Jones v. Commissioner of Social Security

Filing 26

MEMORANDUM & ORDER: Defendant's 18 Rule 12(c) motion is denied, and plaintiff's 20 cross-motion is granted to the extent that the case is remanded for further development of the record. On remand, the ALJ should do the following: ( 1) apply the treating physician rule in determining plaintiff's RFC; (2) "give good reasons" if he does not grant the treating physicians' opinions controlling weight; (3) develop the record by obtaining legible copies from Dr. La dopaulos and records from Jones's physical therapist and current psychologist; (4) allow any medical expert ample time to examine plaintiff's entire record before opining; (5) assess plaintiff's credibility using the proper § 404 factors and explain his analysis; and (6) pose an accurate hypothetical to the vocational expert. The decision of the ALJ is hereby vacated, and the case remanded in accordance with the foregoing. Forwarded for judgment. Ordered by Judge Raymond J. Dearie on 8/21/2012. (Chee, Alvin)

VNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------- ]{

GAIL JONES,

MEMORANDUM & ORDER

Plaintiff,
10 CV 5831 (RJD)
- against COMMISSIONER OF SOCIAL SECURITY,
Defendant.

-------------------------------------------------------- ](
DEARIE, District Judge.
Pursuant to 42 U.S.C. § 405(g), Gail Jones appeals the Commissioner of Social
Security's final decision denying her disability benefits under the Social Security Act. Jones,
who dropped out of high school in twelfth grade, worked as a certified nurse assistant from 1985
until 2006, when she fell while working at a nursing home. Born August 30, 1962, Jones was 44
years old at the time of her accident. She has not worked since. The Commissioner found Jones
capable of performing sedentary work. Both parties move for judgment on the pleadings.
Because the ALl failed to apply the treating physician rule or adequately evaluate plaintiffs
claims of pain, the Commissioner's decision is vacated, and the matter is remanded for further
consideration.
On November 5, 2007, plaintiff filed for disability benefits. After her application was
denied, plaintiff had a hearing before All Sol Wieselthier on September 29,2009. Jones
testified and was represented by counsel. On December 21, 2009, ALl Wieselthier issued an
opinion finding that Jones had discogenic and degenerative back impairments and affective
disorder, but that these impairments did not meet or equal any listed impairment. Based
primarily on the testimony of a non-e]{amining medical e]{pert, the All concluded that Jones

retained a residual functional capacity to perfonn sedentary work. In his written opinion, the
AU rejected Jones's characterization ofthe severity of her pain, finding her allegations "not
wholly credible." Tr. 18. On October 7, 2010, the Appeals Council denied plaintiffs request for
review. This action followed.

In reviewing a denial of benefits, the Court must detennine whether the Commissioner's
conclusions are supported by substantial evidence. See, e.g., Green-Younger v. Barnhart, 335
F.3d 99,105 (2d Cir. 2003) (quoting Curry v. Apfel, 134 F.3d 496, SOl (2d Cir. 1998».
"Substantial evidence" is "such relevant evidence as a reasonable mind might accept as
adequate." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (internal quotation
omitted). Here, both parties move for Rule 12(c) judgment on the pleadings, each arguing that
he is entitled to judgment as a matter of law. See Alcantara v. Astrue, 667 F. Supp. 2d 262, 27273 (S.D.N.Y. 2009) (Sullivan, J.). Because the AU failed to apply the treating physician rule or
to properly evaluate plaintiffs credibility, the case is remanded in accordance with this
Memorandum.
The Court assumes the parties' familiarity with the plaintiffs record and the five-step
analysis for evaluating disability claims. See DeChirico v. Callahan, 134 F.3d 1177, 1179-80
(2d Cir. 1998); see also 20 C.F.R. § 404.1520.
This Court does not understand how the AU, after twice volunteering that plaintiff's
testimony was "credible" and detennining that Jones's impainnents could reasonably cause her
pain, nonetheless decided that Jones exaggerated her complaints. See Tr. 18, 60, 63. "Ifthe AU
decides to reject subjective testimony concerning pain ... he must do so explicitly and with
sufficient specificity to enable the Court to decide whether there are legitimate reasons for the

2

ALl's disbelief and whether his determination is supported by substantial evidence." Taub v.
Astrue, 2011 WL 6951228, at *8 (E.D.N.Y. Dec. 30, 2011) (Ross, J.) (internal quotation
omitted). Not only does the ALl fail to identify substantial evidence for judging Jones
incredible, he overlooks, without explanation, substantial contrary evidence in her favor.
First, the ALl finds Jones did not have "significant ongoing medical treatment other than
... physical therapy and prescribed medications" (thrice daily doses of Oxycontin, Flexeril, and
ibuprofen, which plaintiff testified did not help). See Tr. 18,41-42,59. The ALl does not
address Dr. Lambrakis's "strenuous request[s]" for spinal epidurals, wrist surgery, and left and
right knee surgery, procedures plaintiff never had because Workers' Compensation would not
authorize them.

See,~,

Tr. 321, 324, 326. And, without examining Jones's physical therapy

records, it is premature for the ALl to disregard them. ALl Wieselthier also states plaintiff had
"no longitudinal history of psychiatric treatment for depression," but does not mention that
plaintiff stopped seeing her psychiatrist, Dr. Ladopaulos, because of pain, or that she had
restarted mental health treatment by the date of her hearing (records the ALl did not attempt to
pursue). See Tr. 18,55-56. In characterizing plaintiffs depression as "dysthymia ... [or] mild
depression" (Tr. 18), the ALl parrots the opinion of a one-time consulting psychiatrist (Tr. 266)
rather than the opinion of plaintiff s treating psychiatrist, who diagnosed "mood disorder due to
medical condition" and prescribed a daily anti-depressant (Tr. 227).
Second, this Court cannot understand the ALl's statement that Jones "testified that she
was able to handle routine activities of daily living." Tr. 18. In fact, Jones testified that she
cannot walk more than half a block at a time; cannot sit more than 20-30 minutes; and cannot
bend down (preventing her from tying, or wearing, lace-up shoes). Tr. 42-44, 46. Jones's

3

bedroom is on the second floor, and she described climbing the stairs like someone familiar with
every step:
AU: Upstairs, how many steps up?
Jones: Six, the[n] a flat surface, and then another six.
AU: Are you able to climb it without any problems?
Jones: I go slowly, but I can get up there. And sometimes I go backwards. It helps when
I go backwards.
AU: How many times a day do you climb?
Jones: Not much .... Because I'm mostly lying down most of the time .... Once
I go up, I stay up.
Tr.47-48. Jones also testified that her fiance does the shopping, and her young children do the
laundry, clean, and help cook. Tr. 51-53. Also, the AU ignored plaintiffs long, uninterrupted
work history, which entitles her to "substantial credibility." Rivera v. Schweiker, 717 F.2d 719,
725 (2d Cir. 1983). In this context, the ALl's cavalier rejection of plaintiffs testimony is hard to
understand. On remand, the AU should clarify his assessment of Jones's credibility. See §§
404.1529( c)(3)(i)-(vii).
Plaintiffs primary treating physician, Dr. Lambrakis, filled out an RFC with restrictions
preventing plaintiff from doing even sedentary work. Tr. 424-26. Dr. Lambrakis opined that, in
an eight-hour work day, Jones required four hours of rest, could sit for two hours at most, and
could stand or walk for no more than two total hours. Id. Furthermore, Dr. Lambrakis stated
Jones could only sit continuously for 30 minutes before having to change her posture by walking
about for an hour. Tr. 424. For every continuous hour that Jones walked or stood, Dr.
Lambrakis advised that she needed to take 30 minutes off to sit or recline. Tr. 424. Rejecting
Dr. Lambrakis's opinion, the AU instead relied on the opinions of Dr. Weiss (a non-examining
consultative physician) and the DDS examiner. See Tr. 18. The Commissioner must afford a
treating physician's opinion "controlling weight with respect to the nature and severity ofa
4

claimed impairment" if that opinion is "well-supported by medically acceptable ... diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] record." Carvey v.
Astrue, 380 F. App'x 50, 51 (2d Cir. 2010) (partially quoting §404.1527(d)(2)). The ALl must
"give good reasons" for assigning less than controlling weight to a treating physician's opinion.
§ 404. 1527(d)(2). Not only did Dr. Weiss never examine plaintiff, he brushed off MRI evidence
that tended to support Jones's allegations of pain. And, by plaintiffs hearing date, the disability
examiner's opinion that Jones could perform light work was 1.5 years stale, and did not account
for her deteriorating condition. See Tr. 279-84.
Dr. Weiss also based his RFC on an incomplete record. Dr. Weiss never reviewed Dr.
Lambrakis's RFC, and he did not see Dr. Xethalis's records until he was in the middle of
testifYing. See Tr. 69; see also Tr. 60 (ALl stating Dr. Weiss "did not have a lot of [Dr.
Lambrakis's] reports" until Dr. Weiss testified). Dr. Weiss did not mention Dr. Lambrakis's
reports of plaintiffs worsening condition between 2007 and 2009, perhaps because he had not
seen them, or perhaps because on his cursory review, Dr. Weiss believed Dr. Lambrakis
"repeat[ed] himself pretty much all the way through." Tr. 66. In addition, there are gaps in
plaintiff's record that the ALl did not fill. Although Jones attended physical therapy three times
a week, these reports are not included. The ALl never obtained legible records from Dr.
Ladopaulos, plaintiffs treating psychiatrist, J or any reports from plaintiffs new psychologist.
See Tr. 55-56.

I ALJ Wieselthier, who called the notes "impossible to read" during Jones's hearing, seems to have
disregarded the records rather than trying to obtain better copies. Tr. 36 (ALJ: "To be very honest with
you, I can't read it. ... It's almost impossible to read. I think I gave up, that's one of the reasons I don't
have notes on it.")

5

What records Dr. Weiss did examine do not provide substantial evidence for his opinion.
Dr. Weiss adopted the findings of Dr. Chang, a non-treating, consultative physician who
concluded that Jones had no sitting restrictions and could walk or stand six hours in an eight hour
day. Tr.262. Although one of plaintiff s treating physicians, Dr. Katz, did opine that Jones's
limitations would allow sedentary work, Dr. Weiss did not mention Dr. Katz's records during his
testimony.2 Dr. Weiss also minimized plaintiffs MRI findings, even though MRIs of Jones's
right knee and lumbosacral spine give some objective basis for her reports of intense pain. An
MRI of plaintiffs lumbosacral spine taken on June 7, 2007 showed lumbar lordosis, moderate
disc bulge with thecal sac compression, and sacroiliac joint disease (Tr. 290-91), and a July 5,
2007 EMG showed radiculopathy in the same area (Tr. 299). Dr. Weiss dismissed these MRI
findings as "asymptomatic" conclusions that "mayor may not be significant." Tr. 64-65.
Rejecting orthopedic surgeon Dr. Xethalis's diagnosis of a tom medial meniscus, Dr. Weiss
testified that plaintiff's right knee MRI showed only that "one of [her1supporting ligaments is
perhaps narrowed a bit." Tr. 65, 69. In reference to plaintiffs right wrist MRI, Dr. Weiss called
any findings "minimal" because "they are readily removed with simple surgery." Tr. 65. Dr.
Weiss did not mention, however, that Workers' Compensation would not authorize wrist
surgery.
There is simply not substantial evidence to support the ALl's decision that Jones is
capable of sedentary work. See Halloran, 362 F.3d at 31. On remand, the ALl must explicitly
state what weight he grants the opinions of plaintiffs treating and consultative doctors, and he
must give good reasons for discounting any treating physician's opinion in favor of a
2 To the extent that the ALl relied on Dr. Katz's opinion, he explains neither how he reconciled Dr.
Katz's opinion with Dr. Lambrakis's nor whether Dr. Katz's opinion should remain relevant since
plaintiff continued to see Dr. Lambrakis monthly for two years following her final appointment with Dr.
Katz. See Tr. 220-21 .

6

consultative's or non-examining doctor's. See Brickhouse v. Astrue, 331 F. App'x 875,877 (2d
Cir.2009).
Because the vocational expert's recommendations at Jones's hearing were based on the
ALJ's hypothetical, the ALJ must present a new hypothetical accurately reflecting plaintiff's
impairments on remand. See Pokorny v. Astrue, 2010 WL 5173593, at *5 (E.D.N.Y. Dec. 14,
2010) (Garaufis, J.) (legal error where ALJ gave expert inaccurate hypothetical).
For the reasons stated above, the defendant's Rule 12(c) motion is denied, and plaintiff's
cross-motion is granted to the extent that the case is remanded for further development of the
record. On remand, the ALJ should do the following: (I) apply the treating physician rule in
determining plaintiff's RFC; (2) "give good reasons" ifhe does not grant the treating physicians'
opinions controlling weight; (3) develop the record by obtaining legible copies from Dr.
Ladopaulos and records from Jones's physical therapist and current psychologist; (4) allow any
medical expert ample time to examine plaintiff's entire record before opining; (5) assess
plaintiff's credibility using the proper § 404 factors and explain his analysis; and (6) pose an
accurate hypothetical to the vocational expert. The decision of the ALJ is hereby vacated, and
the case remanded in accordance with the foregoing.
SO ORDERED.
Dated: Brooklyn, New York
August).-l,2012

/s/ Judge Raymond J. Dearie
'l'''/'f "'u--<'lLARIE

7