's at 429, 998.
14. Tapping the patellar tendon, at the knee, causes a sudden contraction of the thigh muscles with the effect of extending the knee joint, demonstrating the patellar reflex or knee-jerk. See Stedman's at 1540. The absence or decrease of patellar reflex, known as Erb-Westphal's sign, can indicate neurological disorder. See The Free Dictionary, http://medical-dictionary.thefreedictionary.com/Erb-Westphal+sign (last visited July 13, 2009).
15. A typical vertebra consists of two essential parts: an anterior (front) segment, which is the vertebral body; and a posterior part—the vertebral (neural) arch—which encloses the vertebral foramen, or opening. The vertebral arch is formed by a pair of pedicles—two short, thick projections extending from the body to the laminae, and a pair of laminae—the flattened posterior portion of the vertebral arch extending between the pedicles and forming the dorsal wall of the vertebral opening; and supports seven processes—projections or outgrowths of tissue from a larger body: four articular, two transverse, and one spinous. The superior articular process projects upward from a lower vertebra to lock with the inferior articular process in the vertebra above it, stabilizing the spine. The joints of the spine, where vertebrae are joined, are commonly called facet joints. See Stedman's at 638, 946, 1336, 1447, 1450, 1956-57.
16. A disturbance of the regular order or arrangement. See Stedman's at 478.
17. Dr. Kupier's notes read, "Xrays of C+D+L-S: fx ped + sap L3 R. facet L5-S1, der R." R. 163. The Court notes that Dr. Kuiper's notes are generally difficult to decipher.
18. Disorder of the spinal nerve roots, resulting in pain, weakness, numbness, or difficulty controlling specific muscles. See Stedman's at 1503.
19. Injury to a ligament as a result of abnormal or excessive force applied to a joint, but without dislocation or fracture. See Stedman's at 1681.
20. Injury, usually caused by a blow, resulting in hemorrhage, or bleeding, beneath unbroken skin. See Stedman's at 406.
21. External steel appliance that supports the spine. See Stedman's at 231, 1278.
22. External orthopaedic appliance designed to limit cervical spine motion. See Stedman's at 1278.
23. Non-steroidal anti-inflammatory drugs, or NSAIDs, are drugs with analgesic (pain relieving), antipyretic (fever reducing), and anti-inflammatory (inflamation reducing) effects. Common examples include aspirin, acetaminophen, and ibuprofen. See Stedman's at 542.
24. Inflamation of the intervertebral articulations. See Stedman's at 1678.
25. Rotation of the tibia on the femur to determine injury to meniscal structures of the knee. McMurray's sign is a painful clicking in the knee when it is so manipulated. See Stedman's at 1091, 1805.
26. Intervertebral disks, each composed of an outer fibrous part (disk annulus) that surrounds a central gelatinous mass (nucleus pulposus), are interposed between the bodies of adjacent vertebrae. See Stedman's at 523.
27. A severe, often constricting pain in the chest. See Stedman's at 80.
28. Evaluation for cervical nerve root impingement, which is considered positive when the maneuver involved elicits pain radiating along the arm. See Stedman's at 1809.
29. An area of skin mainly supplied by a single spinal nerve. See Stedman's at 481.
30. Blood pressure ("BP") is the pressure (force per unit area) exerted by blood circulating within the systemic arteries on the walls of blood vessels, and constitutes one of the principal vital signs. BP is reported in millimeters of mercury ("mmHg") and expressed in terms of systolic and diastolic pressure. Systolic pressure occurs near the end of the cardiac cycle, and diastolic pressure near the beginning of the cardiac cycle. An example of normal measured values for a resting, healthy adult human is 120 mmHg systolic and 80 mmHg diastolic (written as 120/80). See Stedman's at 495, 1442, 1780; The Free Dictionary, http://medical-dictionary.thefreedictionary.com/blood+pressure (last visited July 14, 2009).
31. Pain in the lower back and hip radiating down the back of the thigh into the leg, usually due to herniated lumbar disk comprising a nerve root, most commonly the L5 or S1 root. See Stedman's at 1602.
32. A crackling sound or vibration produced by rubbing bone or irregular degenerated cartilage surfaces together as in arthritis and other conditions, or sensation felt on placing the hand over the seat of a fracture. See Stedman's at 423-24.
33. Residual Functional Capacity ("RFC") is the most that a person can do despite his or her limitations, defined by the SSA as follows: "Your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your residual functional capacity is what you can still do despite your limitations." 20 C.F.R. §416.945(a).
34. Testing the strength of muscle groups is rated on a scale of 0/5 to 5/5, with 3/5 indicating that movement was possible against gravity, but not against resistance by the examiner. See Hal Blumenfeld, Neuroanatomy Through Clinical Cases, available at http://www.neuroexam.com/content.php?p=29 (last visited July 15, 2009). Dorsiflexion is the upward movement of the foot or toes, so that the toes are brought closer to the shin, while plantarflexion is movement in the opposite direction, as when depressing an automobile pedal. See Stedman's at 537, 1392.
35. The thecal sac is a membrane that surrounds the spinal cord and circulates cerebral spinal fluid. See Douglas M. Gillard, M.D., Disc Anatomy, available at http://www.chirogeek.com/000_Disc_Anatomy.htm (last visited July 15, 2009).
36. Dehydration of an intervertebral disk's gelatinous center limits its ability to absorb shock. See Stedman's at 468, 1240.
37. An abnormal upward and downward protrusion of a spinal disk's soft tissue into the bony tissue of the adjacent vertebrae. See Stedman's at 1223.
38. Bextra is a trademarked preparation of valdecoxib, a NSAID administered orally especially to treat osteoarthritis. See Merriam-Webster's Medical Dictionary, available at http://www.merriam-webster.com/medical/valdecoxib (last visited July 20, 2009). Flexeril is a brand name for the drug cyclobenzaprine, a skeletal muscle relaxant administered together with rest and physical therapy to relieve muscle spasms and pain. See Merriam-Webster's Medical Dictionary, available at http://www.merriam-webster.com/medical/cyclobenzaprine (last visited July 20, 2009). Vioxx is a trademarked preparation of rofecoxib, used to relieve the signs and symptoms of osteoarthritis and rheumatoid arthritis and to manage acute pain in adults. See Merriam-Webster's Medical Dictionary, available at http://www.merriam-webster.com/medical/rofecoxib (last visited July 20, 2009). Celebex is a brand name for a preparation of celecoxib, a NSAID administered orally especially to relieve the pain and inflammation of osteoarthritis and rheumatoid arthritis. See Merriam-Webster's Medical Dictionary, available at http://www.merriam-webster.com/medical/celecoxib (last visited July 20, 2009). Fiorinal is a pain reliever, as well as an anti-inflammatory and a fever reducer, combining aspirin, butalbital, one of a class of barbiturates that slow down your central nervous system and cause relaxation, and caffeine. See Drugs.com, http://www.drugs.com/fiorinal.html (last visited July 20, 2009). Lidoderm, the brand name for the generic drug lidocaine topical, is a local anesthetic. See Drugs.com, http://www.drugs.com/lidoderm.html (last visited July 20, 2009). Voltaren is a trademarked preparation of the sodium salt form of diclofenac, a NSAID used especially to treat the symptoms of rheumatoid arthritis, osteoarthritis, and spondylitis. See Merriam-Webster's Medical Dictionary, available at http://www.merriam-webster.com/medical/diclofenac (last visited July 20, 2009).
39. No medical or vocational experts retained by SSA testified at the first administrative hearing on September 9, 1999. See R. 357-93.
40. A sectional view of the body generated by a large series of two-dimensional X-ray images taken around a single axis of rotation. See Merriam-Webster Medical Dictionary available at http://www.merriam-webster.com/medical/cat+scan (last visited July 23, 2009).
41. Substantial gainful activity is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. §404.1510; see also 20 C.F.R. §404.1572.
42. For the sake of clarity, since the Appeals Council's determination is the Commissioner's final decision, I refer to the Appeals Council even where the evaluations and determinations discussed are those of the ALJ, as incorporated by reference and adopted in the Appeals Council's decision.
43. 20 C.F.R. §416.927(d)(2) provides: "Generally, we give more weight to opinions from your treating sources...[i]f we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." 20 C.F.R. §416.927(d) (2). "Treating source" is defined as a claimant's "own physician, psychologist, or other acceptable medical source who provides... or has provided...medical treatment or evaluation and who has, or has had, an ongoing treatment relationship" with the claimant. 20 C.F.R. §404.1502.
44. It bears noting that, even had the Appeals Council otherwise properly adhered to the treating physician rule, its failure to execute its affirmative duty to develop the record renders its decision reversable based on legal error and as unsupported by substantial evidence. See Tejada, 167 F.3d at 775-76. As the procedural history here makes clear, the ALJ three times failed, and was twice subsequently directed by the Appeals Council, to develop the evidentiary record—each time with specific reference to the X-rays cited by Dr. Kuiper. See R. 29, 205-06, 237-39. The SSA's own medical expert explained that he could not offer an opinion regarding plaintiff's injuries because the record did not contain those very X-ray results. R. 297, 299, 300, 312. In its final determination, the Appeals Council appears to have either overlooked this glaring gap in the record and the specific directives of its two previous remands or given up completely on properly discharging its duty. In any case, more than a decade after plaintiff first filed for SSDI claims, her treating physician appears yet to have been contacted, and the record yet to have been developed as required.
45. While Dr. Goldman initially questioned Dr. Kuiper's treatment program because it did not appear to include a prescription for a custom-made back brace, he later acknowledged that plaintiff testified that Dr. Kuiper prescribed, and that plaintiff wore, a back brace. See R. 302-03. Dr. Kuiper's medical records include his prescription of a Knight spinal brace in June 1990, when plaintiff first began treatment. R. 156, 163. Plaintiff testified at her 1999 hearing before ALJ Hoppenfeld that, after Dr. Kuiper prescribed the back brace, she was measured and fitted for the brace in early 1991. R. 374-75. ALJ Cofresi mistakenly stated that plaintiff testified before ALJ Hoppenfeld that she did not fill her prescription for the back brace. R. 310. He then reiterated that significant factual error in evaluating Dr. Kuiper's medical opinion and in determining plaintiff's credibility. R. 31.
46. These factors include:
(i) [Claimant's] daily activities;
(ii) The location, duration, frequency, and intensity of [claimant's] pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [claimant] take or have taken to alleviate [claimant's] pain or other symptoms;
(v) Treatment, other than medication, [claimant] receive[s] or ha[s] received for relief of [claimant's] pain or other symptoms;
(vi) Any measures [claimant] use[s] or ha[s] used to relieve [claimant's] pain or other symptoms (e.g., lying flat on [] back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning [claimant's] functional limitations and restrictions due to pain or other symptoms.
20 C.F.R. §404.1529(c)(3).
47. The Appeals Council concluded that plaintiff's "subjective complaints [were] not fully credible for the reasons identified in the body of [its] decision." R. 13. It nevertheless neglected to specify those reasons in its decision. See R. 10-14. For the purposes of this opinion, I assume it adopted the reasoning articulated by the ALJ. See R. 31-32.
48. See also note 45, supra.
49. SSA regulations describe two distinct kinds of assessments of what an individual can do despite the presence of a severe impairment. The first, a medical determination termed a "medical source statement" and set forth in 20 C.F.R. §§404.1513(b), (c), 416.913(b), (c) as a "statement about what you can still do despite your impairment(s)," is made by an individual's medical source and based on that source's own medical findings. "Medical source statements submitted by treating sources provide medical opinions which are entitled to special significance and may be entitled to controlling weight on issues concerning the nature and severity of an individual's impairment(s)." S.S.R. 96-5P, 1996 WL 374183, at *4-5 (interpreting 20 C.F.R. §§404.1527(f)(2)(ii) and 416.927(f)(2)(ii)). On the other hand, the second type of assessment, RFC, which "describes an adjudicator's finding about the ability of an individual to perform work-related activities," is "based upon consideration of all relevant evidence in the case record, including medical evidence and relevant non-medical evidence." S.S.R. 96-5P; see also 20 C.F.R. §§404.1545, 404.1546, 416.945, 416.946 (RFC is an adjudicator's ultimate finding of "what you can still do despite your limitations."). RFC assessments utilize the "Strength Rating" terminology employed in the DOT "regarding the extent to which an individual is able to perform exertional ranges of work," i.e., "sedentary," "light," "medium." S.S.R. 96-5P. The term "RFC" is often used to describe both types of assessments, despite their distinction.
Accordingly, ALJ Cofresi's conclusion that plaintiff could "sit, stand and walk for up to 6 hours in an 8 hour day, and lift and carry as much as 50 pounds occasionally," R. 30, is properly a medical determination and not a RFC assessment. It was nevertheless described, by the ALJ, Appeals Council, and the parties, as a RFC assessment. His determination that plaintiff retained the RFC for the full range of medium work, R. 32, is properly a RFC assessment, if one based on a misapplication of the legal standard and unsupported by substantial evidence
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