RULING ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND ON DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

HAIGHT, Senior District Judge:

Plaintiff Dwight Jerolmon applied to the Social Security Administration ("SSA") for Disability Insurance Benefits ("DIB"). The Commissioner of Social Security, in a final decision affirming the ruling of an SSA Administrative Law Judge ("ALJ"), denied Plaintiff's application. Pursuant to § 205(g) of the Social Security Act, §§ 405(g) and 1383(c)(3), Plaintiff sought review in this Court of the Commissioner's decision denying him benefits. Pursuant to 28 U.S.C. § 636(b)(1)(B), the case was referred to Magistrate Judge Joan G. Margolis for a Recommended Ruling. Judge Margolis filed a Recommended Ruling ("R.R.") which, if accepted by the Court, would affirm the decision of the Commissioner and deny Plaintiff disability benefits. Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff filed timely Objections to the R.R. The Commissioner opposes Plaintiff's Objections and seeks this Court's acceptance of Judge Margolis's R.R. This Ruling decides these issues.

I. STANDARD OF REVIEW

The governing statute, 28 U.S.C. § 636(b)(1)(C), provides with respect to the recourse available to a party displeased by a magistrate judge's recommendation:

These provisions are echoed and distilled in Fed.R.Civ.P. 72(b)(3): "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."

In the case at bar, ALJ Deirdre R. Horton denied Plaintiff Jerolmon's application for DIB because she found that Plaintiff "has not been under a disability, as defined in the Social Security Act," during the dates embraced by the application. Decision, Tr. 17.1 When an applicant for disability benefits challenges an adverse Social Security disability determination, that agency determination is subject to possible review at three judicial levels: (1) by a magistrate judge to whom a reference is made by a district judge; (2) by the district judge making the reference if objections are filed against the magistrate judge's recommended disposition; and (3) by the court of appeals if an appeal is taken from the district court's judgment.

Notwithstanding the seeming breadth of the "de novo determination" the statute and rule require the district judge to make at level (2), at all levels a court will set aside an ALJ's disability determination "only where it is based upon legal error or is unsupported by substantial evidence." Flores v. Astrue, No. 3:09-CV-1829, 2010 WL 5129110, at *1 (D.Conn. Dec. 9, 2010) (citing and quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998)) (district court level; ruling on objections to magistrate judge's recommendation). At the court of appeals level, the Second Circuit has repeatedly said of its own proper role: "When considering an appeal of a disability case, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the Commissioners denial of benefits. We therefore focus our attention on the administrative ruling rather than on the decision of the district court. It is not our function to determine de novo whether [the applicant] is disabled, and we may only set aside a determination which is based on legal error or not supported by substantial evidence." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996) (citations and internal quotation marks omitted).

Flores illustrates the working of this principle at the district court level: Magistrate Judge Fitzsimmons "conducted a careful and thorough review of the record in this case and found that, in all respects, the ALJ's determination [of non-disability] was based on substantial evidence." 2010 WL 5129110, at *1. District Judge Hall, ruling on the applicant's objections to the magistrate judge's recommended disposition, said: "Reviewing the record, the court finds that the ALJ's account of the record and her determination that Flores was not disabled are supported by substantial evidence." Id. at *2.

That is what a "de novo determination" means at all three levels of judicial review of the SSA's denial of disability benefits: On an appeal by a rejected disabilities applicant, the reviewing court, be it magistrate judge, district judge, or appellate panel, focuses de novo upon the administrative record and the ALJ's ruling, not for the purpose of determining whether the applicant was disabled, but for the quite different and more limited purpose of determining whether substantial record evidence supported the ALJ's determination that he or she was not disabled.

I will apply this standard of review to Plaintiff's Objections to Judge Margolis's R.R. in this case, and begin with the relevant factual background.

II. FACTUAL BACKGROUND

Judge Margolis's R.R. contains a detailed and comprehensive description of the extensive medical treatment Plaintiff has received for the several conditions, physical and mental, which he claims ultimately rendered him disabled within the Social Security context. Familiarity with that account is assumed for the purpose of this Ruling. Plaintiff's Objections to the R.R. do not challenge in any material way the accuracy of the R.R.'s medical history, to which this Ruling will make reference. It is the propriety of the ALJ's conclusions, and Judge Margolis's agreement with those conclusions, that are at issue before this Court. I have conducted a de novo review of the administrative record, with particular focus upon those areas implicated by Plaintiff's Objections to the Magistrate Judge's R.R., and consistent with the standard of review discussed in Part I., supra.

Plaintiff Dwight Jerolmon was born in 1952 and is presently 60 years old. From 1974 to 2004 Jerolmon was employed by Comcast Cable Company. He worked as a supervisor/team leader, an active role including the use of machines, tools, equipment and technical knowledge; completion of reports; leading, training, hiring and firing employees; performing and supervising field work attendant upon the installation and repair of cables; and office work. R.R. at 3-4. This work was demanding, physically and mentally.

Comcast laid Plaintiff off on February 11, 2004, because, according to his presentation to the SSA, he lacked the stamina to continue working, as the cumulative result of several medical conditions. Jerolmon filed his application with the SSA for DIB on January 23, 2008, alleging an inability to perform substantial gainful activity since February 11, 2004. R.R. at 1. The SSA denied the claim in the first instance. Jerolmon, represented by counsel, requested a hearing, which was conducted before ALJ Deirdre R. Horton on August 19, 2009. As recounted in the R.R. at 2-3, Jerolmon testified during the hearing before ALJ Horton that "he is disabled as a result of his hypertensive cardiovascular disease, high blood pressure, and depression." He described his symptoms as consisting of fatigue; constant pain; frequent urination; inability to stand, walk, bend, focus or concentrate for long durations; day and night sweats; frequent diarrhea; depression; anxiety and panic attacks.

Jerolmon has a complicated medical history. According to the R.R. at 6, "around 1998" he was diagnosed with Waldenstrom's macroglobulinemia, a malignant disorder of the blood characterized by the presence of abnormally large numbers of a white blood cell known as B lymphocytes, which can lead to thickening of the blood and an adverse effect upon blood flow through the smaller blood vessels. That condition would not explain all the symptoms Jerolmon described during the SSA hearing; and, in point of fact, beginning is 2003, he was treated or examined by 24 different medical, psychiatric or psychological practitioners with M.D., Ph.D., or A.P.R.N. degrees, as the case may be. These professionals included in their ranks internists, oncologists, a urologist, a dermatologist, a cardiovascular specialist, a liver specialist, psychiatrists, psychologists, and vocational evaluators. Some were treating physicians or psychologists consulted by Jerolmon privately; others were retained by Connecticut Disability Determination Services ("CT DDS") or by the SSA.2 The reports and opinions these practitioners prepared concerning Plaintiff's condition, within the context of their individual specialties, produced a two-volume administrative record transcript of over 1,000 pages.

ALJ Horton discussed and quoted from Jerolmon's extensive medical history in her opinion at Tr. 10-16. Judge Margolis undertook the same task in her R.R. at 6-29. I need not reiterate these accounts in full. The parties do not dispute which practitioner treated or evaluated Jerolmon, when, for what purpose, and what the evaluations said. It is sufficient for present purposes to say that ALJ Horton, in her consideration of whether Jerolmon is "disabled" within the meaning of the Social Security Act, drew a distinction between physical and mental impairments, and discussed them separately. I do the same in this Ruling. However, it is useful to preface that analysis (as did ALJ Horton) with a recitation of the five-step sequential disability evaluation process mandated in such cases by the Regulations, 20 C.F.R. § 404.1520, and Second Circuit decisions, e.g., Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998).

One begins with the proposition that under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(1). The statute defines "disability" as an "inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1). Determining whether a particular claimant is disabled requires the familiar five-step process:

First: The ALJ must determine whether the claimant for disability benefits is currently working, and the work is substantial gainful activity. If the claimant is working, the ALJ must conclude that he is not disabled, and his claim will be denied.

Second: If the claimant is not working, the ALJ must make a finding as to the existence of a severe impairment, "which significantly limits [his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, the ALJ must conclude that he is not disabled, and his claim will be denied.

Third: If the claimant is found to have a severe impairment, the ALJ must compare that impairment with those in Appendix 1 of the Regulations ("the Listings"). If the claimant's impairment is listed in the Listings, or is equal to a listed impairment or impairments, the ALJ must conclude that the claimant is disabled, and his claim for benefits will be approved.

Fourth: If the claimant's impairment does not meet or equal one of the impairments included in the Listings, the claimant must show that because of the impairment, he cannot perform his former work.

Fifth: If the claimant shows that because of his impairment he cannot perform his former work, the burden of proof then shifts from the claimant (who carried it during the first four steps) to the Commissioner "to show there is other gainful work in the national economy which the claimant could perform." Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir.1983).

In her R.R. at 31, Judge Margolis aptly summarized the interplay of these evaluation steps: "Accordingly, a claimant is entitled to receive disability benefits only if he shows he cannot perform his former employment, and the Commissioner fails to show that the claimant can perform alternate gainful employment."

ALJ Horton's decision, Tr. 7-17, recited or paraphrased the five disability-evaluative steps, made references to the medical records, declared findings of fact, and answered the questions posed by the Regulations as follows:

First: Jerolmon was not currently working.

Second: With respect to his mental condition, the ALJ found that Jerolmon "has depression and anxiety," and that "these are severe impairments since they result in more than minimal limitations on the claimant's ability to engage in competitive work activity on a full-time basis." Tr. 10. With respect to the physical complaints and conditions revealed by the medical records (Waldenstrom's macroglobulinemia, Hepatitis C, anemia, hypertension and low back pain), they did not constitute, alone or in combination, a severe impairment as that phrase is used in the Regulations.

Third: Jerolmon's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of one of the impairments included in the Regulatory Listings.

Fourth: Jerolmon is unable to perform any past relevant work.

Fifth: Jerolmon "has the residual functional capacity to perform a full range of unskilled work at all exertional levels," Tr. 12, and "there are jobs that exist in significant numbers in the national economy that claimant can perform." Tr. 16.

Based upon these findings and conclusions, ALJ Horton held: "The claimant has not been under a disability, as defined in the Social Security Act, from February 11, 2004 through the date of this decision." Tr. 17. The Commissioner affirmed the ALJ's decision by failing to review it in timely fashion.3 Accordingly, Plaintiff's claim for disability benefits was denied. The Magistrate Judge having recommended that the Court affirm the Commissioner's decision, Plaintiff makes the present Objections [Doc. 16] to that Recommendation.

III. PLAINTIFF'S OBJECTIONS

Counsel for Plaintiff, who represented him during the hearing before the ALJ and the proceedings before the Magistrate Judge, objects to the R.R.'s affirming the ALJ's denial of disability benefits on four grounds. Plaintiff asserts the following:

First, the ALJ failed to give proper consideration to Jerolmon's severe physical impairments [Doc. 16] at 1-3. Second, the ALJ failed to follow the treating physician rule and erred in failing to find that Jerolmon had a severe Listed mental impairment [id. at 3-6]. Third, the ALJ failed to properly evaluate Jerolmon's credibility [id. at 6-8]. Fourth, the ALJ improperly relied upon the regulatory Medical-Vocational Guidelines in measuring Jerolmon's ability to obtain and perform jobs in the national economy [id. at 8-9]. The Commissioner's brief in opposition [Doc. 17] contends that none of these objections has merit.

IV. DISCUSSION

I have examined de novo those parts of the administrative record relevant or related to Plaintiff's points of objection, to which I apply the standard of review described in Part I. supra.

A. Severe Physical Impairment

Plaintiff's first objection argues that the ALJ should have found Jerolmon suffers from a severe physical impairment. I do not agree.

ALJ Horton's decision at Tr. 10-11 summarizes the conclusions of Jerolmon's treating physicians that the physical complaints of Waldenstrom's macroglobulinemia, Hepatitis C, anemia, and lower back pain had during the course of treatment been cured or gone into remission. The ALJ points out that these physicians based their favorable conclusions upon physical examinations of Plaintiff, prescribed medications, and on more than one occasion, Plaintiff's subjective descriptions of his own symptoms or lack of them.

Jerolmon is left to argue, in essence, that the ALJ should have disregarded the evaluations of his treating physicians and his own remarks to them, upon which those physicians relied for diagnostic purposes. There is a certain irony in this line of argument, since Jerolmon relies heavily upon the "treating physician rule" in support of his following contention, that he suffers from a mental impairment included in the regulatory Listings. As to a physical impairment, Jerolmon says in his brief that even if his prescribed medication for Waldenstrom's macroglobulinemia put that condition into remission and left him "feeling well" and "doing very well" (quotations from the medical records), he continued to have symptoms, "consistent with medical literature that Waldenstrom's can go into partial remission with a continuation of symptoms." Plaintiff's Brief on Objections [Doc. 16] at 1-2 (footnote omitted). As for lower back pain, Jerolmon contends that the ALJ should have accepted his subjective descriptions of continuing disabling discomfort, notwithstanding the absence of objective medical evidence, and concludes: "The ALJ should have required x-rays or an MRI if he felt that one was necessary to develop the record and make a proper determination on the severity of Mr. Jerolmon's back pain." Id. at 2-3.

Plaintiff's arguments, while permissible, do not persuade. As for the suggested x-rays or MRIs, Plaintiff's treating physician did not see a need for ordering such tests to evaluate his back pain, and I decline, given the limited standard of review, to impose an obligation on the ALJ to do so. More fundamentally, Jerolmon's contentions, when viewed in the light of the entire record on the point, do not demonstrate a physical "impairment or combination of impairments which significantly limits [his] physical or mental ability to do basic work activities," the regulatory definition of "a severe impairment," 20 C.F.R. § 404.1520(c), let alone satisfy the governing standard of review by showing that the ALJ's contrary conclusion is not supported by substantial evidence. The ALJ concluded that Plaintiff is not entitled to a finding of disability based upon a significant physical impairment. As noted supra, medical record evidence supporting that conclusion is found in the reports of Plaintiff's treating physicians. Additionally, Dr. Cruz and Dr. Connolly, who examined and evaluated Plaintiff at the request of CT DDS, concluded that Jerolmon had no significant physical impairment. Tr. 14. That medical evidence is substantial, and supports the ALJ's conclusion, adverse to Plaintiff, on the physical impairment issue. In consequence, that conclusion cannot be disturbed by the Court.

B. Severe mental impairments

The ALJ's decision takes a different view of the record evidence with respect to Plaintiff's mental and psychological symptoms and conditions. Unlike Plaintiff's claimed physical ailments, which the ALJ found did not establish a severe impairment as defined by the Regulations, ALJ Horton concluded that the medical evidence showed Jerolmon had severe mental and psychological impairments. On that issue, the ALJ found:

Tr. 10.

Accordingly, Plaintiff satisfied the second step in the five-step sequential determination of disability. The ALJ's decision summarized what was to happen next in the process:

Tr. 8 (emphasis added). Thus, at this stage of the process Plaintiff's entitlement to disability benefits turns upon whether his demonstrated severe mental impairments (depression and anxiety) meet or equal an impairment included in the regulatory Listings. The psychological evidence in the record on that question must be carefully considered, particularly with respect to the manner in which the ALJ resolved discrepancies between two psychologists: Andrew C. Porto, Ph.D., Plaintiff's treating psychologist who saw Plaintiff regularly for several years beginning on May 27, 2005; and Lance Hart, Ph.D., who saw Plaintiff once, on March 4, 2008, at the request of Connecticut Disability Determination Services.

In connection with Jerolmon's application for benefits, Dr. Porto submitted three "Psychological Questionnaires" (the ALJ's phrase, at Tr. 15), dated March 17, 2008; June 16, 2008; and March 17, 2009. Dr. Hart submitted a letter report dated March 4, 2008. Dr. Porto concluded that Jerolmon's impairment caused by his depression and anxiety was markedly more severe than that expressed by Dr. Hart. Confronted by this disagreement among experts, ALJ Horton took the sensible step of calling an impartial medical expert to testify at the hearing before her: Norman H. Baldwin, Ph.D., a psychologist the ALJ qualified as an expert witness. Tr. 33. Dr. Baldwin testified that he had reviewed Plaintiff's "medical record," and the ALJ then asked him: "And is there sufficient medical evidence in the record to form an opinion as to the claimant's medical health status?" Id.

The main thrust of Dr. Baldwin's response to that core question is summarized in the ALJ's decision at Tr. 15-16:

That summary is accurate as far as it goes, but given the centrality of importance of this evidence, I think it advisable to quote Dr. Baldwin's testimony at greater length. By "centrality of importance" I mean that, if one accepts Dr. Baldwin's initial conclusion that Jerolmon "met Listing 12.04," then the ALJ was bound in law to find him disabled, since "12.04," the designated listing for "Affective Disorders," is included in the regulatory Listings found in 20 C.F.R. Part 404, Subpart P, Appendix 1, and the inclusion of a particular impairment in the Listings mandates the conclusion that the afflicted claimant is "disabled" under the statute.

What follows are quotations from the transcript of Dr. Baldwin's testimony on August 19, 2009 before ALJ Horton. Plaintiff and his attorney were present. The only change I have made to the transcript, Tr. 33-42, is to correct the spelling of some physicians' names. After Dr. Baldwin was qualified by ALJ Horton as an expert witness, the following testimony was given and rulings made:

Whereupon, the hearing before the ALJ was closed, at 1:45 p.m. on August 19, 2009.

Counsel for Plaintiff sent ALJ Horton a letter dated August 26, 2009 (Tr. 1024) which enclosed Dr. Porto's treatment notes, consisting of 13 pages of handwritten notes (Tr. 1025-1037) describing some 32 hourly sessions Dr. Porto conducted with Jerolmon, the first on May 27, 2005 and the last on March 17, 2009.

The ALJ did not pass Dr. Porto's treatment notes on to Dr. Baldwin so Dr. Baldwin could study them, or recall Dr. Baldwin to a reopened hearing so he could testify about the notes' effect, if any, upon the strength of Dr. Porto's recorded opinion that Plaintiff suffered from a Listed severe mental impairment. Instead, the ALJ read Dr. Porto's notes herself, and then delivered her decision on October 20, 2009, rejecting Plaintiff's claim of disability. At page 273 supra, I quoted that part of the ALJ's decision which describes the discrepancy Dr. Baldwin, during his testimony, perceived between Dr. Porto's opinion (favorable to Jerolmon on the question of mental disability) and that of Dr. Hart (unfavorable). The ALJ's decision resolves that discrepancy in this fashion:

Tr. 16.

To my mind, this observation by the ALJ introduces an almost surreal note of mystery into the case. Dr. Baldwin, the impartial expert selected by Judge Horton to advise her, "did not have access to Dr. Porto's notes to resolve these discrepancies" because the ALJ, for unrevealed and unstated reasons, withheld Dr. Porto's notes from Dr. Baldwin. The element of mystery is present because any reasonable person, present at the hearing and witnessing the exchanges quoted in the text, would have understood that the ALJ was keeping the record open so that Dr. Porto's notes could be obtained and given to Dr. Baldwin to study. That seems to me the only rational construction that can be placed upon the ALJ's closing remark: "I don't think there's any point in really going further with Dr. Baldwin's testimony until we actually have some treatment notes." Tr. 18. That is the only construction that makes sense of the surrounding circumstances. After all, it was Dr. Baldwin who stressed the discrepancy between the opinions of Drs. Porto and Hart, and Dr. Baldwin who stated explicitly that in order to resolve that discrepancy, he needed to read Dr. Porto's treatment notes, if at all possible. Well, as it turned out, it was perfectly possible for Dr. Baldwin to read Dr. Porto's notes. Plaintiff's counsel obtained them and passed the notes on to the ALJ a week after the hearing. But the ALJ did not pass the notes along to Dr. Baldwin. Instead, two months later she handed down a decision which denigrated Dr. Baldwin's testimony "because he did not have access to Dr. Porto's treatment notes to resolve those discrepancies." And, one may ask rhetorically, who was responsible for that lack of access on Dr. Baldwin's part?11

The question on this judicial review of the Commissioner's denial of Plaintiff's disability claim is whether these particular circumstances, mysterious or not, make any difference. The Commissioner argues before this Court that the ALJ's choosing not to pass Dr. Porto's notes on to Dr. Baldwin makes no difference because ALJ Horton read the notes and there is nothing material to the issue in them. The ALJ says in her decision:

Tr. 15.

I cheerfully concede that ALJ Horton has read more psychology Ph.D.s' opinions and treatment notes than I have. Nonetheless, and meaning no disrespect, she and I, as well as the attorneys for the parties, are lay people when it comes to understanding and interpreting densely packed handwritten treatment notes written by a psychologist like Dr. Porto over a four-year span of frequent psychotherapy sessions. I find myself, again meaning no disrespect, unable to repose sufficient confidence in the ALJ's interpretation of Dr. Porto's treatment notes. What is one to make, for example, of Judge Horton's view that the notes are mere recitations of sessions "for the most part," or that their content "is fairly benign"? When one lay reader of professional documents uses qualifying phrases such as these, they run up red flags, at least in the eyes of this lay reader.

I conclude without difficulty that the professional interpretation of Dr. Porto's treatment notes should have been made by that other professional, Dr. Baldwin, whose function it was to evaluate Plaintiff's medical records, and not by a lay ALJ. This is clearly what everyone expected to happen at the conclusion of the August 2009 hearing, which broke off with the record kept open so that Dr. Porto's notes could be obtained, and I hold that is what should have happened.

The circumstances of the case are unusual. Its resolution is more a function of common sense than following appellate authority that is closely on point. The Commissioner relies upon Adams v. Massanari, 55 Fed.Appx. 279 (6th Cir.2003), where during the course of a hearing the impartial expert, the ALJ, and the disability claimant's attorney agreed that they needed more information regarding the claimant's arthritis; Dr. Epstein, a rheumatologist, examined the claimant and issued a post-hearing report; and the ALJ denied the disability claim: "without submitting Dr. Epstein's report to the ME, the ALJ considered and dismissed Dr. Epstein's report for lack of probative value." 55 Fed.Appx. at 286.

The Sixth Circuit found no fault with this procedure. Adams bears a surface resemblance to the case at bar, in that an ALJ reached a decision adverse to a disability claimant without passing a medical report on to the medical expert in the case (the counterpart to Dr. Baldwin). However, the rheumatologist's report in Adams noted objectively that there was "not any significant restriction of the function of Appellant's arthritic joints," id., which was apparently sufficiently clear for the ALJ to reject the disability claim without more. In the case at bar, what the ALJ failed to pass on to the medical expert was four years' worth of a treating psychologist's treatment notes, which would seem to pose quite different, and more complex and difficult, questions of comprehension and interpretation.

In any event, I derive my principal guidance from Second Circuit cases. Pratts v. Chater, 94 F.3d 34 (2d Cir.1996), which differs from the case at bar in some factual respects, is nonetheless instructive on the broader issues. The ALJ denied disability benefits after a hearing where the only witness beside the claimant was "Dr. Edgar Bonilla, a medical expert called by the SSA who based his opinions on his review of Pratts's records from the VA. Unfortunately, the hearing tape was mistakenly turned off for a portion of Dr. Bonilla's testimony, leaving a significant gap in the administrative record." 94 F.3d at 36-37. The Second Circuit vacated the Commissioner's denial of benefits and remanded the case to him for further proceedings. I quote the court of appeals' opinion at some length because it contains language strikingly applicable to the case at bar:

94 F.3d at 37-38 (emphases added) (citations to cases and internal quotation marks omitted).

Pratts and the case at bar present different procedural postures. The ALJ in Pratts relied upon the hearing testimony of the impartial medical expert (Dr. Bonilla), although the transcript of Dr. Bonilla's testimony in the record was incomplete. In the case at bar, the ALJ discounted the hearing testimony of the impartial medical expert (Dr. Baldwin) because Dr. Baldwin had not examined the treatment notes of the claimant's treating psychologist (Dr. Porto) (although the ALJ had obtained those treatment notes and unaccountably failed to pass them on to the expert, who had requested them in the first instance). However, the Second Circuit in Pratts stressed the Commissioner's "regulatory obligations to develop a complete medical record before making a disability determination," and in the face of that overarching obligation, born of principles of fairness, this procedural difference is of no moment.

Pratts identifies an impartial medical expert in a disability case as the key witness. In the case at bar, Dr. Baldwin laid emphasis upon Dr. Porto's role as Jerolmon's treating psychologist over a number of years, and correctly noted Dr. Porto's opinion that Jerolmon suffered from a severe mental impairment that was Listed, with the designation 12-04. Dr. Hart, who examined Jerolmon on one occasion on behalf of the DDS, reached a different and more benign assessment of his capabilities. Dr. Baldwin made it clear, in his abbreviated testimony at the abbreviated hearing, that he could not express an opinion about whether Dr. Porto's or Dr. Hart's evaluation was correct without first examining Dr. Porto's treatment notes (Dr. Hart had no treatment notes because he never treated Jerolmon). Consider: If Dr. Baldwin, having examined Dr. Porto's notes, concluded that they were inconsistent with or did not support a 12.04 impairment assessment, one could not easily contend that substantial evidence did not support the ALJ's decision that Jerolmon was not disabled; but if Dr. Baldwin concluded that Dr. Porto's treatment notes supported that assessment, Jerolmon would be entitled in law to be classified as disabled, unless some persuasive reason existed for disregarding the opinions of the impartial medical expert and the treating psychologist.

While ALJ Horton read Dr. Porto's treatment notes and interpreted them in a manner adverse to Plaintiff's claim, in the particular circumstances of this case I am not prepared to accept the views of a lay person, however distinguished in law, as a substitute for a medical expert in the rendition of a medical/psychological opinion. Dr. Baldwin's inability to examine Dr. Porto's treatment notes, and his consequent inability to arrive at an informed opinion on the decisive medical question in the case, render Plaintiff's medical history record incomplete to a degree comparable to that identified by the Second Circuit in Pratts.

Having taken that view of the case, I respectfully cannot accept Judge Margolis's statement that "Dr. Porto's opinion was not consistent with his own treatment notes," R.R. at 43, whether one reads it as an expression of ALJ Horton's interpretation of the notes or that of the Magistrate Judge: no matter, in either event the interpreter is a member of the laity, and a professional opinion on the point from Dr. Baldwin is necessary to complete the medical record. For similar reasons, I cannot agree with Judge Margolis's conclusion at 44 n. 31 that, although she agreed with Plaintiff's contention that it is "unreasonable to suggest that a treating physician's notes are not essential to proper review by a physician that has never treated or examined a patient," nonetheless "the ALJ's conclusions are supported by substantial evidence." Given the unusual circumstances in this case, where the necessity of Dr. Baldwin's review of Dr. Porto's notes was agreed upon in principle by all concerned, and then abandoned by the ALJ in practice, the resulting gap in the medical record on the decisive question renders that record so incomplete that, to quote Pratts again, this Court "cannot say the ALJ's decision is supported by substantial evidence."

For these reasons, the Court will grant neither Plaintiff's motion for judgment on the pleadings nor the Commissioner's motion to affirm his decision. The Commissioner's decision denying Plaintiff disability benefits will be vacated, and the matter remanded to the Commissioner, with instructions that the ALJ send Dr. Porto's treatment notes to Dr. Baldwin forthwith and then reopen the hearing, so that the testimony of Dr. Baldwin may be resumed, subject to cross-examination by counsel for Plaintiff. Having heard further testimony from Dr. Baldwin, the ALJ may then wish to consider whether compliance with "the Commissioner's regulatory obligations to develop a complete medical record before making a disability determination," Pratts, 94 F.3d at 37, may require her to call Dr. Porto to testify at the reopened hearing, but the Court leaves that to the ALJ in the first instance.

C. Other Questions

I do not agree with Plaintiff that the ALJ's decision impermissibly denigrated Plaintiff's credibility with respect to his subjective symptoms and complaints. The ALJ correctly observed that the credibility of testimony describing such symptoms, when "not substantiated by objective medical evidence," must be evaluated "on a consideration of the entire case record." Tr. 12. The ALJ undertook to do that. The case turns upon which of the conflicting psychological evaluations should be accepted after the entire medical case record is completed on remand.

The significance to be given Dr. Porto's role as a treating psychologist is sufficiently reflected by the Court's order of remand.

Plaintiff contended before the Magistrate Judge that the ALJ erred in using the Medical-Vocational Guidelines, or Grid, in computing Plaintiff's residual functional capacity (fifth step of the disability evaluative process). Plaintiff's theory is that the Grid covers only exertional impairments, and not psychiatric disorders. The ALJ's decision said that the claimant's "ability to perform work at all exertional levels has been compromised by nonexertional limitations. However, these limitations have little or no effect on the occupational base of all exertional levels." It followed, the ALJ concluded, that "A finding of `not disabled' was "appropriate under the framework of section 204.00 in the Medical-Vocational Guidelines." Tr. 16-17.

The Magistrate Judge's Recommendation did not find it necessary to reach this question. R.R. at 47. On remand, the ALJ should revisit the issue, taking into consideration any additional evidence adduced at the reopened hearing. Guidance in this area is provided by the Second Circuit in Pratts v. Chater, 94 F.3d at 39:

V. CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings [Doc. 8] is DENIED. Defendant's Motion to Affirm the Decision of the Commissioner [Doc. 12] is DENIED. The Court does not adopt the Recommended Ruling [Doc. 15].

The case is REMANDED to Defendant for further proceedings consistent with this Ruling. The Clerk is directed to close the case.

It is SO ORDERED.