Hall v. Astrue

Filing 21

AMENDED ORDER granting judgment on the pleadings in favor of plaintiff and remanding for calculation of benefits. Signed by Hon. Richard J. Arcara on 10/26/2009. (JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

L IN D A K. HALL, Plaintiff, AMENDED DECISION AND ORDER 08-CV-00024-A

v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e fe n d a n t.

IN T R O D U C T IO N P la in tiff Linda Hall brings this action pursuant to 42 U.S.C. § 405(g), c la im in g that the defendant, Michael Astrue, the Commissioner of Social Security (th e "Commissioner"), improperly denied her application for disability benefits u n d e r the Social Security Act. The plaintiff claims to be disabled as a result of left k n e e osteomyelitis, left knee swelling/arthritis, right shoulder problems/tendonitis, a s th m a /e m p h ys e m a , mitral valve regurgitation, heart problems/palpitations, H e p a titis , anxiety, and depression. (R. 22). The Commissioner moves for ju d g m e n t on the pleadings pursuant to Fed. R. Civ. P. 12(c), on grounds that the A d m in is tra tive Law Judge's (ALJ's) decision was supported by substantial e vid e n c e in the record and is based upon the application of the correct legal s ta n d a rd s . Plaintiff also cross-moves for judgment on the pleadings, alleging that

the Commissioner's determination is erroneous and that she was and continues to be disabled. For the reasons stated herein, the Court grants judgment on the p le a d in g s for the plaintiff and finds that the matter must be remanded for c a lc u la tio n of benefits because the Commissioner's decision denying the plaintiff S o c ia l Security Income benefits ("SSI") was not supported by substantial e vid e n c e . Furthermore, a rehearing is unnecessary because there is substantial e vid e n c e on the record that the plaintiff is disabled as of September 29, 2003.

B AC K G R O U N D O n February 13, 2001, plaintiff Linda Hall, applied for SSI. (R. 21).1 H e r claim was denied on March 28, 2001, and denied again on reconsideration o n May 15, 2001. (R. 109, 115). A hearing was held before Administrative Law J u d g e ("ALJ") Eric Glazer on October 16, 2002. (R. 860-79). ALJ Glazer found th e plaintiff not disabled on November 27, 2002, and the plaintiff did not appeal th e decision. (R. 40-51). Instead, the plaintiff filed a new SSI application on April 4 , 2003, which was denied on September 19, 2003. (R. 59, 122). The plaintiff th e n requested an administrative hearing on October 17, 2003. (R. 63). A hearing was held before ALJ W illia m Pietz on September 20, 2 0 0 5 . (R. 880-909). On October 17, 2005, ALJ Pietz found the plaintiff not
1

"R." refers to the administrative record filed by the Commissioner as part of his

answer.

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disabled at any time since November 28, 2002, amending her alleged onset date to the day after ALJ Glazer's decision on the basis of res judicata.2 (R. 18-30). T h e plaintiff requested review of the ALJ's decision by the Appeals Council on D e c e m b e r 17, 2002 (R. 54), and subsequently retained counsel who submitted c o m m e n ts in support of her claim on October 3, 2006 (R. 925-31), as well as over tw o hundred additional pages of medical evidence, including new and material e vid e n c e . (R. 596-910, 914-24). The Appeals Council denied the request for re vie w on November 27, 2007. (R. 10-15). The plaintiff then commenced this action on January 11, 2008. The C o m m is s io n e r filed a motion for judgment on the pleadings on August 19, 2008, a n d the plaintiff cross-moved for judgment on the pleadings on September 18, 2008. T h e plaintiff was born on November 28, 1958, and was therefore fo rty-s ix years old as of the date of ALJ Pietz's decision. She completed some of h e r high school education, but failed classes in tenth and eleventh grade, and n e ve r graduated. (R. 864). Although she has performed some work in the past fifte e n years as a dishwasher and home health aide, the ALJ conceded that none

Plaintiff had previously filed an application for SSI on February 13, 2001, alleging disability since 1998. (R. 134-37). This application was denied, and plaintiff appealed the denial to ALJ Glazer, who issued a decision on November 27, 2002, finding that the plaintiff was not disabled through the date of the decision. (R. 40-48). Since the period from July 27, 2001 through November 27, 2002 had already been adjudicated by ALJ Glazer, ALJ Pietz applied res judicata and considered only the period after November 27, 2002 in his decision. (R. 21-22).

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of it was performed as substantial gainful activity, and therefore she had no past re le va n t work. (R. 28).

DISCUSSION T h is Court has jurisdiction under 42 U.S.C. § 405(g) to hear claims b a s e d on the denial of Social Security benefits. This Court may set aside the C o m m is s io n e r's decision only if it is based upon legal error or his factual findings a re not supported by substantial evidence. See 42 U.S.C. § 405(g). "Substantial e vid e n c e means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burgess v. Astrue, 537 F.3d 117, 127 (2d. Cir. 2008) (internal quotation marks omitted); R ic h a rd s o n v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison C o . v. NLRB, 305 U.S. 197, 229 (1938)). In order to establish disability under the Act, the plaintiff has the b u rd e n of demonstrating (1) that she was unable to engage in substantial gainful a c tivity by reason of a physical or mental impairment that could have been e xp e c te d to last for a continuous period of at least twelve months, and (2) that the e xis te n c e of such impairment was demonstrated by evidence supported by m e d ic a lly acceptable clinical and laboratory techniques. See 42 U.S.C. § 1 3 8 2 c (a )(3 ); see also Barnhart v. W a lto n , 535 U.S. 212, 215 (2002). Moreover, e lig ib ility for SSI based upon disability is conditioned upon compliance with the 4

income and resource requirements of 42 U.S.C. §§ 1382a and 1382b. T h e Commissioner has established a five-step sequential evaluation fo r the adjudication of disability claims: The first step of this process requires the Secretary to determine w h e th e r the claimant is presently employed. If the claimant is not e m p lo y e d , the Secretary then determines whether the claimant has a s e ve re impairment that limits her capacity to work. If the claimant h a s such an impairment, the Secretary next considers whether the c la im a n t has an impairment that is listed in Appendix 1 of the re g u la tio n s . W h e n the claimant has such an impairment, the S e c re ta ry will find the claimant disabled. However, if the claimant d o e s not have a listed impairment, the Secretary must determine, u n d e r the fourth step, whether the claimant possesses the residual fu n c tio n a l capacity to perform her past relevant work. Finally, if the c la im a n t is unable to perform her past relevant work, the Secretary d e te rm in e s whether the claimant is capable of performing any other w o rk . See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); 20 C.F.R. § 416.920. The b u rd e n is on the claimant at the first four steps of the evaluation. Bapp v. Bowen, 8 0 2 F.2d 601, 604 (2d Cir. 1986). If the claimant establishes that she is not c a p a b le of performing her past relevant work, then the burden shifts to the C o m m is s io n e r who must then determine whether the claimant is capable of p e rfo rm in g other work which exists in significant numbers in the national e c o n o m y. Id. T h e ALJ applied the five-step analysis in reaching his disability d e te rm in a tio n . 20 C.F.R. § 416.920. At the first step, the ALJ found that the p la in tiff had not engaged in substantial gainful activity since November 28, 2002 h e r alleged onset of disability. (R. 23). At the second step, the ALJ found that 5

the plaintiff's left knee impairment, obesity, chronic obstructive pulmonary d is e a s e , heart condition, and generalized anxiety disorder were severe im p a irm e n ts . (R. 24). The ALJ found that the plaintiff's past history of drug and a lc o h o l dependence, hepatitis B and C, hiatal hernia, right should tendonitis, and d ia b e te s were not severe impairments. (R. 23-24). Therefore, the ALJ p ro c e e d e d to step three of the sequential evaluation, and considered whether p la in tiff had an impairment, or combination of impairments, severe enough to m e e t or equal the criteria of one of any listed impairments that the Commissioner p re s u m e s are so severe as to preclude substantial gainful activity. See 20 C.F.R. § 416.920(d),(e). The ALJ found that the plaintiff's severe impairments did not m e e t or equal the criteria contained under the Listing of Impairments (Listings) of 2 0 C.F.R. Part 404, Appendix 1, Subpart P. (R. 25). Next, the ALJ considered the plaintiff's residual functional capacity (R F C ) and determined that she could do less than the full range of sedentary w o rk . See 20 C.F.R. § 416.920(f). The ALJ determined that the plaintiff could n o t do squatting, kneeling, climbing, more than incidental stair use, and was re s tric te d to following simple instructions. (R. 28). At step four, the ALJ c o n c lu d e d that the plaintiff had no past relevant work. Id. A t step five, the ALJ considered the plaintiff's RFC, age, and e d u c a tio n , and, relying on the testimony of the impartial vocational expert (VE) T im o th y Janikowski, determined that a finding of "not disabled" was directed by 6

Medical-Vocational Rules 201.18 and 201.24 of Appendix 2, Subpart P, R e g u la tio n s No.4. (28-29). In particular, the ALJ determined that the plaintiff c o u ld perform sedentary, unskilled work as a surveillance system monitor, dowel in s p e c to r, and final assembly worker. Id. The ALJ concluded that because the p la in tiff could perform work that exists in significant numbers in the national e c o n o m y, she failed to meet the standard for being deemed disabled under the S o c ia l Security Act. Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); Diaz v. S h a la la , 59 F.3d 307, 315 (2d Cir. 1995); see 20 C.F.R. § 416.920(e).

I.

P la in tiff is Per Se Disabled under Medical Listing 1.02A: Major Dysfunction of a Joint (Knee) T h e plaintiff first challenges the ALJ's determination that she is not

p e r se disabled under Medical Listing 1.02A. At step three in the disability p ro c e s s , the ALJ is required to evaluate the plaintiff under the Medical Listings c o n ta in e d in Appendix 1 to Subpart P of Part 404 - the Listing of Impairments. The ALJ found that the plaintiff's left knee osteomyelitis and arthritis with obesity d id not meet or equal Medical Listing 1.02. Listing 1.02A is classified as: M a jo r dysfunction of a joint(s) (due to any cause): Characterized by g ro s s anatomical deformity (e.g., subluxation, contracture, bony or fib ro u s ankylosis, instability), and chronic joint pain and stiffness with s ig n s of limitation of motion or other abnormal motion of the affected jo in t(s ), and findings on appropriate medically acceptable imaging of jo in t space narrowing, bony destruction, or ankylosis of the affected 7

joints. W ith : A. Involvement of one major peripheral weight-bearing jo in t (i.e., hip, knee, or ankle), resulting in inability to ambulate e ffe c tive ly as defined in 1.00B2b. S e c tio n 1.00B2b states that: T o ambulate effectively, individuals must be capable of sustaining a re a s o n a b le walking pace over a sufficient distance to be able to carry o u t activities of daily living. They must have the ability to travel w ith o u t companion assistance to and from a place of employment or w o rk . Therefore, examples of ineffective ambulation include, but are n o t limited to, the inability to walk without the use of a walker, two c ru tc h e s or two canes, the inability to walk a block at a reasonable p a c e on rough or uneven surfaces, the inability to use standard p u b lic transportation, the inability to carry out routine ambulatory a c tiv itie s , such as shopping and banking, and the inability to climb a fe w steps at a reasonable pace with the use of a single handrail . . . 2 0 . C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b). In finding that the plaintiff's left knee osteomyelitis and arthritis with o b e s ity did not meet or equal Medical Listing 1.02, the ALJ held that although the p la in tiff "exhibited an infection in the left knee, . . . this osteomyeltis infection re s o lve d with care and treatment on March 26, 2004 in accordance with the re p o rt of a treating source, Dr. Schwach." (R. 24). The plaintiff's knee infection d id resolve for a time, but her residual knee impairment persisted. The report fro m Dr. Schwach that the ALJ cites specifies that although the left knee o s te o m ye litis resolved, "there are some ongoing permanent joint symptoms," "th e re will be permanent impairment in the left knee," and "she is ambulating with a walker and putting partially [sic] weight on it." (R. 469). The plaintiff has to use a walker for most ambulation because of her s e ve re left knee impairment, caused by osteomyelitis and septic arthritis. (R. 8

466). She has documented deformity of the knee (R. 383, 441), accompanied by p a in (R. 334, 370, 380-387, 400, 474, 553, 604, 714, 771, 781, 835, 838, 852), s tiffn e s s (R. 370, 468), and a limited range of motion (R. 370, 467, 469, 604, 714, 7 7 0 , 781, 835). She therefore fulfills all of the requirements of 1.02: deformity of a knee, with pain, stiffness, and a limitation of motion, caused by aseptic arthritis w ith X-ray documentation of bony deterioration (erosion with lucent and sclerotic c h a n g e s throughout the knee). (R. 466). T h e second requirement under Medical Listing 1.02A, an inability to a m b u la te effectively as defined in 1.00B2b, is also proven conclusively. The p la in tiff's left knee osteomyelitis involved a weight-bearing joint (the knee), and s h e was unable to ambulate effectively, as demonstrated by her reliance upon a w a lk e r after her knee infection (R. 371, 381, 383, 386, 387, 436, 440, 469, 604, 8 3 4 ), and a repeatedly noted abnormal gait even when using a walker. (R. 371, 8 3 8 , 852). The ALJ noted in his decision that the plaintiff used a walker because o f her left knee pathology, and did not contend that it is not medically necessary. (R. 27). There is no evidence to refute Dr. Schwach's finding that the plaintiff is p e rm a n e n tly disabled and could not walk more than 30 feet. (R. 714). At the h e a rin g , the plaintiff testified that she could not even walk half a block. (R. 895). T h e Commissioner contends that there is no evidence that the p la in tiff's serious knee deformity persisted for a continuous period of twelve m o n th s . See Barnhart v. W a lto n , 535 U.S. 212, 218-222 (2002). W h ile the 9

plaintiff's condition did improve at times, each time was followed by an increase in k n e e problems. The plaintiff initially injured her knee on September 29, 2003, w a s still disabled as of a March 9, 2005 examination, and had a serious knee d e fo rm ity throughout this period. (R. 370, 383, 400, 441, 467-469, 604, 714, 7 7 0 , 781, 835). As the plaintiff fulfills the per se requirements of being disabled u n d e r Medical Listing 1.02A, and substantial evidence does not support the ALJ's fin d in g , the plaintiff is found to be disabled.

II.

T h e ALJ Erroneously Failed To Give Controlling Weight to the O p in io n of the Plaintiff's Treating Physician T h e opinion of the plaintiff's treating orthopedic surgeon, Dr.

S c h w a c h , should have been given controlling weight by the ALJ. On November 2 6 , 2003, the plaintiff was admitted to the emergency room at Olean General H o s p ita l for continued pain in her left leg. (R. 334-335). An examination revealed th a t she was in moderate distress and there was a significant amount of swelling a n d tenderness along the knee. (R. 334-35). A bone scan performed on D e c e m b e r 4, 2003 revealed osteomyelitis involving the femoral condyle and tibial p la te a u . Id. X-rays of the left knee showed swelling and erosion and joint fluids s u g g e s tive of osteomyelitis. Id. An MRI showed patchy infiltrates of edema both in the distal femur and in the proximal tibia. Id. The plaintiff was seen in c o n s u lta tio n by Dr. Schwach, who felt that she had septic arthritis, and started her

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on Vancomycin. Id. Dr. Schwach did an arthroscopy that showed an infection of th e left knee joint and arthrofibrosis. Id. Because of the severity of the infection, it was felt that the plaintiff would require at least eight weeks of IV antibiotic th e ra p y. Id. She was transferred to another facility for this care. Id. Her d is c h a rg e medications were Advair, Xopenex, Atrovent, Paxil, Lovenox, Vioxx, V a n c o m yc in , Cardizem, Duragesic, and Lortab. Id. Her final diagnoses were s e p tic arthritis, streptococcus sepsis, hepatitis B and C, depression, history of d ru g and alcohol use, and chronic obstructive lung disease. (R. 334). The p la in tiff was subsequently treated at Manor Oak Life Center through January 20, 2 0 0 4 for the remainder of her antibiotics course. (R. 352-353). On February 5, 2004, Dr. Schwach evaluated the plaintiff at a fo llo w -u p visit. (R. 466-467). His examination revealed minimal swelling of the le ft knee and a range of motion from 30 to 70 degrees. Id. X-rays of the left knee s h o w e d erosion of the medial condyle and lateral condyle of the femur as well as e ro s io n s of the medial tibial plateau. Id. There were also some sclerotic changes o n the medial plateau and medial condyle of the femur, which is consistent with o s te o m ye litis . Id. On February 27, 2005, the plaintiff had a follow up with Dr. S c h w a c h . (R. 468). She reported that she was hopping on her leg, using a knee b ra c e , and attending therapy. Id. On exam, Dr. Schwach found an area of re d n e s s over the left knee, limitation of flexion and extension, and marked q u a d ric e p s atrophy. Id. Dr. Schwach diagnosed marked degree of stiffness in 11

her knee due to arthrofibrosis from an infection. He discontinued use of the knee im m o b iliz e r and advised her to advance to weightbearing as tolerated. Id. On M a rc h 26, 2004, Dr. Schwach noted motion limited from 10 to 45 degrees, some in s ta b ility to stress testing medially and laterally, and some effusion. (R. 469). Dr. Schwach opined that there would be ongoing permanent joint symptoms, in c lu d in g permanent swelling and possible permanent instability. The doctor re c o m m e n d e d ambulation with a walker and only putting partial weight on her k n e e . Id. In a note dated March 26, 2004, Dr. Schwach indicated that the plaintiff h a d a "permanent impairment of left knee due to osteomyelitis/arthrofibrosis." (R. 8 4 ). On August 9, 2005, the plaintiff returned to Dr. Schwach for a fo llo w -u p visit. (R. 714). She reported that the knee did not want to lockup, and s h e could only walk for 30 feet with crutches. Dr. Schwach opined that although th e re were no further signs of infection, she had chronic pain and loss of motion, w h ic h he expected to be permanent. Dr. Schwach wrote, "I believe she will p ro b a b ly be permanently disabled from work as a result of this condition." (R. 7 1 4 ). On November 10, 2005, the plaintiff reported continued symptoms of pain, w h ic h required Lortab and Duragesic. (R. 604). She complained of h yp e re xte n s io n , chronic aching pain, difficulty walking more than 30 feet, and a n e e d to use a walker or cane to get around. Id. On examination, Dr. Schwach n o te d some shortening of the left leg, a range of motion from 3-90 degrees, and 12

moderate tenderness over the medial joint line. Id. X-rays showed posttraumatic a rth ritis in the left knee associated with septic arthritis of the knee and "quite a bit o f destruction of the joint." Id. Dr. Schwach diagnosed her with "arthritis of the le ft knee, which is severe and disabling in nature," and wrote that, "It would be my im p re s s io n that Linda is disabled from work, especially any kind of factor [sic] w o rk or assembly line work due to the significant problems of her knee." Id. An MRI of the left lower extremity dated February 15, 2006 showed s ig n ific a n t degenerative changes around the left knee in a manner compatible w ith prior septic osteoarthritis, and some residual edema. (R. 736). A bone scan o n the same date showed findings that "could imply" some residual inflammation o r possible healing process from the past infection. (R. 737). In September 2 0 0 6 , the plaintiff had a total knee replacement done at Buffalo General Hospital. (R. 834). It was noted that the plaintiff was attending therapy and ambulated with a walker. Id. On December 8, 2006, the plaintiff stated that she was recently tre a te d for local cellulitis, and had pain in the lower leg with certain activities of w e ig h t bearing. (R. 835). On examination, Dr. Schwach noted areas of te n d e rn e s s along the lateral margin of the fibula going from midshaft down to w a rd s the lateral malleolus and range of motion from 5 to 95 degrees. Id. He re c o m m e n d e d therapy and prescribed Lortab. Id. O n March 27, 2007, the plaintiff complained of problems with pain in h e r thigh and upper leg on the right. (R. 838). Dr. Schwach observed that she 13

walked with a limping gait, and his examination revealed pain with rotational m a n e u ve rs , slightly restricted on leg abduction and adduction, and left knee fle xio n and extension from 4 to 110 degrees. Id. Dr. Schwach diagnosed gait a b n o rm a lity secondary to muscle imbalance in the right lower extension, and p o s s ib le torn medial meniscus or arthritis in the right knee or right hip. Id. He re c o m m e n d e d X-rays of the pelvis, right femur, and knee, and an MRI of the right k n e e . Id. On April 11, 2007, Dr. Schwach reported that an MRI of the right leg s h o w e d minimal chondropathic changes. (R. 847). Examination showed mild p a lp a b le tenderness in the quadriceps in the proximal thigh and he again re c o m m e n d e d X-rays. Id. On April 26, 2007, the plaintiff complained of pain fro m her back and hip going down her leg to her calf. (R. 852). Dr. Schwach n o te d that an MRI of the lumbar spine revealed small bulging discs. Id. In his e xa m in a tio n , he noted tenderness in the calf and loss of mobility in the plaintiff's k n e e . Id. Dr. Schwach felt that the plaintiff's favoring of her hip and knee were p ro b a b ly throwing off her gait and recommended physical therapy. Id. T h e Commissioner alleges that Dr. Schwach's statements from A u g u s t 9, 2005 ("probably be permanently disabled") and November 10, 2005 ("d is a b le d from work") do not state that plaintiff was disabled from all work. (R. 6 0 4 , 714). These statements alone do not lead to a determination that the p la in tiff is disabled, as 20 C.F.R. § 416.927(e)(1) states that, "A statement by a m e d ic a l source that you are `disabled' or `unable to work' does not mean that we 14

will determine that you are disabled." The plaintiff has not been determined to be d is a b le d because of Dr. Schwach's statements; rather, the plaintiff is disabled b e c a u s e her impairments fit the description of Medical Listing 1.02A. Dr. S c h w a c h 's opinion simply reinforces the finding that plaintiff is disabled. Furthermore, as a treating physician, Dr. Schwach's opinion on the issue of the n a tu re and severity of the plaintiff's impairments should be given controlling w e ig h t because his opinion is well supported by medically acceptable clinical and la b o ra to ry diagnostic techniques and is not inconsistent with the other substantial e vid e n c e in the case record. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2 d . Cir. 2003); 20 C.F.R. § 404.1527(d)(2). Dr. Schwach was not offering an o p in io n on the ultimate issue of legal disability, but rather on the nature and s e ve rity of the plaintiff's impairments. See Green-Younger, 335 F.3d at 106. As a treating physician, Dr. Schwach's opinion can have and should h a ve controlling weight in the analysis of the plaintiff's disability. This Court has p re vio u s ly held that: [A ]lth o u g h the ultimate issue of disability is reserved to the C o m m is s io n e r, relieving the Commissioner of having to credit a tre a tin g physician's finding of disability, the administrative d e c is io n m a k e r is not relieved from the obligation under §§ 4 0 4 .1 5 2 7 (d )(2 ) and § 416.927(d)(2) . . . to explain why a treating p h ys ic ia n 's opinion is not credited. M o n ta lvo v. Barnhart, 457 F.Supp.2d 150, 168 (W .D .N .Y . 2006)(Elfvin, J.). A s mentioned in the above quotation, § 416.927(d)(2) states that: 15

Generally, we give more weight to opinions from your treating s o u rc e s , since these sources are likely to be the medical p ro fe s s io n a ls most able to provide a detailed, longitudinal picture of yo u r medical impairment(s) and may bring a unique perspective to th e medical evidence that cannot be obtained from the objective m e d ic a l findings alone or from reports of individual examinations, s u c h as consultative examinations or brief hospitalizations. If we find th a t a treating source's opinion on the issue(s) of the nature and s e ve rity of your impairment(s) is well-supported by medically a c c e p ta b le clinical and laboratory diagnostic techniques and is not in c o n s is te n t with the other substantial evidence in your case record, w e will give it controlling weight. 20 C.F.R. § 416.927(d)(2). The ALJ harshly dismissed the opinion of treating physician Dr. S c h w a c h as unsupported by details, objective findings, and inconsistent with the re c o rd as a whole, writing that, "there are no statements by a physician asserting th a t the claimant can not do any kind of work, except a mere prescription pad c o n c lu s o ry statement by Dr. Schwach that the claimant is `disabled' due to septic a rth ritis of the left knee and diabetes that was tendered at the hearing." (R. 27) (e m p h a s is added). However, the ALJ has not cited to any objective or clinical fin d in g s that contradicted those of Dr. Schwach. There are also numerous d ia g n o s tic studies that support Dr. Schwach's opinion, including an MRI which s h o w e d patchy infiltrates of edema both in the distal femur and in the proximal tib ia (R. 334), X-rays of the left knee which showed swelling and erosion and joint flu id s suggestive of osteomyelitis (Id.), X-rays which showed an effusion to the le ft knee (R. 400), and X-rays of the left knee which showed erosion with lucent 16

and sclerotic changes throughout the knee, more pronounced medially than la te ra lly consistent with osteomyelitis. (R. 466). T h e ALJ did not find that Dr. Schwach's opinion was contradicted by a n y other medical source of record, but instead only erroneously concluded that h is opinion was not based on sufficient clinical or diagnostic studies. "Generally, th e Commissioner grants the opinion of a treating physician controlling weight o n ly if the opinion is well supported by medically acceptable clinical and la b o ra to ry diagnostic techniques and not inconsistent with other substantial e vid e n c e in the record, such as the opinions of other medical experts." Ianni v. B a rn h a rt, 403 F.Supp.2d 239, 255 (W .D .N .Y . 2005); Halloran v. Barnhart, 362 F .3 d 28, 31(2d Cir. 2004) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2 0 0 2 )). An ALJ is required to provide "good reasons" in his decision for the w e ig h t he gives a treating source's opinion. See Halloran, 362 F.3d at 32; 20 C .F .R . § 416.927(d)(2). As the ALJ did not provide "good reasons" to counter Dr. S c h w a c h 's opinions and findings, Dr. Schwach's opinion is entitled to controlling w e ig h t. A c c o rd in g ly , as the ALJ erroneously found that the medical opinion o f Dr. Schwach was unsupported by the record, Dr. Schwach's opinion as a tre a tin g physician will be given controlling weight and the plaintiff is found to be d is a b le d under Medical Listing 1.02A.

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CONCLUSION T h is Court finds that the Commissioner's decision denying the p la in tiff SSI was not supported by substantial evidence. The record contains s u b s ta n tia l evidence of disability such that further evidentiary proceedings would s e rve no purpose. Therefore, judgement on the pleadings in favor of the plaintiff is granted. This matter is remanded to the Social Security Administration for c a lc u la tio n of benefits commencing September 29, 2003, the date of onset of p la in tiff's knee injury.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: October 26, 2009

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