Burgess v. Astrue

05-4327-cv
Burgess v. Astrue

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 - - - - - -

4 August Term, 2007

5 (Argued: April 23, 2008 Decided: August 8, 2008)

6

7 Docket No. 05-4327-cv

8 _________________________________________________________

9 DOLEEN BURGESS,

10 Plaintiff-Appellant,

11 - v. -

12 MICHAEL J. ASTRUE, Commissioner of Social Security,

13 Defendant-Appellee.

14 _________________________________________________________

15 Before: JACOBS, Chief Judge, KEARSE and KATZMANN, Circuit Judges.

16 Appeal from a judgment of the United States District Court

17 for the Eastern District of New York, Nina Gershon, Judge, upholding

18 the denial of disability insurance benefits under Title II of the

19 Social Security Act, 42 U.S.C. § 401 et seq.

20 Vacated and remanded.

21 ROBERT FARLEY and JEAN TROAST, law students
22 appearing pursuant to Interim Local Rule 46(e),
23 Seton Hall University School of Law, Center for
24 Social Justice, Newark, New Jersey (Jon
25 Romberg, Supervising Attorney, on the brief),
26 for Plaintiff-Appellant.

27 JOHN M. KELLY, Special Assistant United States
28 Attorney, Brooklyn, New York (Benton J.
29 Campbell, United States Attorney for the
30 Eastern District of New York, Varuni
 1 Nelson, Kathleen A. Mahoney, Assistant United States
2 Attorneys, Brooklyn, New York, on the brief),for
3 Defendant-Appellee.

4 KEARSE, Circuit Judge:

5 Plaintiff Doleen Burgess appeals from a judgment of the

6 United States District Court for the Eastern District of New York,

7 Nina Gershon, Judge, dismissing her complaint seeking disability

8 insurance benefits under Title II of the Social Security Act (the

9 "Act"), 42 U.S.C. § 401 et seq. The district court granted the

10 motion of defendant Commissioner of Social Security ("Commissioner")

11 for judgment on the pleadings, finding that there was substantial

12 evidence to support the Commissioner's denial of benefits on the

13 ground that Burgess was not disabled within the meaning of the Act

14 because she retained the residual functional capacity to perform the

15 requirements of her past relevant work. On appeal, Burgess contends

16 that the Administrative Law Judge ("ALJ") who reviewed her claim,

17 and whose decision became that of the Commissioner, erred by failing

18 to (a) give controlling weight to the opinion of her treating

19 physician, (b) explain the reasons for giving that opinion minimal

20 weight, and (c) fully and adequately develop the record. For the

21 reasons that follow, we vacate the judgment of the district court

22 and remand to the Commissioner for further proceedings.

23 I. BACKGROUND

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 1 The event leading to Burgess's claim for disability

2 insurance benefits is not in dispute. On October 7, 1997, Burgess,

3 then 32 years of age, was employed by a photography laboratory to

4 perform accounting work. While at work, she fell over a box in a

5 storage room, hitting her knees and elbows on the concrete floor.

6 She was treated at a hospital emergency room; three days later she

7 began treatment by Dr. Milton M. Smith, a specialist in the field of

8 orthopedics; and she began physical therapy. Burgess returned to

9 work at the photography laboratory some two weeks after the

10 accident. She continued to work until February 1998, when she

11 stopped because of the pain caused by injuries from the accident.

12 In April 1999 Burgess applied to the Social Security Administration

13 ("SSA") for disability insurance benefits under the Act, stating

14 that she was unable to work because of pain in her leg and back.

15 Under the Act, "disability" means an "inability to engage

16 in any substantial gainful activity by reason of any medically

17 determinable physical or mental impairment . . . which has lasted or

18 can be expected to last for a continuous period of not less than 12

19 months." 42 U.S.C. § 423(d)(1)(A). "The impairment must be of

20 'such severity that [the claimant] is not only unable to do his

21 previous work but cannot, considering his age, education, and work

22 experience, engage in any other kind of substantial gainful work

23 which exists in the national economy.'" Shaw v. Chater, 221 F.3d

24 126, 131-32 (2d Cir. 2000) ("Shaw") (quoting 42 U.S.C.

25 § 423(d)(2)(A)).

26 Pursuant to regulations promulgated by the Commissioner,

27 a five-step sequential evaluation process is used to determine

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 1 whether the claimant's condition meets the Act's definition of

2 disability. See 20 C.F.R. § 404.1520. Essentially,

3 "if the Commissioner determines (1) that the
4 claimant is not working, (2) that he has a 'severe
5 impairment,' (3) that the impairment is not one
6 [listed in Appendix 1 of the regulations] that
7 conclusively requires a determination of disability,
8 and (4) that the claimant is not capable of
9 continuing in his prior type of work, the
10 Commissioner must find him disabled if (5) there is
11 not another type of work the claimant can do."

12 Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) ("Green-

13 Younger") (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.

14 2002)) (bracketed phrase in Green-Younger).

15 Burgess's application was denied initially and on

16 reconsideration. She then requested and received a hearing before

17 an ALJ.

18 A. The Evidence Before the ALJ

19 At the hearing before the ALJ, held in May 2002, Burgess

20 described her accident and testified that she and her three

21 daughters had moved to live with her mother following the accident.

22 Burgess testified that she did not do any household chores such as

23 cleaning, cooking, and shopping, and that her mother and daughters

24 performed those tasks. Aside from visiting her doctors, attending

25 hearings on her claim for worker's compensation, and occasionally

26 having her mother take her for a walk to the street corner, Burgess

27 spent her days propped up in bed.

28 Burgess testified that her daily work as an accountant at

29 the photography laboratory had involved two-to-three hours sitting

30 at her desk and five-to-six hours standing and walking. As to her

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 1 prior jobs, Burgess had worked for the photo laboratory as a

2 receptionist; for other employers, she had worked as a cashier, a

3 caretaker for children at a day care center, a cook and helper at a

4 senior citizen home, and a salesperson in a department store. Her

5 job as a salesperson had required her to be on her feet for

6 virtually the entire workday. Burgess testified that she had not

7 worked since February 1998 because she constantly had pain radiating

8 down to her legs and feet--although some days were better than

9 others. She testified she could not walk continuously for more than

10 two blocks, stand continuously for more than 25 minutes, or sit for

11 more than 15-20 minutes, without pain. Her pain was treated with

12 Tylenol and Motrin.

13 As discussed below, the medical evidence in the record

14 before the ALJ included reports and findings by

15 - Dr. Smith, the orthopedic surgeon who was Burgess's
16 primary treating physician starting three days after her
17 accident and continuing through the time of the hearing
18 before the ALJ, and who performed arthroscopic surgery on
19 Burgess's left knee in May 1998;

20 - Dr. Choong Kim, who treated Burgess at least once a
21 month for more than a year after the accident and
22 prescribed physical therapy;

23 - Dr. Franklin Turetz, who performed an MRI on
24 Burgess's knee in March 1998;

25 - Dr. Javier Beltran, who performed an MRI on Burgess's
26 back in January 1999;

27 - Dr. Mario Mancheno, who examined Burgess once in June
28 1999; and

29 - Dr. Robert Zaretsky, who examined Burgess a dozen
30 times for the Workers' Compensation Board.

31 The record before the ALJ also included the testimony

32 given by Dr. Smith in Burgess's case before the Workers'

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 1 Compensation Board (or "Board") in May 2000. And Dr. Ernest Abeles,

2 an orthopedic surgeon who had not examined Burgess, testified before

3 the ALJ as an expert.

4 1. The Evidence from Dr. Smith and the MRIs

5 Burgess, on her initial visit to Dr. Smith three days

6 after her accident, complained of swelling and buckling of her left

7 knee, which upon examination revealed "diffuse swelling and

8 tenderness" and a limited range of motion. (Report of Dr. Milton

9 Smith dated October 10, 1997.) X-rays on Burgess's knees were

10 negative, and Dr. Smith diagnosed "[i]nternal derangement of the

11 left knee." (Id.) At that time, Dr. Smith noted that Burgess had

12 started a course of physical therapy, and he opined that she could

13 work in a sedentary position. In December 1997, Burgess complained

14 of left knee pain and "continued back pain." (Report of Dr. Milton

15 Smith dated December 12, 1997.) She had limited ranges of motion in

16 her back and knee, was then working in a sedentary position, and was

17 receiving physical therapy. (See id.) Dr. Smith's reports for

18 January and February 1998 stated that Burgess continued to report

19 pain and buckling in her left knee, and on March 17, 1998, an MRI

20 was taken of that knee.

21 That MRI showed that there was a "SMALL AMOUNT OF FLUID IN

22 KNEE JOINT WITH GREATER AMOUNT OF FLUID IN LATERAL ASPECT OF

23 SUPRAPATELLAR RECESS. SUGGEST POSSIBLE TRUNCATION, NOTCH ASPECT OF

24 POSTERIOR HORN OF MEDIAL MENISCUS." (Report of Dr. Franklin Turetz

25 dated March 19, 1998.) Dr. Smith examined Burgess on March 20 and

26 reported that she continued to have pain in her left knee. His

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 1 report noted that the MRI showed evidence of a torn medial meniscus

2 and that the Workers' Compensation Board had authorized arthroscopic

3 surgery.

4 Dr. Smith performed the arthroscopic surgery on Burgess's

5 left knee in May 1998. His operative report stated that no tear of

6 the meniscus was found, but that there was hypotrophic synovium

7 throughout the knee. At the Workers' Compensation Board hearing

8 (two years later) Dr. Smith explained that hypotrophic synovium was

9 an inflammatory process that was not reparable through surgery and

10 that Burgess likely would eventually need knee replacement.

11 (Workers' Compensation Board Hearing Transcript May 8, 2000 ("WCB

12 Tr."), at 17.) He stated that although the arthroscopy showed no

13 large tears, "the meniscus was fragmented" and that "a lot of small

14 pieces . . . had to be irrigated out." (Id. at 16.)

15 On May 29, 1998, some three weeks after the knee surgery,

16 Dr. Smith's examination report stated that Burgess still had pain in

17 her knee and in her lower back, but with improving range of motion.

18 In June, Dr. Smith reported that Burgess was experiencing less pain

19 in her knee, and had an improved, albeit still limited, range of

20 motion; he opined that she could perform sedentary work. In July,

21 he reported that Burgess had continued pain in the knee, with an

22 improved but still limited range of motion. From August through

23 December 1998, Dr. Smith's monthly reports on his examinations of

24 Burgess stated that she continued to have pain in her left knee, as

25 well as pain in her neck and back, all with limited ranges of

26 motion.

27 On January 8, 1999, an MRI was performed on Burgess's

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 1 back. The report on that MRI stated, inter alia, as follows:

2 Evaluation of the far sagittal images through the
3 neural foramen reveal encroachment of the left
4 neural foramen of L2-3 by what appears to be disc
5 material, producing stenosis in the
6 anterior/posterior direction.

7 (Report of Dr. Javier Beltran ("MRI Report") dated January 8, 1999,

8 at 1 (emphasis added).) Dr. Smith examined Burgess on January 20,

9 1999, and his report noted that the MRI on Burgess's spine revealed

10 a protruding disc at the L2-3 level. (His testimony elaborating on

11 this at the Board hearing is discussed below.) Her treatment

12 regimen continued to consist of over-the-counter pain relievers,

13 warm soaks, and active range of motion; Dr. Smith noted that the

14 Workers' Compensation Board had discontinued authorization for

15 Burgess's physical therapy and he requested its reinstatement.

16 From March 1999 through October 1999, Dr. Smith's reports

17 of his monthly examinations of Burgess stated that she continued to

18 have pain in her back and one or both of her knees, and limited

19 ranges of motion. Dr. Smith's view of Burgess's capabilities in

20 August 1999, according to the boxes he checked on a physical-

21 capacities-evaluation form, was that Burgess could sit, stand, or

22 walk for no more than three hours out of an eight-hour workday, and

23 that she could not lift or carry more than five pounds.

24 Dr. Smith's report in December 2000 stated that Burgess

25 continued to have pain in her leg, neck, and back, with limited

26 ranges of motion. It stated that Burgess "is not able to return to

27 work. She has a total degree of disability." (Report of Dr. Milton

28 Smith "To Whom it May Concern" dated December 7, 2000.) Dr. Smith's

29 reports in 2001, following examinations of Burgess virtually every

-8-
 1 month, similarly described Burgess as continuing to experience pain

2 in, inter alia, her neck, back, and left knee. In late 2001 the

3 reports indicate that Dr. Smith diagnosed Burgess with, inter alia,

4 in addition to the continued derangement of her left knee, a

5 cervical sprain and lumbosacral radiculopathy.

6 In his testimony before the Workers' Compensation Board in

7 May 2000, Dr. Smith stated that his initial diagnosis of Burgess's

8 injuries was internal derangement of the left knee, which was caused

9 by the accident. At that point, Burgess had a "marked disability"

10 and could work only in a sedentary position. (WCB Tr. 4.) Dr.

11 Smith explained that he amended his initial findings to add findings

12 of neck and back injuries because they resulted from Burgess's

13 initial injury, and that the fact that he did not mention them in

14 his initial report did not mean that Burgess had not experienced

15 pain in those areas.

16 Dr. Smith testified that Burgess "had an MRI of the lumbar

17 spine dated 1/8/99 which showed presence with protrusion of the

18 dis[c] at the L2-3 level which was protruding into the neural

19 foramen," which "mean[t] that she has a nerve root that [wa]s being

20 pushed upon by the dis[c], which [wa]s very painful." (Id. at 5.)

21 He testified that his "clinical findings on examination [were]

22 consistent with the MRI." (Id.) Questioned further, Dr. Smith

23 testified the MRI Report's revelation that there was "protrusion

24 into the neural foramen" at "L2-3"

25 mean[t] that the dis[c] has changed its normal shape
26 and part of that dis[c] is now pushing out into the
27 foramen, which is the hole through which the nerve
28 root exits the spine. In so doing, it's encroaching
29 on the space that is normally there in the nerve
30 root. So every time the patient moves a certain way

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 1 it drags that nerve root across the dis[c] material
2 and is very painful.

3 (WCB Tr. 8-9 (emphases added).) Dr. Smith testified that although

4 the MRI Report did not say directly that Burgess's disc was

5 impinging on the nerve root, it so stated

6 indirectly. Evaluation of the far sagittal images.
7 That means the images over the site through the
8 neural foramen reveal encroachment, which means,
9 take up the space of the left neural foramen of L2-3
10 by what appears to be dis[c] material producing
11 stenosis in the anterior, posterior direction.
12 Stenosis is a narrowing and, thereby, pinches in the
13 neural foramen. If there is stenosis, by
14 definition, the nerve root is being severed.

15 . . . .

16 . . . Normally the nerve root passes from the
17 spinal cord out through this hole and goes to the
18 lower extremities. If you have any object in that
19 hole, whether it is arthritis or a tumor or dis[c]
20 material, as in this case, it's taking up part of
21 the space that is normally filled by the nerve.
22 There is usually a little space within that hole
23 around the nerve. The reason for this space is that
24 as the person moves and bends that nerve is pulled
25 tight around the edge of that hole. If you put a
26 foreign object in this, in this case dis[c]
27 material, there is no room for the nerve root to
28 move. In certain positions, each time the person
29 moves their body it creates superficial pain. . . .
30 What happens is that the nerve root normally passes
31 through a small space. There is normally excess
32 space so the body could move. If you occupy that
33 space with something else, you are effectively
34 pinching that nerve each time the person moves.

35 (Id. at 9-11 (emphases added).) Thus, although "[t]he MRI d[id] not

36 specifically say that the nerve root is impinged," it "us[ed] other

37 words that mean the exact same thing." (Id. at 11-12.)

38 Dr. Smith's April 18, 2002 report "To Whom it May Concern"

39 described Burgess's condition as of that date and gave an overview

40 of her condition for the 4½-year period in which he had treated her.

41 As of April 2002, Burgess still complained of pain in her neck,

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 1 back, and left knee, and had limited ranges of motion in those

2 areas. Her course of treatment included the pain reliever Motrin

3 and an active range of motion, with a follow-up visit scheduled for

4 four weeks later. Dr. Smith concluded that Burgess "has been

5 totally disabled throughout the course of my treatment of her and

6 remains severely restricted in her ability to function in a normal

7 routine."

8 In May 2002, Dr. Smith filled out a physical-capacities-

9 evaluation form and checked boxes opining that Burgess could sit for

10 a total of no more than one-to-two hours out of an eight-hour

11 workday. In addition, he opined that she could stand and walk for

12 a total of one hour out of an eight-hour workday, but could do each

13 only for fifteen minutes at a time.

14 2. Other Evidence Before the ALJ

15 In addition to being treated by Dr. Smith, Burgess was

16 treated by Dr. Kim for more than a year, beginning just over a week

17 after the accident. His initial diagnosis was that Burgess suffered

18 traumatic internal derangement of the cervical and lumbosacral

19 spines with sprain and strain of ligaments and muscles, traumatic

20 lumbar radiculitis with radicular pain into the left lower

21 extremity, traumatic myofascial pain dysfunction syndrome, and

22 fracture of the left patella. He stated that Burgess was "disabled

23 at present with serious and substantial functional impairment

24 associated with symptoms subject to recurrence and acute

25 exacerbations," and that "[t]he prognosis for recovery following

26 such trauma and injuries [wa]s guarded because of the possibility of

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 1 long term or lifelong symptomatology." (Report of Dr. Choong Kim

2 dated October 16, 1997.) Subsequent diagnoses stated that Burgess

3 had, inter alia, traumatic cervical and lumbosacral derangements.

4 Dr. Kim prescribed physical therapy.

5 Dr. Zaretsky examined Burgess for the Workers'

6 Compensation Board a dozen times from April 23, 1998 through January

7 17, 2001. In several of his reports, Dr. Zaretsky described certain

8 pain complaints by Burgess that he opined were not physiologically

9 credible. (See Reports of Dr. Robert Zaretsky dated October 1 and

10 November 19, 1998, October 21, 1999, and November 1, 2000.) In

11 November 1998, Dr. Zaretsky stated that he "d[id] not find any

12 evidence of disability flowing from [Burgess's] back, neck, ankle or

13 foot" (Report of Dr. Robert Zaretsky dated November 19, 1998), but

14 thereafter he learned of the January 1999 MRI on Burgess's back and

15 he requested and received the MRI Report. His report in May 1999

16 stated that "at this time a mild partial disability is noted

17 rel[e]vant to findings of the lumbar MRI." (Report of Dr. Robert

18 Zaretsky dated May 20, 1999.) In a January 2000 report, Dr.

19 Zaretsky again noted "a mild partial disability . . . relevant to

20 findings in the lumbar MRI," but stated his opinion that Burgess was

21 "capable of gainful employment." (Report of Dr. Robert Zaretsky

22 dated January 12, 2000.) None of his subsequent reports repeated

23 that opinion, however, and all of them noted a continued "mild"

24 "partial" "disability," usually citing the "MRI findings" concerning

25 Burgess's lower back. (Reports of Dr. Robert Zaretsky dated May 3,

26 August 30, and November 1, 2000, and January 17, 2001.) The

27 November 2000 and January 2001 reports stated that that disability

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 1 could be considered permanent.

2 Dr. Mancheno, who examined Burgess once in June 1999,

3 diagnosed her as having, inter alia, a discogenic disorder of the

4 lumbosacral spine. His report stated that Burgess said that she did

5 her own shopping, cooking, and cleaning. Dr. Mancheno opined that

6 Burgess had a mild impairment of her ability to sit, stand, walk,

7 lift, carry, push, and pull. In the section of his report

8 recounting Burgess's history, Dr. Mancheno noted that Burgess

9 reported that she "did have MRI with abnormalities reported";

10 however, in the "Laboratories" section of the report he listed only

11 X-rays of the knee and spine, with no mention of an MRI. (Report of

12 Dr. Mario Mancheno dated June 3, 1999.)

13 The record before the ALJ also included a report form

14 filled out by a state agency medical consultant on July 6, 1999, and

15 endorsed by another such consultant on October 1, 1999, both of whom

16 had reviewed the record to provide a residual-functional-capacity

17 opinion to the Commissioner, but neither of whom had examined

18 Burgess. The boxes checked indicated that Burgess could frequently

19 lift 25 pounds and occasionally lift 50; that she could sit for

20 about six hours out of an eight-hour workday; and that she could

21 stand or walk for about six hours out of an eight-hour workday. In

22 the section of the form that asked for an explanation of how and why

23 the evidence supported the consultants' conclusions, the response

24 was that the X-rays of Burgess's spine and knee were normal. The

25 consultants did not mention, inter alia, the MRI on Burgess's spine.

26 The only witness other than Burgess to testify at the

27 hearing before the ALJ was Dr. Abeles, an orthopedic surgeon who had

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 1 reviewed the medical evidence in the record and observed Burgess's

2 testimony at the hearing, but had not examined her. (The

3 Commissioner notes in his brief on appeal at 22 n.4 that since the

4 time of the hearing in this case, Dr. Abeles has entered into a

5 Consent Decree that limits his practice of medicine in New York

6 State to conducting consultative examinations for the SSA and

7 insurance carriers.) Dr. Abeles, when asked by the ALJ "what the

8 [medical] record reveals about this young woman" (Hearing

9 Transcript, May 9, 2002 ("ALJ Tr."), at 36), stated that the record

10 showed that Burgess had suffered contusions of both knees, but that

11 the X-rays were normal; and that she had had arthroscopic surgery on

12 her knee, but that the only abnormal finding from that procedure was

13 that certain tissue was less prominent than normal.

14 When the ALJ asked "what other objective evidence we have

15 other than the fact that we have a negative x-ray[], contusion in

16 both knees," and "[a]n arthroscopy which revealed nothing," Dr.

17 Abeles responded

18 Yeah. I see nothing else that's available to me
19 that's on the record. The x-rays of the back are
20 also within normal limits. There is some mention of
21 an MRI, but there is no report of an MRI of the
22 lumbar spine.

23 Q. [ALJ]: Of the lumbar spine--

24 A. Lumbar spine. There's no report of it.

25 Q. X-rays of the back were normal and no
26 report of the lumbosacral?

27 A. There apparently was one done, because
28 there's a letter here of '99 which shows a
29 protruding disc at the L2/3 level on an MRI in a
30 letter of Dr. Smith, but there is no report
31 incorporated in the records.

32 Q. I see. And any other findings in a chart

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 1 at all in this proceeding?

2 A. Just that there are continued complaints of
3 pain of the neck, back, and left knee, but no
4 examination finding other than that.

5 (ALJ Tr. 38 (emphases added).)

6 When the ALJ asked about Dr. Smith's conclusion that

7 Burgess was totally disabled, Dr. Abeles stated, "I don't think

8 there is any objective reason why she couldn't" sit, stand, and walk

9 "six hours out of an eight-hour workday." (Id. at 40.) He stated

10 that, Burgess having "had extensive physical therapy[, s]he should

11 at this point be able to do these things. There is no objective

12 reason why she can't." (Id.) Dr. Abeles attributed Burgess's

13 weakness to atrophy of her muscles from "lying in bed not doing

14 anything," opining that "[t]here is no other reason for any of

15 this." (Id. (emphasis added).)

16 In response to questions from counsel for Burgess, Dr.

17 Abeles testified he believed that Burgess "feels the[] things"

18 reflected in her subjective complaints and that "subjectively she

19 has [a] disability" (ALJ Tr. 41). But as to Dr. Smith's

20 conclusions, Dr. Abeles testified that he did not think Burgess was

21 disabled "objectively," and that although he "th[ought] that in good

22 faith [Dr. Smith] can write that, . . . he's been seeing this

23 patient month [in] and month out. And he is being influenced by

24 seeing her . . . ." (Id.)

25 B. The ALJ's Decision

26 The ALJ denied Burgess's claim for disability insurance

27 benefits, finding that Burgess "is not disabled within the meaning

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 1 of the Social Security Act." ALJ Decision Denying Benefits dated

2 October 29, 2002 ("ALJ Decision"), at 1. Evaluating the evidence

3 within the framework of the five-step evaluation called for in the

4 SSA regulations, and referring to some of the reports of Drs. Kim

5 and Smith and to the report of Dr. Mancheno, the ALJ found that

6 Burgess met the first two steps, i.e., that she was not working and

7 had a severe impairment. However, relying on Dr. Abeles's hearing

8 testimony, the ALJ found that Burgess did not meet steps three and

9 four, i.e., he found that her impairment was not one that, under the

10 regulations, conclusively requires a determination of disability,

11 and that she had not proven that she was not capable of resuming her

12 prior type of work. The ALJ stated:

13 Dr. Abeles testified that the claimant sustained a
14 contusion as a result of her fall, but there was
15 there [sic] no evidence of any fractures and the
16 claimant's xrays were normal. Moreover, he
17 testified the claimant's radiological findings in
18 May 1998 revealed nothing abnormal, leg flexion was
19 5/5 at a follow-up examination, and xrays of the
20 back were normal. He testified the claimant's
21 treating physician mentioned a lumbar MRI, however,
22 there was no report of findings. Dr. Abeles
23 testified the progress notes from Dr. Smith shows
24 continued complaint of pain, however, there were no
25 clinical findings upon examination, outside of
26 intermittent knee swelling. Moreover, he testified
27 there is no objective reason why the claimant should
28 have any vocational limitations, and he opined that
29 the claimant should be able to work, given her
30 extensive physical therapy treatment.

31 ALJ Decision at 3 (emphases added). The ALJ found that Burgess's

32 allegations of total inability to work due to back
33 pain cannot be credited. First, the objective
34 findings of record do not show an impairment which
35 can be reasonably expected to produce the pain
36 alleged. The medical documentation failed to
37 present evidence of back surgery, a back brace, or
38 stronger pain medication, criteria that is [sic]
39 usually found when severe back pain is present.

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 1 ALJ Decision at 4 (emphasis added); see also id. ("the complaints

2 suggest a greater severity of impairment than can be shown by the

3 objective medical evidence alone" (emphasis added)).

4 The ALJ noted that although he was required to "consider

5 medical source opinion concerning such issues as residual functional

6 capacity," and he had considered Dr. Smith's opinion that Burgess

7 was completely disabled, he rejected that opinion in light of the

8 testimony of

9 Dr. Abeles . . . that there is no objective reason
10 why the claimant's sitting, standing, or walking
11 would be limited. In fact, he testified the
12 claimant's complaint of pain is subjective. The
13 undersigned is not bound to accept a treating
14 physician's conclusion as to disability,
15 particularly when it is not supported by detailed,
16 clinical, and diagnostic evidence.

17 ALJ Decision at 5 (emphases added).

18 The ALJ also noted that the state agency medical

19 consultants had reviewed Burgess's medical records and had indicated

20 that Burgess was "capable of medium work activity at the time of

21 the[] assessment." Id. The ALJ concluded that based on all of the

22 evidence submitted, Burgess "retains the residual functional

23 capacity to perform light work, or work which requires maximum

24 lifting of twenty pounds and frequent lifting of ten pounds (20

25 C.F.R. § 404.1567)." Id. Although the ALJ did not expressly refer

26 to other aspects of "light work," that category has been interpreted

27 to include work that "requires standing or walking, off and on, for

28 a total of approximately 6 hours of an 8-hour workday." See Social

29 Security Ruling 83-10. The ALJ concluded that Burgess had the

30 residual functional capacity to perform her past work "as a

31 salesperson," ALJ Decision at 6, and that she was not disabled

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 1 within the meaning of the Act.

2 The SSA Appeals Council denied Burgess's request for

3 review of the ALJ's decision, thereby making the ALJ's decision the

4 final decision of the Commissioner.

5 C. The Decision of the District Court

6 Burgess promptly commenced the present action seeking

7 judicial review of the ALJ's decision. Both Burgess and the

8 Commissioner moved for judgment on the pleadings. At the hearing on

9 the motions, Burgess's attorney pointed out that the ALJ (and Dr.

10 Abeles) had erred in believing that the MRI on Burgess's back was

11 not in the record. The district court agreed that the ALJ's belief

12 was clearly error, but it rejected the contention that the MRI

13 provided objective evidence to support Dr. Smith's evaluation that

14 the bulging disc shown in the MRI would cause Burgess pain whenever

15 she moved.

16 At the close of the hearing, the court denied Burgess's

17 motion and granted that of the Commissioner, finding that the ALJ's

18 decision was supported by substantial evidence and was free from

19 legal error. The court stated that

20 [w]hat's critical here is that there was no
21 laboratory or clinical evidence of nerve impingement
22 so that while there is objective evidence as
23 [Burgess's attorney] has argued, the ALJ properly
24 found that the plaintiff had a severe impairment of
25 lumbar dis[c] disease but that doesn't in and of
26 itself mean she is disabled . . . .

27 . . . .

28 . . . [T]he MRI report itself does not say
29 anywhere that there is nerve impairment or
30 impingement and the only fair reading I think of Dr.
31 Smith's testimony with respect to the MRI is that

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 1 the narrowing seen on the MRI could lead to nerve
2 impairment or impingement which could cause pain
3 although one would have to ask why was she in pain
4 all the time since he says it could cause pain when
5 she moves.

6 There are no actual positive nerve findings
7 which are the critical thing here when we are
8 dealing with pain by Dr. Smith.

9 (District Court Hearing Transcript, June 25, 2005 ("D.Ct. Tr."), at

10 14-15 (emphases added).) Judgment was entered in favor of the

11 Commissioner, and this appeal followed.

12 II. DISCUSSION

13 On appeal, Burgess contends that the ALJ erred by failing

14 to (a) give Dr. Smith's opinion controlling weight under the

15 "treating physician rule," (b) explain his reasons for giving Dr.

16 Smith's opinion minimal weight, and (c) fully and adequately develop

17 the record. While it is not clear that the record required the ALJ

18 to give Dr. Smith's opinion controlling weight, we conclude that

19 further proceedings are required because, given the record as it had

20 in fact been developed, the ALJ did not provide an adequate

21 explanation for his rejection of that opinion, 20 C.F.R.

22 § 404.1527(d)(2).

23 "A district court may set aside the Commissioner's

24 determination that a claimant is not disabled only if the factual

25 findings are not supported by 'substantial evidence' or if the

26 decision is based on legal error." Shaw, 221 F.3d at 131 (quoting

27 42 U.S.C. § 405(g)). Substantial evidence means "'more than a mere

28 scintilla. It means such relevant evidence as a reasonable mind

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 1 might accept as adequate to support a conclusion.'" Halloran v.

2 Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) ("Halloran") (quoting

3 Richardson v. Perales, 402 U.S. 389, 401 (1971)). "On appeal, we

4 conduct a plenary review of the administrative record to determine

5 if there is substantial evidence, considering the record as a whole,

6 to support the Commissioner's decision and if the correct legal

7 standards have been applied." Shaw, 221 F.3d at 131. We may not

8 properly "affirm an administrative action on grounds different from

9 those considered by the agency." Melville v. Apfel, 198 F.3d 45, 52

10 (2d Cir. 1999) ("Melville").

11 The claimant has the general burden of proving that he or

12 she has a disability within the meaning of the Act, see, e.g.,

13 Draegert v. Barnhart, 311 F.3d at 472, and "bears the burden of

14 proving his or her case at steps one through four" of the sequential

15 five-step framework established in the SSA regulations, Butts v.

16 Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). However, "[b]ecause a

17 hearing on disability benefits is a nonadversarial proceeding, the

18 ALJ generally has an affirmative obligation to develop the

19 administrative record." Melville, 198 F.3d at 51; see, e.g., Shaw,

20 221 F.3d at 134. SSA regulations provide that an ALJ

21 shall inquire fully into the matters at issue and
22 shall receive in evidence the testimony of witnesses
23 and any documents which are relevant and material to
24 such matters. If the administrative law judge
25 believes that there is relevant and material
26 evidence available which has not been presented at
27 the hearing, he may adjourn the hearing or, at any
28 time, prior to the filing of the compensation order,
29 reopen the hearing for the receipt of such evidence.

30 20 C.F.R. § 702.338.

31 With respect to "the nature and severity of [a claimant's]

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 1 impairment(s)," 20 C.F.R. § 404.1527(d)(2), "[t]he SSA recognizes a

2 'treating physician' rule of deference to the views of the physician

3 who has engaged in the primary treatment of the claimant," Green-

4 Younger, 335 F.3d at 106. According to this rule, the opinion of a

5 claimant's treating physician as to the nature and severity of the

6 impairment is given "controlling weight" so long as it "is well-

7 supported by medically acceptable clinical and laboratory diagnostic

8 techniques and is not inconsistent with the other substantial

9 evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see,

10 e.g., Green-Younger, 335 F.3d at 106; Shaw, 221 F.3d at 134.

11 "[M]edically acceptable clinical and laboratory diagnostic

12 techniques" include consideration of "[a] patient's report of

13 complaints, or history, [a]s an essential diagnostic tool." Green-

14 Younger, 335 F.3d at 107 (internal quotation marks omitted).

15 Generally, "the opinion of the treating physician is not

16 afforded controlling weight where . . . the treating physician

17 issued opinions that are not consistent with . . . the opinions of

18 other medical experts," Halloran, 362 F.3d at 32, for "[g]enuine

19 conflicts in the medical evidence are for the Commissioner to

20 resolve," Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).

21 However, not all expert opinions rise to the level of evidence that

22 is sufficiently substantial to undermine the opinion of the treating

23 physician. For example, we have found an expert's opinion "not

24 substantial," i.e., "[]not reasonably" capable of "support[ing] the

25 conclusion that [the claimant] c[ould] work" where the expert

26 addressed only "deficits" of which the claimant was "not

27 complaining," Green-Younger, 335 F.3d at 107-08, or where the expert

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 1 was a consulting physician who did not examine the claimant and

2 relied entirely on an evaluation by a non-physician reporting

3 inconsistent results, see id., or where the expert described the

4 claimant's impairments only as "[l]ifting and carrying moderate[,]

5 standing and walking, pushing and pulling and sitting mild," giving

6 an opinion couched in terms "so vague as to render it useless in

7 evaluating" the claimant's residual functional capacity, Curry v.

8 Apfel, 209 F.3d 117, 123 (2d Cir. 2000).

9 Nor is the opinion of the treating physician to be

10 discounted merely because he has recommended a conservative

11 treatment regimen. See, e.g., Shaw, 221 F.3d at 134 (district court

12 erred in ruling that the treating physician's "recommend[ation of]

13 only conservative physical therapy, hot packs, EMG testing--not

14 surgery or prescription drugs--[w]as substantial evidence that [the

15 claimant] was not physically disabled"). The ALJ and the judge may

16 not "impose[] their [respective] notion[s] that the severity of a

17 physical impairment directly correlates with the intrusiveness of

18 the medical treatment ordered. . . . [A] circumstantial critique by

19 non-physicians, however thorough or responsible, must be

20 overwhelmingly compelling in order to overcome a medical opinion."

21 Id. at 134-35 (internal quotation marks omitted); see also id. at

22 134 (Commissioner is not "permitted to substitute his own expertise

23 or view of the medical proof for the treating physician's opinion").

24 The fact that a patient takes only over-the-counter medicine to

25 alleviate her pain may, however, help to support the Commissioner's

26 conclusion that the claimant is not disabled if that fact is

27 accompanied by other substantial evidence in the record, such as the

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 1 opinions of other examining physicians and a negative MRI. See Diaz

2 v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995).

3 In light of the ALJ's affirmative duty to develop the

4 administrative record, "an ALJ cannot reject a treating physician's

5 diagnosis without first attempting to fill any clear gaps in the

6 administrative record." Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.

7 1999). Further, "the ALJ must not only develop the proof but

8 carefully weigh it." Donato v. Secretary of Department of Health &

9 Human Services, 721 F.2d 414, 419 (2d Cir. 1983).

10 Finally, even when a treating physician's opinion is not

11 given "controlling" weight, the regulations require the ALJ to

12 consider several factors in determining how much weight it should

13 receive. See 20 C.F.R. § 404.1527(d)(2). The ALJ must consider,

14 inter alia, the "[l]ength of the treatment relationship and the

15 frequency of examination"; the "[n]ature and extent of the treatment

16 relationship"; the "relevant evidence . . ., particularly medical

17 signs and laboratory findings," supporting the opinion; the

18 consistency of the opinion with the record as a whole; and whether

19 the physician is a specialist in the area covering the particular

20 medical issues. Id. § 404.1527(d)(2)(i)-(ii), (3)-(5). See also

21 id. § 404.1527(d) (same factors govern how much weight should be

22 given to any medical opinion). We note that "[g]enerally, the

23 longer a treating source has treated [the claimant] and the more

24 times [the claimant] ha[s] been seen by a treating source, the more

25 weight [the Commissioner] will give to the source's medical

26 opinion," id. § 404.1527(d)(2)(i)--contrary to Dr. Abeles's

27 suggestion that the opinion of Dr. Smith be discounted on the ground

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 1 that "he is being influenced by seeing" Burgess "month [in] and

2 month out" (ALJ Tr. 41).

3 After considering the above factors, the ALJ must

4 "comprehensively set forth [his] reasons for the weight assigned to

5 a treating physician's opinion." Halloran, 362 F.3d at 33; see 20

6 C.F.R. § 404.1527(d)(2) (stating that the agency "will always give

7 good reasons in our notice of determination or decision for the

8 weight we give [the claimant's] treating source's opinion" (emphasis

9 added)). Failure to provide such "'good reasons' for not crediting

10 the opinion of a claimant's treating physician is a ground for

11 remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also

12 Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("Commissioner's

13 failure to provide 'good reasons' for apparently affording no weight

14 to the opinion of plaintiff's treating physician constituted legal

15 error").

16 In the present case, we vacate and remand for further

17 consideration because, given the evidence discussed in Part I.A.1.

18 above as to the condition of Burgess's back, the ALJ failed to give

19 good reasons for not crediting Dr. Smith's opinion that Burgess had

20 a bulging disc "encroaching on the space that is normally there in

21 the nerve root" (WCB Tr. 9), "effectively pinching that nerve each

22 time [Burgess] moves" (id. at 11; see id. at 9 ("every time

23 [Burgess] moves a certain way it drags that nerve root across the

24 dis[c] material and is very painful")). That opinion was given in

25 light of the MRI Report on Burgess's back, showing bulging disc

26 material.

27 Preliminarily, we note that the ALJ relied in part on the

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 1 fact that the treatment recommended for Burgess was conservative,

2 pointing out that there was no recommendation for, inter alia,

3 "stronger pain medication," ALJ Decision at 4, and that the district

4 court endorsed that rationale (see D.Ct. Tr. 16-17 (noting "the lack

5 of more serious treatment than . . . Tylenol and Motrin," which the

6 court felt "was . . . a very limited treatment regime here for

7 someone who purported to be in daily and constant pain")). Dr.

8 Smith, however, had testified before the Workers' Compensation Board

9 as to the appropriateness of the treatment he recommended, stating

10 that given the "long term" nature of Burgess's condition, "there is

11 a limit to how much you can give her." (WCB Tr. 21.) The ALJ and

12 the district court did not appear to have been aware of Dr. Smith's

13 rationale for what he considered to be the appropriate course of

14 treatment, and did not provide "the overwhelmingly compelling type

15 of critique that would permit the Commissioner to overcome an

16 otherwise valid medical opinion," Shaw, 221 F.3d at 135.

17 More importantly, in relying on Dr. Abeles's statements

18 that there was "no objective reason" why Burgess could not sit,

19 stand, and walk for six hours out of an eight-hour workday (ALJ Tr.

20 40), the ALJ was unaware of the presence--and contents--of the MRI

21 Report, which was in the administrative record. The MRI Report, as

22 indicated above, was explicitly explained by Dr. Smith at Burgess's

23 Workers' Compensation Board hearing, the transcript of which was

24 also in the administrative record. The MRI Report stated that the

25 MRI performed on Burgess's back revealed an "encroachment of the

26 left neural foramen of L2-3 by what appears to be disc material,

27 producing stenosis in the anterior/posterior direction" (MRI

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 1 Report), and Dr. Smith testified at the Board hearing that this was

2 simply another way of saying "that the nerve root [wa]s impinged"

3 (WCB Tr. 11-12 (MRI Report "us[ed] other words that mean the exact

4 same thing")).

5 The ALJ, however, repeatedly stated that there was no

6 "objective" evidence to support Burgess's claim. ALJ Decision at 4

7 ("the objective findings of record do not show an impairment which

8 can be reasonably expected to produce the pain alleged" (emphasis

9 added)); id. (Burgess's "complaints suggest a greater severity of

10 impairment than can be shown by the objective medical evidence

11 alone" (emphasis added)); id. at 5 ("no objective reason why

12 [Burgess's] sitting, standing, or walking would be limited"

13 (emphasis added)).

14 Plainly, the MRI Report was objective evidence, and it was

15 in the record. Dr. Abeles's own opinion was flawed by the fact that

16 he did not examine the key piece of evidence in the record (not

17 realizing that it was in the record); thus the ALJ's reliance on Dr.

18 Abeles's opinion was itself a flaw. And in light of the ALJ's own

19 failures to recognize that the MRI Report was in the record and to

20 give it any consideration, his repeated statements that there was no

21 "objective" evidence to support Dr. Smith's medical opinion were not

22 "good reasons" for disregarding that opinion, and the denial of

23 Burgess's disability claim on that basis was not supported by

24 substantial evidence.

25 We note that even if the MRI Report had not in fact been

26 in the record before the ALJ, the ALJ should have been aware of its

27 existence given that Dr. Zaretsky mentioned the MRI Report in no

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 1 fewer than six of his reports, and Dr. Abeles testified that

2 "[t]here is some mention of an MRI" (ALJ Tr. 38). Although Dr.

3 Abeles went on to say (erroneously) that "there is no report of an

4 MRI of the lumbar spine" (id.), the ALJ, given his duty to develop

5 the record, should have requested that the MRI Report be supplied,

6 rather than simply stating in his decision that "there was no report

7 of findings" in the record, ALJ Decision at 3.

8 The Commissioner concedes on this appeal that an MRI is a

9 medically acceptable laboratory diagnostic technique, but he argues

10 that the MRI "is not well-supportive of Dr. Smith's opinions."

11 (Commissioner's brief on appeal at 41.) This argument was

12 apparently accepted by the district court, but we reject it for two

13 reasons. First, this plainly was not the basis on which the ALJ

14 denied Burgess's claim, as the ALJ did not know what the MRI Report

15 said. As discussed above, the courts are not permitted to "affirm

16 an administrative action on grounds different from those considered

17 by the agency." Melville, 198 F.3d at 52. Second, the proposed new

18 ground--that the MRI Report does not support Dr. Smith's opinion--is

19 not supported by the record. As noted in Part I.C. above, the

20 district court disagreed with Dr. Smith's medical opinion that the

21 stenosis referred to in the MRI Report meant that the nerve root was

22 being impinged; the court stated that there were "no actual positive

23 nerve findings" and opined that what Dr. Smith meant was that there

24 "could" be nerve impairment and there "could" be pain. (D.Ct. Tr.

25 15.) But all of Dr. Smith's reports stated that Burgess complained

26 of pain, and Dr. Smith explained the MRI Report in testifying before

27 the Workers' Compensation Board, stating that Burgess "has a nerve

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 1 root that is being pushed upon by the dis[c], which is very

2 painful." (WCB Tr. 5 (emphases added).) Neither a reviewing judge

3 nor the Commissioner is "permitted to substitute his own expertise

4 or view of the medical proof for the treating physician's opinion,"

5 Shaw, 221 F.3d at 134, or indeed for any "competent medical

6 opinion," Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998); see id.

7 (ALJ "is not free to set his own expertise against that of a

8 physician who [submitted an opinion to or] testified before him" or

9 to "engage[] in his own evaluations of the medical findings"

10 (internal quotation marks omitted)).

11 In sum, the ALJ's conclusion that there was no objective

12 evidence to support Dr. Smith's opinion was unsupported by anything

13 other than the erroneous statement of Dr. Abeles. The MRI Report on

14 Burgess's spine was objective evidence that supported Dr. Smith's

15 opinion as to Burgess's condition. The ALJ's finding that Burgess

16 can return to work as a salesperson--a job that in her past

17 experience had required her to be on her feet for virtually the

18 entire workday--when Dr. Smith opined that the nature and severity

19 of Burgess's impairment are such that Burgess cannot not stand for

20 more than one hour out of eight, and cannot stand for more than 15

21 minutes at a time, is not supported by substantial evidence.

22 This conclusion does not, however, entitle Burgess to an

23 outright reversal of the denial of benefits, for there was in the

24 record some evidence that might be viewed as substantially

25 contradicting the opinion of Dr. Smith. We do not include in this

26 category the testimony of Dr. Abeles, who plainly had not read the

27 MRI Report; or the report of Dr. Mancheno who, though mentioning in

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 1 the patient history section of his report that Burgess said that she

2 had an "MRI with abnormalities reported," does not appear to have

3 read the MRI Report as he neither mentioned it in the "Laboratories"

4 section of his report nor reflected any awareness of the MRI

5 Report's findings that Burgess had a protruding disc or of Dr.

6 Smith's opinion as to the painful effect of the protrusion. Nor

7 could we view as substantial evidence the box-check forms filled out

8 by the consultants, which betray a lack of awareness of the MRI

9 Report.

10 However, as discussed in Part I.A.2. above, Dr. Zaretsky

11 examined Burgess 12 times, and his later reports appear to have

12 taken into account the MRI Report's findings with respect to

13 Burgess's spine. He also reported that some of Burgess's complaints

14 of pain in response to his questions at several of his examinations

15 were not credible physiological responses. Dr. Zaretsky concluded

16 that the findings based on the MRI of Burgess's back indicated that

17 she had a mild partial--albeit permanent--disability, and he stated

18 in one of his 12 reports (about a year before his last report) that

19 she was "capable of gainful employment" (Report of Dr. Robert

20 Zaretsky dated January 12, 2000). It is not clear whether or not

21 the permanent partial disability noted by Dr. Zaretsky is consistent

22 with the ALJ's conclusion that Burgess is capable of working six-to-

23 eight hours a day on her feet as a salesperson. We leave it to the

24 ALJ, in the first instance, to determine whether the reports of Dr.

25 Zaretsky, who was not expressly mentioned by the ALJ, should be

26 viewed as substantial evidence contradicting the opinion of Dr.

27 Smith so as to entitle that opinion to less than "controlling"

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 1 weight.

2 On remand, Burgess is entitled to express consideration of

3 the MRI Report as to her back and of Dr. Smith's explanation of the

4 report's findings, and to findings of fact supported by substantial

5 evidence. If the ALJ declines to give controlling weight to Dr.

6 Smith's MRI-supported opinion as to the nature and severity of her

7 impairment, Burgess is entitled to a comprehensive statement as to

8 what weight is given and of good reasons for the ALJ's decision.

9 CONCLUSION

10 The judgment of the district court is vacated, and the

11 case is remanded to the Commissioner for further proceedings not

12 inconsistent with this opinion.

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