134 F.

3d 496
149 A.L.R. Fed. 679, 55 Soc.Sec.Rep.Ser. 128

Rita SCHAAL Plaintiff-Appellant,

v.
Kenneth S. APFEL, Commissioner of Social Security,
Defendant-Appellee.1
Dockets 96-6212, 96-6316.
United States Court of Appeals,
Second Circuit.
Argued Dec. 11, 1997.
Decided Jan. 23, 1998.

Carolyn A. Kubitschek, Lansner & Kubitschek, New York City (Irwin M.

Portnoy, Newburgh, NY, on the brief), for Plaintiff-Appellant.
Karen G. Fiszer, Assistant Regional Counsel, Social Security
Administration, New York City (Arthur J. Fried, General Counsel, Social
Security Administration; Barbara L. Spivak, Chief Counsel--Region II, on
the brief), for Defendant-Appellee.
Before: ALTIMARI, WALKER, and CABRANES, Circuit Judges.
JOSE A. CABRANES, Circuit Judge:

Plaintiff-appellant Rita Schaal appeals from an order and judgment of the

United States District Court for the Northern District of New York upholding
the decision of the Commissioner of Social Security that she was not entitled to
Supplemental Security Income ("SSI") disability benefits under Title XVI of
the Social Security Act, 42 U.S.C. 1381 et seq. (the "Act").2 She also appeals
from an order and judgment of the district court denying her motion for relief
from the judgment pursuant to Federal Rule of Civil Procedure 60(b). We
conclude that it is not clear what legal standard the administrative law judge
("ALJ") applied in weighing the medical opinion of plaintiff's treating
physician, and that the ALJ failed to provide a required statement of valid
reasons for discounting the treating physician's opinion. Accordingly, we
vacate the judgment of the district court insofar as it upheld the Commissioner's

decision to deny SSI benefits and we remand to the district court with
instructions to enter a judgment remanding the case to the Social Security
Administration ("SSA") in order that an ALJ may reweigh the evidence under
the correct legal standard. In view of our disposition of the case, we need not
act upon the appeal from the denial of appellant's Rule 60(b) motion.
I.
2

Plaintiff filed a pro se application with the SSA for SSI disability benefits on
August 14, 1990. She initially alleged disability resulting from allergies and
painful varicose veins. This application was denied, reconsidered, and denied
again. At plaintiff's request a hearing was then held on December 21, 1990,
before an ALJ, pursuant to 20 C.F.R. 416.1400. On February 8, 1991, the
ALJ ruled that plaintiff was not eligible for SSI benefits because she was not
"disabled" for purposes of the Act.

Plaintiff requested that the ALJ's decision be reviewed by the SSA's Appeals
Council, which granted review and vacated the ALJ's decision on the ground
that the ALJ had failed to meet his "special duty to assist a pro se claimant and
to inquire into and explore all relevant facts" (citing Echevarria v. Secretary of
Health & Human Servs., 685 F.2d 751, 755 (2d Cir.1982)). Specifically,
although plaintiff had said she was being treated by a physician, the ALJ made
no effort to obtain medical records from this physician. The case was remanded
to the ALJ for further proceedings. However, because repeated attempts to
contact plaintiff were unsuccessful, her case was dismissed pursuant to 20
C.F.R. 416.1457. Subsequently, plaintiff requested that the dismissal of her
case be reviewed. She was granted a new hearing before the same ALJ, who
conducted the hearing on June 6, 1993, during which plaintiff was represented
by counsel.

The ALJ heard plaintiff's testimony regarding her condition and also reviewed
medical treatment notes and reports by various physicians. Plaintiff testified
that she was 39 years old, that she had attended high school through the twelfth
grade, but that she "had difficulty learning" and attended "special classes"
where she was taught sewing. She further testified that she suffered from "a lot
of pain in [her] legs" that prevented her from walking very far, as well as
asthma and allergies that sometimes made breathing difficult. According to the
"Disability Report" that she filed with the SSA, she had held a job as a garment
"sewer" for six months in 1984 but otherwise had not been employed during the
preceding 15 years. She testified at the hearing that she had lost her job as a
sewer because her allergies, which were triggered by dust, caused her to choke
and vomit on the garments.

The medical evidence considered by the ALJ included the following: Plaintiff
had been examined by Dr. Ravi Ramaswami on September 13, 1990, who
found that she suffered from "mild varicosities bilaterally" and "mild chronic
obstructive pulmonary disease." In December 1990, plaintiff began receiving
treatment at the Mid-Hudson Family Health Institute's Kingston Family
Practice Center ("Mid-Hudson"). A Mid-Hudson "physical examination" report
dated December 3, 1990 indicated "tortuous varicosities" in her left leg and
"lesser varicosities" in her right leg. Otherwise, the report indicated that
plaintiff was "comfortable, [and] in no distress." Medical treatment notes from
a subsequent visit to Mid-Hudson on January 16, 1991 noted controlled asthma,
varicosities, and "chronic stable anxiety." The notes also recorded that surgery
for plaintiff's varicosities was "pending." Plaintiff was hospitalized for surgical
"excision of multiple varicosities" in her left leg in February 1991.

On December 10, 1992, plaintiff was examined by Dr. Reuben Mokotoff, who
concluded that she "does not appear to have a true allergy" but that "she has
breathing problems" that "sound more like post-infectious asthma." He also
found "superficial varicosities" in her right leg. His medical report indicated
that she was 5'6" tall and weighed 250 pounds at that time. On a form labeled
"Medical Assessment of Ability to Do Work-Related Activities (Physical)," Dr.
Mokotoff indicated that plaintiff's lifting and carrying capacity was unimpaired.
He found that plaintiff's capacity for standing and walking was limited but
could not quantify the number of hours that she would be able to stand or walk
during a typical work day. Dr. Mokotoff also recommended a neurological
examination because plaintiff exhibited some loss of sensation in her right leg.
On February 1, 1993, the ALJ requested a neurological consultation by Dr.
Stanley Mandell, which took place on March 30, 1993. Dr. Mandell found no
"evidence of a structural lesion in the central or peripheral nervous system." He
also indicated that plaintiff's capacities for lifting, carrying, standing, and
walking were unimpaired.

Plaintiff submitted a questionnaire completed by Dr. Mark Jobson, who

apparently began treating her at the Mid-Hudson clinic on October 29, 1992.
Dr. Jobson completed this questionnaire on May 28, 1993. The questionnaire
consisted of a series of questions, followed by spaces for "yes" or "no" check
marks. This was the same format used in the forms filled out by Drs. Mokotoff
and Mandell, except that instead of requesting a separate written explanation of
the "yes" or "no" answers, Dr. Jobson's questionnaire simply asked whether as
a general matter the physician's diagnosis was "confirmed by medical signs and
findings established by medically acceptable clinical or laboratory diagnostic
techniques." By checking "yes" on the form Dr. Jobson indicated that plaintiff
was disabled based on objective medical findings, that she would have trouble

working six hours per day without intermittent breaks, that she would have to
alternate between sitting and standing, and that it would be reasonable to expect
that her symptoms would result in frequent absences from the workplace. By
checking "no" he indicated that she would not have to lie down and rest during
an eight-hour work day and that there was no manifestation of "increased
nervousness, depression or anxiety."
8

On July 27, 1993, having heard and weighed the above evidence, the ALJ
again ruled that plaintiff was not disabled. Plaintiff requested review of the
ALJ's decision, and along with this request submitted to the Appeals Council
Dr. Jobson's treatment notes. The Appeals Council denied review on November
9, 1993. The following day, plaintiff submitted additional evidence, including a
note from Dr. Jobson stating that based upon his current examination of
plaintiff and his review of her prior medical records, it was his view that she
was "totally disabled and has been disabled, for the past 3 years, since 1990."
The Appeals Council again denied review, and the ALJ's decision became the
final decision of the Commissioner on December 30, 1993.

Plaintiff then filed this action in the United States District Court for the
Northern District of New York (Thomas J. McAvoy, Chief Judge ) pursuant to
42 U.S.C. 405(g), and submitted additional evidence from a psychologist, Dr.
Wilson Meaders. Dr. Meaders' treatment notes described plaintiff's depression
and history of abusive relationships. On a form labeled "Psychiatric Report
(Employment)" he indicated that plaintiff "has intense social phobia that makes
work impossible."

10

Chief Judge McAvoy referred the case to Magistrate Judge Gustave J.

DiBianco, who on October 17, 1995 issued a Report and Recommendation
upholding the Commissioner's decision. This Report and Recommendation was
adopted in full by Chief Judge McAvoy, who therefore dismissed the action
and entered judgment for the Commissioner on June 11, 1996.

11

Plaintiff then filed a motion for relief from the district court's judgment
pursuant to Federal Rule of Civil Procedure 60(b). With this motion, plaintiff
submitted evidence that on March 22, 1996, the Commissioner had ruled on a
separate application for SSI benefits filed by plaintiff on September 15, 1995.
In ruling upon this second application for benefits, the Commissioner had found
that as of October 10, 1993, but not before, plaintiff was disabled due to an
"anxiety-related disorder."3

12

On August 7, 1996, prior to filing her Rule 60(b) motion, plaintiff had timely

filed an appeal of the district court's judgment upholding the Commissioner's

decision denying SSI benefits under plaintiff's original application. That appeal
was withdrawn without prejudice pending the district court's ruling on the Rule
60(b) motion. Chief Judge McAvoy denied plaintiff's motion for relief from the
judgment on October 23, 1996, after which plaintiff reinstated her original
appeal. She also filed an appeal of the district court's order denying her Rule
60(b) motion. These appeals were subsequently consolidated.
13

On appeal, plaintiff now contends, inter alia, (1) that the ALJ applied incorrect
legal standards in weighing the opinion of her treating physician and in judging
the credibility of her own testimony concerning her symptoms; (2) that the ALJ
erroneously failed to develop the administrative record regarding her mental
condition; (3) that the district court erroneously failed to remand to the SSA for
consideration of new and material evidence; and (4) that the district court erred
in refusing to grant plaintiff's motion for relief from the judgment.

II.
14

In reviewing the denial of SSI benefits by the SSA, "our focus is not so much
on the district court's ruling as it is on the administrative ruling." See Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir.1991) (internal quotation marks and
citation omitted). In reviewing the district court's decision, "we undertake our
own plenary review of the administrative record," Pratts v. Chater, 94 F.3d 34,
37 (2d Cir.1996) (internal quotation marks and citation omitted). However, in
examining the ALJ's decision, "[i]t is not our function to determine de novo
whether [plaintiff] is disabled," id. Rather, we must determine whether the
Commissioner's conclusions "are supported by substantial evidence in the
record as a whole or are based on an erroneous legal standard." Beauvoir v.
Chater, 104 F.3d 1432, 1433 (2d Cir.1997) (internal quotation marks and
citation omitted); see 42 U.S.C. 405(g). Substantial evidence is "more than a
mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (internal quotation marks
and citation omitted).

15

The Social Security Act defines "disability" in relevant part as the "inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or 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). The SSA has promulgated
administrative regulations for determining when a claimant meets this
definition.

16

First, the SSA considers whether the claimant is currently engaged in

substantial gainful employment. If not, then the SSA considers whether the
claimant has a "severe impairment" that significantly limits the "ability to do
basic work activities." 20 C.F.R. 404.1520. If the claimant does suffer such an
impairment, then the SSA determines whether this impairment is one of those
listed in Appendix 1 of the regulations. If the claimant's impairment is one of
those listed, the SSA will presume the claimant to be disabled. If the
impairment is not so listed, then the SSA must determine whether the claimant
possesses the "residual functional capacity" 4 to perform his or her past relevant
work. Finally, if the claimant is unable to perform his or her past relevant work,
then the burden shifts to the SSA to prove that the claimant is capable of
performing "any other work." See Perez v.Chater, 77 F.3d 41, 46 (2d Cir.1996);
20 C.F.R. 404.1520, 416.920.

17

In the instant case, the ALJ determined that plaintiff suffered from a severe
impairment not listed in Appendix 1.5 However, he found that she was not
disabled within the meaning of the Act because she was capable of performing
"sedentary" work.6 Plaintiff suggests that this conclusion is unsupported by the
record and is tainted by legal error.

A. Legal Standards for Weighing the Evidence

18
1. Credibility of Plaintiff's Testimony
19

In evaluating plaintiff's impairments and her residual functional capacity, the

ALJ considered plaintiff's own testimony about her symptoms and limitations
and found that testimony to be "exaggerated." He observed that "[s]he did not
appear to be in discomfort while sitting and there was no sign of breathing
abnormalities." Referring to her very limited work history, he added that her
"motivation for work appears to be questionable." Nevertheless, in light of her
hospitalization for treatment of painful varicose veins, the ALJ stated that he
would give her "the benefit of doubt" in finding that her condition limited her to
doing sedentary work.

20

a. Plaintiff's Demeanor

21

Plaintiff contends that the ALJ erred as a matter of law in evaluating the
credibility of her testimony based in part upon his observations of her physical
demeanor during the administrative hearing. However, SSA regulations
expressly provide that "observations by our employees and other persons" will
be treated as evidence. 20 C.F.R. 416.929(c)(3). ALJs are instructed in a
Social Security Ruling interpreting 20 C.F.R. 416.929(c)(3) that "[i]n

instances where the individual attends an administrative proceeding conducted

by the adjudicator, the adjudicator may also consider his or her own recorded
observations of the individual as part of the overall evaluation of the credibility
of the individual's statements." SSR 96-7p, 61 Fed.Reg. 34,483, at 34,486
(1996) ("Evaluation of Symptoms in Disability Claims: Assessing Credibility of
an Individual's Statements"). Although we have held that an "ALJ's observation
that [a claimant] sat through the hearing without apparent pain, being that of a
lay person, is entitled to but limited weight," see Carroll v. Secretary of Health
& Human Servs., 705 F.2d 638, 643 (2d Cir.1983), we have not held that it is
always error for an ALJ to take account of a claimant's physical demeanor in
weighing the credibility of her testimony as to physical disability. Although
such observations should be assigned only "limited weight," there is no per se
legal error where the ALJ considers physical demeanor as one of several factors
in evaluating credibility. We are satisfied that the ALJ here did not afford this
observation any improper significance.
22

b. Plaintiff's Work History

23

Plaintiff contends that the ALJ erred as a matter of law by pointing to her poor
work history as a basis for not crediting her testimony in full. She also suggests
that the ALJ's reference to her work history "reflected bias toward a whole class
of claimants." Appellant's Brief at 18. We disagree.

24

SSA regulations provide that the fact-finder "will consider all of the evidence
presented, including information about your prior work record." 20 C.F.R.
416.929(c)(3). Moreover, ALJs are specifically instructed that credibility
determinations should take account of "prior work record." SSR 96-7p, 61
Fed.Reg. 34,483, at 34,486 (1996). There is no suggestion in SSA regulations
that an ALJ may only consider favorable work history in weighing the
credibility of claimant testimony. Just as a good work history may be deemed
probative of credibility, poor work history may prove probative as well.
Logically, poor work history could support one of two conclusions. On the one
hand, just as a good work history may be deemed probative of credibility, a
poor work history can reasonably be deemed to have the opposite significance.
However, a poor work history might also support an inference that a claimant's
testimony of disability is truthful. A claimant's failure to work might stem from
her inability to work as easily as her unwillingness to work. Therefore, a
consideration of work history must be undertaken with great care. An ALJ
should explore a claimant's poor work history to determine whether her absence
from the workplace cannot be explained adequately (making appropriate a
negative inference), or whether her absence is consistent with her claim of
disability. In any event, it bears emphasizing that work history is just one of

many factors that the ALJ is instructed to consider in weighing the credibility
of claimant testimony.
25

Plaintiff directs our attention to a decision of the United States Court of Appeals
for the Seventh Circuit, in which that court found that an ALJ's treatment of a
claimant's poor work history suggested bias on the part of the ALJ. See Sarchet
v. Chater, 78 F.3d 305, 308 (7th Cir.1996). Rather than stating a categorical
rule, we believe the Seventh Circuit's holding in Sarchet is best confined to the
particular circumstances of that case. Sarchet is easily distinguished both
because the court did not address the specific SSA regulations dealing with
assessment of the credibility of claimant testimony and because in that case
there were other factors strongly tending to suggest bias--factors absent in the
case at bar. See id. (finding that ALJ completely ignored, among other things,
claimant's "long list of medical ailments"). In any event, Sarchet is not
controlling in this Circuit, and plaintiff does not draw to our attention any
Second Circuit authority for the proposition that consideration of negative work
history is somehow precluded. We conclude that the ALJ did not commit legal
error by taking account of plaintiff's limited work history as one factor in
assessing the credibility of her testimony regarding her symptoms.

2. Treating Physician Testimony

26

Plaintiff also claims that the ALJ applied an incorrect legal standard in
weighing the opinion of her treating physician against the other medical
evidence. Because it is not entirely clear what legal standard the ALJ applied,
and because we find that the ALJ and the SSA Appeals Council failed to follow
SSA regulations requiring a statement of valid reasons for not crediting the
opinion of plaintiff's treating physician, we conclude that a remand is necessary
in order to allow the ALJ to reweigh the evidence.

27

Prior to 1991, our case law established a so-called "treating physician rule"
giving substantial weight to the treating physician's opinion as against other
medical evidence. See Schisler v. Sullivan, 3 F.3d 563, 565 (2d Cir.1993)
("Schisler III ") (citing Bluvband v. Heckler, 730 F.2d 886, 892-93 (2d
Cir.1984); Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 42 (2d
Cir.1972)). In 1991, however, SSA promulgated new regulations entitled
"Standards for Consultative Examinations and Existing Medical Evidence,"
which set forth criteria for weighing treating physician opinions in disability
cases. See 56 Fed.Reg. 36,932 (1991) (the "1991 Regulations"). These new
regulations "accord[ed] less deference to unsupported treating physician's
opinions" than did our previous case law. See Schisler III, 3 F.3d at 567.

28

The 1991 Regulations were promptly challenged. Two district courts ruled that
the regulations were binding in administrative proceedings but that our treating
physician rule continued to govern disability rulings on appeal in the federal
courts of this Circuit until we declared otherwise. See id. at 566-67 (discussing
Schisler v. Sullivan, No. 80-CV-572E, 1992 WL 170736 (W.D.N.Y. July 8,
1992) and Aldrich v. Sullivan, 800 F.Supp. 1197 (D.Vt.1992)). In Schisler III,
we upheld the new regulations and clarified that they superseded the more
deferential treating physician rule previously in force in this Circuit. Id. at 568.

29

The decision of the ALJ in the instant case was filed several weeks before our
decision in Schisler III. For this reason, it is possible that the ALJ was unsure
which legal standard he was bound to apply--the new SSA regulations or the
treating physician rule found in our case law. In any event, it is far from clear
what standard he chose to apply, and what weight, if any, he ultimately
assigned to the opinion of plaintiff's treating physician. Indeed, it does not
appear that the ALJ applied either standard correctly.
The 1991 Regulations provide as follows:

30
Treatment
relationship. Generally, we give more weight to opinions from your
treating sources.... If we find that a treating source's opinion on the issue(s) of the
nature and severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight. When
we do not give the treating source's opinion controlling weight, we apply [various
factors] in determining the weight to give the opinion.
31

20 C.F.R. 404.1527(d)(2), 416.927(d)(2). The various factors applied when

the treating physician's opinion is not given controlling weight include: (i) the
frequency of examination and the length, nature, and extent of the treatment
relationship; (ii) the evidence in support of the opinion; (iii) the opinion's
consistency with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other relevant factors. Id. In addition, the 1991 Regulations
provide that the Commissioner "will always give good reasons in our notice of
determination or decision for the weight we give [claimant's] treating source's
opinion." Id.

32

Whereas under the 1991 Regulations the treating physician's opinion is deemed
controlling only if it is well-supported by clinical evidence, under our prior
"treating physician rule" the opinion of the treating physician was deemed
binding unless contradicted by substantial evidence, and even if contradicted

was entitled to "extra weight." See Schisler v. Heckler, 787 F.2d 76, 81 (2d
Cir.1986) ("Schisler I ").
33

In determining plaintiff's residual functional capacity, the ALJ stated that

"pursuant to Schisler v. Bowen [851 F.2d 43 (2d Cir.1988) ("Schisler II ") ] the
opinion of a treating physician is considered binding unless contradicted and if
contradicted entitled to greater weight." Thus, the ALJ appeared to invoke the
treating physician rule that antedated the 1991 Regulations. Even though the
treating physician rule was more deferential to treating physician opinions than
the new regulations, the ALJ apparently assigned little or no weight to Dr.
Jobson's opinion as a treating physician. The ALJ cited two reasons for
discounting Dr. Jobson's opinion. First, he concluded that the questionnaire
completed by Dr. Jobson "is not a statement of the treating physician that is
binding on me because of the lack of clinical findings to support these
conclusions."7 Second, he noted that the record did not establish "the frequency
of followups to Dr. Jobson or even if the claimant has seen Dr. Jobson on a
regular basis since October 1992."

34

The ALJ's reference to the frequency and duration of Dr. Jobson's treating
relationship with plaintiff appears to relate to the first of the factors that the
ALJ is required to address under the 1991 Regulations when the treating
physician's opinion is not given controlling weight--i.e., the frequency of
examination and the length, nature, and extent of the treatment relationship. See
20 C.F.R. 404.1527(d)(2)(i), 416.927(d)(2)(i). It is unclear why, if the ALJ
was attempting to apply the old treating physician rule, he would have relied so
heavily upon the supposed short duration of the treating relationship. Asked at
oral argument to resolve this apparent anomaly, counsel for the Commissioner
was not able to offer an explanation. Moreover, if the ALJ was attempting to
apply the old treating physician rule, it is entirely unclear whether he assigned
any "extra weight" to the treating physician's opinion, as that rule required. See
Schisler I, 787 F.2d at 81. Thus, under either rule, the ALJ's decision appears
tainted by legal error. That is, his analysis seems flawed under the old treating
physician rule in that it apparently fails to assign extra weight to the treating
physician's opinion, and flawed under the 1991 Regulations as well in that the
ALJ failed to consider all of the factors cited in the regulations.

35

In light of these circumstances, we cannot be certain whether or not the

Commissioner's ultimate conclusion that plaintiff was not disabled is supported
by substantial evidence. "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." Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir.1987). Where application of the correct legal standard could lead to
only one conclusion, we need not remand. Id. However, on this record, we
cannot say with certainty what weight should be assigned, pursuant to the 1991
Regulations, to the opinion of plaintiff's treating physician, or whether further
clarification of the record with these regulations in mind might alter the
weighing of the evidence. It is for the SSA, and not this court, to weigh the
conflicting evidence in the record. See Miller v. Chater, 99 F.3d 972, 978 (10th
Cir.1996) (an "appeals court does not reweigh the evidence in social security
cases").
36

Nor does it appear that the Commissioner provided "good reasons" for
discrediting Dr. Jobson's opinion, as the 1991 Regulations require. The lack of
clinical findings complained of by the ALJ did not justify the failure to assign
at least some weight to Dr. Jobson's opinion, for two reasons. First, even if the
clinical findings were inadequate, it was the ALJ's duty to seek additional
information from Dr. Jobson sua sponte. See Perez, 77 F.3d at 47 ("[T]he ALJ
generally has an affirmative obligation to develop the administrative record.
This duty exists even when the claimant is represented by counsel ....")
(citations omitted). Second, notwithstanding the ALJ's failure to solicit further
information from Dr. Jobson, plaintiff did provide such additional medical
evidence, in the form of Dr. Jobson's treatment notes, to the Appeals Council.8
Similarly, Dr. Jobson's treatment notes appear to address the ALJ's doubts as to
the duration of plaintiff's treating relationship with Dr. Jobson. The notes
appear to indicate that Dr. Jobson examined plaintiff at least seven times over
ten months, beginning in October 1992, and that plaintiff was treated at the
Mid-Hudson clinic, where Dr. Jobson worked, a total of 15 times over that
same period.9 Therefore, by the time that the Commissioner's decision became
final upon denial of review by the Appeals Council, the only two reasons
indicated by the ALJ for discounting Dr. Jobson's opinion were no longer
valid. We hold that the Commissioner's failure to provide "good reasons" for
apparently affording no weight to the opinion of plaintiff's treating physician
constituted legal error.

37

In sum, because we are unsure exactly what legal standard the ALJ applied in
weighing Dr. Jobson's opinion, because application of the correct standard does
not lead inexorably to a single conclusion, and because the Commissioner failed
to provide plaintiff with "good reasons" for the lack of weight attributed to her
treating physician's opinion as required by SSA regulations, we conclude that
the proper course is to direct that this case be remanded to the SSA to allow the
ALJ to reweigh the evidence pursuant to the 1991 Regulations, developing the
record as may be needed. Because we conclude that a remand is necessary,

there is no need to rule upon the appeal from denial of plaintiff's Rule 60(b)
motion. See Raab v. Taber Instrument Corp., 546 F.2d 522, 524 (2d Cir.1976)
(per curiam).
B. Development of the Record Regarding Mental Disability
38
39

Plaintiff suggests that the ALJ failed adequately to develop the record
concerning the possibility that plaintiff was mentally disabled. However, we
find little indication in the record suggesting a disabling mental disorder during
the period in question that would have obliged the ALJ to develop the record
further. Although the record indicated that plaintiff was taking medication for
anxiety symptoms, treatment notes from the Mid-Hudson clinic in 1991
reported that her symptoms were under "adequate control" and that the
medication produced "good results." Moreover, plaintiff's own treating
physician, Dr. Jobson, indicated in the questionnaire submitted to the ALJ that
her physical condition and her reaction to it did not appear to be manifested in
"increased nervousness, depression or anxiety." We agree with the district court
that the ALJ adequately developed the record with regard to plaintiff's alleged
mental disability.

C. Remand for New and Material Evidence

40

Plaintiff's claim that the district court erred in failing to remand to the SSA for
consideration of allegedly new and material evidence is similarly unavailing. A
court may order the Commissioner to consider additional evidence "only upon
a showing that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a prior
proceeding...." 42 U.S.C. 405(g). Plaintiff submitted to the district court
treatment reports by a psychologist, Dr. Wilson Meaders, which described her
as suffering from, inter alia, depression and "intense social phobia." However,
plaintiff commenced treatment with Dr. Meaders in August 1993, several
months before the Commissioner's decision became final on December 30,
1993. Plaintiff has failed to justify the delay in submitting these reports, and
therefore has not met the statutory requirement of demonstrating good cause.
See Lisa v. Secretary of Health & Human Servs., 940 F.2d 40, 44 (2d Cir.1991)
("Good cause for failing to present evidence in a prior proceeding exists where,
as here, the evidence surfaces after the [Commissioner's] final decision and the
claimant could not have obtained the evidence during the pendency of that
proceeding.") (internal quotation marks and citations omitted). Plaintiff's claim
that the district court should have remanded for consideration of new evidence
is therefore without merit.

41

We have considered all of plaintiff's remaining claims and we find them to be

41

We have considered all of plaintiff's remaining claims and we find them to be

entirely without merit.

III.
To summarize:
42

(1) The judgment of the district court is affirmed insofar as it upheld the ALJ's
credibility findings with respect to plaintiff's testimony at the administrative
hearing. Accordingly, the ALJ need not reweigh plaintiff's testimony.

43

(2) The judgment of the district court is affirmed insofar as it found no need to
instruct the ALJ to develop the record with regard to plaintiff's mental
condition during the relevant period.

44

(3) Because we are unable to determine with certainty what legal standard the
ALJ applied in weighing the medical opinion of plaintiff's treating physician,
because applying the correct standard does not lead to only one possible
conclusion, and because the ALJ failed to supply "good reasons" for
discounting that opinion as required by SSA regulations, we vacate the
judgment of the district court insofar as it upheld the Commissioner's decision
to deny SSI benefits and remand to the district court with instructions to remand
to the SSA so that the evidence can be reweighed pursuant to the 1991
Regulations.

45

(4) In light of our decision that a remand to the SSA is necessary, we need not
act on the appeal from the judgment of the district court denying plaintiff's
Rule 60(b) motion for relief from the judgment.

Kenneth S. Apfel was sworn in as Commissioner of Social Security on

September 29, 1997. He is therefore substituted as the defendant in this action,
pursuant to Fed. R.App. P. 43(c)(1)

The functions of the Secretary of Health and Human Services in social security
cases were transferred to the Commissioner of Social Security effective March
31, 1995. See 42 U.S.C. 901-09. The administrative decision in this case
became final before the transfer of authority to the Commissioner. However, as
the Commissioner is the defendant in this action, we refer to the Commissioner,
rather than the Secretary, throughout

The ALJ's decision denying SSI benefits at issue in this case governed the

period before July 27, 1993, when that decision was filed. Plaintiff's subsequent
application for benefits did not apply to this earlier time period
4

SSA defines "residual functional capacity" as follows: "Your impairment(s),

and any related symptoms, such as pain, may cause physical and mental
limitations that affect what you can do in a work setting. Your residual
functional capacity is what you can still do despite your limitations." 20 C.F.R.
416.945(a)

Citing her history of chronic obstructive pulmonary disease and examinations

indicating that she was significantly overweight, the ALJ concluded that these
were severe impairments because they imposed more than slight limitations on
her ability to do basic work-related activities. See 20 C.F.R. 416.921

Sedentary work is the least rigorous of the five categories of work recognized
by SSA regulations. These include "very heavy," "heavy," "medium," "light,"
and "sedentary." See 20 C.F.R. 404, Subpt. P, App. 2. Sedentary work is
defined as involving only occasional standing and walking, the lifting of no
more than ten pounds at a time, and the occasional lifting and carrying of light
objects. See 20 C.F.R. 404.1567(a)

Other than asking a series of "yes" or "no" questions, the questionnaire did not
solicit clinical findings or any further explanation of Dr. Jobson's responses.
The ALJ also questioned the reliability of the questionnaire completed by Dr.
Jobson because he found that the questions appeared to "solicit positive
responses about symptoms."

Social Security regulations expressly authorize a claimant to submit new and

material evidence to the Appeals Council when requesting review of an ALJ's
decision. See 20 C.F.R. 404.970(b), 416.1470(b). This evidence becomes
part of the administrative record on appeal to the federal courts when the
Appeals Council denies review. See Perez, 77 F.3d at 45

There was some dispute at oral argument over the exact number of visits
attributable to Dr. Jobson, as opposed to nurse-practitioners and others at the
clinic, based upon Dr. Jobson's treatment notes. To the extent that the treatment
notes may have been unclear, it was of course the Commissioner's
responsibility to clarify the record--all the more so because the Commissioner
bears the burden of proof in establishing that plaintiff had the residual
functional capacity to engage in sedentary work. See Perez, 77 F.3d at 46
(citing Carroll, 705 F.2d at 642)