Brandon v. Bowen

• Decision Date: 12 August 1987
• Docket Number: No. 86 Civ. 1999 (PKL).,86 Civ. 1999 (PKL).
• Citation: 666 F. Supp. 604
• Parties: Shirley BRANDON, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

666 F. Supp. 604

Shirley BRANDON, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

No. 86 Civ. 1999 (PKL).

United States District Court, S.D. New York.

August 12, 1987.

Marshall Green, The Legal Aid Society, Bronx, N.Y., for plaintiff; Anthony V. Alfieri, of counsel.

Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City, for defendant; Edward T. Ferguson, III, of counsel.

OPINION & ORDER

LEISURE, District Judge:

The parties have cross-moved, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings in this action to review a denial of Social Security disability benefits.

Factual Background

On August 31, 1984, plaintiff applied for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, claiming she has a disability caused by asthma, osteoarthritis, and hypertension, which has prevented her from working since November 11, 1983. The application was denied, both initially and on reconsideration, on the ground that plaintiff was not disabled and was capable of continuing to perform her job as a machine operator in the garment industry.

Plaintiff then requested a hearing on the matter, which was held on May 10, 1985, before an Administrative Law Judge (the "ALJ") of the Social Security Administration's Office of Hearings and Appeals. Plaintiff was represented by counsel at the hearing. On July 5, 1985, the ALJ issued a decision finding that plaintiff was not disabled within the meaning of the Social Security Act and thus was not eligible for disability benefits. On January 10, 1986, the Appeals Council of the Social Security Administration's Office of Hearings and Appeals denied plaintiff's request for review of the ALJ's decision, which thereupon became the final decision of the Secretary of Health and Human Services (the "Secretary" of "HHS"). Plaintiff commenced this action, pursuant to 42 U.S.C. § 405(g), on March 7, 1986. Plaintiff contends that: (1) the Secretary misapprehended the treating physician rule governing in the Second Circuit; and (2) the Secretary wrongly evaluated plaintiff's subjective complaints of pain.

Treating Physician Rule

"The scope of review of a disability determination ... involves two levels of inquiry." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987). The Court "must first decide whether HHS applied the correct legal principles in making the determination." Id. The Court "must then decide whether the determination is supported by `substantial evidence.'" Id. (citing 42 U.S.C. § 405(g) (1982)). "Substantial evidence may be found whenever the record contains `such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.'" Moore v. Secretary of Health and Human Services, 778 F.2d 127, 130 (2d Cir.1985) (citation omitted).

"The expert opinion of a claimant's treating physician is entitled to particular weight." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). See also Bluvband v. Heckler, 730 F.2d 886, 892-93 (2d Cir.1984); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir.1978). It has been the rule in the Second Circuit "for the past 15 years that the expert opinion of a claimant's treating physician regarding his `medical disability, i.e. diagnosis and nature and degree of impairment, is ... binding on the factfinder unless controverted by substantial evidence.'" Hidalgo v. Bowen, 822 F.2d 294, 296-97 (2d Cir.1987) (citation omitted). The cases in which the Court of Appeals for the Second Circuit has reversed the denial of benefits due to the ALJ's failure to apply properly the treating physician rule are legion. Id. See also Havas v. Bowen, 804 F.2d 783, 785-86 (2d Cir.1986).

The principal portion of the ALJ's decision in this case which can reasonably be interpreted as pertaining to the treating physician rule states as follows:

A preponderance of the evidence establishes that the claimant has minimal osteoarthritis of the hands, knees and lumbosacral spine. The undersigned Administrative Law Judge considered the physical assessment of Dr. Petersen-Baez of Hunts Points Multi-Service Center but notes that such assessment is not consistent with the findings noted in the records from that center. The undersigned therefore concludes that the physical assessment is not compatible with a preponderance of the evidence and concludes that the claimant retains the ability to perform a substantial amount of walking and standing and is able to use her hands for grasping and manipulating.

See Administrative Record ("AR") at 17. Although the ALJ agreed with the treating physician that plaintiff has hypertension, osteoarthritis and asthma, the ALJ concluded that plaintiff has sufficient residual functional capacity to continue to perform her past work. AR at 18.¹

The ALJ was required to accord "`some extra weight' to the professional opinion of the treating physician," and could reject that opinion only if he "concluded that substantial evidence contradicted" it. Johnson, 817 F.2d at 986 (citation omitted). In this case, the ALJ examined parts of the record other than the report of the treating physician, Dr. F. Petersen-Baez, and found, by a preponderance of the evidence, that plaintiff has only "minimal osteoarthritis...." AR at 17. The ALJ then "considered" the treating physician's opinion, but termed it inconsistent with certain findings in the medical records before him. Id. The ALJ concluded that the treating physician's opinion was "not compatible with a preponderance of the evidence" and thus rejected it. Id.

In this case, the treating physician has examined plaintiff at least monthly since June 1, 1971. AR at 236. Yet the ALJ failed, as required, to provide "specific, legitimate reasons" for rejecting his opinion.² See Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). The ALJ merely stated that the treating physician's assessment was "not consistent" with certain unspecified findings in the medical records. This statement of reasons is insufficient to allow the Court to assess whether the treating physician's opinion was properly rejected.³ See Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir.1983); Carnevale v. Gardner, 393 F.2d 889, 891 (2d Cir.1968).

The Secretary argues that the Court must affirm his decision so long as the ALJ's ultimate conclusion is supported by substantial evidence in the record. See, e.g., Defendant's Memorandum of Law at 6, 12-13. This argument has recently been rejected by the Court of Appeals for the Second Circuit.

Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles. The history of litigation concerning the treating physician rule regrettably precludes our indulging the decision makers in HHS with a presumption that in cases such as this the treating physician rule was faithfully applied and merely not mentioned.

Johnson, 817 F.2d at 986.⁴

Evaluation of Pain

Plaintiff also contends that the ALJ wrongly evaluated her subjective complaints of pain. The ALJ rejected plaintiff's complaints of pain and other symptoms, even though corroborated in part by the reports of the treating physician and an "impartial consultant," and relied instead on the absence of "objective findings for the alleged complaints." AR at 16-17, 223-28, 236-41.⁵ Where subjective symptoms are reported, the ALJ has discretion to evaluate the credibility of the claimant and to arrive at an independent judgment, in light of the medical findings and other evidence, regarding the true extent of the pain alleged. Compare McLaughlin v. Secretary of Health, Education and Welfare, 615 F.2d 701, 705 (2d Cir.1980) and Marcus v. Califano, 615 F.2d 23, 27-28 (2d Cir.1979) with Franklin v. Secretary of Health, Education and Welfare, 393 F.2d 640, 642 (2d Cir.1968) and Peterson v. Gardner, 391 F.2d 208, 209-10 (2d Cir. 1968). If the ALJ decides to reject subjective testimony concerning pain and other symptoms, he must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence.⁶ See Tome, 724 F.2d at 713; Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1045 (2d Cir.1984); Bluvband, 730 F.2d at 894; Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984).

In this case, the ALJ merely stated, with regard to plaintiff's testimony as a whole, that "claimant's allegations of experiencing pain are not consistent with a preponderance of the evidence and are not credible." AR at 18. The Court cannot discern from this conclusory statement whether the ALJ's determination is based on substantial evidence.⁷ This uncertainty is exacerbated by the ALJ's apparent reliance on his description, in an earlier portion of his decision, see AR at 17, of his own observations of plaintiff at the hearing. The rendition of an expert medical opinion is beyond the ALJ's competence. Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir.1981). Accordingly, such observations are entitled to limited weight. See DeLeon, 734 F.2d at 935; Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir.1983); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 643 (2d Cir.1983).⁸

For the foregoing reasons, in order to insure that the correct legal principles are applied to the determination of plaintiff's disability claim and to allow the Court to decide whether the ALJ's determination is supported by substantial evidence, it is appropriate to remand this case to HHS for reconsideration and further development of the evidence in accordance with this opinion. See,...