JOHN GLEESON, District Judge.
Judith Ocasio seeks review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the Commissioner of Social Security's denial of her application for Social Security Disability Insurance ("SSDI"). The parties have cross-moved for judgment on the pleadings. The Commissioner seeks a judgment upholding his determination and Ocasio seeks a remand solely for the calculation for benefits. I heard oral argument on April 4, 2013. For the reasons stated below, the Commissioner's decision is reversed, and the case is remanded for further proceedings as detailed below.
Ocasio applied for SSDI on August 3, 2010, claiming disability as of February 1, 2010. R. 98-99. The Commissioner denied her application on September 13, 2010. R. 51-55. Ocasio then requested, R. 63-64, and received a hearing before Administrative Law Judge ("ALJ") Eric Borda on August 22, 2011, R. 72-76. Ocasio, who was represented by counsel, testified at the hearing, R. 31-40, as did vocational expert Rocco Meola, R. 40-46. On October 5, 2011 the ALJ found that Ocasio was not disabled within the meaning of the Social Security Act because she retained the residual functional capacity ("RFC") to perform sedentary work, which left her unable to perform her past relevant work as an office manager but able to perform jobs existing in significant numbers in the national economy. R. 18-19. The Appeals Council denied Ocasio's request for review on November 1, 2012, R. 1-3, rendering the ALJ's adverse decision the final decision of the Commissioner, see DeChirico v. Callahan, 134 F.3d 1177, 1179 (2d Cir. 1998).
Ocasio was born in 1956. R. 98. She completed high school and some college. R. 31, 120.
In her application for benefits, Ocasio indicated that she was 5'4" tall and weighed 185 pounds. R. 120. She claimed she was limited in her ability to work due to knee injury, spinal disease, and generalized arthritis.
In September 2010 Ocasio submitted an appeal to the Commissioner's denial of her benefits. R. 125-29. She reported that her impairments affect her ability to care for her personal needs because she "must do everything slowly and carefully." R. 127. She indicated that she had returned to Total Neuro Care for treatment since her initial application for benefits and that she had received "various exams" and medication."
At the hearing on August 22, 2011, Ocasio testified that she worked as a clerical office manager until the onset of her disability. R. 32. She specified that she was in charge of supplies, attended meetings, assisted attorneys with interpretation, helped support staff, entered data, and typed. R. 32. She indicated that she also undertook management responsibilities, such as ensuring that employee work was completed, handling hiring and firing, and conducting clerical training. R. 32-33. She estimated that in a given day she spent four hours on her feet and four hours sitting. R. 33. She also indicated that she lifted up to twenty pounds. R.33.
Ocasio testified that she had to stop working as a result of her left knee. R. 34. She indicated that she "was in a lot of pain" and that it "started getting very, very hard . . . to walk." R. 34. She found, "It was getting very hard to get to work to perform my work, to stay at work, and to get back home was also a chore for me — for my knee." R. 34. She reported that she fell a couple of times at the train station because her knee would buckle. R. 34.
In response to a question by the ALJ as to current problems with her knee, Ocasio testified that she was "in constant pain," which was "very severe." R. 34. She indicated that the buckling of her knee was constant and that she was "constantly falling." R. 34. She further indicated that she has swelling in her knee every other day. R. 39. She testified that she wore a knee brace. R. 35. She reported that she has "good days" and "bad days," and that on bad days, she uses a cane. R. 35.
Ocasio testified that around the time she stopped working, she went to the emergency room and began seeing Dr. Answorth Allen. R. 34. She indicated that one doctor recommended a total knee replacement, whereas another doctor informed her that she was too young for such treatment. R. 36. However, she indicated that she had to stop receiving medical treatment because she could no longer afford it. R. 35. She had medical insurance until she stopped working and did not continue those benefits. R. 35. She reported that she was unsure as to whether she would opt for total knee replacement if she had insurance. R. 36. She indicated that her family supports her. R. 35. She reported taking over-the-counter (Aleve and Excedrin) medication every day for her pain. R. 36. She indicated that she was not taking any prescription medication because she could not afford it, and that if she could afford it, she would probably take prescribed pain medication. R. 38.
Ocasio testified that in an eight-hour day, she would spend about five hours sitting with her leg elevated or lying down. R. 38. She indicated that keeping her leg elevated helped to alleviate the pain "for a little bit," but that the pain would then return "after a while." R. 39. She reported difficulty bathing, as she had to lift her leg and knee to get into the bathtub, and that she has fallen twice. R. 36. She indicated that on a bad day, she could stand for two to two and a half hours for fifteen minutes at a time. R. 37. She also reported difficulty kneeling and indicated that she could not kneel down on her left knee at all. R. 37.
Ocasio testified that her common-law husband had brought her to the hearing in a car and that he would bring her home by car as well. R. 38. She indicated that she could not take public transportation from the hearing — in downtown Manhattan — to Staten Island where she lives. R. 39. She stated that it would be "too much — the subway, the stairs" and that she has "fallen numerous times." R. 39.
On March 26, 2010 Ocasio underwent an initial consultation with Dr. Answorth Allen, a specialist in orthopedic surgery and sports medicine at the Hospital for Special Surgery. R. 153-54. Ocasio reported to Dr. Allen that she underwent knee surgery in 2003. R. 153. She was unable to recall the exact nature of the surgery but indicated that her patella
Dr. Allen's physical examination revealed "a well-healed scar over the anterior aspect of her left knee." R. 153. He reported that she had "no active knee extension." R. 153. He found Ocasio was "tender to palpation over the inferior pole of her patella" and had "obvious patella alta."
Dr. Allen also reviewed x-rays of Ocasio's knees, which revealed mild osteoarthritis in both knees and patella alta in her left knee. R. 155. He also found "three holes in the patella consistent with a previous patellar surgery." R. 153.
Dr. Allen's impression was that most of Ocasio's symptoms were due to a failed patellar tendon tear. R. 154. He ordered an MRI of the left knee, R. 154, which Ocasio underwent on March 28, 2010, R. 150-52.
The MRI revealed a "previous fixation of the patella with a markedly scarred and thickened extensor mechanism but no acute tear." R. 150. It further revealed "severe arthrosis
On May 7 and 14, 2010 Dr. Allen administered Orthovisc
On August 20, 2010 Dr. Chitoor Govindaraj consultatively examined Ocasio. R. 131-34. Ocasio complained of osteoarthritis and pain in her left knee and arm and reported a history of degenerative joint disease. R. 131. She informed Dr. Govindaraj that she sees Dr. Giovanazzo and Dr. Allen, who are both orthopedic surgeons.
Dr. Govindaraj's examination of Ocasio's spine revealed no tenderness and a range of motion within normal limits. R. 133. He also found the range of motion of her back and joints within normal limits. R. 133. He reported that Ocasio could bend down and touch the floor. R. 133. He found her normal for a straight leg raising test. R. 133. He reported that her gait and posture were normal and that she did not need a cane for ambulation. R. 133. He did not detect any swelling or instability in her left knee. R. 133.
Dr. Govindaraj diagnosed Ocasio with a history of left knee patellar separation in 2003, a history of degenerative joint disease of the low back, and history of arthritis of the knees. R. 133. He opined that Ocasio was "medically stable and cleared for occupation."
Ocasio also underwent x-rays of her left knee on August 20, 2010. R. 130. The x-rays revealed patella alta and minimal spurring about the medial, lateral, and patellofemoral compartments consistent with minimal osteoarthritic change. R. 130. There was no evidence of fracture or effusion. R. 130.
On August 17, 2011 Ocasio underwent an independent consultative examination by Dr. Fritzner Bourdeau. R. 143-46. Ocasio stated that she had sustained an injury to her left knee after falling down the steps in her home in May 2004 and that she was subsequently diagnosed with a rupture of her left patellar tendon. R. 143. She reported undergoing surgery to repair the tendon by Dr. Albert Accettola, an orthopedic surgeon, on July 26, 2004. R. 143. She indicated that she received post-op therapy but remained unable to "stand up straight, squat, sit too long, or walk for long." R. 143. She stated that she had to stop working in 2010 due to the pain in her knee. R. 143. She reported that she was unable to ambulate properly, used a cane, and had difficulty performing activities of daily living. R. 143. She specifically complained of pain, instability, and buckling in her left knee. R. 143. She reported taking Excedrin for pain. R. 143.
On examination, Dr. Bourdeau observed that Ocasio had moderate discomfort in her left knee, trouble getting on and off the examination table, and great difficulty ambulating stairs. R. 144. He reported that her gait was antalgic and that she was walking with an assisted device. R. 144. He found that her left quadriceps muscle strength was 3/5
Dr. Bourdeau diagnosed Ocasio with left knee derangement, left patellar tendon repair, and severe osteoarthritis. R. 145. He recommended home exercises. R. 146. He opined that her condition was "chronic, permanent, and totally disabling," and that Ocasio would be unable to work due to her injuries. R. 146.
On the same day, Dr. Bourdeau completed a "Medical Assessment of Ability to Do Work-Related Activities." R. 147. He indicated that his assessment was based both on his physical examination of Ocasio as well as medical records provided by Ocasio.
Rocco Meola testified as a vocational expert ("VE") at the hearing on August 22, 2011. R. 40-46. He indicated that his testimony would be based upon the regional economy, defined as New York City, Long Island, and New Jersey. R. 41. He further indicated that the number of jobs he would be testifying to in the region would "reflect a proportional number to the national economy." R. 41.
Meola identified Ocasio's past work as an office manager as "skilled with an SVP of 7."
The ALJ posited a hypothetical to Meola concerning an individual of Ocasio's age, education, and work experience who could lift up to ten pounds occasionally; stand and walk for two hours and sit for six hours in an eight-hour workday; occasionally climb ramps or stairs; and occasionally balance with a handheld assistive device. R. 42. In addition, this individual would need to sit or stand at will, could not kneel or crawl, and must avoid all exposure to hazardous machinery and unprotected heights. R. 42. Meola testified that such an individual could not perform Ocasio's past work as she had performed it. R. 43.
Meola then testified that there were transferable skills from Ocasio's past relevant work. R. 43. He identified these skills as the ability to use the computer and office equipment, "maintain[ ] a level of performance and be[ ] exact in terms of her work," find and organize information, evaluate situations occurring in the workplace, and deal with people on a daily basis. R. 43. Meola further testified that these skills transferred to other types of work falling within the RFC hypothetical posed by the ALJ. R. 44. He identified several examples of such work: (1) information clerk, sedentary, SVP 4; (2) production proofreader, sedentary, SVP 4; (3) registration clerk, sedentary, SVP 3; (4) assignment clerk, sedentary, SVP 5. R. 44. Meola estimated that there were 3,000 such jobs regionally and 50,000 such jobs nationally. R. 44. He was unable to break those numbers down further. R. 44.
Ocasio's counsel then asked Meola whether the same hypothetical individual, if "limited to the requirement of lying down or sitting with their feet elevated or their left foot elevated for five out of an eight-hour working day," would still be able to perform such work. R. 45. Meola responded, "With that additional limitation, in my opinion, the person would not be able to perform those jobs." R. 45. Then Ocasio's counsel asked whether the same hypothetical individual, if limited to the requirement of lying down or sitting with their feet or left foot elevated for two and a half hours out of an eight-hour working day, would still be able to perform such work. R. 45. Meola responded, "Jobs that I've indicated would not permit the lying down and the person could not work with their leg elevated parallel on these types of sedentary jobs." R. 46.
Under the Social Security Act, Ocasio is entitled to disability benefits if, "by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months," 42 U.S.C. § 423(d)(1)(A), she "is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy," id. § 423(d)(2)(A). The Social Security Administration's regulations prescribe a five-step analysis for determining whether a claimant is disabled:
DeChirico, 134 F.3d at 1179-80 (internal quotation marks and alterations omitted) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); see also 20 C.F.R. § 404.1520(a)(4)(i)-(v) (setting forth this process). The claimant bears the burden of proof in the first four steps, the Commissioner in the last. Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
Under 42 U.S.C. § 405(g), I review the Commissioner's decision to determine whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The former determination requires the court to ask whether "the claimant has had a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982). The latter determination requires the court to ask whether the decision is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971).
The district court is empowered "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). A remand by the court for further proceedings is appropriate when "the Commissioner has failed to provide a full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations." Manago v. Barnhart, 321 F.Supp.2d 559, 568 (E.D.N.Y.2004). A remand to the Commissioner is also appropriate "[w]here there are gaps in the administrative record." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).
The ALJ followed the five-step procedure outlined above for determining whether Ocasio was disabled within the meaning of the Social Security Act. He determined first that Ocasio had not engaged in substantial gainful activity since February 1, 2010. R. 14. He next determined that Ocasio was afflicted with severe impairments: severe arthrosis patellofemoral compartment of the left knee; status post patellar tendon repair; and degenerative disc disease of the low back. R. 14.
Under the third step of the analysis, the ALJ found that Ocasio's impairments did not meet or medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 14 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). The ALJ did find that Ocasio's knee impairment was "most nearly related to [L]isting 1.02A describing major dysfunction of a joint of the lower extremities." R. 14. But he found that the requirements were not met because the knee impairment did not "result in an inability to ambulate effectively."
The ALJ then determined that Ocasio had the RFC to perform sedentary work except that she required "the opportunity to sit or stand at will throughout the work day," could occasionally climb ramps or stairs and balance with a hand-held device, could never crawl or kneel, and had to avoid all exposure to hazardous machinery or unprotected heights. R. 15 (citing 20 C.F.R. § 404.1567(a)). In arriving at this determination, the ALJ considered Ocasio's statements and testimony, her medical records, and opinion evidence. R. 15 (citing 20 C.F.R. §§ 404.1527, 404.1529). The ALJ found Ocasio's testimony "regarding her chronic left knee symptoms and limitations was generally credible," and "largely incorporated her allegations into the residual functional capacity" assessment.
The ALJ found Ocasio's testimony "largely consistent with the opinion of Dr. Bourdeau, who limited her to sedentary work." R. 17. But the ALJ noted that Dr. Bourdeau's assessment of "the total number of hours that [Ocasio] may sit, stand, and walk, implies that [Ocasio] would be unable to sustain a full eight hour day." R. 17. He observed that Dr. Bourdeau had opined that Ocasio was "limited to sedentary exertion work involving sitting for less than six hours in an eight-hour day, and standing or walking for less than two hours in an eight-hour day." R. 17 (citing R. 147-49). He concluded, however, that based on Ocasio's "testimony that on bad days she is able to stand or walk for a total of two to two and a half hours," his assessment that Ocasio could perform sedentary work "accurately depict[ed Ocasio]'s residual functional capacity." R. 17.
The ALJ also relied on the consultative examination by Dr. Govindaraj in support of his conclusion that Ocasio had the RFC to perform sedentary work. The ALJ noted that Dr. Govindaraj reported that Ocasio's gait and posture were normal, that she did not require a cane for ambulation, and that the straight leg raising test was normal. R. 16. He further noted that Dr. Govindaraj opined that Ocasio "was medically stable and cleared for occupation." R. 16. With respect to Ocasio's back, the ALJ noted that Dr. Govindaraj did not report kyphoscoliosis
In the fourth step of the analysis, the ALJ concluded, on the basis of his RFC determination, that Ocasio was unable to perform her past relevant work as a cashier. R. 17. Moving on to the fifth and final step, the ALJ found that considering Ocasio's age, education, work experience, and RFC, she had acquired work skills from past relevant work that were transferable to other jobs existing in significant numbers in the national economy. R. 18 (citing 20 C.F.R. §§ 404.1569, 404.1569(a), 404.1568(d)). His conclusion relied, in part, on the vocational expert's testimony that Ocasio had skills transferable to work falling within her stated RFC and that, "in the aggregate, there are 50,000 such jobs nationally, and 3,000 such jobs regionally." R. 18-19. The ALJ also considered Ocasio's age, education, work experience, and RFC in conjunction with the Medical-Vocational Guidelines. R. 18 (citing 20 C.F.R. Part 404, Subpart P, Appendix 2). Specifically, he found that "although [Ocasio]'s additional limitations do not allow [her] to perform the full range of sedentary work," Medical-Vocational Rule 201.15 advised a finding of "not disabled" for a 53-year old individual with at least a high school education, English language skills, and transferable work skills.
The RFC determination indicates "the most [a claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a)(1). In determining a claimant's RFC, an ALJ must take into consideration her physical and mental impairments, symptoms (including pain), and "all of the relevant medical and other evidence." Id. §§ 404.1545(a)(1)-(2). With respect to physical impairments, an ALJ must take into consideration a claimant's ability to sit, stand, walk, lift, carry, push and pull. Id. § 404.1545(b).
Under the treating physician rule, a treating physician's opinion about the nature and severity of a claimant's impairments is entitled to "controlling weight" if it is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record."
The treating physician rule dovetails with the ALJ's affirmative duty to develop the administrative record. Tejada v. Apfel, 197 F.3d 770, 774 (2d Cir. 1999); 20 C.F.R. § 404.1512(d). The non-adversarial nature of a Social Security hearing requires the ALJ " to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000). This duty exists even in cases where the claimant is represented by counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Because of the treating physician rule, the duty of the ALJ is "particularly important when it comes to obtaining information from a claimant's treating physician." Devora v. Barnhart, 205 F.Supp.2d 164, 172 (S.D.N.Y. 2002); id. at 174 (collecting cases). This obligation includes obtaining the treating physicians' assessments of the claimant's RFC. Lawler v. Astrue, No. 10-cv-3397, 2011 WL 5825781, at *7 (E.D.N.Y. Nov. 14, 2011) ("An ALJ's affirmative obligation to develop the record also includes the obligation to contact a claimant's treating physicians and obtain their opinions regarding the claimant's residual functional capacity."); Hardhardt v. Astrue, 05-cv-2229, 2008 WL 2244995, at *9 (E.D.N.Y. May 29, 2008) ("[T]he ALJ was obligated to ensure that the record was fully developed, which would include obtaining the treating physicians' assessments of [the claimant]'s functioning.").
In evaluating Ocasio's RFC, the ALJ noted that the "the medical evidence of record is sparse because [Ocasio] lost her health insurance when she left her job and could no longer afford to pay for doctor visits." R. 16. In fact, the only records from a treating physician are those from Dr. Allen. R. 150-57. These records consist of notes from an initial consultation, an MRI, and two follow-up visits; they fail to address Ocasio's functional abilities. The ALJ's obligation to ensure the full development of the record included obtaining Dr. Allen's assessment of Ocasio's functioning. His failure to do so constitutes a failure to fulfill his affirmative obligation to develop the record.
Aside from the failure to seek additional information from Dr. Allen, the ALJ failed to attempt to obtain the records of other physicians identified by the claimant. For example, during her consultative examination with Dr. Govindaraj, Ocasio stated that she had been seeing Dr. Giovanazzo, another orthopedic surgeon, since 2007.
The ALJ's duty to develop the administrative record encompasses "not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on her functional capacity." Devora, 205 F. Supp. 2d at 173. Without a treating physician opinion to support his RFC determination, the ALJ relied heavily on the testimony of Ocasio. In particular, the ALJ emphasized repeatedly Ocasio's statement that "on bad days, she is able to stand or walk for a total of two to two and a half hours in an eight-hour period." R. 17. This statement, he concluded is "consistent with sedentary work." R. 17.
The ALJ misconstrued Ocasio's testimony. Ocasio stated that on a bad day, she can stand, not stand or walk, for about two to two and a half hours. R. 37. And while "a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties."
The ALJ also cast Ocasio's testimony as conflicting with the opinion of Dr. Bourdeau.
The ALJ's failure to develop the administrative record warrants remand.
For the reasons stated above, the Commissioner's motion for judgment on the pleadings is denied and Ocasio's motion is granted, but only to the extent that the case is remanded to the Commissioner for further proceedings consistent with this decision.
So ordered.
20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ dismissed the first argument by noting that counsel's citation of Rule 201.00(g) was incomplete. R. 97. He quoted the remainder of the rule, which states "When such individuals have no past work experience or can no longer perform vocationally relevant past work and have no transferable skills, a finding of disabled ordinarily obtains." R. 97. The ALJ concluded that "[h]ere, the vocational expert testified that [Ocasio] does have transferable skills" and that "[t]herefore, the representative's argument is without merit." R. 19. As to counsel's second argument, the ALJ stated that he had "reviewed the industry descriptions for each of the jobs identified by the vocational expert" and found "that each job deals with similar products, processes and services and do[es] not require any additional skills for adaptability." R. 19. For example, he found that "the job of an information clerk is semi-skilled and requires that the claimant answer inquiries from persons entering the establishment," and that Ocasio's "description of her job, and the description of the job in the Dictionary of Occupational Titles, shows that [she] acquired these skills and used them on a regular basis as part of her past work." R. 19. He concluded that "the transferability of skills is pegged to similar products, processes and services." R. 19.
