Di Pasqua v. Commissioner of Social Security
MEMORANDUM AND ORDER. The determination of the Commissioner to deny DiPasqua SSI benefits is reversed and the matter remanded for further proceedings consistent with this Memorandum and Order. The Clerk of Court is directed to enter judgment and to close this case. Ordered by Judge Eric N. Vitaliano on 7/7/2013. Forwarded for judgment. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARK DI PASQUA,
MEMORANDUM & ORDER
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Mark Di Pasqua seeks review, pursuant to 42 U. S.C § 405(g), of the final
decision ofthe Commissioner of Social Security 1 ("Commissioner") denying his application for
supplemental security income benefits ("SSI") under the Social Security Act ("Act"). The parties
have filed cross-motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Plaintiff argues that the administrative law judge ("ALJ") erred in
failing to apply the appropriate legal standards, and that the decision was not supported by
substantial evidence. The Commissioner counters that she correctly applied the relevant legal
standards and that substantial evidence supports the decision that Di Pasqua does not qualify for
SSI benefits. For the reasons set forth below, the Court denies the Commissioner's motion and
grants Di Pasqua's motion to the e}(tent that this case is remanded for further administrative
Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Fed. R. Civ. P. 25(d), Colvin is substituted for Michael J. Astrue as the defendant in
this action. The Clerk is directed to amend the caption to reflect this change.
I. Procedural History
On July 11, 2008, Di Pasqua filed an application for SSI benefits based on an
accumulation of several impairments: manic depression, herniated discs, hepatitis B, and high
blood pressure. (R. 12, 42, 98.)2 The Social Security Administration ("SSA") denied the
application on October 28,2008. (R. 12.) On February 12, 2010, a hearing was held before ALJ
Joseph K. Rowe. (R. 12.) Di Pasqua, who was and remains represented by counsel, appeared and
testified. (R. 23-41.)
In a March 5, 2010 written decision, the ALJ denied Di Pasqua's claim,
concluding that his discogenic, that is intervertebral disc, and degenerative back disorder,
hepatitis B, and hypertension were severe impairments but that plaintiff was "capable of
performing past relevant work as a building inspector" based on his residual functional capacity
("RFC"). (R. 9-17.) The ALJ rejected outright Di Pasqua's claim that he suffered from severe
manic depression. (R. 14.) The decision of the ALJ became the final decision of the
Commissioner on July 6, 2011, when the Appeals Council denied Di Pasqua's request for
review. (R. 1-4.) Di Pasqua timely filed this action on August 22,2011 to challenge the
Commissioner's adverse determination.
2. Plaintiffs Medical History
Although the ALJ's decision denying Di Pasqua's claim discusses only the
opinion of one treating physician and those of two consulting physicians, the administrative
record reveals that Di Pasqua sought care from at least eight physicians between 2006 and 2009.
(R. 100, 224.) Two physicians-Mikhail Bernshteyn, M.D. and Juan Olivera, M.D.-submitted
Citations to the underlying administrative record are designated as "R."
reports regarding the impact ofDi Pasqua's disability on his ability to function. (R. 173, 211.)
Clinical notes and records from two others-Leonard Pace, M.D. and Antonio Parisi, M.D., who
appear to have treated Di Pasqua-are in the record, though there is no evidence that any of them
uttered an opinion as to Di Pasqua's RFC. (R. 155-62.) As for the remaining treating doctors
identified by Di Pasqua after his initial benefit denial, to the extent that any provided any
documentation regarding their examination and treatment of plaintiff, they are not reflected in
Dr. Bernshteyn's examinations and treatment supplied the most robust evidence
in support of Di Pasqua's claim. Citing magnetic resonance imaging ("MRI") studies, Dr.
Bernshteyn completed a Social Security medical assessment on November 25, 2008, in which he
diagnosed Di Pasqua with large herniated discs at L3-4 and L4-5 resulting in moderate to marked
left and right foramina! stenosis, an impingement on the left L3 nerve root, and smaller herniated
discs at L2-3 and LS-S 1. (R. 169-70.) He further noted that Di Pasqua's medical conditions
precluded him from working full time five days a week, regardless of whether the job required
him to sit or stand. !d. Dr. Bernshteyn's subsequent report, a physical capacity evaluation dated
June 25, 2009, echoed the first medical assessment he had completed in connection with
plainiff's SSI application. (R. 211.) The assessment documented his medical opinion that Di
Pasqua could not stand or sit for more than two hours a day, and could not lift more than six
pounds. !d. Finally, Dr. Bernshteyn submitted a medical source statement regarding plaintiff's
ability to do physical work-related activities. 3 (R. 217-18.) Dated December 16,2009, this report
opined that Di Pasqua could sit or stand for no more than one hour at a time and could
occasionally lift or carry up to ten pounds over the course of a workday. !d. Significantly, Dr.
This medical source statement bears SSA document designation Form HA-1151-BK, and is
sanctioned by SSA Office of Disability Adjudication and Review.
Bernshteyn specifically noted various limitations in plaintiff's ability to function, including
limitations on the use of his hands and feet, his ability to climb stairs or ladders, and his ability to
kneel or crouch. (R. 219-22.)
The findings and conclusions expressed by Dr. Bernshteyn are not those of a lone
wolf. Di Pasqua's file contains submissions from three of the other seven physicians plaintiff
listed on his disability report and benefit application. (R. 100, 224.) Dr. Olivera completed a onepage physician's employability report documenting that Di Pasqua had suffered a "breakdown."
Dr. Olivera diagnosed plaintiff with manic depression, alcoholism, hepatitis C, and hypertension
and noted that Di Pasqua's condition limited his ability to work. 4 (R. 173.) The form does not
further elaborate the basis of his conclusion. Id. Another treating source, Dr. Parisi, wrote a
letter, dated February 2006, diagnosing Di Pasqua with alcoholism, manic depression and dizzy
spells, and concluded that Di Pasqua "needs psychiatric help for his manic depression and
alcoholism." 5 (R. 162.) Dr. Parisi also submitted the results of an X-ray examination ofDi
Pasqua's abdomen, spine, pelvis and chest. His filing included several pages of clinical notes as
well. (R. 157-61.) Completing the medical source submissions, the record contains an MRI
report diagnosing herniated discs and varying levels of foramina! stenosis, sent to the attention of
The Court acknowledges that the report is hard to read and that the date is unclear. But there is
no prejudice to the Commissioner. If anything, the clarity issues are further reason for review,
since "[w]here the medical records are crucial to the plaintiff's claim, illegibility of important
evidentiary material has been held to warrant a remand for clarification and supplementation."
Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975).
Dr. Parisi does not appear to have specifically opined on Di Pasqua's RFC. Di Pasqua claims
that he saw Dr. Parisi from 2006 through November 2007. (R. 101.) In light of Dr. Parisi's
longstanding and continuous relationship with Di Pasqua, it appears that he, and doctors
associated with him in practice, were Di Pasqua's treating physicians. Their medical opinions
should be analyzed under the treating physician rule. See 20 C.F.R. § 404.1527(d)(2). It is further
noted that the only medical records available at the hearing are from early 2006. On remand, in
order to fully develop the record, the ALl will need to attempt to locate the missing year and a
half of medical records created by Dr. Parisi and his colleagues.
Dr. Pace on November 30,2007. (R. 169-70.) The record contains no documents from Drs.
Urman, Benantii, Cohen, or Chen, though they were listed by Di Pasqua as examining sources.
A state agency consultative physician, Rahel Eyassu, M.D., examined Di Pasqua
on October 20, 2008. (R. 194-8.) Dr. Eyassu determined that Di Pasqua's ability to lift was
markedly limited, but that his ability to bend was only moderately limited. (R. 197.) He offered a
prognosis for a fair outcome with pain management and physical therapy. !d. Based on Dr.
Eyassu's examination, a capacity assessment form was completed by SSA, which reflected that
Di Pasqua could occasionally lift 20 pounds, frequently lift ten pounds, and could sit, stand, or
walk about six hours in an eight-hour work day. (R. 163-68.) Finally, Michael Alexander, Ph.D.
performed a consultative psychiatric evaluation ofDi Pasqua on September 25, 2008, upon
which he concluded that Di Pasqua had no severe mental impairment. (R. 174.)
Standard of Review
Section 405(g) of the Act empowers district courts to review a disability decision
of the Commissioner and affirm, reverse, or modify that decision, "with or without remanding ..
. for a rehearing." 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004).
Yet, this power of review is not unbounded. When evaluating a determination by the
Commissioner to deny a claimant disability benefits, the Court may reverse the decision only if it
is based upon legal error or if the factual findings are not supported by substantial evidence.
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 405(g); Bubnis v. Apfel,
150 F.3d 177, 181 (2d Cir.1998)). "Substantial evidence is 'more than a mere scintilla. It mearis
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S.
Courts are advised to "keep[ ] in mind that it is up to the agency, and not [the]
court, to weigh the conflicting evidence in the record." Clark v. Comm'r ofSoc. Sec., 143 F.3d
115, 118 (2d Cir. 1998). When evaluating the evidence, "the court may not substitute its own
judgment for that of the [Commissioner], even if it might justifiably have reached a different
result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Thus, if"there
is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk
that a claimant will be deprived of the right to have her disability determination made according
to the correct legal principles." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
For the purpose ofSSI benefits, a "disability" constitutes the "inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A); Schaal v.
Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). Such 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." 42 U.S.C. § 1382(a)(3)(B). In evaluating a disability claim, the ALJ must consider:
(I) objective medical facts and clinical findings; (2) diagnosis and medical opinions of
examining physicians; (3) subjective evidence of pain and disability testified to by the claimant
or others; and (4) the claimant's educational background, age, and work experience. See Pabon v.
Barnhart, 273 F. Supp. 2d 506, 512 (S.D.N.Y. 2003).
SSA has promulgated administrative regulations for determining when a claimant
meets this SSI definition of disability. First, SSA must consider if the claimant is currently
engaged in substantial gainful employment. If not, SSA must then consider whether the claimant
has a "severe impairment" that significantly limits the "ability to do basic work activities." 20
C.F.R. § 404.1520. If the claimant does have a severe impairment, SSA must determine whether
this impairment is one listed in Appendix I of the regulations. If the claimant's impairment is one
of those listed, SSA will presume the claimant to be disabled. If the impairment is not listed as
such, then SSA must determine whether the claimant possesses the "residual functional capacity"
to perform his or her past relevant work. 6 Lastly, if the claimant is unable to perform past
relevant work, then the burden shifts to SSA to prove that the claimant is capable of performing
"any other work." See 20 C.F.R. §§ 404.1520, 416.920; Perez v. Chafer, 77 F.3d 41,46 (2d Cir.
An ALJ is multi-tasked in this process, not only to correctly apply the law, but to
ensure that the essential facts are gathered for review. That is why an "an ALJ has an affirmative
duty to seek out information to fill any clear gaps in the administrative record, regardless of
whether the claimant is represented by counsel." Larkins v. Barnhart, 87 F. App'x 193, 195 (2d
Cir. 2004). Specifically, the ALJ "must develop [the claimant's] complete medical history" and
make "every reasonable effort" to obtain medical reports from his medical sources in order to fill
gaps in the administrative record. 20 C.F.R. § 416.912. When the evidence received from a
treating physician is "inadequate" to determine whether a claimant is disabled, the ALJ must
"first recontact [claimant's] treating physician ... to determine whether the additional
According to SSA, "residual functional capacity" is when an "impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what you can do
in a work setting. Your residual functional capacity is what you can still do despite your
limitations." 20 C.F.R. § 416.945(a); see Schaal, 134 F.3d at 501.
information ... need[ed] is readily available." 20 C.F.R § 404.1512. A decision that rejects an
application for disability insurance benefits without fully developing the administrative record
commits clear legal error, and is subject to remand for further proceedings. See Rosa, 168 F.3d at
79-80 (reversing the ALl's decision, which discredited a treating physician's report as
conclusory, because medical records were incomplete); Parker v. Harris, 626 F.2d 225, 235 (2d
Cir. 1980); Valerio v. Comm'r of Soc. Sec., 2009 WL 2424211 at *18n.44 (E.D.N.Y. 2009).
The standard set for administrative review was not met in this case. In
articulating his decision to assign Di Pasqua's treating physicians less than controlling weight,
the ALl revealed a fatal shortcoming in meeting his obligation to fully develop the record.
Tellingly, the ALl explained, "[w]hile Dr. Bhernshteyn [sic] is a treating physician (however as
per testimony only recently), the undersigned finds his statements to be rather conclusory based
primarily on claimant's subjective complaints ... and nowhere does he supply detailed physical
findings upon his examination of the claimant." (R. 16.) But having identified the inadequacy of
Dr. Bernshteyn' s testimony, the ALl was obligated to request the missing information he
deemed necessary to properly assess the objectivity and clinical basis of Dr. Bernshteyn's
medical opinion. See Larkins, 87 F. App'x at 195; Rosa, 168 F.3d at 79. The ALl instead chose to
assign a lesser weight to Dr. Bernshteyn's opinion. But, it was not enough merely to say that the
three reports the physician had submitted were insufficient, or, without more, he found them
"subjective," notwithstanding the presence ofMRI studies, or conclusory, because there were
gaps in the record of the findings used by Dr. Bernshteyn to support his conclusion. Without
passing on whether there were sufficient findings by the treating physician to support his
opinion, once the ALl concluded there were gaps in Dr. Bernshteyn's testimony, he was required
to re-contact Dr. Bernshteyn or otherwise fill the gaps. He never did. !d. In failing to follow up
with Di Pasqua's key treating physician, the ALJ committed clear legal error. 7
The ALJ' s failure to develop the record is not a mere technical defect, and the
extent and nature of the missing information the ALJ did not pursue magnifies the impact of the
error. As one of Dr. Bernshteyn's reports clearly reflected, and in direct contradiction to the
ALJ's opinion, which characterized Dr. Bernshteyn and Di Pasqua's treatment relationship as
sparming no more than six months, Di Pasqua sought treatment from Dr. Bernshteyn for at least
three years. (R. 211.) Given the length of the doctor-patient relationship and the scant record of
that relationship developed at the administrative hearing, it can hardly be said that the
information about that treating relationship actually in the record represented an exhaustive
account of the claimant's disability. See Wagner v. Sec 'y ofHealth Serv., 906 F.2d 856, 861 (2d
Cir. 1990). Indeed, had the ALJ requested the three years of missing medical records, which
other evidence in the record strongly suggested exist, instead of merely finding Dr. Bernshteyn's
opinion conclusory, it is possible he would have found other "detailed physical findings" he
thought were necessary but absent from the reports. (R.l2.) "[A] treating physician's 'failure to
include this type of support for the findings in his report does not mean that such support does
not exist."' Rodriguez v. Astrue, 2013 WL 1282363 at *15 (E.D.N.Y. Mar. 28, 2013) (quoting
Clark, 143 F.3d at 118). Perhaps, as is likely here, that information is absent only establishes
that the ALJ did not fulfill his obligation to seek it out.
In sum, the ALJ breached his affirmative duty to develop the medical record, and
The AU's decision also neglected to mention Dr. Olivera's report entirely, when deciding that
Di Pasqua did not have severe manic depression. Since the available record contains insufficient
information to determine whether Dr. Olivera was a treating physician, this is not reversible error
per se. The Court notes, however, that Di Pasqua listed him on Form SSA-3368 Section 4
(Information About Your Medical Records). (R. 100.) The Court, therefore, cannot fathom how,
on rehearing, the ALJ could meet his duty to complete the record without seeking additional
input from this treating source.
compounded his clear legal error by assigning less than controlling weight to the opinion of Di
Pasqua's treating physician based on that incomplete record.
For the foregoing reasons, the determination of the Commissioner to deny Di
Pasqua SSI benefits is reversed and the matter remanded for further proceedings consistent with
this Memorandum and Order.
The Clerk of Court is directed to enter judgment and to close this case.
Dated: Brooklyn, New York
July 7, 2012
United States District Judge
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