Burgess v. Astrue, No. 05-4327 (2d Cir. 2008)

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05-4327-cv Burgess v. Astrue 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2007 5 (Argued: April 23, 2008 Decided: August 8, 2008) 6 7 Docket No. 05-4327-cv 8 _________________________________________________________ 9 DOLEEN BURGESS, 10 11 12 13 Plaintiff-Appellant, - v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee. 14 _________________________________________________________ 15 Before: JACOBS, Chief Judge, KEARSE and KATZMANN, Circuit Judges. 16 Appeal from a judgment of the United States District Court 17 for the Eastern District of New York, Nina Gershon, Judge, upholding 18 the denial of disability insurance benefits under Title II of the 19 Social Security Act, 42 U.S.C. § 401 et seq. 20 Vacated and remanded. 21 22 23 24 25 26 ROBERT FARLEY and JEAN TROAST, law students appearing pursuant to Interim Local Rule 46(e), Seton Hall University School of Law, Center for Social Justice, Newark, New Jersey (Jon Romberg, Supervising Attorney, on the brief), for Plaintiff-Appellant. 27 28 29 30 JOHN M. KELLY, Special Assistant United States Attorney, Brooklyn, New York (Benton J. Campbell, United States Attorney for the Eastern District of New York, Varuni 1 2 3 4 Nelson, Kathleen A. Mahoney, Assistant United States Attorneys, Brooklyn, New York, on the brief),for Defendant-Appellee. KEARSE, Circuit Judge: 5 Plaintiff Doleen Burgess appeals from a judgment of the 6 United States District Court for the Eastern District of New York, 7 Nina Gershon, Judge, dismissing her complaint seeking disability 8 insurance benefits under Title II of the Social Security Act (the 9 "Act"), 42 U.S.C. § 401 et seq. The district court granted the 10 motion of defendant Commissioner of Social Security ("Commissioner") 11 for judgment on the pleadings, finding that there was substantial 12 evidence to support the Commissioner's denial of benefits on the 13 ground that Burgess was not disabled within the meaning of the Act 14 because she retained the residual functional capacity to perform the 15 requirements of her past relevant work. On appeal, Burgess contends 16 that the Administrative Law Judge ("ALJ") who reviewed her claim, 17 and whose decision became that of the Commissioner, erred by failing 18 to (a) give controlling weight to the opinion of her treating 19 physician, (b) explain the reasons for giving that opinion minimal 20 weight, and (c) fully and adequately develop the record. 21 reasons that follow, we vacate the judgment of the district court 22 and remand to the Commissioner for further proceedings. 23 I. BACKGROUND -2- For the 1 The event leading to Burgess's claim for disability 2 insurance benefits is not in dispute. 3 then 32 years of age, was employed by a photography laboratory to 4 perform accounting work. 5 storage room, hitting her knees and elbows on the concrete floor. 6 She was treated at a hospital emergency room; three days later she 7 began treatment by Dr. Milton M. Smith, a specialist in the field of 8 orthopedics; and she began physical therapy. 9 work at the photography On October 7, 1997, Burgess, While at work, she fell over a box in a laboratory some Burgess returned to two weeks after the 10 accident. 11 stopped because of the pain caused by injuries from the accident. 12 In April 1999 Burgess applied to the Social Security Administration 13 ("SSA") for disability insurance benefits under the Act, stating 14 that she was unable to work because of pain in her leg and back. She continued to work until February 1998, when she 15 Under the Act, "disability" means an "inability to engage 16 in any substantial gainful activity by reason of any medically 17 determinable physical or mental impairment . . . which has lasted or 18 can be expected to last for a continuous period of not less than 12 19 months." 20 'such severity that [the claimant] is not only unable to do his 21 previous work but cannot, considering his age, education, and work 22 experience, engage in any other kind of substantial gainful work 23 which exists in the national economy.'" 24 126, 25 § 423(d)(2)(A)). 42 U.S.C. § 423(d)(1)(A). 131-32 (2d Cir. 2000) "The impairment must be of Shaw v. Chater, 221 F.3d ("Shaw") (quoting 42 U.S.C. 26 Pursuant to regulations promulgated by the Commissioner, 27 a five-step sequential evaluation process is used to determine -3- 1 whether the claimant's condition meets the Act's definition of 2 disability. 3 4 5 6 7 8 9 10 11 See 20 C.F.R. § 404.1520. Essentially, "if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." 12 Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) ("Green- 13 Younger") (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 14 2002)) (bracketed phrase in Green-Younger). 15 Burgess's 16 reconsideration. 17 A. was denied initially and on an ALJ. 18 application She then requested and received a hearing before The Evidence Before the ALJ 19 At the hearing before the ALJ, held in May 2002, Burgess 20 described 21 daughters had moved to live with her mother following the accident. 22 Burgess testified that she did not do any household chores such as 23 cleaning, cooking, and shopping, and that her mother and daughters 24 performed those tasks. 25 hearings on her claim for worker's compensation, and occasionally 26 having her mother take her for a walk to the street corner, Burgess 27 spent her days propped up in bed. her accident and testified that she and her three Aside from visiting her doctors, attending 28 Burgess testified that her daily work as an accountant at 29 the photography laboratory had involved two-to-three hours sitting 30 at her desk and five-to-six hours standing and walking. -4- As to her 1 prior jobs, Burgess had worked for the photo laboratory as a 2 receptionist; for other employers, she had worked as a cashier, a 3 caretaker for children at a day care center, a cook and helper at a 4 senior citizen home, and a salesperson in a department store. 5 job as a salesperson had required her to be on her feet for 6 virtually the entire workday. 7 worked since February 1998 because she constantly had pain radiating 8 down to her legs and feet--although some days were better than 9 others. She testified she could not walk continuously for more than 10 two blocks, stand continuously for more than 25 minutes, or sit for 11 more than 15-20 minutes, without pain. 12 Tylenol and Motrin. 13 14 Her Burgess testified that she had not Her pain was treated with As discussed below, the medical evidence in the record before the ALJ included reports and findings by 15 16 17 18 19 - Dr. Smith, the orthopedic surgeon who was Burgess's primary treating physician starting three days after her accident and continuing through the time of the hearing before the ALJ, and who performed arthroscopic surgery on Burgess's left knee in May 1998; 20 21 22 - Dr. Choong Kim, who treated Burgess at least once a month for more than a year after the accident and prescribed physical therapy; 23 24 Dr. Franklin Turetz, who performed an MRI on Burgess's knee in March 1998; 25 26 - Dr. Javier Beltran, who performed an MRI on Burgess's back in January 1999; 27 28 - Dr. Mario Mancheno, who examined Burgess once in June 1999; and 29 30 - Dr. Robert Zaretsky, who examined Burgess a dozen times for the Workers' Compensation Board. 31 32 The record before the ALJ also included the testimony given by Dr. Smith in Burgess's -5- case before the Workers' 1 Compensation Board (or "Board") in May 2000. And Dr. Ernest Abeles, 2 an orthopedic surgeon who had not examined Burgess, testified before 3 the ALJ as an expert. 4 1. The Evidence from Dr. Smith and the MRIs 5 Burgess, on her initial visit to Dr. Smith three days 6 after her accident, complained of swelling and buckling of her left 7 knee, 8 tenderness" and a limited range of motion. 9 Smith dated October 10, 1997.) which upon examination revealed "diffuse swelling and (Report of Dr. Milton X-rays on Burgess's knees were 10 negative, and Dr. Smith diagnosed "[i]nternal derangement of the 11 left knee." 12 started a course of physical therapy, and he opined that she could 13 work in a sedentary position. 14 of left knee pain and "continued back pain." 15 Smith dated December 12, 1997.) 16 her back and knee, was then working in a sedentary position, and was 17 receiving physical therapy. 18 January and February 1998 stated that Burgess continued to report 19 pain and buckling in her left knee, and on March 17, 1998, an MRI 20 was taken of that knee. (Id.) At that time, Dr. Smith noted that Burgess had In December 1997, Burgess complained (Report of Dr. Milton She had limited ranges of motion in (See id.) Dr. Smith's reports for 21 That MRI showed that there was a "SMALL AMOUNT OF FLUID IN 22 KNEE JOINT WITH GREATER AMOUNT OF FLUID IN LATERAL ASPECT OF 23 SUPRAPATELLAR RECESS. 24 POSTERIOR HORN OF MEDIAL MENISCUS." 25 dated March 19, 1998.) 26 reported that she continued to have pain in her left knee. SUGGEST POSSIBLE TRUNCATION, NOTCH ASPECT OF (Report of Dr. Franklin Turetz Dr. Smith examined Burgess on March 20 and -6- His 1 report noted that the MRI showed evidence of a torn medial meniscus 2 and that the Workers' Compensation Board had authorized arthroscopic 3 surgery. 4 Dr. Smith performed the arthroscopic surgery on Burgess's 5 left knee in May 1998. 6 the meniscus was found, but that there was hypotrophic synovium 7 throughout the knee. 8 (two years later) Dr. Smith explained that hypotrophic synovium was 9 an inflammatory process that was not reparable through surgery and His operative report stated that no tear of At the Workers' Compensation Board hearing 10 that 11 (Workers' Compensation Board Hearing Transcript May 8, 2000 ("WCB 12 Tr."), at 17.) 13 large tears, "the meniscus was fragmented" and that "a lot of small 14 pieces . . . had to be irrigated out." Burgess likely would eventually need knee replacement. He stated that although the arthroscopy showed no (Id. at 16.) 15 On May 29, 1998, some three weeks after the knee surgery, 16 Dr. Smith's examination report stated that Burgess still had pain in 17 her knee and in her lower back, but with improving range of motion. 18 In June, Dr. Smith reported that Burgess was experiencing less pain 19 in her knee, and had an improved, albeit still limited, range of 20 motion; he opined that she could perform sedentary work. 21 he reported that Burgess had continued pain in the knee, with an 22 improved but still limited range of motion. 23 December 1998, Dr. Smith's monthly reports on his examinations of 24 Burgess stated that she continued to have pain in her left knee, as 25 well as pain in her neck and back, all with limited ranges of 26 motion. 27 In July, From August through On January 8, 1999, an MRI was performed on Burgess's -7- 1 back. The report on that MRI stated, inter alia, as follows: 2 3 4 5 6 Evaluation of the far sagittal images through the neural foramen reveal encroachment of the left neural foramen of L2-3 by what appears to be disc material, producing stenosis in the anterior/posterior direction. 7 (Report of Dr. Javier Beltran ("MRI Report") dated January 8, 1999, 8 at 1 (emphasis added).) 9 1999, and his report noted that the MRI on Burgess's spine revealed Dr. Smith examined Burgess on January 20, 10 a protruding disc at the L2-3 level. 11 this at the Board hearing is discussed below.) 12 regimen continued to consist of over-the-counter pain relievers, 13 warm soaks, and active range of motion; Dr. Smith noted that the 14 Workers' 15 Burgess's physical therapy and he requested its reinstatement. Compensation Board had (His testimony elaborating on discontinued Her treatment authorization for 16 From March 1999 through October 1999, Dr. Smith's reports 17 of his monthly examinations of Burgess stated that she continued to 18 have pain in her back and one or both of her knees, and limited 19 ranges of motion. 20 August 1999, according to the boxes he checked on a physical- 21 capacities-evaluation form, was that Burgess could sit, stand, or 22 walk for no more than three hours out of an eight-hour workday, and 23 that she could not lift or carry more than five pounds. Dr. Smith's view of Burgess's capabilities in 24 Dr. Smith's report in December 2000 stated that Burgess 25 continued to have pain in her leg, neck, and back, with limited 26 ranges of motion. 27 work. 28 Smith "To Whom it May Concern" dated December 7, 2000.) 29 reports in 2001, following examinations of Burgess virtually every It stated that Burgess "is not able to return to She has a total degree of disability." -8- (Report of Dr. Milton Dr. Smith's 1 month, similarly described Burgess as continuing to experience pain 2 in, inter alia, her neck, back, and left knee. 3 reports indicate that Dr. Smith diagnosed Burgess with, inter alia, 4 in addition to the continued derangement of her left knee, a 5 cervical sprain and lumbosacral radiculopathy. In late 2001 the 6 In his testimony before the Workers' Compensation Board in 7 May 2000, Dr. Smith stated that his initial diagnosis of Burgess's 8 injuries was internal derangement of the left knee, which was caused 9 by the accident. At that point, Burgess had a "marked disability" 10 and could work only in a sedentary position. 11 Smith explained that he amended his initial findings to add findings 12 of neck and back injuries because they resulted from Burgess's 13 initial injury, and that the fact that he did not mention them in 14 his initial report did not mean that Burgess had not experienced 15 pain in those areas. (WCB Tr. 4.) Dr. 16 Dr. Smith testified that Burgess "had an MRI of the lumbar 17 spine dated 1/8/99 which showed presence with protrusion of the 18 dis[c] at the L2-3 level which was protruding into the neural 19 foramen," which "mean[t] that she has a nerve root that [wa]s being 20 pushed upon by the dis[c], which [wa]s very painful." 21 He testified that his "clinical findings on examination [were] 22 consistent with the MRI." 23 testified the MRI Report's revelation that there was "protrusion 24 into the neural foramen" at "L2-3" 25 26 27 28 29 30 (Id.) (Id. at 5.) Questioned further, Dr. Smith mean[t] that the dis[c] has changed its normal shape and part of that dis[c] is now pushing out into the foramen, which is the hole through which the nerve root exits the spine. In so doing, it's encroaching on the space that is normally there in the nerve root. So every time the patient moves a certain way -9- 1 2 it drags that nerve root across the dis[c] material and is very painful. 3 (WCB Tr. 8-9 (emphases added).) 4 the 5 impinging on the nerve root, it so stated 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 MRI Report did not say Dr. Smith testified that although directly that Burgess's disc was indirectly. Evaluation of the far sagittal images. That means the images over the site through the neural foramen reveal encroachment, which means, take up the space of the left neural foramen of L2-3 by what appears to be dis[c] material producing stenosis in the anterior, posterior direction. Stenosis is a narrowing and, thereby, pinches in the neural foramen. If there is stenosis, by definition, the nerve root is being severed. . . . . . . . Normally the nerve root passes from the spinal cord out through this hole and goes to the lower extremities. If you have any object in that hole, whether it is arthritis or a tumor or dis[c] material, as in this case, it's taking up part of the space that is normally filled by the nerve. There is usually a little space within that hole around the nerve. The reason for this space is that as the person moves and bends that nerve is pulled tight around the edge of that hole. If you put a foreign object in this, in this case dis[c] material, there is no room for the nerve root to move. In certain positions, each time the person moves their body it creates superficial pain. . . . What happens is that the nerve root normally passes through a small space. There is normally excess space so the body could move. If you occupy that space with something else, you are effectively pinching that nerve each time the person moves. 35 (Id. at 9-11 (emphases added).) Thus, although "[t]he MRI d[id] not 36 specifically say that the nerve root is impinged," it "us[ed] other 37 words that mean the exact same thing." (Id. at 11-12.) 38 Dr. Smith's April 18, 2002 report "To Whom it May Concern" 39 described Burgess's condition as of that date and gave an overview 40 of her condition for the 4½-year period in which he had treated her. 41 As of April 2002, Burgess still complained of pain in her neck, - 10 - 1 back, and left knee, and had limited ranges of motion in those 2 areas. 3 and an active range of motion, with a follow-up visit scheduled for 4 four weeks later. 5 totally disabled throughout the course of my treatment of her and 6 remains severely restricted in her ability to function in a normal 7 routine." Her course of treatment included the pain reliever Motrin Dr. Smith concluded that Burgess "has been 8 In May 2002, Dr. Smith filled out a physical-capacities- 9 evaluation form and checked boxes opining that Burgess could sit for 10 a total of no more than one-to-two hours out of an eight-hour 11 workday. 12 a total of one hour out of an eight-hour workday, but could do each 13 only for fifteen minutes at a time. 14 2. In addition, he opined that she could stand and walk for Other Evidence Before the ALJ 15 In addition to being treated by Dr. Smith, Burgess was 16 treated by Dr. Kim for more than a year, beginning just over a week 17 after the accident. His initial diagnosis was that Burgess suffered 18 traumatic internal derangement of the cervical and lumbosacral 19 spines with sprain and strain of ligaments and muscles, traumatic 20 lumbar 21 extremity, 22 fracture of the left patella. 23 at 24 associated 25 exacerbations," and that "[t]he prognosis for recovery following 26 such trauma and injuries [wa]s guarded because of the possibility of radiculitis present traumatic with with with radicular myofascial serious symptoms pain pain into the dysfunction left lower syndrome, and He stated that Burgess was "disabled and substantial subject - 11 - to functional recurrence impairment and acute 1 long term or lifelong symptomatology." 2 dated October 16, 1997.) 3 had, inter alia, traumatic cervical and lumbosacral derangements. 4 Dr. Kim prescribed physical therapy. 5 Dr. Zaretsky (Report of Dr. Choong Kim Subsequent diagnoses stated that Burgess examined Burgess for the Workers' 6 Compensation Board a dozen times from April 23, 1998 through January 7 17, 2001. In several of his reports, Dr. Zaretsky described certain 8 pain complaints by Burgess that he opined were not physiologically 9 credible. (See Reports of Dr. Robert Zaretsky dated October 1 and 10 November 19, 1998, October 21, 1999, and November 1, 2000.) 11 November 1998, Dr. Zaretsky stated that he "d[id] not find any 12 evidence of disability flowing from [Burgess's] back, neck, ankle or 13 foot" (Report of Dr. Robert Zaretsky dated November 19, 1998), but 14 thereafter he learned of the January 1999 MRI on Burgess's back and 15 he requested and received the MRI Report. 16 stated that "at this time a mild partial disability is noted 17 rel[e]vant to findings of the lumbar MRI." 18 Zaretsky dated May 20, 1999.) 19 Zaretsky again noted "a mild partial disability . . . relevant to 20 findings in the lumbar MRI," but stated his opinion that Burgess was 21 "capable of gainful employment." 22 dated January 12, 2000.) 23 that opinion, however, and all of them noted a continued "mild" 24 "partial" "disability," usually citing the "MRI findings" concerning 25 Burgess's lower back. 26 August 30, and November 1, 2000, and January 17, 2001.) 27 November 2000 and January 2001 reports stated that that disability In His report in May 1999 (Report of Dr. Robert In a January 2000 report, Dr. (Report of Dr. Robert Zaretsky None of his subsequent reports repeated (Reports of Dr. Robert Zaretsky dated May 3, - 12 - The 1 could be considered permanent. 2 Dr. Mancheno, who examined Burgess once in June 1999, 3 diagnosed her as having, inter alia, a discogenic disorder of the 4 lumbosacral spine. His report stated that Burgess said that she did 5 her own shopping, cooking, and cleaning. 6 Burgess had a mild impairment of her ability to sit, stand, walk, 7 lift, 8 recounting 9 reported that she "did have MRI with abnormalities reported"; 10 however, in the "Laboratories" section of the report he listed only 11 X-rays of the knee and spine, with no mention of an MRI. 12 Dr. Mario Mancheno dated June 3, 1999.) carry, push, Burgess's and pull. history, In Dr. the Dr. Mancheno opined that section Mancheno of noted his that report Burgess (Report of 13 The record before the ALJ also included a report form 14 filled out by a state agency medical consultant on July 6, 1999, and 15 endorsed by another such consultant on October 1, 1999, both of whom 16 had reviewed the record to provide a residual-functional-capacity 17 opinion to the Commissioner, but neither of whom had examined 18 Burgess. 19 lift 25 pounds and occasionally lift 50; that she could sit for 20 about six hours out of an eight-hour workday; and that she could 21 stand or walk for about six hours out of an eight-hour workday. 22 the section of the form that asked for an explanation of how and why 23 the evidence supported the consultants' conclusions, the response 24 was that the X-rays of Burgess's spine and knee were normal. 25 consultants did not mention, inter alia, the MRI on Burgess's spine. 26 The only witness other than Burgess to testify at the 27 hearing before the ALJ was Dr. Abeles, an orthopedic surgeon who had The boxes checked indicated that Burgess could frequently - 13 - In The 1 reviewed the medical evidence in the record and observed Burgess's 2 testimony 3 Commissioner notes in his brief on appeal at 22 n.4 that since the 4 time of the hearing in this case, Dr. Abeles has entered into a 5 Consent Decree that limits his practice of medicine in New York 6 State to conducting consultative examinations for the SSA and 7 insurance carriers.) 8 [medical] 9 Transcript, May 9, 2002 ("ALJ Tr."), at 36), stated that the record 10 showed that Burgess had suffered contusions of both knees, but that 11 the X-rays were normal; and that she had had arthroscopic surgery on 12 her knee, but that the only abnormal finding from that procedure was 13 that certain tissue was less prominent than normal. at the record hearing, but had not examined her. (The Dr. Abeles, when asked by the ALJ "what the reveals about this young woman" (Hearing 14 When the ALJ asked "what other objective evidence we have 15 other than the fact that we have a negative x-ray[], contusion in 16 both knees," and "[a]n arthroscopy which revealed nothing," Dr. 17 Abeles responded 18 19 20 21 22 Yeah. I see nothing else that's available to me that's on the record. The x-rays of the back are also within normal limits. There is some mention of an MRI, but there is no report of an MRI of the lumbar spine. 23 Q. [ALJ]: Of the lumbar spine-- 24 A. Lumbar spine. There's no report of it. 25 26 Q. X-rays of the back were normal and no report of the lumbosacral? 27 28 29 30 31 A. There apparently was one done, because there's a letter here of '99 which shows a protruding disc at the L2/3 level on an MRI in a letter of Dr. Smith, but there is no report incorporated in the records. 32 Q. I see. And any other findings in a chart - 14 - 1 at all in this proceeding? 2 3 4 A. Just that there are continued complaints of pain of the neck, back, and left knee, but no examination finding other than that. 5 (ALJ Tr. 38 (emphases added).) 6 When the ALJ asked about Dr. Smith's conclusion that 7 Burgess was totally disabled, Dr. Abeles stated, "I don't think 8 there is any objective reason why she couldn't" sit, stand, and walk 9 "six hours out of an eight-hour workday." (Id. at 40.) He stated 10 that, Burgess having "had extensive physical therapy[, s]he should 11 at this point be able to do these things. 12 reason why she can't." 13 weakness to atrophy of her muscles from "lying in bed not doing 14 anything," opining that "[t]here is no other reason for any of 15 this." (Id.) There is no objective Dr. Abeles attributed Burgess's (Id. (emphasis added).) 16 In response to questions from counsel for Burgess, Dr. 17 Abeles testified he believed that Burgess "feels the[] things" 18 reflected in her subjective complaints and that "subjectively she 19 has 20 conclusions, Dr. Abeles testified that he did not think Burgess was 21 disabled "objectively," and that although he "th[ought] that in good 22 faith [Dr. Smith] can write that, . . . he's been seeing this 23 patient month [in] and month out. 24 seeing her . . . ." 25 B. [a] disability" (ALJ Tr. 41). But as to Dr. Smith's And he is being influenced by (Id.) The ALJ's Decision 26 The ALJ denied Burgess's claim for disability insurance 27 benefits, finding that Burgess "is not disabled within the meaning - 15 - 1 of the Social Security Act." 2 October 29, 2002 ("ALJ Decision"), at 1. 3 within the framework of the five-step evaluation called for in the 4 SSA regulations, and referring to some of the reports of Drs. Kim 5 and Smith and to the report of Dr. Mancheno, the ALJ found that 6 Burgess met the first two steps, i.e., that she was not working and 7 had a severe impairment. 8 testimony, the ALJ found that Burgess did not meet steps three and 9 four, i.e., he found that her impairment was not one that, under the 10 regulations, conclusively requires a determination of disability, 11 and that she had not proven that she was not capable of resuming her 12 prior type of work. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 ALJ Decision Denying Benefits dated Evaluating the evidence However, relying on Dr. Abeles's hearing The ALJ stated: Dr. Abeles testified that the claimant sustained a contusion as a result of her fall, but there was there [sic] no evidence of any fractures and the claimant's xrays were normal. Moreover, he testified the claimant's radiological findings in May 1998 revealed nothing abnormal, leg flexion was 5/5 at a follow-up examination, and xrays of the back were normal. He testified the claimant's treating physician mentioned a lumbar MRI, however, there was no report of findings. Dr. Abeles testified the progress notes from Dr. Smith shows continued complaint of pain, however, there were no clinical findings upon examination, outside of intermittent knee swelling. Moreover, he testified there is no objective reason why the claimant should have any vocational limitations, and he opined that the claimant should be able to work, given her extensive physical therapy treatment. ALJ Decision at 3 (emphases added). The ALJ found that Burgess's allegations of total inability to work due to back pain cannot be credited. First, the objective findings of record do not show an impairment which can be reasonably expected to produce the pain alleged. The medical documentation failed to present evidence of back surgery, a back brace, or stronger pain medication, criteria that is [sic] usually found when severe back pain is present. - 16 - 1 ALJ Decision at 4 (emphasis added); see also id. ("the complaints 2 suggest a greater severity of impairment than can be shown by the 3 objective medical evidence alone" (emphasis added)). 4 The ALJ noted that although he was required to "consider 5 medical source opinion concerning such issues as residual functional 6 capacity," and he had considered Dr. Smith's opinion that Burgess 7 was completely disabled, he rejected that opinion in light of the 8 testimony of 9 10 11 12 13 14 15 16 17 Dr. Abeles . . . that there is no objective reason why the claimant's sitting, standing, or walking would be limited. In fact, he testified the claimant's complaint of pain is subjective. The undersigned is not bound to accept a treating physician's conclusion as to disability, particularly when it is not supported by detailed, clinical, and diagnostic evidence. ALJ Decision at 5 (emphases added). 18 The ALJ also noted that the state agency medical 19 consultants had reviewed Burgess's medical records and had indicated 20 that Burgess was "capable of medium work activity at the time of 21 the[] assessment." 22 evidence 23 capacity to perform light work, or work which requires maximum 24 lifting of twenty pounds and frequent lifting of ten pounds (20 25 C.F.R. § 404.1567)." 26 to other aspects of "light work," that category has been interpreted 27 to include work that "requires standing or walking, off and on, for 28 a total of approximately 6 hours of an 8-hour workday." 29 Security Ruling 83-10. 30 residual 31 salesperson," ALJ Decision at 6, and that she was not disabled Id. submitted, functional The ALJ concluded that based on all of the Burgess Id. "retains the residual functional Although the ALJ did not expressly refer See Social The ALJ concluded that Burgess had the capacity to - 17 - perform her past work "as a 1 within the meaning of the Act. 2 The SSA Appeals Council denied Burgess's request for 3 review of the ALJ's decision, thereby making the ALJ's decision the 4 final decision of the Commissioner. 5 C. The Decision of the District Court 6 Burgess promptly commenced the present action seeking 7 judicial review of the ALJ's decision. 8 Commissioner moved for judgment on the pleadings. At the hearing on 9 the motions, Burgess's attorney pointed out that the ALJ (and Dr. 10 Abeles) had erred in believing that the MRI on Burgess's back was 11 not in the record. 12 was clearly error, but it rejected the contention that the MRI 13 provided objective evidence to support Dr. Smith's evaluation that 14 the bulging disc shown in the MRI would cause Burgess pain whenever 15 she moved. Both Burgess and the The district court agreed that the ALJ's belief 16 At the close of the hearing, the court denied Burgess's 17 motion and granted that of the Commissioner, finding that the ALJ's 18 decision was supported by substantial evidence and was free from 19 legal error. 20 21 22 23 24 25 26 27 28 29 30 31 The court stated that [w]hat's critical here is that there was no laboratory or clinical evidence of nerve impingement so that while there is objective evidence as [Burgess's attorney] has argued, the ALJ properly found that the plaintiff had a severe impairment of lumbar dis[c] disease but that doesn't in and of itself mean she is disabled . . . . . . . . . . . [T]he MRI report itself does not say anywhere that there is nerve impairment or impingement and the only fair reading I think of Dr. Smith's testimony with respect to the MRI is that - 18 - 1 2 3 4 5 the narrowing seen on the impairment or impingement although one would have to all the time since he says she moves. 6 7 8 There are no actual positive nerve findings which are the critical thing here when we are dealing with pain by Dr. Smith. 9 MRI could lead to nerve which could cause pain ask why was she in pain it could cause pain when (District Court Hearing Transcript, June 25, 2005 ("D.Ct. Tr."), at 10 14-15 (emphases added).) 11 Commissioner, and this appeal followed. 12 Judgment was entered in favor of the II. 13 DISCUSSION On appeal, Burgess contends that the ALJ erred by failing 14 to 15 "treating physician rule," (b) explain his reasons for giving Dr. 16 Smith's opinion minimal weight, and (c) fully and adequately develop 17 the record. 18 to give Dr. Smith's opinion controlling weight, we conclude that 19 further proceedings are required because, given the record as it had 20 in 21 explanation 22 § 404.1527(d)(2). (a) fact give Dr. "A opinion controlling weight under the While it is not clear that the record required the ALJ been 23 Smith's developed, for his the ALJ did rejection district of court set may not that aside provide opinion, the an 20 adequate C.F.R. Commissioner's 24 determination that a claimant is not disabled only if the factual 25 findings are not supported by 'substantial evidence' or if the 26 decision is based on legal error." 27 42 U.S.C. § 405(g)). 28 scintilla. Shaw, 221 F.3d at 131 (quoting Substantial evidence means "'more than a mere It means such relevant evidence as a reasonable mind - 19 - 1 might accept as adequate to support a conclusion.'" 2 Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) ("Halloran") (quoting 3 Richardson v. Perales, 402 U.S. 389, 401 (1971)). 4 conduct a plenary review of the administrative record to determine 5 if there is substantial evidence, considering the record as a whole, 6 to support the Commissioner's decision and if the correct legal 7 standards have been applied." 8 properly "affirm an administrative action on grounds different from 9 those considered by the agency." 10 Halloran v. "On appeal, we Shaw, 221 F.3d at 131. We may not Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) ("Melville"). 11 The claimant has the general burden of proving that he or 12 she has a disability within the meaning of the Act, see, e.g., 13 Draegert v. Barnhart, 311 F.3d at 472, and "bears the burden of 14 proving his or her case at steps one through four" of the sequential 15 five-step framework established in the SSA regulations, Butts v. 16 Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). 17 hearing on disability benefits is a nonadversarial proceeding, the 18 ALJ 19 administrative record." 20 221 F.3d at 134. 21 22 23 24 25 26 27 28 29 30 31 generally has an affirmative However, "[b]ecause a obligation to develop the Melville, 198 F.3d at 51; see, e.g., Shaw, SSA regulations provide that an ALJ shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the administrative law judge believes that there is relevant and material evidence available which has not been presented at the hearing, he may adjourn the hearing or, at any time, prior to the filing of the compensation order, reopen the hearing for the receipt of such evidence. 20 C.F.R. § 702.338. With respect to "the nature and severity of [a claimant's] - 20 - 1 impairment(s)," 20 C.F.R. § 404.1527(d)(2), "[t]he SSA recognizes a 2 'treating physician' rule of deference to the views of the physician 3 who has engaged in the primary treatment of the claimant," Green- 4 Younger, 335 F.3d at 106. 5 claimant's treating physician as to the nature and severity of the 6 impairment is given "controlling weight" so long as it "is well- 7 supported by medically acceptable clinical and laboratory diagnostic 8 techniques and is not inconsistent with the other substantial 9 evidence in [the] case record." According to this rule, the opinion of a 20 C.F.R. § 404.1527(d)(2); see, 10 e.g., Green-Younger, 335 F.3d at 106; Shaw, 221 F.3d at 134. 11 "[M]edically 12 techniques" 13 complaints, or history, [a]s an essential diagnostic tool." 14 Younger, 335 F.3d at 107 (internal quotation marks omitted). acceptable include clinical consideration and of laboratory "[a] patient's diagnostic report of Green- 15 Generally, "the opinion of the treating physician is not 16 afforded controlling weight where . . . the treating physician 17 issued opinions that are not consistent with . . . the opinions of 18 other medical experts," Halloran, 362 F.3d at 32, for "[g]enuine 19 conflicts in the medical evidence are for the Commissioner to 20 resolve," Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). 21 However, not all expert opinions rise to the level of evidence that 22 is sufficiently substantial to undermine the opinion of the treating 23 physician. 24 substantial," i.e., "[]not reasonably" capable of "support[ing] the 25 conclusion that [the claimant] c[ould] work" where the expert 26 addressed 27 complaining," Green-Younger, 335 F.3d at 107-08, or where the expert For example, we have found an expert's opinion "not only "deficits" of which - 21 - the claimant was "not 1 was a consulting physician who did not examine the claimant and 2 relied entirely on an evaluation by a non-physician reporting 3 inconsistent results, see id., or where the expert described the 4 claimant's impairments only as "[l]ifting and carrying moderate[,] 5 standing and walking, pushing and pulling and sitting mild," giving 6 an opinion couched in terms "so vague as to render it useless in 7 evaluating" the claimant's residual functional capacity, Curry v. 8 Apfel, 209 F.3d 117, 123 (2d Cir. 2000). 9 Nor is the opinion of the treating physician to be 10 discounted 11 treatment regimen. See, e.g., Shaw, 221 F.3d at 134 (district court 12 erred in ruling that the treating physician's "recommend[ation of] 13 only conservative physical therapy, hot packs, EMG testing--not 14 surgery or prescription drugs--[w]as substantial evidence that [the 15 claimant] was not physically disabled"). 16 not "impose[] their [respective] notion[s] that the severity of a 17 physical impairment directly correlates with the intrusiveness of 18 the medical treatment ordered. . . . [A] circumstantial critique by 19 non-physicians, 20 overwhelmingly compelling in order to overcome a medical opinion." 21 Id. at 134-35 (internal quotation marks omitted); see also id. at 22 134 (Commissioner is not "permitted to substitute his own expertise 23 or view of the medical proof for the treating physician's opinion"). 24 The fact that a patient takes only over-the-counter medicine to 25 alleviate her pain may, however, help to support the Commissioner's 26 conclusion that the claimant is not disabled if that fact is 27 accompanied by other substantial evidence in the record, such as the merely because however he has thorough - 22 - recommended or a conservative The ALJ and the judge may responsible, must be 1 opinions of other examining physicians and a negative MRI. See Diaz 2 v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995). 3 In light of the ALJ's affirmative duty to develop the 4 administrative record, "an ALJ cannot reject a treating physician's 5 diagnosis without first attempting to fill any clear gaps in the 6 administrative record." 7 1999). 8 carefully weigh it." 9 Human Services, 721 F.2d 414, 419 (2d Cir. 1983). Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. Further, "the ALJ must not only develop the proof but Donato v. Secretary of Department of Health & 10 Finally, even when a treating physician's opinion is not 11 given "controlling" weight, the regulations require the ALJ to 12 consider several factors in determining how much weight it should 13 receive. 14 inter alia, the "[l]ength of the treatment relationship and the 15 frequency of examination"; the "[n]ature and extent of the treatment 16 relationship"; the "relevant evidence . . ., particularly medical 17 signs 18 consistency of the opinion with the record as a whole; and whether 19 the physician is a specialist in the area covering the particular 20 medical issues. 21 id. § 404.1527(d) (same factors govern how much weight should be 22 given to any medical opinion). 23 longer a treating source has treated [the claimant] and the more 24 times [the claimant] ha[s] been seen by a treating source, the more 25 weight 26 opinion," 27 suggestion that the opinion of Dr. Smith be discounted on the ground See 20 C.F.R. § 404.1527(d)(2). and laboratory [the findings," supporting the opinion; Id. § 404.1527(d)(2)(i)-(ii), (3)-(5). Commissioner] id. The ALJ must consider, § will the See also We note that "[g]enerally, the give to the 404.1527(d)(2)(i)--contrary - 23 - source's to Dr. medical Abeles's 1 that "he is being influenced by seeing" Burgess "month [in] and 2 month out" (ALJ Tr. 41). 3 After considering the above factors, the ALJ must 4 "comprehensively set forth [his] reasons for the weight assigned to 5 a treating physician's opinion." 6 C.F.R. § 404.1527(d)(2) (stating that the agency "will always give 7 good reasons in our notice of determination or decision for the 8 weight we give [the claimant's] treating source's opinion" (emphasis 9 added)). Halloran, 362 F.3d at 33; see 20 Failure to provide such "'good reasons' for not crediting 10 the opinion of a claimant's treating physician is a ground for 11 remand." 12 Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("Commissioner's 13 failure to provide 'good reasons' for apparently affording no weight 14 to the opinion of plaintiff's treating physician constituted legal 15 error"). Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also 16 In the present case, we vacate and remand for further 17 consideration because, given the evidence discussed in Part I.A.1. 18 above as to the condition of Burgess's back, the ALJ failed to give 19 good reasons for not crediting Dr. Smith's opinion that Burgess had 20 a bulging disc "encroaching on the space that is normally there in 21 the nerve root" (WCB Tr. 9), "effectively pinching that nerve each 22 time [Burgess] moves" (id. at 11; see id. at 9 ("every time 23 [Burgess] moves a certain way it drags that nerve root across the 24 dis[c] material and is very painful")). 25 light of the MRI Report on Burgess's back, showing bulging disc 26 material. 27 That opinion was given in Preliminarily, we note that the ALJ relied in part on the - 24 - 1 fact that the treatment recommended for Burgess was conservative, 2 pointing out that there was no recommendation for, inter alia, 3 "stronger pain medication," ALJ Decision at 4, and that the district 4 court endorsed that rationale (see D.Ct. Tr. 16-17 (noting "the lack 5 of more serious treatment than . . . Tylenol and Motrin," which the 6 court felt "was . . . a very limited treatment regime here for 7 someone who purported to be in daily and constant pain")). 8 Smith, however, had testified before the Workers' Compensation Board 9 as to the appropriateness of the treatment he recommended, stating 10 that given the "long term" nature of Burgess's condition, "there is 11 a limit to how much you can give her." 12 the district court did not appear to have been aware of Dr. Smith's 13 rationale for what he considered to be the appropriate course of 14 treatment, and did not provide "the overwhelmingly compelling type 15 of critique that would permit the Commissioner to overcome an 16 otherwise valid medical opinion," Shaw, 221 F.3d at 135. (WCB Tr. 21.) Dr. The ALJ and 17 More importantly, in relying on Dr. Abeles's statements 18 that there was "no objective reason" why Burgess could not sit, 19 stand, and walk for six hours out of an eight-hour workday (ALJ Tr. 20 40), the ALJ was unaware of the presence--and contents--of the MRI 21 Report, which was in the administrative record. 22 indicated above, was explicitly explained by Dr. Smith at Burgess's 23 Workers' Compensation Board hearing, the transcript of which was 24 also in the administrative record. 25 MRI performed on Burgess's back revealed an "encroachment of the 26 left neural foramen of L2-3 by what appears to be disc material, 27 producing stenosis in the The MRI Report stated that the anterior/posterior - 25 - The MRI Report, as direction" (MRI 1 Report), and Dr. Smith testified at the Board hearing that this was 2 simply another way of saying "that the nerve root [wa]s impinged" 3 (WCB Tr. 11-12 (MRI Report "us[ed] other words that mean the exact 4 same thing")). 5 The ALJ, however, repeatedly stated that there was no 6 "objective" evidence to support Burgess's claim. 7 ("the objective findings of record do not show an impairment which 8 can be reasonably expected to produce the pain alleged" (emphasis 9 added)); id. (Burgess's "complaints suggest a greater severity of 10 impairment than can be shown by the objective medical evidence 11 alone" 12 [Burgess's] 13 (emphasis added)). 14 (emphasis added)); sitting, id. at standing, or 5 ALJ Decision at 4 ("no objective walking would reason be why limited" Plainly, the MRI Report was objective evidence, and it was 15 in the record. 16 he did not examine the key piece of evidence in the record (not 17 realizing that it was in the record); thus the ALJ's reliance on Dr. 18 Abeles's opinion was itself a flaw. 19 failures to recognize that the MRI Report was in the record and to 20 give it any consideration, his repeated statements that there was no 21 "objective" evidence to support Dr. Smith's medical opinion were not 22 "good reasons" for disregarding that opinion, and the denial of 23 Burgess's disability claim on that basis was not supported by 24 substantial evidence. Dr. Abeles's own opinion was flawed by the fact that And in light of the ALJ's own 25 We note that even if the MRI Report had not in fact been 26 in the record before the ALJ, the ALJ should have been aware of its 27 existence given that Dr. Zaretsky mentioned the MRI Report in no - 26 - 1 fewer than six of his reports, and Dr. Abeles testified that 2 "[t]here is some mention of an MRI" (ALJ Tr. 38). 3 Abeles went on to say (erroneously) that "there is no report of an 4 MRI of the lumbar spine" (id.), the ALJ, given his duty to develop 5 the record, should have requested that the MRI Report be supplied, 6 rather than simply stating in his decision that "there was no report 7 of findings" in the record, ALJ Decision at 3. Although Dr. 8 The Commissioner concedes on this appeal that an MRI is a 9 medically acceptable laboratory diagnostic technique, but he argues 10 that the MRI "is not well-supportive of Dr. Smith's opinions." 11 (Commissioner's 12 apparently accepted by the district court, but we reject it for two 13 reasons. 14 denied Burgess's claim, as the ALJ did not know what the MRI Report 15 said. 16 an administrative action on grounds different from those considered 17 by the agency." 18 ground--that the MRI Report does not support Dr. Smith's opinion--is 19 not supported by the record. 20 district court disagreed with Dr. Smith's medical opinion that the 21 stenosis referred to in the MRI Report meant that the nerve root was 22 being impinged; the court stated that there were "no actual positive 23 nerve findings" and opined that what Dr. Smith meant was that there 24 "could" be nerve impairment and there "could" be pain. 25 15.) 26 of pain, and Dr. Smith explained the MRI Report in testifying before 27 the Workers' Compensation Board, stating that Burgess "has a nerve brief on appeal at 41.) This argument was First, this plainly was not the basis on which the ALJ As discussed above, the courts are not permitted to "affirm Melville, 198 F.3d at 52. Second, the proposed new As noted in Part I.C. above, the (D.Ct. Tr. But all of Dr. Smith's reports stated that Burgess complained - 27 - 1 root that is being pushed upon by the dis[c], which is very 2 painful." 3 nor the Commissioner is "permitted to substitute his own expertise 4 or view of the medical proof for the treating physician's opinion," 5 Shaw, 6 opinion," Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998); see id. 7 (ALJ "is not free to set his own expertise against that of a 8 physician who [submitted an opinion to or] testified before him" or 9 to 10 221 (WCB Tr. 5 (emphases added).) F.3d "engage[] in at 134, his own or indeed Neither a reviewing judge for evaluations any of "competent the medical medical findings" (internal quotation marks omitted)). 11 In sum, the ALJ's conclusion that there was no objective 12 evidence to support Dr. Smith's opinion was unsupported by anything 13 other than the erroneous statement of Dr. Abeles. 14 Burgess's spine was objective evidence that supported Dr. Smith's 15 opinion as to Burgess's condition. 16 can return to work as a salesperson--a job that in her past 17 experience had required her to be on her feet for virtually the 18 entire workday--when Dr. Smith opined that the nature and severity 19 of Burgess's impairment are such that Burgess cannot not stand for 20 more than one hour out of eight, and cannot stand for more than 15 21 minutes at a time, is not supported by substantial evidence. The MRI Report on The ALJ's finding that Burgess 22 This conclusion does not, however, entitle Burgess to an 23 outright reversal of the denial of benefits, for there was in the 24 record 25 contradicting the opinion of Dr. Smith. 26 category the testimony of Dr. Abeles, who plainly had not read the 27 MRI Report; or the report of Dr. Mancheno who, though mentioning in some evidence that might - 28 - be viewed as substantially We do not include in this 1 the patient history section of his report that Burgess said that she 2 had an "MRI with abnormalities reported," does not appear to have 3 read the MRI Report as he neither mentioned it in the "Laboratories" 4 section of his report nor reflected any awareness of the MRI 5 Report's findings that Burgess had a protruding disc or of Dr. 6 Smith's opinion as to the painful effect of the protrusion. 7 could we view as substantial evidence the box-check forms filled out 8 by the consultants, which betray a lack of awareness of the MRI 9 Report. Nor 10 However, as discussed in Part I.A.2. above, Dr. Zaretsky 11 examined Burgess 12 times, and his later reports appear to have 12 taken 13 Burgess's spine. He also reported that some of Burgess's complaints 14 of pain in response to his questions at several of his examinations 15 were not credible physiological responses. 16 that the findings based on the MRI of Burgess's back indicated that 17 she had a mild partial--albeit permanent--disability, and he stated 18 in one of his 12 reports (about a year before his last report) that 19 she was "capable of gainful employment" (Report of Dr. Robert 20 Zaretsky dated January 12, 2000). 21 the permanent partial disability noted by Dr. Zaretsky is consistent 22 with the ALJ's conclusion that Burgess is capable of working six-to- 23 eight hours a day on her feet as a salesperson. 24 ALJ, in the first instance, to determine whether the reports of Dr. 25 Zaretsky, who was not expressly mentioned by the ALJ, should be 26 viewed as substantial evidence contradicting the opinion of Dr. 27 Smith so as to entitle that opinion to less than "controlling" into account the MRI Report's - 29 - findings with respect to Dr. Zaretsky concluded It is not clear whether or not We leave it to the 1 weight. 2 On remand, Burgess is entitled to express consideration of 3 the MRI Report as to her back and of Dr. Smith's explanation of the 4 report's findings, and to findings of fact supported by substantial 5 evidence. 6 Smith's MRI-supported opinion as to the nature and severity of her 7 impairment, Burgess is entitled to a comprehensive statement as to 8 what weight is given and of good reasons for the ALJ's decision. 9 If the ALJ declines to give controlling weight to Dr. CONCLUSION 10 The judgment of the district court is vacated, and the 11 case is remanded to the Commissioner for further proceedings not 12 inconsistent with this opinion. - 30 -

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