Battaglia v. Astrue
MEMORANDUM DECISION AND ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Ordered by Judge Brian M. Cogan on 5/25/2012. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
JUDY M. BATTAGLIA,
11 Civ. 02045 (BMC)
-againstMICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
COGAN, District Judge.
Plaintiff brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g),
seeking review of the Commissioner of Social Security's denial of her application for disability
insurance benefits. Plaintiff and the Commissioner have each moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below,
plaintiff's motion is granted in part and denied in part, and the Commissioner's motion is denied.
The case is remanded for further proceedings consistent with this decision.
Plaintiff Judy M. Battaglia applied for Supplemental Security Income ("SSI") under Title
)(VI of the Act and disability insurance benefits under Title II of the Act on October 11, 2006,
alleging disability due to chronic fatigue syndrome, fibromyalgia, thyroiditis, tempormandibular
joint disorder ("TMJ"), autoimmune deficiency, and attention deficit hyperactivity disorder. In
May 2007, the Social Security Administration ("the Administration") granted plaintiff's SSI
claim with disability beginning September 1, 2006, but denied plaintiff's claim for disability
insurance benefits because the record did not show that plaintiff was disabled prior to December
31, 2004, plaintiff's date last insured. On July 5, 2007, plaintiff requested a hearing before an
administrative law judge ("ALJ"), and she appeared with counsel before ALJ David Z.
Nisnewitz on February 11, 2009. On April20, 2009, the ALJ denied plaintiff's claim for
disability insurance benefits. On June 19, 2009, plaintiff filed an appeal, which the Appeals
Council denied on February 25, 2011. This action followed.
I. Non-Medical Facts
Plaintiff is fifty-two years old. She allegedly has suffered from fibromyalgia and chronic
fatigue syndrome since the age of two, and currently lives in Middle Village, New York in an
apartment with two roommates. Plaintiff cooks her own meals, performs household chores, and
takes public transportation. She has never married, has no children or surviving parents, has lost
all communication with her siblings, and partakes in no social activity outside of interacting with
her roommates and her doctors.
After graduating from college in 1983, plaintiff received a certificate in secretarial and
computer training from a trade school. From September 1993 through May 1994, plaintiff
worked as an administrative assistant at National Geographic, where she performed
administrative work and supervised five support staff. From 1994 through 1999, plaintiff
worked at Morgan Stanley as an administrative assistant, where she performed letter writing,
typing, and filing tasks. In June 1999, plaintiff was fired from Morgan Stanley because she had
"collapsed" and "couldn't keep up" at work. Plaintiff collected unemployment benefits for six
months, and testified that she could not remember whether she had searched for other
employment following her termination.
II. Medical Evidence
Plaintiff was diagnosed with fibromyalgia, chronic fatigue syndrome, and TMJ in the
1990s, and received treatment for these conditions while working for National Geographic and
Morgan Stanley. In 1995 and 1996, Dr. Howard Bezoza (an internist) and Dr. Gary Ostrow (a
musculoskeletal osteopathologist) recommended that plaintiff refrain from sitting for prolonged
periods of time due to her chronic fatigue syndrome and fibromyalgia. She was treated with
anti-inflammatory medications and participated in a physical therapy program. Nevertheless, she
maintained her employment as an administrative assistant, earning approximately $35,000 in
1995 and $37,000 in 1996.
Beginning after her termination from Morgan Stanley in 1999 through May 5, 2002,
plaintiff regularly obtained medical care for her TMJ from Dr. Gelb at the Elmhurst Hospital
Center. Treatment notes from July II, 2000 state that plaintiff was doing "very well" and was
"comfortable," with "no pain or discomfort." 1 In 2002, plaintiff began to see Dr. Omar Suarez
for, among other things, her myofascial pain. In 2003, Dr. Suarez recommended that plaintiff
see a rheumatologist, and plaintiff met with Dr. Jeffrey Greenberg at the NYU Medical Center
Hospital for Joint Diseases in February of that year.
Plaintiff sought treatment from Dr. Greenberg from 2003 through 2005. At her initial
examination, plaintiff reported low back pain radiating down her legs and feet, and an energy
level of two out of ten. Upon examination, Dr. Greenberg found full ranges of motion in
plaintiffs joints, and eight tender points. 2 Dr. Greenberg diagnosed plaintiff with fibromyalgia,
TMJ, and thyroid disorder. Upon Dr. Greenberg's recommendation, plaintiff also saw
endocrinologists regarding her thyroid at New York Presbyterian Hospital's endocrinology
Plaintiff testified at the hearing that she did not seek medical care during this period.
According to the American College of Rheumatology guidelines, the existence of at least eleven of eighteen
specified tender points may be used to support a diagnosis offibromyalgia. See Green-Younger v. Barnhart, 335
F.3d 99, 107 (2d Cir. 2003). Although Dr. Greenberg noted only eight tender points during his initial examination
of plaintiff, he identified fourteen tender points on August II, 2005, approximately eight months after plaintiff's
date last insured.
division and at Elmhurst Hospital Center, where she received medication for autoimmune
thyroid disease and was diagnosed with Graves' disease.
In March 2003, Dr. Greenberg prescribed plaintiff low dosages of Prednisone, which
caused plaintiff's energy level to increase to a seven out of ten and her pain to decrease to two
out often (from an earlier eight out often) by her next visit about one month later. Dr.
Greenberg reported that plaintiff"has not felt this much energy and well[-]being in [the] last few
years." X-rays of plaintiff's spine showed levo-convex scoliosis and preserved vertebral body
height and disc spaces. Plaintiff's blood tests were negative for rheumatoid factor.
Plaintiff continued to visit Dr. Greenberg approximately every two to three months
throughout 2003 and 2004. On July 7, 2003, Dr. Greenberg instructed plaintiff to taper off
Prednisone and to begin taking Plaquenil. He also noted that plaintiff's fibromyalgia had
improved and that she reported improved energy and decreased pain while on medication.
Similarly, on September 13, 2003, Dr. Greenberg reported that plaintiff's fatigue was better and
that she had switched from Prednisone to Plaquenil. On May 20, 2004, Dr. Greenberg noted that
Plaquenil provided plaintiff "with months of relief," but that plaintiff experienced increased pain
when her prescription ran out during the preceding week. Plaintiff reported to the nurse that this
pain was severe and constant. Finally, on October 14, 2004, plaintiff visited Dr. Greenberg and
complained of nausea for the past five months. She had no abdominal pain or fevers, she had
"no substantial pain complaints," her lab results were within normal limits, and her energy level
Plaintiff also received treatment from other doctors during the relevant period, including
Dr. Reddy from NYU Medical Center Hospital for Joint Diseases and doctors from Elmhurst
Medical Center. On December 11, 2003, plaintiff was treated at the Elmhurst infectious disease
clinic. Treatment notes indicate that plaintiff stated multiple complaints, that infectious causes
were unlikely, and that the hospital should rule out anxiety disorder versus chronic fatigue
syndrome. On July 18, 2004, plaintiff was treated at Elmhurst's endocrinology clinic with
complaints of pain, insomnia, and problems with memory. Finally, Dr. Reddy examined plaintiff
on September 23, 2004 and found some possibly decreased range of motion in her shoulders and
wrists, as well as diffuse tenderness to palpitation. She noted that plaintiff showed "very good
clinical imp[rovement] of symptoms" and that plaintiff's fibromyalgia was "doing well." Also,
while taking note of plaintiff's concern that her condition may "flare w[ith] season change," Dr.
Reddy observed that plaintiff "feels imp[rovement]" since her last visit in May 2004 and "feels
almost ready to return to go back to work."
Apart from these reports, plaintiff's physicians also wrote a series ofletters (mostly
handwritten) describing plaintiff's conditions and complaints. Within the relevant period, Dr.
Greenberg wrote three such letters. The first, dated July 3, 2003, states that "[i]n the past six
weeks, [plaintiff] has had problems with her medication adjustments, which has caused her
fibromyalgia to worsen," and that plaintiff"has been experiencing severe fatigue and pain." The
second, dated September II, 2003, states that plaintiff"has been having acute pain and
exhaustion, causing difficulty functioning." In the final letter, dated May 20, 2004, Dr.
Greenberg wrote that plaintiff "has been disabled with loss of ability to function in her normal
manner," but that she is "determined to get better" and that "she has improved."
Additionally, Dr. Greenberg wrote an undated letter describing his treatment history with
plaintiff between 2003 and 2005. 3 In that letter, Dr. Greenberg notes that plaintiff"suffered from
acute pain and exhaustion," was "easily exhausted after physical exertion," and that she
Although the AU questioned the evidentiary value of this undated medical opinion, the ALJ admitted the letter
"relapsed after physical or emotional stresses, seasonal changes, or illness." Dr. Greenberg also
noted that plaintiff complained of "anxiety and depression" due to her inability to find a "good"
endocrinologist or "good" thyroid care. The letter indicates that Dr. Greenberg treated plaintiff
with Zoloft, Prednisone, and Plaquenil, and that plaintiff was "very slow to recover." Dr.
Greenberg concluded that plaintiff "had not worked in years and could not have maintained
gainful employment during this time of treatment."
Dr. Yoo and Dr. Chen wrote similar letters. In October 2003, Dr. Yoo saw plaintiff for
the first time and noted in a handwritten letter that plaintiff had tremendous problems and
complaints, is being treated for fibromyalgia, and could not work at the time due to her fatigue
and pain. In December 2003, Dr. Chen wrote that plaintiff had fibromyalgia, was taking
medication for her pain and feels some improvement, that she required three more months of
treatment to enhance its effect, and that plaintiffs symptoms impeded her ability to work at that
time. Six months later, Dr. Chen wrote that plaintiffs condition showed some improvement and
that she could hopefully return to work by the end of the year.
III. Psychiatric Evidence
Following her termination from Morgan Stanley, plaintiff complained of depression and
sought psychiatric care at Elmhurst Hospital Center in December 2003. There, therapist Woods
noted in his intake interview on December 18, 2003, that plaintiff appeared well-nourished, wellgroomed, cooperative, and without thought disorder, but that she was "preoccupied with health
and finances." He further noted that she had normal speech, fair judgment and insight, and was
without suicidal ideation or delusion, but that she had an anxious mood and an inappropriate
affect. He diagnosed general anxiety disorder.
On January 12 and 14, 2004, plaintiff saw Dr. Aneselovita and therapists Woods,
respectively. During these sessions, plaintiff complained of hypersomnia, low interest, and low
energy, but was motivated to accomplish the goals of treatment. At the next session on January
21,2004, Dr. Aneselovita reported that plaintiff appeared neat, clean, and maintained good eye
contact, noting that plaintiff denied having depression or anxiety, but complained about her
physical ailments and stated that she suffered from obsessive-compulsive disorder. Plaintiff had
a final visit with Woods on January 26, 2004, and missed her February appointment. Elmhurst
discharged plaintiff in May 2004 due to her six months of unexplained absence.
IV. Social Security Proceedings
After requesting and receiving an adjournment of her originally scheduled hearing,
plaintiff appeared before the ALJ on February 9, 2009. At the hearing, she testified that
following her termination from Morgan Stanley in 1999, she "fell like a sack of flour" and
remained bedridden, dressing "a couple times a week" and unable to "do anything." During this
period, she suffered from widespread pain, dizzy spells, mental breakdowns, and "exhaustion
that was beyond anything." This "black period" concluded in 2003, but plaintiff testified that
she continued to suffer from daily headaches as a result of her TMJ, neck pain, prolonged dizzy
spells that are aggravated by the weather, and widespread pain and exhaustion.
Plaintiff further testified that in 2003 she started seeing Dr. Greenberg, who diagnosed
her with fibromyalgia, recommended that she see an endocrinologist, and prescribed her
medication. Plaintiff noted that she did not believe her visits to the endocrinologists did much,
but that Dr. Greenberg, the only doctor plaintiff testified as seeing regularly during this period,
helped her cope by putting her on Plaquenil. Plaintiff testified that Plaquenil helped "a lot" and
that her "energy definitely got better" while taking that medication.
Dr. Plotz, a rheumatologist internist and the appointed impartial medical expert, also
testified as to plaintiffs medical condition. Dr. Plotz had received the bulk of plaintiffs medical
file at the beginning of the hearing, as plaintiff had sent this evidence to the Commissioner less
than one week prior. He stated that "it really wouldn't be fair to the claimant for me to try to
read [plaintiff's medical file] hastily," to which the ALJ responded by expressing his reservations
about rescheduling the hearing. The ALJ resolved the issue by instructing Dr. Plotz to review as
much as he could before he gave his testimony, and to review the file in greater detail after the
hearing and inform the ALJ if his opinion changed. The ALJ further offered plaintiff the
opportunity to send Dr. Plotz interrogatories once the he had completed this review. The record
does not indicate any subsequent communication between Dr. Plotz and the ALJ or plaintiff, and
plaintiff concedes that she never inquired into the matter or sent Dr. Plotz interrogatories.
Dr. Plotz testified at the hearing that plaintiff fit the classic pattern of what he called
"blurred diseases," but that plaintiff did not have a classic picture of fibromyalgia. He noted that
the record contains no physical findings or laboratory tests that might explain plaintiffs
complaints of fatigue and pain, and that plaintiff likely suffers from anxiety and depression.
Overall, he concluded that plaintiffs medical conditions did not meet any of the listings in
Appendix I and that plaintiff could stand and walk six hours in a day, had no limitation on
sitting, and could lift and carry up to twenty pounds. Plaintiffs counsel did not cross-examine
Dr. Plotz as to plaintiff's physical capabilities, but did question him on plaintiff's alleged
psychiatric condition. After informing plaintiffs counsel that he was not a psychiatrist, Dr. Plotz
opined that plaintiff had "moderate" psychiatric problems, including obsessive compulsive
disorder. During this exchange, plaintiffs counsel requested that plaintiff be sent for a
psychiatric examination to determine whether her condition was disabling during the relevant
period, which the ALJ took under consideration but ultimately rejected.
Finally, vocational expert Andrew Pasternak testified that plaintiff worked as an
"administrative assistant" at Morgan Stanley, which he classified as sedentary work.
V. AU's Disability Determination
By written decision dated April20, 2009, the ALJ concluded that plaintiff was not
disabled within the meaning of the Act during the relevant period. The ALJ determined that
plaintiffs fibromyalgia and thyroiditis were severe medically-determinable physical
impairments, but that plaintiff retained the physical ability to perform her past relevant work as
an administrative assistant and office manager. In reaching this conclusion, the ALJ found that
although plaintiffs fibromyalgia could reasonably be expected to produce plaintiffs chronic
pain and headaches, the severity of plaintiffs subjective accounts of pain were not credible or
otherwise supported by objective medical evidence. The ALJ supported this conclusion by
noting plaintiffs ability to continue performing her physical chores throughout the relevant
period, that she was not under medical care from 1999 through 2002 despite her professed
medical condition, and that plaintiffs physicians' reports indicated that plaintiffs condition was
controlled by her medications, that she showed very good clinical improvements since beginning
her treatment in 2003, and that there was no objective diagnostic evidence of musculoskeletal
abnormalities. Finally, the ALJ noted that the only abnormal lab results concerned plaintiffs
thyroid levels, which were controlled by medication, and that there was no evidence of end organ
damages as a result of plaintiffs thyroiditis.
In reaching this conclusion, the ALJ gave no weight to the opinions of certain of
plaintiffs doctors. First, the ALJ disregarded Dr. Greenberg's opinion that plaintiff"could not
have maintained employment during [the relevant] period," which was offered in an undated,
one-page letter. The ALJ did so because this opinion "did not provide any clinical treatment
notes," did not provide a "function by function assessment of [plaintiff's] physical capacity," and
because "an opinion regarding the claimant's inability to work is a decision reserved to the [ALJ]
in determining the claimant's disability." The ALJ similarly afforded no weight to various
medical notes written by Drs. Ellen Blye, Howard Bezoza, and Gary Ostrow in the mid-1990s.
The ALJ based this decision on the fact that each opinion was written for the purpose of
excusing plaintiff from jury duty and did not provide any clinical evidence of disability. Further,
Dr. Blye' s letter did not provide a diagnosis, Dr. Bezoza' s letter did not provide a physical
assessment, and Dr. Ostrow's opinion that plaintiff would have difficulty with prolonged sitting
was contradicted by the fact that plaintiff was working as an administrative assistant at the time.
With respect to plaintiff's mental impairments, the ALJ acknowledged their alleged
existence but concluded that they had "no more than a minimal effect on her ability to do basic
work activities." In support of his conclusion, the ALJ relied on plaintiffs psychological
evaluations, the fact that she stopped seeing her psychiatrist after three sessions, and the fact that
plaintiff was never prescribed psychotropic medication.
I. Legal Framework and Standard of Review
A district court may set aside the Commissioner's determination that a claimant is not
disabled in a social security case if the Commissioner failed to apply the correct legal standards
or if the factual findings are not supported by substantial evidence. See 42 U.S.C. § 405(g);
Schaal v. Apfel, 134 F .3d 496, 501 (2d Cir. 1998). "The former determination requires the court
to ask whether "the claimant has had a full hearing under the [Commissioner's] regulations and
in accordance with the beneficent purposes of the Act." Echevarria v. Sec'y of Health & Hwnan
Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotation marks omitted). The latter
determination requires the court to ask whether the decision is supported by "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 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305
U.S. 197, 229, 59 S. Ct. 206 (1938)).
A claimant is "disabled" under Title II if she is unable "to engage in substantial gainful
activity by reason of any medically determinable physical or mental impairment." 42 U.S.C.
§ 423(d)(l)(A). The impairment must be of"such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy." See id. §
"The burden of proving disability is on the claimant," Mimms v. Heckler. 750 F.2d 180,
185 (2d Cir. 1984), and the ALJ retains sole responsibility for determining whether a plaintiff is
"disabled" under the Act. See 20 C.F.R. § 404.1527(e)(l); Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). Nevertheless, in weighing the medical evidence, the ALJ is obligated to adhere to the
rules set forth in 20 C.F.R. § 416.927(d), which requires that the Commissioner give a treating
physician's opinion "controlling weight" if her opinion is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant's] case record." 20 C.F.R. § 416.927(d)(2); see also
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Such "clinical and diagnostic techniques"
include a patient's reports or complaints. See Burgess, 537 F.3d at 128.
An ALJ who declines to give controlling weight to a treating physician's medical
opinions must give "good reasons" for his decision based on various factors, including: "(i) the
frequency of the 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." Schaal v. Apfel, 134
F.3d 496, 503-04 (2d Cir. 1998); see also 20 C.F.R. § 404.1527(d). Although an ALJ need not
discuss each of these factors explicitly, it must be clear from his decision that he '"applied the
substance of the treating physician rule.'" Callanan v. Astrue, No. 10-CV-1717, 2011 U.S. Dist.
LEXIS 13103, at *8 (E.D.N.Y. Feb. 10, 2011) (quoting Halloran v. Barnhart, 362 F.3d 28,32
(2d Cir. 2004)).
An ALJ may not, however, reject a treating physician's opinion merely because
supporting clinical or diagnostic evidence is not in the record. See Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999). This is true regardless of whether a plaintiff is represented by counsel.
See id.; Perez v. Chater, 77 F.3d 41,47 (2d Cir. 1996). Unlike trial judges, ALJs have an
affirmative duty to develop a complete medical record before making a disability determination,
in light of the non-adversarial nature of benefits proceedings. See Burgess, 537 F.3d at 128;
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996). Nevertheless, "where there are no obvious gaps in the administrative record, and where
the ALJ already possesses a 'complete medical history,' the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim." Ros!!, 168 F .3d at 79 n.5
(quoting Perez, 77 F.3d at 47).
II. Duty to Develop the Record
Plaintiff alleges numerous examples of procedural error in this case, but the argument
that holds the most traction is plaintiffs assertion that the ALJ failed in his duty to develop
plaintiff's medical record. Specifically, plaintiff notes that none of her treating physicians
"seemed to have been asked" whether she could have actually performed her past work. I
interpret this statement as a contention that the ALJ erred by neglecting to obtain medical source
statements from plaintiff's treating doctors. 4 After a careful review of plaintiff's administrative
file, I have been unable to fmd a medical source statement addressing plaintiff's abilities during
the relevant period, nor have I found any evidence to suggest that the ALJ or the Administration
requested such statements. I therefore agree with plaintiff, and find that the ALJ' s failure to
request medical source statements requires remand of this case for three reasons.
First, district courts within this Circuit have routinely recognized that ALJs have an
affirmative duty to request medical source statements from a plaintiff's treating sources in order
to develop the record, regardless of whether a plaintiff's medical record otherwise appears
complete. See. e.g., Stokes v. Astrue, No. 7:10-CV-1129, 2012 U.S. Dist. LEXIS 27016, at *2833 (N.D.N.Y. Mar. 1, 2012); Funk v. Astrue, No. 10-CV-602, 2012 U.S. Dist. LEXIS 18867, at
*11-13 (N.D.N.Y. Feb. 15, 2012); Johnson v. Astrue, 811 F. Supp. 2d 618,630-31 (E.D.N.Y.
2011); Robins v. Astrue, No. CV-10-3218, 2011 U.S. Dist. LEXIS 63145, at *8-9 (E.D.N.Y.
June 15, 2011). This conclusion is grounded in the regulations themselves, which provide that
the Commissioner will make every reasonable effort to obtain medical reports from a claimant's
medical sources, including a statement about the claimant's capabilities in light of her
A medical source statement is a medical opinion concerning "an individual's physical or mental ability to perfonn
work-related activities on a sustained bases." Social Security Ruling 96-Sp, Policy Interpretation Ruling Titles II
and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, 1996 SSR Lexis 2. at *II (July 2,
1996); see also 20 C.F.R. § 404.1512(b)-(c).
impairments. See 20 C.P.R.§ 404.1512; id. § 404.1513(b)(6). Moreover, Social Security Ruling
96-5p provides that "[a]djudicators are generally required to request that acceptable medical
sources provide [medical source] statements with their medical reports," 1996 SSR Lexis 2, at
*11, and such rulings are binding on ALJs. See 20 C.P.R.§ 402.35(b)(2); Robins, 2011 U.S.
Dist. LEXIS 63145, at *9. Thus, the law is clear that the ALJ was required to request such
statements from plaintiff's treating physicians before concluding that plaintiff was not disabled.
By neglecting to do so, he reached a disability determination on an incomplete record.
Although this failure is sufficient to require remand by itself, the ALJ further
compounded the prejudice to plaintiff by affording no weight to the opinion letter of Dr.
Greenberg in part because it did not include a function-by-function assessment of plaintiff's
physical capacity. This was of course factually correct, but it was also improper. Dr. Greenberg
may very well have not understood how to best communicate to the Administration his belief
that plaintiff was disabled, and it is for this reason that ALJs have a duty to request that a treating
source provide a functional assessment. See Rosa, 168 P.3d at 80. Having failed to do so, the
ALJ committed error by using the absence of such an assessment as a reason for disregarding Dr.
Greenberg's opinion. 6
This conclusion is bolstered by the oft-quoted passage in Peed v. Sullivan. 778 F. Supp. 1241 (E.D.N.Y. 1991), in
which Judge Glasser explained the value of a treating physician's opinion. "[W]hat distinguishes [a treating
physician] from the examining physician and from the ALJ," explained Judge Glasser, "is his opportunity to develop
an informed opinion as to the physical status of a patient. To obtain from a treating physician nothing more than
charts and laboratory test results is to undermine the distinctive quality of the treating physician that makes his
evidence so much more reliable than that of an examining physician . . . . It is the opinion of the treating physician
that is to be sought; it is his opinion as to the existence and severity of a disability that is to be given deference."
778 F. Supp. 1241, 1246.
Plaintiff's attorney of course could have and should have either asked Dr. Greenberg to provide a functional
analysis, or requested that the Administration provide Dr. Greenberg with an assessment form. Her attorney's
failure to do so is but one example of his lack of diligence, which is readily apparent throughout plaintiff's
administrative file. Nevertheless, the ALJ bears an independent duty to reach a disability determination on a
complete record, even where a plaintiff is represented by counsel. See Rosa. 168 F.3d at 79; Perez, 77 F.3d at 47.
Admittedly, the ALJ also declined to afford any weight to Dr. Greenberg's opinion that
plaintiff "could not have maintained gainful employment" on the ground that this opinion is a
conclusion on the ultimate issue of disability. This was a proper consideration, as the ALJ is not
required to give controlling weight to a treating physician's opinion regarding a plaintiff's
disability status. See 20 C.F.R. § 404.1527(e)(l); Snell, 177 F.3d at 133. However, that the ALJ
was not required to give Dr. Greenberg's opinion controlling weight does not negate the fact that
he relied on an impermissible factor in deciding to give the opinion no weight. 1n any event, Dr.
Greenberg's opinion that plaintiff was disabled at the very least highlights the potential prejudice
to plaintiff from the failure of the ALJ to request his medical source statement. Without such an
assessment, the ALJ and this Court can only speculate as to Dr. Greenberg's opinion regarding
plaintiff's ability to perform specific functions.
Third, medical source statements would have been particularly significant in this case in
light of the fact that plaintiff's primary impairment during the relevant period was fibromyalgia.
As the Second Circuit explained in Green-Younger v. Barnhll!!, 335 F.3d 99, I 08 (2d Cir. 2003),
fibromyalgia is a "disease that eludes [objective] measurement." Thus, the only clinical
diagnostic techniques that could have been expected to support a finding of disability were a
positive tender point test, plaintiff's subjective complaints of pain and fatigue, and her treating
physician's determination as to the severity of her impairments and her ability to function. See
id. at I 06-07. The record is clear that plaintiff complained of debilitating pain and exhaustion (at
This opinion is not Dr. Greenberg's only opinion regarding the relevant period in the record. He wrote on
September ll, 2003, that plaintiff "has been having acute pain [and] exhaustion, causing difficulty functioning," and
on May 20,2004, that plaintiff has suffered a "loss of ability to function in her usual manner." Although these
statements undoubtedly blur the line between a doctor's opinion and a recounting of plaintiff's complaints, the ALJ
should have considered them in light of the fact that medical opinions frequently incorporate a patient's reports,
particularly when the patient is suffering from a disease like tibromyalgia. On remand, the ALJ must consider in his
disability determination these opinions, as well as the opinions of Drs. Chen and Yoo, and provide good reasons for
the weight he assigns to them. See Lunan v. Barnhart, No. 01-CV-424, 2003 U.S. Dist. LEXIS 22891, at *12-13
(N.D.N.Y. Dec. 4, 2003).
least at times), and although the results of her tender point tests varied, everyone, including the
ALJ, accepted that plaintiffhad fibromyalgia. Thus, the opinions of plaintiff's treating
physicians were a critical missing piece in her claim of disability.
I do note, however, that the ALJ' s decision demonstrates that he carefully considered
plaintiff's conditions and her complaints of pain, recognizing that she suffered from fibromyalgia
and thyroiditis and that these impairments were severe. He also quite reasonably found that
several treatment notes indicate that plaintiff was responding well to medication and undermine
her complaints as to the severity of her pain and fatigue. However, the majority of these
treatment notes provide relative characterizations of plaintiff's symptoms, ~. that she was
feeling improved energy and decreased pain. Such statements can easily be misinterpreted,
particularly considering that plaintiff claimed that she had previously suffered from such
debilitating pain and exhaustion that she could not get out of bed for three years. Without even
attempting to obtain an opinion from any of plaintiff's treating physicians regarding plaintiff's
functional abilities, it was not fair for the ALJ to seize upon these treatment notes as evidence
that plaintiff in fact could have performed her past relevant work. Remand is therefore required
III. Dr. Plotz's Review of Plaintiff's Medical Record
Plaintiff's next point of contention is that she was prejudiced as a result of Dr. Plotz's
failure to review her medical records prior to her hearing. She specifically notes that she was
unfairly prevented from cross-examining Dr. Plotz on her psychological impairments and on her
chronic fatigue syndrome. I am not persuaded that plaintiff was prejudiced in either of the ways
she contends. However, as I explain in greater detail below, plaintiff must be afforded a new
hearing on remand.
With regard to plaintiff's arguments, the record indicates that she had ample opportunity
to cross-examine Dr. Plotz on his opinion as to plaintiff's mental impairments, and her attorney
in fact did so. Further, Dr. Plotz was sufficiently prepared to provide this opinion and field
questions. He stated unequivocally that he had reviewed plaintiff's psychiatric treatment records
prior to testifying, and these records were a relatively small part of plaintiff's file. He also stated
that plaintiff likely suffered from obsessive compulsive disorder and that her mental impairments
were moderate. Thus, plaintiffs argument that Dr. Plotz was unprepared for cross-examination
or that she was unfairly prevented from cross-examining him regarding plaintiff's psychological
impairments is meritless.
Additionally, plaintiff concedes in her motion that her attorney did not cross-examine Dr.
Plotz on her chronic fatigue syndrome because the attorney had not realized that plaintiff had
been found to be disabled as a result of that condition as of September 2006. Thus, it was
counsel's lack of preparation, not Dr. Plotz's, that inhibited plaintiffs cross-examination with
regard to this impairment. 8
Nevertheless, I am concerned by the procedure employed by the ALJ after he learned
that, due to plaintiff's last-minute submission of voluminous records, Dr. Plotz had reviewed
only a small portion of plaintiff's medical evidence prior to the hearing. To remedy this
problem, the ALJ instructed Dr. Plotz to review plaintiff's file as best he could during the
hearing, to review the file more thoroughly after the hearing, and to update the parties if his
opinion changed. The ALJ further offered plaintiff the opportunity to send Dr. Plotz
interrogatories based on any supplemental opinion he offered, and plaintiff accepted this
Notably, plaintiff's attorney elected not to cross-examine Dr. Plotz on any of plaintiff's physical impairments,
despite the fact that Dr. Plotz testified about plaintiff's fibromyalgia and chronic fatigue syndrome and opined that
she retained the ability to perform light work.
proposal. But plaintiff contends that she never heard anything more from either Dr. Plotz or the
ALJ, and therefore did not send interrogatories. 9 Moreover, there is no evidence in the record
that Dr. Plotz conducted any additional review of plaintiff's medical evidence to confirm that his
prior testimony was accurate. 10
This procedure may well have been appropriate and sufficient as proposed. However, I
cannot endorse it here as a result of the lack of clarity in the record. The ALJ should have
ensured that Dr. Plotz completed his review of plaintiffs medical records, informed plaintiff of
this fact, and included this correspondence in plaintiffs administrative file. Because he did not
do so, I cannot determine whether it was reasonable to credit Dr. Plotz's testimony, or conclude
that plaintiff received the fair hearing to which she was entitled. Thus, plaintiff must have the
opportunity to appear before the ALJ once more, and to have a disability determination based on
testimony from a medical expert that has reviewed her record in full.
IV. Psychiatric Consultative Examination
Plaintiff also argues that the ALJ failed to develop the record with regard to her alleged
psychological disability by refusing to order a psychiatric consultative examination. According
to plaintiff, such an examination was necessary in light of the evidence suggesting that she
suffered from mental illness during the relevant period. She specifically identifies as support her
psychiatric treatment at Elmhurst Hospital, her Zoloft prescription from Dr. Greenberg, and Dr.
Plotz's comments during the hearing that she had moderate psychological problems.
Under the Social Security regulations, an ALJ typically has discretion in determining
whether to order a consultative examination. See 20 C.F.R. § 404.1517; Hughes v. Apfel, 992 F.
Plaintiff also made no effort to contact either the ALJ or Dr. Plotz.
Dr. Plotz did testifY that he had finished his review of the record at the hearing, but plaintiff's medical records are
nearly one thousand pages.
Supp. 243,248 (W.D.N.Y. 1997). However, when the facts suggest that such an examination is
necessary to resolve a "conflict, inconsistency, ambiguity, or insufficiency in the evidence," the
ALJ must order the examination in order to fulfill his duty to develop the record. See Lefever v.
Astrue, No. 5:07-CV-622, 2010 U.S. Dist. LEXIS 103777, at 20-21 (N.D.N.Y. Sep. 30, 2010);
Hughes, 992 F. Supp. at 248. Based on the circumstances of this case and the psychiatric
evidence in the record, the ALJ properly concluded that a consultative examination was not
As an initial matter, the ALJ correctly noted during the hearing that ordering a psychiatric
examination five years after plaintiffs date last insured would not be particularly probative of
her allegedly disabling mental condition during the relevant period. Moreover, the evidence
concerning plaintiffs mental health was not in conflict, inconsistent, ambiguous, or insufficient
for the ALJ to make a disability determination. As previously noted, psychiatric records from
Elmhurst Hospital showed that plaintiff at times complained of anxiety and depression and was
diagnosed with general anxiety disorder, but she was well-nourished, well-groomed, and showed
no evidence of thought disorder or psychosis. These impressions are consistent both with the
treatment notes of Dr. Greenberg and with plaintiffs intermittent use of Zoloft and Paxil.
Additionally, as noted by the ALJ and as discussed above, plaintiff voluntarily discontinued her
psychiatric treatment at Elmhurst - her only mental health treatment during the relevant period shortly after her first visit. In light of these facts, the ALJ was not required to order a
consultative psychiatric examination in order to fully develop the record. 11
Plaintiff also argues that the ALJ should have requested a retrospective assessment of plaintiff's psychological
impairments. However, an AU is not required to obtain retrospective assessments where the plaintiff has not
identified a treating physician prepared to offer such an assessment and indicated that a retrospective assessment
would reveal any useful information. See Perez, 77 F.3d at 48; cf. Pino v. Astrue, No. 09 Civ. 3465, 2011 U.S. Dist.
LEXIS 23237, at *69 (S.D.N.Y. Feb. 8, 2011) (holding that the AU erred by failing to recontact plaintiff's treating
psychiatrist after plaintiff requested that the AU do so and indicated that the psychiatrist would provide a
V. Alleged Bias
Plaintiff's next contention is that the ALJ' s "patent bias" prevented her from receiving a
fair hearing and a disability determination based on a fully developed record. Additionally, she
requests that in the event her case is remanded, that it be remanded to a different ALJ. Because I
have already found that the record was not fully developed and that remand is required, I focus
on plaintiff's request that I remand her case to a new ALJ.
The assignment of a disability claim to a different ALJ on remand is a decision ordinarily
left to the discretion of the Commissioner. See Sutherland v. Barnhart, 322 F. Supp. 2d 282, 292
(E.D.N.Y. 2004). However, in extreme circumstances, the conduct of an ALJ may give rise to
"serious concerns about the fundamental fairness of the disability review process," in which case
remanding the case to a new ALJ is appropriate. See id. Examples of scenarios in which a
serious concern may arise include when there is: (I) a clear indication that the ALJ will not apply
the appropriate legal standard; (2) a clearly manifested bias or inappropriate hostility toward any
party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to
a party; or (4) a refusal to weigh or consider evidence with impartiality. See Valet v. Astrue, No.
10-CV-3282, 2012 U.S. Dist. LEXIS 7315, at *68-69 (E.D.N.Y. Jan. 23, 2012); Sutherland, 322
F. Supp. 2d at 292.
Applying this standard to the instant case, I find that remanding plaintiff's disability
claim to a new ALJ is not warranted. Plaintiff cites as examples of bias the ALJ' s allegedly
aggressive questioning style, his repeated interruptions of her testimony and her counsel's crossexamination of Dr. Plotz, and his frustration with plaintiff's attempt to offer Dr. Greenberg's
undated letter into evidence. However, I have reviewed the transcript and find that the ALJ's
retrospective assessment). Because plaintiff did neither of these things, the AU did not fail to develop the record
with regard to plaintiff's mental impairments.
questions and "interruptions" generally served to clarity the testimony and the issues to be
decided, and did not demonstrate a clear bias or inability to adjudge plaintiff's disability claim
fairly. Further, the ALJ eventually admitted Dr. Greenberg's undated letter into evidence, and
merely opining on the propriety of submitting an undated medical opinion letter does not exhibit
the "patent bias" plaintiff alleges. Cf. Liteky v. United States, 510 U.S. 540, 555-56 (1994).
Thus, I leave it to the Commissioner to determine the assignment of plaintiff's case on remand. 12
For the foregoing reasons, defendant's motion for judgment on the pleadings is denied,
and plaintiff's motion is granted in part and denied in part. The case is remanded to the
Commissioner for further administrative proceedings consistent with this decision.
Dated: Brooklyn, New York
"r have considered plaintiff's remaining allegations of procedural error and find them to be without merit.
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