Vogel v. Astrue
MEMORANDUM & ORDER: The plaintiffs motion 15 is granted and the case is remanded for further proceedings. The Commissioners cross-motion 17 is denied. Ordered by Judge Frederic Block on 10/9/2013. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
-againstCAROLYN W. COLVIN,
Acting Commissioner of Social Security,
For the Plaintiff:
CHARLES E. BINDER, ESQ.
Law Offices of Harry J. Binder and
Charles E. Binder, P.C.
60 East 42nd Street, Suite 520
New York, NY 10165
For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
KATRINA M. LEDERER, ESQ.
Special Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
BLOCK, Senior District Judge:
Plaintiff Susan Vogel seeks review of the final decision of the Commissioner of
Social Security (“Commissioner”)1 that her disability ceased as of February 1, 2009, and is
therefore no longer entitled to disability benefits under the Social Security Act (the “Act”). Both
parties move for judgment on the pleadings.
Vogel seeks a remand for calculation of benefits or, alternatively, for further
proceedings. She claims that, despite the improvement in her liver condition, she continues to
be disabled because of pain in her neck and lower back. She contends that the Administrative
On February 14, 2013, Carolyn W. Colvin became the Acting Social Security
Commissioner. The Clerk of the Court is directed to substitute Colvin as the named
defendant pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Law Judge (“ALJ”) violated the treating physician rule and failed to evaluate her credibility
properly. The Commissioner argues that the Court should affirm the decision that Vogel’s
disability ceased due to improvement in her liver problems, and that her remaining
impairments do not entitle her to disability benefits. For the reasons set forth below, the case
is remanded for further proceedings.
A. Original Disability Determination
Vogel filed an application for Disability Insurance Benefits (“DIB”) on March 25,
2004, alleging disability from cirrhosis of the liver, anemia, neuropathy, and arthritis. The
medical evidence supplied in connection with her application documented a history of two
decades of alcohol abuse, multi-day hospital admissions in August 2002 and September 2003,
and various diagnoses including alcoholic neuropathy, pernicious anemia, and cirrhosis of the
liver with ascites.2 Vogel also alleged pain in her legs, hands, and back. On April 30, 2004, Dr.
Ahmed Mohamed, a state examining doctor, completed a questionnaire in which he provided
an opinion that Vogel could lift and carry a maximum of 5 pounds, stand/walk for up to 2
hours per day, sit for less than 6 hours per day, and that she was unable to push or pull.
In a decision dated May 25, 2004, the Social Security Administration (“SSA”)
found that Vogel was disabled with an onset date of September 1, 2003. The SSA decision was
based on the finding that Vogel’s chronic liver disease met Section 5.05D of the Listing of
Ascites is “the build up of fluid in the space between the tissues lining the
abdomen and abdominal organs.” http://www.nlm.nih.gov/medlineplus/
ency/article/000286.htm. Long-term alcohol abuse can lead to ascites. See id.
Impairments. The finding did not rely on arthritis or Vogel’s reports of pain. Because the SSA
determined that Vogel suffered from a listed impairment at step 3 of the familiar five-step
process set forth in the Social Security Regulations, see 20 C.F.R. § 404.1520, it did not evaluate
Vogel’s residual functional capacity (“RFC”).
B. Continuing Disability Review and Cessation Determination
“[C]ontinued entitlement to [DIB] must be reviewed periodically.” 20 C.F.R. §
404.1594(a). On February 5, 2009, the SSA determined that Vogel’s health had improved and
that her disability ceased as of February 2009. The SSA notified Vogel that it would stop
making payments after April 2009 (two months following the cessation of disability).
Vogel administratively appealed. At the first step of the appeals process, a
Disability Hearing Officer (“DHO”) determined that there was medical improvement and that
she could work.
Following the DHO decision, Vogel requested a hearing before an
Administrative Law Judge (“ALJ”). After the hearing, the ALJ issued his decision on August
25, 2010, concluding that Vogel was “not disabled, by reason of medical improvement, since
February 1, 2009.” AR at 29.3 The ALJ’s opinion recited the five-step process and detailed his
findings and conclusions. After finding that Vogel was disabled in 2004 and had not engaged
in substantial gainful activity since the onset of her disability, he then found that Vogel did not
have a listed impairment and that she had an RFC that allowed her to engage in “light work”
as defined in 20 C.F.R. § 404.1567(b).
Vogel timely appealed the ALJ’s decision, and the Commissioner’s Appeals
All citations to “AR” are to the Administrative Record.
Council affirmed the ALJ’s decision on April 25, 2012. Vogel timely sought judicial review.
“In reviewing the final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial evidence
supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). “Substantial
evidence” is “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. 389, 401 (1971)). Before reaching the parties’ arguments, the court must first determine
whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773.
Regulations Applicable to Continuing Disability Determinations
Initial disability applications are evaluated in five steps (the “§ 1520 regulations”).
Continuing disability reviews are, by contrast, evaluated pursuant to an eight-step procedure
set forth in a different section of the regulations (the “§ 1594 regulations”).4 At step 1, the SSA
makes a preliminary determination of whether the claimant is engaging in substantial gainful
activity. If she is, benefits will cease. If she is not, the continuing disability review proceeds to
step 2, and from that point forward if the SSA finds at any step that the claimant is disabled, the
review will cease and benefits will be continued. See 20 C.F.R. § 404.1594(f).
The eight-step evaluation procedure at 20 C.F.R. §§ 404.1594(f)(1)-(8) was
revised effective Aug. 24, 2012, into a nine-step procedure. The change was immaterial
for this analysis, because the ninth step was added to clarify the circumstances under
which the SSA may skip step 7 (i.e., the determination of whether a claimant can
perform past work) and proceed directly to step 8. The first eight steps remain
unchanged from the version in effect in 2010 when the ALJ issued his decision.
At step 2 the SSA determines whether she has a listed impairment. 20 C.F.R. §
404.1594(f)(1)-(2). A finding that a claimant has a listed impairment constitutes a finding of
disability. If there is no listed impairment, step 3 requires the SSA to determine whether there
has been “medical improvement,” and if so, to continue to step 4 to determine whether the
medical improvement relates to the claimant’s ability to do work. See 20 C.F.R. § 404.1594(f)(3)(4). “Medical improvement” is at the heart of the § 1594 regulations, which treat the concept
extensively. See generally 20 C.F.R. § 404.1594; see also 42 U.S.C. § 423(f).5 Most pertinent for our
analysis, when claimant is receiving benefits because she was found to have a listed
impairment, the regulations provide that:
If our most recent favorable decision was based on the fact that your
impairment(s) at the time met or equaled the severity contemplated by [a listed
impairment], an assessment of your residual functional capacity would not have
been made. If medical improvement has occurred and the severity of the prior
impairment(s) no longer meets or equals the same listing section used to make
our most recent favorable decision, we will find that the medical improvement
was related to your ability to work.
20 C.F.R. § 404.1594(c)(3)(i).
Thus, if a claimant no longer has a condition that previously qualified as a listed
impairment, the § 1594 regulations provide answers for steps 3 and 4: it will be deemed that
there was medical improvement and that it related to the claimant’s ability to do work. This
scenario allows the SSA to skip step 5, where exceptions are considered in cases where there has
not been medical improvement. See 20 C.F.R. § 404.1594(f)(5)
Even if the SSA finds that the medical improvement is related to the claimant’s
In the 1984 Social Security Reform Act, PL 98-460, Congress expressly provided
that the standard of review for termination of disability benefits is the “medical
improvement standard.” 42 U.S.C. § 423(f).
ability to do work, it must continue through the remaining steps of the evaluation. At step 6,
the SSA must “determine whether all [the claimant’s] current impairments in combination are
severe.” 20 C.F.R. §§ 404.1594(f)(6). If they are, then step 7 requires a determination of whether
the claimant can perform her past work. Finally, if the claimant cannot perform her past work,
the SSA must show at step 8 that the claimant is capable of performing other work that exists
in significant numbers in the national economy. See 20 C.F.R. §§ 404.1594(f)(6)-(8) and 404.1560
Consequences of Misapplication of the §1520 Regulations
In this case, the ALJ applied the § 1520 regulations which, by their express terms,
do not apply: "If you are already receiving disability benefits, we will use a different sequential
evaluation process to decide whether you continue to be disabled." 20 C.F.R. § 404.1520(a)(5).
The question is whether this mattered.
This specific situation is relatively uncommon, and the Court will follow the
functional approach that others have taken by looking to determine whether the ALJ’s decision,
despite the error, makes the findings that are required in a medical improvement analysis. See,
e.g., O’Connor v. Astrue, 2009 WL 3273887 (W.D.N.Y. 2009) (explaining its review of an ALJ’s
decision that also failed to apply the medical improvement standard).
It is uncontested by the parties that in February 2009, Vogel no longer had liver
disease of such severity that her condition met a listed impairment. Thus, the § 1594 regulations
deem that there was medical improvement and that it related to her ability to do work. 20
C.F.R. § 404.1594(c)(1). The ALJ could have then skipped Step Five, and moved to the last three
steps. See 20 C.F.R. § 404.1594(c)(1), (f)(5). These last steps are paralleled in the more common
five-step procedure, and therefore the Court finds that the ALJ performed the analysis that
would have been required in the final steps of the § 1594 regulations after finding that Vogel
no longer qualified as having a listed impairment.
The Treating Physician Rule
Vogel contends that the ALJ violated the treating physician rule by failing to give
proper weight to the opinions of two of the plaintiff’s doctors, Dr. Famulare and Dr. Goldman.
Under the rule, “the opinion of a claimant’s treating physician as to the nature or severity of the
impairment is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable
clinical and laboratory or diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(quoting 20 C.F.R. § 404.1527(d)(2)). Dr. Famulare diagnosed Vogel as having a variety of
impairments, including herniated disks and arthritis, while Dr. Goldman diagnosed her as
having degenerative joint disease of the cervical and lumbar spines and lumbar spinal stenosis.
The ALJ declined to give either opinion controlling weight, finding that MRI scans did not show
herniations — only disc bulges — and further that Dr. Goldman’s opinions were contradicted
by substantial evidence and not those of a treating physician. The Court concludes that the ALJ
violated the treating physician rule because (1) he discredited the findings of a medical source’s
conclusion that is supported by other evidence without giving good reasons for doing so, and
(2) the ALJ failed to develop the record to answer the question of whether Dr. Goldman was a
A treating physician’s opinion as to the nature and severity of a claimant’s
impairment is controlling only if it is “well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] record.” 20 C.F.R. § 404.1527(c)(2); see also 416.927(c)(2) (same). If an ALJ refuses to give
controlling weight to a treating source, she must consider certain factors in deciding how much
weight to give, including “(i) the frequency of examination and the length, nature and extent
of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii)
the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security Administration’s attention that
tend to support or contradict the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
“Failure to provide ‘good reasons’ for not crediting the opinion of a claimant’s treating
physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
Dr. Famulare’s questionnaire reported that Vogel was experiencing pain in her
neck and lower back that radiated to other parts of her body. He described her pain as constant
and moderately severe. Dr. Famulare also reported that Vogel could sit up to a maximum of
3 hours per day, stand or walk up to 1 hour, and that it would be medically necessary for her
not to sit continuously or to stand/walk continuously in a work setting. The ALJ discredited
the doctor’s testimony and provided minimal reasons for doing so. Although the MRI scans,
which the ALJ said showed only disc bulging, were the basis for rejecting Dr. Famulare’s
diagnosis, the ALJ failed to reconcile that with the diagnosis of another doctor, Dr. Jerome Caiti,
who performed a consultative internal medicine examination in January 2009 at the request of
the SSA. Dr. Caiti — whose reports the ALJ credited — also diagnosed “cervical herniated
disks” and “lumbosacral herniated disks” after the examination, and despite the apparent
agreement between the doctors, the ALJ did not address why one was accepted and the other
was not. Instead, the ALJ and the Appeals Council focused only on those findings of Dr. Caiti
that contradicted Dr. Famulare while ignoring their areas of agreement. This was improper
because the ALJ “cannot simply selectively choose evidence in the record that supports his
conclusions.” Gecevic v. Sec’y of Health & Human Servs., 882 F. Supp. 278, 285-86 (E.D.N.Y. 1995).
Meanwhile, the ALJ dismissed Dr. Goldman’s opinions for two reasons. First, he
relied heavily on Vogel’s testimony that she could drive a car as evidence that contradicted Dr.
Goldman’s reports that Vogel has difficult looking up or turning her head. Second, the ALJ
determined, in a conclusory fashion, that Dr. Goldman was not a treating physician. AR at 27.
The first issue — that Vogel testified to driving daily — indeed raises questions about how
extensively her neck pain limits her. This alone, however, is not sufficient to discredit Dr.
Goldman’s opinions in their entirety. The more important question is whether Dr. Goldman
was a treating physician. It is well-established that the ALJ has “an affirmative obligation to
develop the administrative record,” Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). The ALJ
failed to take steps to clarify Dr. Goldman’s role in treating Vogel. The record shows that the
Appeals Council recognized the deficiency and attempted to provide a more detailed
explanation. Despite that attempt, the Appeals Council ultimately discounted Dr. Goldman’s
role without taking the minimal additional step of following up on the doctor’s May 4, 2010,
letter to clear up any ambiguity about his role, including whether he was the source of two
additional unsigned treatment notes that were submitted by Vogel with her appeal. Thus, the
Appeals Council also failed to develop the administrative record to fill in any gaps as required.
See Rosa v. Callahan, 168 F.3d 72, 79-80 (2d Cir. 1999) (discussing a line of Second Circuit and
E.D.N.Y cases that identify the affirmative duty to develop the record).
Finally, Vogel contends that the ALJ improperly discredited her statements about
her symptoms and limitations. To evaluate credibility, an ALJ must first determine whether
the claimant has a medically determinable impairment that could reasonably be expected to
produce his symptoms, and second, evaluate the intensity, persistence, and limiting effects of
those symptoms. See 20 C.F.R. § 404.1529(b)-(c). The ALJ must provide “specific reasons for
the finding on credibility, supported by the evidence in the case record.” SSR 96–7. The ALJ
may not discredit subjective complaints solely due to a lack of objective support. See Marcus
v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
The ALJ failed to address any of the seven factors that must be considered when
a claimant’s subjective complaints suggest greater severity than can be shown solely by
objective medical evidence. See 20 C.F.R. § 404.1529(c)(3). For example, he dismissed Vogel’s
complaints by saying there was “no evidence of disc herniation or fracture,” AR at 28, but failed
to address that she had still been receiving pain medication. Furthermore, aside from driving
a car, no additional evidence contradicted Vogel’s reports of her limitations and symptoms
related to her back pain. While the ALJ and the Appeals Council both focused heavily on her
liver improvement, they were required to take into account all current impairments — and not
only the lack of the listed impairment — to “establish that [the claimant] can currently engage
in gainful activity before finding that [her] disability has ended." 20 C.F.R. § 404.1594(c)(1).
Moreover, the ALJ also failed to explain how Vogel’s ability to perform the limited daily
activities that she testified to doing indicates that she is able to work; instead, he merely
asserted that, “the claimant’s activities of daily living . . . are consistent with the conclusion that
she can perform sedentary and light work.” Thus, the ALJ impermissibly substituted his view
of the evidence since at least two doctors found that Vogel suffers from severe functional
limitations that would likely prevent her from working. See Shaw v. Chater, 221 F.3d 126, 134–35
(2d Cir. 2000).
Finally, because the ALJ discounted the opinions of two physicians without
providing necessary analysis, the ALJ must also reconsider her credibility. The ALJ found
Vogel’s complaints not credible to the extent they were inconsistent with the RFC
determination. But once the ALJ reconsiders the medical evidence and obtains additional
information as needed, it may support her complaints.
As the Court cannot say that “application of the correct legal standard could lead
to only one conclusion, “further proceedings are appropriate.” Schaal v. Apfel, 134 F.3d 497, 504
(2d Cir. 1998). The ALJ erred by rejecting medical opinions without providing good reasons
and failing to explain why corroborating evidence from a consulting physician was ignored.
Further, the ALJ’s failure to seek clarification on the crucial issue of whether Dr. Goldman was
a treating physician renders the record incomplete. See Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.
2000) (“Upon a finding that an administrative record is incomplete or that an ALJ has applied
an improper legal standard, we generally vacate and instruct the district court to remand the
matter to the Commissioner for further consideration.”).
For the foregoing reasons, Vogel’s motion is granted and the case is remanded for
further proceedings. The Commissioner’s cross-motion is denied.
/s/ Frederic Block
Senior United States District Judge
Brooklyn, New York
October 9, 2013
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