Cammy v. Astrue
Filing
20
ORDER. For the reasons discussed in the court's memorandum and opinion, the plaintiff's motion for judgment on the pleadings is granted in part and denied in part. The court remands this case for further proceedings consistent with this opinion. The Clerk of Court is directed to terminate the case. Ordered by Judge Kiyo A. Matsumoto on 10/15/2015. (Jacobson, Jonathan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
MORRIS S. CAMMY,
Plaintiff,
MEMORANDUM AND ORDER
-against12-CV-5810 (KAM)
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
---------------------------------------X
MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. §§ 405(g), Morris Solomon Cammy
(“plaintiff” or “Cammy”) appeals the final decision of the
Commissioner of Social Security (“defendant”), which found that
plaintiff was not eligible for disability insurance benefits
under Title II of the Social Security Act (the “Act”), on the
ground that plaintiff is not disabled within the meaning of the
Act.
Plaintiff alleges that he is disabled under the Act
and is thus entitled to receive the aforementioned benefits.
Presently before the court are defendant’s motion for judgment
on the pleadings and plaintiff’s cross-motion for judgment on
the pleadings.
For the reasons stated below, plaintiff’s motion
is GRANTED in part and DENIED in part and the case is remanded
for further proceedings consistent with this memorandum and
order.
1
BACKGROUND
I.
Procedural History
On September 17, 2009, plaintiff Morris S. Cammy filed
an application for social security disability insurance
benefits, claiming that he had been disabled since February 27,
2009, due to a heart attack, high blood pressure, high
cholesterol, shortness of breath, and carpal tunnel syndrome.
(ECF No. 1, Administrative Transcript (“Tr.”) 107-08.)
The
alleged onset of disability was initially filed as February 27,
2009, but later amended to July 26, 2009.
(Tr. 41.)
Thus, the
relevant period for disability determination is from July 26,
2009 through April 18, 2011, the date of the Administrative Law
Judge’s decision.
(Tr. 41.)
On December 15, 2009, the Social Security
Administration (“SSA”) denied plaintiff’s application for social
security disability insurance benefits on the basis that he was
not disabled.
(Tr. 61-64.)
On January 13, 2010, plaintiff
requested a hearing before an Administrative Law Judge.
67-71.)
(Tr.
On January 25, 2011, plaintiff appeared and testified
before Administrative Law Judge (“ALJ”) Margaret L. Pecoraro,
represented by Nicole J. Kim, Esq., of Binder and Binder.
37-59.)
(Tr.
By a decision dated April 18, 2011, the ALJ determined
that plaintiff was not disabled within the meaning of the Act
and thus not entitled to disability insurance benefits.
2
(Tr. at
21-31.)
Specifically, the ALJ found that plaintiff had the
Residual Functional Capacity (“RFC”) to perform the full range
of sedentary work as defined in 20 C.F.R. § 404.1567(a), and
that plaintiff was capable of lifting/carrying and
pushing/pulling ten pounds occasionally and less than ten pounds
frequently. 1
(Tr. 24.)
The ALJ further found that plaintiff was
able to sit for six hours total and stand/walk for two hours
total in an eight hour workday, and had no postural,
environmental, manipulative, or mental restrictions.
(Id.)
On May 10, 2011, plaintiff appealed the ALJ’s decision
to the Appeals Council, and on September 27, 2012, the Appeals
Council denied plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner.
(Tr. 1-4.)
On
November 26, 2012, plaintiff filed the instant action in federal
court. (ECF No. 1, Complaint.)
II.
Factual Background
A.
Plaintiff’s Non-Medical History
Plaintiff was born on January 24, 1952.
(Tr. 107.)
He was 57 years old at the alleged onset of his disability,
1
Sedentary work is defined as work that “involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20
C.F.R. § 404.1567.
3
February 27, 2009, as result of chronic heart failure.
(Tr.
107, 166.) Plaintiff later amended the onset date to July 26,
2009.
(Tr. 41, 123.)
Plaintiff is a citizen of the United
States and speaks and understands English.
(Tr. 107, 128.)
Plaintiff resides in Flushing, New York, in a three
floor walk-up, which he testified is difficult for him to climb.
(Tr. 52.)
Cammy.
Plaintiff is married and has one daughter, Dawn
(Tr. 108, 138.)
He lives with his daughter in Flushing,
New York while his wife and grandson reside in Atlanta, Georgia.
(Tr. 49.)
On a typical day, plaintiff reads, watches
television, listens to music, cooks for himself and his
daughter, and takes care of his two cats.
Plaintiff shops for food once a week.
(Tr. 49, 138, 142.)
(Tr. 142.)
Plaintiff
also takes a one-mile walk on a daily basis, but claims it is
difficult due to his leg pain.
(Tr. 49.)
He is able to walk
for three blocks before he needs to stop and rest for five
minutes.
(Tr. 144.)
Plaintiff does not socialize regularly,
and spends time with others once a month.
(Tr. 143.)
also goes to “pitch and putt golf” once a month.
Plaintiff
(Id.)
Plaintiff reported that he can go out alone, but does not have a
driver’s license and travels by bus.
(Tr. 141.)
Plaintiff also
indicated that he does not travel by train in order to avoid
climbing flights of stairs.
(Tr. 49, 143.)
Plaintiff reported
no problems paying attention, finishing tasks, following spoken
4
or written instructions, or getting along with others.
(Tr.
144.)
Plaintiff reported that he completed at least two years
of college; however, he testified that he had only completed one
year.
(Tr. 42; Tr. 134.)
Plaintiff previously worked as
accounting clerk at Standard Motor Products for thirty-four
years, but became unemployed on February 28, 2009, when the
company downsized and let him go.
(Tr. 43, 129.)
received a severance package until January 2010.
Plaintiff
(Tr. 43.)
At
his previous employment, plaintiff’s daily work consisted of
activities including walking seven hours; standing one hour;
sitting for six hours; climbing for half an hour; handling,
grabbing and grasping big objects for half an hour; reaching for
half an hour; and writing, typing, or handling small objects
approximately seven hours per day.
(Tr. 131-32.)
In addition,
plaintiff frequently lifted a box that weighed ten pounds and
carried it about twenty feet.
(Tr. 131-32.)
Plaintiff’s yearly
earnings for the past fifteen years range from $29,839.28 (1996)
to $43,891.18 (2009).
A.
(Tr. 115.)
Plaintiff’s Medical History
Plaintiff has presented medical records dating back to
July 26, 2009.
(See generally Tr.)
The discussion below
addresses plaintiff’s testimony regarding his symptoms as well
as the medical evidence and opinions in the record.
5
1.
Plaintiff’s Treating Sources
a.
New York Hospital Queens
On July 26, 2009, plaintiff was admitted to New York
Hospital Queens for treatment of “severe substernal chest pain”
and underwent a left heart catheterization, left
ventriculography, and coronary angiography which showed total
occlusion of the Ramus and significant left anterior descending
artery (“LAD”).
(Tr. 174, 261-63.)
An emergency intervention
was performed, and stents were placed in his Ramus and LAD
arteries to reduce the stenosis, or narrowing of the arteries
from 50% to 0% and 90% to 0%, respectively.
(Tr. 174.)
Upon
referral by Dr. Daniel Blum, Dr. John Nicholson conducted a
transthoracic echocardiography, which revealed that plaintiff
possessed normal heart chamber sizes, normal left ventricular
systolic function, and mildly elevated right
ventricular/pulmonary artery pressure.
(Tr. 180.)
The report,
however, noted that the study was “technically difficult due to
“poor acoustic windows.”
(Tr. 180.)
Plaintiff was discharged on July 28, 2009 and
prescribed medication including Plavix, Ecotrin, Lipitor,
Metoprolol, and Altace.
(Tr. 299.)
Plaintiff also attended a
cardiac rehabilitation and risk reduction program for twelve
weeks from August 31, 2009 until October 7, 2009.
194-98, 205-10, 216-19, 236-47, 369.)
6
(Tr. 181-192,
Plaintiff was expected to
attend a one hour class three times a week for twelve weeks.
(Tr. 369.)
b.
Dr. Steven Siskind, M.D., Internist with
Cardiology Specialty
Dr. Steven Siskind, an internist with a specialty in
cardiology, oversaw and treated plaintiff from August 14, 2009
to January 1, 2012.
three months.
Dr. Siskind treated plaintiff once every
(Tr. 388; 417; 448.)
Medical records from August 14, 2009 through January
1, 2012 intermittently show symptoms of stress, chest pain,
shortness of breath, and fatigue resulting in early termination
of plaintiff’s exercise stress test.
(Tr. 413; 431; 452; 463.)
The records otherwise show stable vital signs, regular heart
function with no murmur, rub, or gallop.
(Tr. 374; 406.)
Dr.
Siskind administered an exercise stress test on August 21, 2009,
and indicated that plaintiff’s exercise test was stopped after
six minutes due to plaintiff’s fatigue and failure to achieve
85% of a predicted heart rate.
(Tr. 358, 462.)
According to
the report, there was no ECG evidence of myocardial ischemia, or
a condition of insufficient blood flow to the heart muscle,
however the report noted that the sensitivity of the study for
detecting ischemia is limited.
for angina.
Plaintiff also tested negative
(Tr. 358.)
7
On November 30, 2009, Dr. Siskind diagnosed plaintiff
with post myocardial infarction with anterior wall ischemia,
high cholesterol, and kidney stones, and noted that plaintiff
had no high blood pressure, rheumatic fever, stroke, diabetes,
tuberculosis, hepatitis, ulcers, gallstones, thyroid disease, or
cancer.
(Tr. 367.)
He noted that plaintiff had received a LAD
stent upon complaints of chest pain, and that plaintiff was
stable on all his medications.
(Tr. 356.)
He reported a stress
test, in which plaintiff exercised six minutes without ischemia
at 80% of a predicted maximum.
(Id.)
Dr. Siskind stated that
his impression of plaintiff was that plaintiff had myocardial
infarction with anterior wall ischemia, 2 LAD stent, and was
presently stable while on medication.
(Id.)
On August 4, 2010, Dr. Siskind evaluated plaintiff and
reported abnormal results in plaintiff’s stress test.
14.)
(Tr. 413-
Dr. Siskind also reported that plaintiff’s functional
capacity was within normal limits, and that post-stress and
resting myocardial scintigrams revealed a medium size, moderate
intensity, predominantly fixed perfusion defect 3 involving the
2 Ischemia is defined as a lack of blood supply to a part of the body, which
may cause tissue damage due to lack of oxygen and nutrients. Ischemia,
PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0023204/.
Infarct refers to an area of tissue death, due to a local lack of oxygen.
Definition of Infarction, Medicine Net,
http://www.medicinenet.com/script/main/art.asp?articlekey=3970.
3 Perfusion defects refer to small areas of the heart that have diminished
blood flow under stress. Perfusion, The Free Dictionary, http://medicaldictionary.thefreedictionary.com/perfusion.
8
left ventricular interior and inferolateral walls.
(Tr. 413.)
Dr. Siskind noted that this was consistent with a moderate
degree of scarring with moderate peri-infarct ischemia of the
inferior and inferolateral walls.
(Tr. 413.)
Dr. Siskind completed a Cardiac Impairment
Questionnaire on October 12, 2010, diagnosing New York Heart
Association Class II-III heart failure. 4
(Tr. 417.) Dr. Siskind
listed clinical findings and primary symptoms of dyspnea on
exertion, shortness of breath, fatigue, and weakness.
417.)
(Tr.
Dr. Siskind noted that these symptoms were precipitated
by emotional stress, physical exertion, and cold weather.
419-20.)
(Tr.
Dr. Siskind opined that plaintiff can only sit for two
hours per day and stand/walk for two hours per day when placed
in a competitive five day a week work situation.
(Tr. 419-20.)
He further noted that plaintiff could never lift or carry, and
that pain, fatigue, and other symptoms were severe enough to
periodically interfere with plaintiff’s attention and
concentration, and that plaintiff was incapable of tolerating
low work stress.
(Id.)
Dr. Siskind reported that plaintiff was
4 According to the New York Heart Association Functional Classification, Class
II heart failure indicates patients with a “slight limitation of physical
activity” who are “comfortable at rest” and show “ordinary results in
fatigue, palpitation, [and] dyspnea (shortness of breath).” Class III heart
failure indicates patients with a “marked limitation of physical activity”
that are “comfortable at rest” and show “less than ordinary activity causes
fatigue, palpitation, or dyspnea.” Classes of Heart Failure, American Heart
Association, available at
http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Class
es-of-Heart-Failure_UCM_306328_Article.jsp.
9
prescribed Toprol-XL, Cozaar, Plavix, ASA, and Lipitor.
(Tr.
419.)
On March 2, 2011, Dr. Siskind conducted a magnetic
resonance angiography and diagnosed infra renal abdominal aortic
aneurysm, ectasia of both common iliac arteries, moderate left
external iliac artery stenosis, multiple severe stenosis and
short segment occlusions of the left anterior tibial artery, and
three vessel contiguous run off in the right lower leg with
anterior tibial artery stenosis.
(Tr. 456-58; Plaintiff’s
Memorandum of Law in Support of Judgment on the Pleadings (“Pl.
Mem.”) at 4-5.)
Additional medical records from Dr. Siskind were
submitted to the Appeals Council, consisting of charts, notes,
and tests from August 14, 2009 to January 1, 2012, which do not
depart significantly from the ones submitted for the ALJ
hearing.
c.
Dr. Daniel N. Blum, M.D., Primary Care
Physician
Dr. Blum, a primary care physician, treated plaintiff,
upon referral from Dr. Siskind, between August 4, 2010 and
November 15, 2010.
(Tr. 356, 423.)
On August 5, 2009, Dr. Blum
administered a Nuclear Exercise Stress Test which revealed
abnormal stress, consistent with a moderate degree of periinfarct ischemia of the interior and inferolateral walls, normal
10
functional capacity, normal overall left ventricular functions,
normal exercise electrocardiography, and no angina.
(Tr. 424.)
Dr. Blum reported, however, that the stress test was stopped due
to plaintiff’s fatigue.
(Tr. 424.)
Dr. Blum also reported that
plaintiff presented dyspnea, or shortness of breath, during
physical exertion and stress, as well as lower extremity
discomfort with ambulation.
d.
(Tr. 421.)
Dr. Azariah Eshkenazi, M.D., Psychiatrist
On June 30, 2011, Dr. Eshkenazi conducted a
psychiatric examination on plaintiff, the report of which was
presented to the Appeals Council as additional evidence.
511.)
(Tr.
In his psychiatric report, Dr. Eshkenazi concluded with a
reasonable degree of medical certainty that the plaintiff was
not able to be gainfully employed due to plaintiff’s severe
generalized anxiety, dysthymic disorder, Heart Problems
(Shortness of Breath), and Global Assessment of Function (GAF)
level of 50-55, according to the DSM-IV Multiaxial Evaluation.
(Tr. 514-15.)
Specifically, Dr. Eshkenazi observed that plaintiff
suffers from severe depression, has difficulty focusing and
concentrating, difficulty recalling memories, and would forget
what he was about to say in the middle of a sentence.
14.)
(Tr. 513-
Dr. Eshkenazi noted that plaintiff’s affect was
constricted and that he showed signs of anxiety.
11
(Id.)
The
doctor noted, however, that plaintiff has no visual or auditory
hallucinations, has good judgment and insight, and is able to
manage his funds.
(Tr. 514.)
Dr. Eshkenazi estimated that the
earliest date which the observed symptoms and limitations apply
is July 2009.
(Tr. 522.)
Dr. Eshkenazi also completed a
Psychiatric/Psychological Impairment Questionnaire on June 30,
2011, in which he indicated that plaintiff had a Global
Assessment of Functioning (“GAF”) score of 50 to 55, which
indicates “[m]oderate symptoms (e.g., flat affect and
circumlocutory speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).”
Global
Assessment of Functioning, New York Office of Mental Health,
https://www.omh.ny.gov/omhweb/childservice/mrt/global_assessment
_functioning.pdf.
He also reported clinical findings of poor
memory, appetite disturbance with weight change, sleep
disturbance, personality change, mood disturbance, emotional
lability, anhedonia or pervasive loss of interests, feelings of
guilt/worthlessness, difficulty concentrating, complete social
withdrawal or isolation, decreased energy, and generalized
persistent anxiety.
(Tr. 516.)
Dr. Eshkenazi opined that
plaintiff was markedly limited, or effectively precluded from,
certain work related activities, including the ability to
12
remember locations and work-like procedures, understand,
remember, and carry out detailed instructions, maintain
attention and concentration for extended periods, and other
activities required in a work-place environment.
(Tr. 518-520.)
Dr. Eshkenazi also noted that plaintiff’s psychiatric
condition exacerbated his physical symptoms and opined that
plaintiff was incapable of tolerating even low work stress.
(Tr. 521.)
He opined that plaintiff’s days would vary, and the
he would need to be absent from work on average more than three
times per month due to either his impairments or treatment.
(Tr. 522.)
2.
Consultative Medical Sources
a.
Dr. Vinod Thukral
Dr. Vinod Thukral conducted a consultative examination
on November 14, 2009 and opined that the claimant is “limited
from lifting, carrying, and other such activities requiring
moderate or greater exertion due to angina.”
(Tr. 375.)
Dr.
Thukral noted that plaintiff complained of chest pain, heart
attack, and shortness of breath, and denied any history of high
blood pressure, diabetes, asthma, emphysema, or seizures.
372.)
(Tr.
Dr. Thukral also noted that plaintiff reported smoking
two packs per day since 1967, but quit smoking in 2009 after his
heart attack.
(Tr. 372.)
Plaintiff also denied any alcohol or drug abuse.
Dr. Thukral noted that plaintiff appeared to be in
13
no acute distress, could walk on his heels and toes without
difficulty, and was able to rise from the chair without
difficulty.
(Tr. 373.)
Dr. Thukral did not find any
abnormalities with respect to plaintiff’s abdomen, bowel
functioning, musculoskeletal functioning, or hand and finger
dexterity.
(Tr. 374.)
Dr. Thukral diagnosed catheterization
and two stent placements post heart attack, angina pectoris, and
hypercholesterolemia since July 2009.
(Id.)
He concluded that
plaintiff’s prognosis was “fair” and that he had limitations
with respect to lifting, carrying and other such activities that
require moderate or greater exertion.
b.
(Tr. 375.)
Dr. Mark Johnston, Internist
Dr. Mark Johnston conducted a consultative examination
on November 8, 2010 and opined that “the claimant has a marked
limitation of his ability to walk or climb secondary to
shortness of breath.”
(Tr. 438.)
Dr. Johnston noted that
plaintiff complained of shortness of breath after walking or
climbing stairs and discomfort in his left thigh while walking.
(Tr. 435.)
He also noted that plaintiff was hospitalized at New
York Hospital for a heart attack in 2009, and two stents were
placed in his coronary arteries.
Although plaintiff was
diagnosed with high blood pressure at that time, plaintiff
denied any history of diabetes, other heart disease, asthma,
emphysema, or seizures.
(Tr. 435.)
14
Dr. Johnston reported that
plaintiff was currently prescribed Plavix, Ramipril, Lipitor,
Metoprolol, and Losartan.
(Id.)
Dr. Johnston observed that plaintiff was not in acute
distress, walked on heels and toes without difficulty, and was
able to rise from chair without difficulty.
(Tr. 436.)
Plaintiff was diagnosed with shortness of breath “possibly
secondary to myocardial infarction versus chronic obstructive
pulmonary disease” and peripheral vascular disease.
(Tr. 437.)
Dr. Johnston noted normal test results with respect to his
physical and neurologic functioning.
(Tr. 436-37.)
In a Medical Source Statement of Ability to do WorkRelated Activities (Physical), Dr. Johnston opined that
plaintiff could lift or carry up to ten pounds occasionally, and
never more than ten pounds, sit for two hours without
interruption, stand for thirty minutes without interruption, and
walk for fifteen minutes without interruption in an eight hour
work day.
(Tr. 440.)
He further opined that in an eight-hour
workday, plaintiff could sit for four hours, stand for one
minute, and walk for one minute in an eight hour work day.
(Id.)
Further, the doctor opined that “the individual is unable
to work for eight hours because of shortness of breath and
fatigue.”
(Tr. 440.)
Dr. Johnston reported that plaintiff
could never climb stairs, ramps, ladders or scaffolds and could
occasionally balance, stoop, kneel, crouch, and crawl.
15
He also
noted that plaintiff had occasional environmental limitations
with respect to working under conditions involving unprotected
heights, moving mechanical parts, operating a motor vehicle,
humidity and wetness, dust, odors, fumes, and pulmonary
irritants, extreme cold and heat, vibrations and could work with
moderate noise in an office setting.
(Tr. 443.)
Although Dr.
Johnston reported no physical impairments with respect to
travel, using public transportation, shopping, climbing a few
steps, preparing meals, caring for personal hygiene and sorting
or handling paper files, he noted that plaintiff was unable to
walk a block at a reasonable pace on rough or uneven surfaces.
(Tr. 444.)
c.
Dr. T. Cotman, Disability Determination
Services Analyst
Dr. T. Cotman, a Disability Determination Services
(“DDS”) analyst examined plaintiff and completed a Physical
Residual Functional Capacity Assessment on December 15, 2009.
(Tr. 377.)
Dr. Cotman determined that plaintiff could sit for
about 5 hours in an eight-hour workday, stand and/or walk for
total of 6 hours in an eight-hour workday, lift and/or carry
twenty pounds occasionally and ten pounds frequently.
377.)
(Tr.
Dr. Cotman reported that plaintiff has unlimited capacity
to push and/or pull except as shown for lifting and/or carrying.
(Tr. 377.)
Dr. Cotman opined that plaintiff has occasional
16
limitations climbing, stooping, kneeling, crouching, and
crawling, and no limitations with respect to manipulative
functioning, visual functioning, communication, or environmental
factors, except that plaintiff should avoid concentrated
exposure to hazards.
(Tr. 378-79.)
Dr. Cotman’s assessment
also found credible that the plaintiff faces functional
limitation from shortness of breath, resulting in limitations in
walking.
(Tr. 379.)
3.
Other Documentary Sources
a.
Plaintiff’s Disability Report
Plaintiff indicated in his disability insurance
benefits application that he is disabled due to heart attack,
high blood pressure, two stents, high cholesterol, shortness of
breath, and carpal tunnel syndrome.
(Tr. 129.)
In his function
report, plaintiff described the pain as to be “stabbing” in the
middle of his chest, and that the pain is not continuous.
146-47.)
(Tr.
Plaintiff contended that he cannot climb stairs due to
shortness of breath and is able to walk three blocks before
having to stop and rest for five minutes.
(Tr. 144.)
change in his schedule causes plaintiff to be worried.
Stress or
(Tr.
145.)
Plaintiff further reported that he is unable to lift
anything heavy, unable to climb stairs due to shortness of
breath, and experiences dizziness occasionally.
17
(Tr. 129.)
Plaintiff reported that he takes Ecotin to thin his blood,
Lipitor to lower his cholesterol, Metoprolol for his heart
condition, and Plavix as a blood thinner.
(Tr. 134.)
Plaintiff
also reported taking Altrace, which treats high blood pressure.
(Tr. 134.)
In his disability report, plaintiff reported symptoms
of heart attack, high blood pressure, two stent placements, high
cholesterol, shortness of breath, and carpal tunnel syndrome
limit his ability to work.
(Tr. 129.)
Plaintiff received a
cardiac catheterization on July 26, 2009.
(Id.)
Plaintiff
stated that he is unable to lift, run up the stairs, has a slow
pace of walking, and dizziness.
(Tr. 129.)
Plaintiff reported
that he has been treated by Steven Siskind, M.D. for pain and
takes medication for his heart problems and high cholesterol,
including Plavix, Metoprolol, Lipitor, and Ramipril.
(Tr. 146-
47.)
b.
Disability Report - Field Office Interview
Mr. Ng, a field officer for Social Security, conducted
a face-to-face interview with plaintiff on September 17, 2009
and subsequently completed a disability report.
(Tr. 125.)
Mr.
Ng noted that plaintiff had no difficulty in breathing,
concentrating, sitting, standing, walking, or using his hands.
(Tr. 126.)
He observed that plaintiff was very organized, but
looked very physically tired.
(Tr. 127.)
18
B.
Administrative Hearing Testimony
ALJ Pecoraro held a hearing on January 25, 2011 to
determine whether plaintiff was disabled within the meaning of
the Social Security Act.
(Tr. 21, 38-59.)
At the hearing,
plaintiff was represented by Nicole J. Kim, Esq., of Binder and
Binder.
(Tr. 21, 37.)
1.
Plaintiff’s Testimony
At the hearing, plaintiff testified that he was fiftynine years old and completed one year of college.
(Tr. 42.)
He
testified that he stopped working on February 28, 2009 because
he was laid off from his accounting position at Standard Motor
Products due to downsizing.
(Tr. 43.)
He noted that he
received a severance package for one year and that his former
employer would be paying his medical insurance for five years.
(Tr. 44.)
Plaintiff testified that he began receiving
unemployment insurance benefits since March 2009.
(Tr. 44.)
Plaintiff also testified that he “made a little lie up” to the
unemployment insurance in reporting that he is “willing and able
to work,” because he was concerned about financially supporting
four people, his wife, daughter, grandson, and himself.
44.)
(Tr.
Plaintiff testified that he did not seek new employment
because he was unable to concentrate and that he is unable to
“even sit down and read a book.”
19
(Tr. 46.)
Plaintiff testified that he experienced stress,
shortness of breath, and chest pains, which began right after
the heart attack and occurs once in three months when he is
aggravated, upset, or worried about paying bills to support his
family.
(Tr. 53, 48.)
(Tr. 48.)
He also reported having pain in his leg.
He testified to having no problems sitting or
standing, other than having a hard time walking due to breathing
and pain in his leg.
(Tr. 51.)
Plaintiff also noted that the
doctor recommended taking long walks due to ‘blocked artery’ in
the leg.
(Tr. 51.)
Plaintiff testified that he was taking
Cozaar, Zetia, and Ecotrin for his symptoms, and discontinued
Ramipril due to the negative side effects.
(Tr. 48.)
Plaintiff testified that on a typical day, he sits in
the living room, either watching television or listening to
music.
(Tr. 48.)
He cooks for himself and his daughter, who
does the shopping and laundry.
(Tr. 49.)
He noted that his
daughter takes care of him in New York, while his wife takes
care of their grandson in Atlanta, Georgia.
(Tr. 49.)
Plaintiff indicated that he did not have a driver’s license, and
takes the bus, but avoids the train to avoid climbing stairs.
(Id.)
Plaintiff also testified that he takes a long walk each
morning that is approximately a one mile loop, but that he has
to stop and catch his breath after every block and has had more
difficulty due to the pain in his leg.
20
(Tr. 50-51.)
He noted
that he has to stop for at least two minutes before resuming.
(Tr. 52.)
Plaintiff indicated that he can lift a gallon of
milk, but not more.
(Tr. 52.)
Plaintiff also reports having trouble sleeping at
night being unable to sleep and feeling tired during the day due
to all the medication he is taking.
(Tr. 51.)
Plaintiff had
been smoking for forty years but testified to quitting since the
heart attack.
(Tr. 54.)
Plaintiff also mentioned weight gain
from 130 pounds to 165 pounds.
2.
(Tr. 54.)
Expert Testimony of Dr. Richard J. Wagman, M.D.
Dr. Richard Wagman, a specialist in cardiology,
testified as a non-examining consultative medical expert.
453.)
(Tr.
Dr. Wagman reported that plaintiff received a cardiac
catheterization, which showed primarily that one vessel, the
left anterior descending, was 90 percent obstructed, and that
plaintiff had an angioplasty with a stent.
(Tr. 56.)
He
further noted that in 2008, a CAT scan revealed an aortic
aneurysm which was consistent with vascular and cardiac disease.
(Tr. 56.)
Dr. Wagman discussed records of abdominal aortic
aneurysm on January 26, 2008, and observed that a stress test
result on August 21, 2009 was negative for ischemia, but was
less than predicted maximum [heart rate].
(See Tr. 404.)
He
mentioned that the plaintiff could not complete the test due to
fatigue.
(Tr. 56.)
21
Dr. Wagman testified that his opinion is that
plaintiff has no limitations standing or sitting.
(Tr. 57.)
However, plaintiff’s ability to lift or carry is limited due to
his aortic aneurysm, and thus, plaintiff should lift or carry
only occasionally, up to a maximum of 10 lbs.
(Tr. 58.)
Dr.
Wagman also testified regarding his belief that plaintiff’s
biggest problem with respect to walking is that it causes pain
and stress in his left lower leg, due to claudication, a
condition in which camping in the leg is induced by exercise,
typically caused by obstruction of the arteries.
(Tr. 56.)
See
Claudication, Mayo Clinic, http://www.mayoclinic.org/diseasesconditions/claudication/basics/definition/con-20033581.
Dr.
Wagman concluded that “walking is very stressful because it
causes pain” and “even with sedentary work, [plaintiff] would
have problems because of this, just getting from A to B, even
short distances, he would have pain and would be forced to
stop.”
(Tr. 56.)
DISCUSSION
Plaintiff argues that the ALJ’s decision is flawed
because the ALJ: (1) failed to properly weigh the medical
opinions because she did not afford controlling weight to
plaintiff’s treating sources; (2) failed to provide “good
reasons” for affording less than controlling weight to
plaintiff’s treating sources; and (3) erred in her determination
22
of plaintiff’s credibility. Alternatively, plaintiff argues, new
and material evidence before the Appeals Council warrants
remand.
Defendant argues that the ALJ correctly evaluated the
medical opinions, properly assessed plaintiff’s subjective
symptomatology, properly assessed plaintiff’s credibility, and
correctly determined that plaintiff was not disabled because he
has the RFC to perform his past relevant work.
(ECF No. 13,
Memorandum of Law in Support of the Defendant’s Motion for
Judgment on the Pleadings (“Def. Mem.”) at 11-17].)
Defendant
also contends that the evidence submitted to the Appeals Council
is not material and does not warrant remand.
(Def. Mem. at 18-
19.)
I.
Standard of Review
Unsuccessful claimants for disability benefits under
the Act may bring an action in federal district court seeking
judicial review of the Commissioner’s denial of their benefits
“within sixty days after the mailing . . . of notice of such
decision or within such further time as the Commissioner of
Social Security may allow.”
42 U.S.C. §§ 405(g), 1383(c)(3).
A
district court, reviewing the final determination of the
Commissioner, must determine whether the correct legal standards
were applied and whether substantial evidence supports the
23
decision.
See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.
1998).
A district court may set aside the Commissioner’s
decision only if the factual findings are not supported by
substantial evidence or if the decision is based on legal error.
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
“Substantial evidence is ‘more than a mere scintilla,” and must
be relevant evidence that a reasonable mind would accept as
adequate to support a conclusion.
Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420
U.S. 389, 401 (1971)).
If there is substantial evidence in the
record to support the Commissioner’s factual findings, those
findings must be upheld.
42 U.S.C. §405(g).
Inquiry into legal
error “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 [Social Security]
Act.’”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
The reviewing court does not have the authority to
conduct a de novo review, and may not substitute its own
judgment for that of the ALJ, even when it might have
justifiably reached a different result.
Cage v. Comm’r of Soc.
Sec., 692 F.3d 118, 122 (2d Cir. 2012).
II.
The Commissioner’s Five-Step Analysis of Disability Claims
24
To receive disability benefits, claimants must be
“disabled” within the meaning of the Act.
§§ 423(a), (d).
See 42 U.S.C.
A claimant is disabled under the Act when he is
unable 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)(1)(A); Shaw v. Chater, 221 F.3d
126, 131-32 (2d Cir. 2000).
The impairment must be of “such
severity” that the claimant is unable to do his previous work or
engage in any other kind of substantial gainful work.
42 US.C.
§ 423(d)(2)(A).
“The Commissioner must consider the following in
determining a claimant’s entitle to benefits: ‘(1) the objective
medical facts [and clinical findings]; (2) diagnoses or medical
opinions based on such facts; (3) subjective evidence of pain or
disability. . .; and (4) the claimant’s educational background,
age, and work experience.’”
Balodis v. Leavitt, 704 F. Supp. 2d
255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel, 174 F.3d 59,
62 (2d Cir. 1999)) (internal citation omitted).
The SSA has promulgated a five-step sequential
analysis to determine whether a claimant’s condition meets the
definition of disability: if the commissioner determines (1)
that the claimant is not working, (2) that he or she has a
25
severe impairment, (3) that the impairment is not one listed in
the Appendix 1 of the regulations that conclusively requires a
determination of disability, and (4) that the claimant is not
capable of continuing in his prior type of work, the
Commissioner must find the claimant disabled if (5) there is not
another type of work that claimant can do.
120; 20 C.F.R. § 404.152(a)(4).
Burgess, 547 F.3d at
At any of the previously
mentioned steps, if the answer is “no,” then the analysis stops
and the ALJ must find claimant not disabled under the Act.
During this five-step process, the Commissioner must
“consider the combined effect of any such impairment, if
considered separately, would be of sufficient severity to
establish eligibility for Social Security benefits.”
§ 404.1523.
20 C.F.R.
Further, if the Commissioner does find a
combination of impairments, the combined impact of the
impairments, including those that are not severe as defined in
the regulations, will be considered in the determination
process.
20 C.F.R. § 416.945(a)(2).
In steps one through four
of the sequential five-step framework, the claimant bears the
“general burden of proving . . . disability.”
at 128.
Burgess, 537 F.3d
In step five, the burden shifts from the claimant to
the Commissioner, requiring that the Commissioner show that, in
light of the claimant’s RFC, age, education, and work
experience, the claimant is “able to engage in gainful
26
employment within the national economy.”
Sobolewski v. Apfel,
985 F. Supp. 300, 310 (E.D.N.Y. 1997).
III. The ALJ’s Disability Determination
The ALJ first found that claimant met the insured
status requirements of the SSA through December 31, 2013.
23.)
(Tr.
Using the five-step sequential process to determine
whether a claimant is disabled as mandated by 20 C.F.R.
§ 404.1520(a)(4), the ALJ determined at step one that the
plaintiff had not engaged in substantial gainful activity since
the alleged onset date July 26, 2009.
(Tr. 23.)
At step two, the ALJ found that the plaintiff suffered
from the severe impairments of aortic aneurysm and
cardiovascular disease (status post angioplasty with stent
placement).
(Tr. 23.)
At step three, the ALJ determined that
the plaintiff did not have an impairment or combination that
meets or medically equals one of the listed impairments in
Appendix 1 of the regulations 20 C.F.R. § 404.1520, Appendix 1,
Subpart P, Regulations No. 4.
In support of this determination,
the ALJ relied on the testimony of the medical expert, Dr.
Wagman, who has a specialty in cardiology and “testified that
the claimant’s impairments do not meet or equal the listing of
impairments.”
(Tr. 24.)
The ALJ gave “great weight” to Dr.
Wagman because he is “duly qualified and specializes in
27
cardiology and is familiar with the disability process.”
(Tr.
24.)
Before proceeding to steps four and five, the ALJ
evaluated the entire record, and found that the plaintiff has
the residual functional capacity (“RFC”) to perform the full
range of sedentary work as defined in 20 C.F.R. § 404.1567(a).
(Tr. 24.)
The ALJ further determined that “the claimant is
capable of lifting/carrying and pushing/pulling ten pounds
occasionally and less than ten pounds frequently.
He is able to
sit for six hours total and stand/walk for two hours total in an
eight-hour workday.
Furthermore, there are no postural,
environmental, manipulative, or mental restrictions.”
(Tr. 24.)
In support of her determination, the ALJ considered plaintiff’s
self-reports, which indicated plaintiff’s belief that his
conditions prevented him from lifting, climbing, and forces him
to walk slowly, experiencing dizziness, and ambulation
difficulty due to lower left extremity.
(Tr. 25.)
The ALJ also
reviewed and considered the medical records and physician’s
opinions, which the ALJ found supported a finding that plaintiff
is limited to sedentary physical exertion.
At step four of the analysis, after determining that
the plaintiff had an RFC to perform the full range of “sedentary
work,” the ALJ concluded that plaintiff was able to perform his
past work as a book keeper (DOT 210.382-014) which typically
28
requires sedentary physical exertion.
(Tr. 30.)
Thus, the ALJ
concluded that the plaintiff has not been disabled within the
meaning of the Social Security Act from July 26, 2009 to April
18, 2011, and denied the plaintiff’s SSI claim.
(Tr. 30.)
Because the ALJ found that plaintiff was able to perform his
past relevant work, she did not, and was not required to,
proceed to step five of the disability analysis.
IV.
Analysis
A.
The ALJ’s Evaluation of the Opinion of Plaintiff’s
Treating Physician
Plaintiff argues that the ALJ erred by affording less
than controlling weight to Dr. Siskind’s opinion, when Dr.
Siskind was plaintiff’s treating physician.
14.)
(Pl. Mem. at 10-
Moreover, plaintiff argues that the ALJ failed to provide
“good reasons” for selectively adopting the opinions of medical
consultants and not adopting the opinions of plaintiff’s
treating physicians by failing to weigh the factors established
in 20 C.F.R § 404.1527(c)(2)-(6).
(Id. at 14.)
“Regardless of its source,” the regulations require
that “every medical opinion” in the administrative record be
evaluated when determining whether a claimant is disabled under
the Act.
20 C.F.R. §§ 404.1527(c), 416.927(c).
Astrue, 814 F. Supp. 2d 168, 182 (E.D.N.Y. 2011).
Hernandez v.
“Acceptable
medical sources” that can provide evidence to establish
29
impairment includes the plaintiff’s licensed treating physicians
and licensed or certified treating psychologists.
§§ 404.1513(a), 416.913(a).
See 20 C.F.R.
Hernandez, 814 F. Supp. 2d at 182.
Under the “treating physician rule,” the medical opinion of the
physician engaged in the primary treatment of a claimant is
given controlling weight if it is well-supported by the
acceptable medical, clinical, and laboratory diagnostic
techniques, and is not inconsistent with other substantial
evidence in the case record.
20 C.F.R. §§ 404.1527(d)(2)(2011),
416.927(d)(2)(2011); Shaw v. Charter, 221 F.3d 126, 134 (2d Cir.
2000) (describing “treating physician rule”).
According to the
Commissioner’s regulations, the opinions of treating physicians
deserve controlling weight because “these sources are likely to
be the medical professionals most able to provide a detailed,
longitudinal picture of [plaintiff’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or
from reports of individual examinations.”
Balodis, 704 F. Supp.
at 264 (quotations omitted) (citing 20 C.F.R.
§§ 404.1527(d)(2)(2011), 416.927(d)(2)(2011)).
Where a treating physician’s opinion on the nature and
severity of a claimant’s disability is not afforded
“controlling” weight, the ALJ must also give “good reasons” for
the weight assigned to a treating physician’s opinion.
30
20
C.F.R. § 404.1527(c)(2)(2011) (the SSA “will always give good
reasons in [its] notice of determination or decision for the
weight [given to the claimant’s] treating source’s opinion”);
Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 77 (2d Cir.
2012); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
Failure to provide “good reasons” for not crediting a treating
source’s opinion, even on issues that are determined by the
Commissioner, is a ground for remand.
Sanders, 506 F. App’x at
77 (citing Schaal, 134 F.3d at 505); Rolon v. Comm’r of Soc.
Sec., 994 F. Supp. 2d 496, 507 (S.D.N.Y. 2014) (holding the
ALJ’s decision in the instant case erred by “failing to
explicitly consider several required factors, including [the
treating source’s] specialty, and the frequency, length, nature,
and extent of treatment”); Balodis, 704 F. Supp. 2d at 267
(remanding case for ALJ’s failure to apply the treating
physician rule because there was “no reference in the ALJ’s
decision to the various factors that must be considered in
deciding what weight to give the opinion of a treating
physician”).
Although the regulations do not exhaustively define
what constitutes “good reasons” for the weight given to a
treating physician’s opinion, the regulations provide the
following enumerated factors that should guide an ALJ’s
determination when declining to afford controlling weight to a
31
treating physician on the issue of the nature and severity of a
disability: (1) frequency of examination and length, nature, and
extent of the treatment relationship; (2) evidence in support of
the opinion; (3) the opinion’s consistency with the record as a
whole; (4) whether the opinion was from a specialist; (5) and
any other relevant factors.
20 C.F.R. §§ 404.1527(c)(2)-
(6)(2011), 416.927(c)(2)-(6)(2011); see Schnetzler v. Astrue,
533 F. Supp. 2d 272, 286 (E.D.N.Y. 2008) (citing Schisler v.
Sullivan, 3 F.3d 563, 567 (2d Cir. 1993)).
The SSA also considers opinions from treating
physicians regarding the RFC and disability of a claimant, the
final responsibility for determining whether a claimant is
disabled is reserved to the Commissioner, not to physicians;
therefore, the source of an opinion on those matters is not
given “special significance” under the regulations.
Francois v.
Astrue, No. 09-CV-6625, 2010 WL 2506720, at *6 (S.D.N.Y. June
21, 2010) (citing 20 C.F.R. § 404.1527(e)(3) (2010)); see also
20 C.F.R. § 416.927(d)(1) (“A statement by a medical source that
you are ‘disabled’ or ‘unable to work’ does not mean that we
will determine that you are disabled.”). 5
In fact, “[t]he
Commissioner is not required, nor even necessarily permitted, to
5 20 C.F.R. §§ 404.1527(e) (2012)and 416.927(e) (2012) were amended effective
March 26, 2012, with the result that subsection (e) was re-designated as
subsection (d), without substantive change. For consistency, the court will
herein refer to 20 C.F.R. §§ 404.1527(d) and 416.927(d), currently in effect.
32
accept any single opinion, even that of a treating physician, as
dispositive on the determination of disability.”
Francois, 2010
WL 2506720, at *5 (citing Green-Younger v. Barnhart, 335 F.3d
99, 106 (2d Cir. 2003)).
The ALJ may not, however, “arbitrarily
substitute his own judgment for competent medical opinion.”
Cage, 692 F.3d at 122.
1.
It was Improper For The ALJ to Afford Dr.
Siskind’s Opinion Less Than Controlling Weight
Under the Treating Physician Rule
The record establishes that Dr. Siskind treated
plaintiff from July 26, 2009 through January 1, 2012, once every
three months for both examination and follow up.
388-422; 448, 459-510.)
treating physician.
(Tr. 358-60,
Accordingly, Dr. Siskind is plaintiff’s
See 20 C.F.R. § 404.1502 (“A treating physician is
a claimant’s “own physician, psychologist, or other acceptable
medical source who provides [claimant], or has provided
[claimant], with medical treatment or evaluation and who has, or
has had, an ongoing treatment relationship with [claimant].”);
Hernandez, 814 F. Supp. 2d at 183 (holding that an ongoing
treatment relationship exists when the evidence demonstrates
that the claimant has seen the physician “with a frequency
consistent with accepted medical practice for the type of
treatment and/or evaluation required for claimant’s medical
conditions”) (internal quotations omitted).
33
The ALJ afforded “limited weight” to Dr. Siskind’s
opinion that plaintiff is capable of sitting only two hours
total in an eight-hour workday and incapable of even low stress
because there was no “objective support” in the record.
27.)
(Tr.
This was significant because the inability to sit for
prolonged periods impacts the ability to perform sedentary work.
See Niles v. Astrue, 32 F. Supp. 3d 273, 286 (N.D.N.Y. 2012);
see also Perez v. Chater, 77 F.3d 41, 46 (2d. Cir. 1996)
(“Sedentary work . . . generally involves up to . . . six hours
of sitting in an eight-hour workday.”).
The ALJ noted that the
record supported Dr. Siskind’s finding that plaintiff was
significantly limited in his ability to stand and walk for
prolonged periods, however, the record was devoid of any
“sufficiently abnormal clinical findings to support finding him
incapable of sitting” and two consultative examinations “show
grossly normal musculoskeletal findings.”
(Id.)
Moreover, the
ALJ relied on plaintiff’s own testimony that he had no problems
sitting.
(Id.)
The ALJ thus gave “considerable weight” to the
opinions of consultative examiners Dr. Thukral, who found that
plaintiff was unable to engage in activity that required
moderate or greater exertion, and Dr. Johnston, who opined that
plaintiff was markedly limited in walking and climbing, but was
able to sit for four hours in an eight-hour workday, and sit for
two hours continuously.
(Tr. 28.)
34
First, the ALJ improperly substituted Dr. Siskind’s
opinion with her own when she determined that “absent
musculoskeletal evidence,” Dr. Siskind’s finding that plaintiff
incapable of prolonged sitting is unsupported.
(Tr. 27.)
See
Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (noting
that ALJ improperly substituted his own lay interpretation of
medical diagnostic test for the uncontradicted opinion of
claimant’s treating physician); Rosa v. Callahan, 168 F.3d 72,
79 (2d Cir. 1999) (citing Balsamo v. Chater, 142 F.3d 75, 81 (2d
Cir. 1998)) (finding that ALJ had improperly made a medical
determination by concluding that an absence of “atrophy of any
muscle groups” was inconsistent with a finding of disability));
Lester v. Comm’r of Soc. Sec., No. 13-CV-531, 2014 WL 4771860,
at *9 (N.D.N.Y. Sept. 24, 2014) (finding that ALJ improperly
substituted his opinion when finding that plaintiff was not
limited in his ability to sit upon a finding that plaintiff did
not suffer from muscle spasms that would hinder sitting).
Moreover, it was improper for the ALJ to rely on the
opinions of consultative examiners Dr. Thukral and Dr. Johnston
in discounting Dr. Siskind’s opinion that plaintiff can only sit
for two hours per workday.
The “ALJ cannot rely solely on [the]
RFCs [of the consulting examiners] as evidence contradicting the
treating physician RFC.
This is because an inconsistency with a
consultative examiner is not sufficient, on its own, to reject
35
the opinion of the treating physician.”
Donnelly v. Comm’r of
Soc. Sec., 49 F. Supp. 3d 289, 305 (E.D.N.Y. 2014) (citing Moore
v. Astrue, 07–CV–5207, 2009 WL 2581718, at *10 n.22 (E.D.N.Y.
Aug. 21, 2009)) (alterations in original).
“[C]onsultative
exams are often brief, are generally performed without the
benefit or review of claimant’s medical history and, at best,
only give a glimpse of the claimant on a single day.”
Hernandez, 814 F. Supp. 2d at 182-83 (quoting Anderson v.
Astrue, No. 07-CV-4969, 2009 WL 2824584 at *9).
Indeed, “[t]he
Second Circuit has repeatedly stated that when there are
conflicting opinions between the treating and consulting
sources, the ‘consulting physician’s opinions or report should
be given limited weight.’”
Harris v. Astrue, 07–CV–4554, 2009
WL 2386039, at *14 (E.D.N.Y. July 31, 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)).
Moreover, Dr. Thukral conducted a physical examination
of plaintiff and stated that “claimant is limited from lifting,
carrying, and other such activities requirement moderate or
greater exertion due to angina.”
(Tr. 375.)
This opinion is
too vague to provide substantial evidence to counteract the
opinion of Dr. Siskind.
See Curry v. Apfel, 209 F.3d 117, 123
(2d Cir. 2000) (noting that physician’s opinion that claimant’s
“impairment [was]: [l]ifting and carrying moderate; standing and
walking, pushing and pulling and sitting mild” was “so vague as
36
to render it useless in evaluating whether [claimant could]
perform sedentary work.”); Barillaro v. Comm’r of Soc. Sec., 216
F. Supp. 2d 121, 130 (E.D.N.Y. 2002) (finding that ALJ erred in
affording less than controlling weight to treating physician
because ALJ relied on inconsistent medical reports that were
neither substantial nor compelling).
Thus, it was improper to
afford controlling weight to Dr. Thukral’s opinion and to afford
limited weight to Dr. Siskind’s opinion based on its
inconsistency with Dr. Thukral’s vague findings regarding
plaintiff’s exertional capabilities.
Moreover, Dr. Siskind’s opinion regarding plaintiff’s
ability to sit for less than two hours is supported by other
medical opinions in the record.
Dr. Wagman and Dr. Johnston
both opined that plaintiff was limited in performing even
sedentary work, due to fatigue and pain.
Indeed, although Dr.
Wagman testified that plaintiff was not limited in his ability
to sit for prolonged periods, he also Dr. Wagman testified that
“the biggest thing that would, I think be a problem with him
because he does have a normal ejection fraction, but walking is
very stressful because it causes pain.
And I believe that even
with sedentary work, he would problems because of this, just
getting from A to B, even short distances he would have pain and
he would be forced to stop.
shows.”
And this is really what the record
(Tr. 56.)
37
Dr. Johnston’s opinion that plaintiff was limited in
his ability to sit for more than two hours continuously, or four
hours total, was also consistent with Dr. Siskind’s, however,
the ALJ afforded Dr. Johnston’s opinion regarding plaintiff’s
ability to sit “limited weight,” noting that Dr. Johnston
“relie[d] too heavily on the claimant’s self-reports.”
28.)
(Tr.
Dr. Siskind’s and Dr. Johnston’s reliance on the
claimant’s self-reports of fatigue does not undermine their
opinions as to plaintiff’s limitations.
(Tr. 27.)
Such self-
reported evidence constitutes medically acceptable clinical and
laboratory diagnostic technique, and should be considered in a
medical examiner’s assessment of a claimant.
Green–Younger, 335
F.3d at 107 (noting that medically acceptable clinical and
laboratory diagnostic techniques include consideration of a
“patient’s report of complaints, or history, [a]s an essential
diagnostic tool.”).
Accordingly, the court finds that it was
improper to afford limited weight to Dr. Siskind’s opinion
regarding plaintiff’s ability to sit on the basis that it was
contradicted by the opinions of consultative examiners or that
it relied on plaintiff’s own statements regarding pain and
fatigue.
Furthermore, the ALJ erred by discounting Dr.
Siskind’s medical opinion because it was inconsistent with the
plaintiff’s testimony regarding his ability to perform daily
38
activities.
Valet v. Astrue, No. 10-CV-3282, 2012 WL 194970, at
*19 (E.D.N.Y. Jan. 23, 2012) (finding that the
ALJ’s reasoning
for undermining a medical opinion is insufficient when the basis
for the ALJ’s conclusion was that the medical opinion is
inconsistent with the “claimant’s own testimony that she cooks,
cleans the house, walks to the store and walks her daughter 10
blocks to school” and “that she has no problem with personal
care, engages in social activities with her family, attends
church weekly, and cleans her house”).
Here, the plaintiff’s
capacity to participate in activities such as watching
television, listening to music, cooking dinner at times, and
taking walks as part of his physical therapy does not indicate
that he is capable of sedentary work.
Mackey v. Barnhart, 306
F. Supp. 2d 337, 344 (E.D.N.Y. 2004).
Nor does plaintiff’s
testimony that he does not “have problems sitting,” indicate
that he can sit for at least six hours continuously, that he is
able to sit for prolonged periods of time, or that he is able to
engage in the exertional requirements of a sedentary occupation.
Nevertheless, even if Dr. Siskind’s opinion was
unclear, internally inconsistent, or in conflict with other
medical opinions in the record, the ALJ failed to fulfill her
duty to develop the administrative record by seeking additional
information from the treating physicians to clarify or resolve
such inconsistencies.
Pursuant to the ALJ’s duty to develop the
39
administrative record, an ALJ “cannot reject a treating
physician’s diagnosis without first attempting to fill any clear
gaps in the administrative record.”
Rosa, 168 F.3d at 79
Burgess, 537 F.3d at 129;
(citing Schaal, 134 F.3d at 505 (“[E]ven
if the clinical findings were inadequate, it was the ALJ’s duty
to seek additional information from [the treating physician] sua
sponte.”); see Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118
(2d Cir. 1998) (holding that if asked for more information, the
treating physician doctor might have been able to offer clinical
findings in support of his conclusion that the plaintiff could
not sit for most of the workday.
The physician’s “failure to
include this type of support for the findings in his report does
not mean that such support does not exist; he might not have
provided this information in the report because he did not know
that the ALJ would consider it critical.”).
The ALJ should have
clarified or sought additional information from Dr. Siskind and
Dr. Johnston with respect to plaintiff’s ability to sit for
extended durations, rather than affording limited weight to
their opinions based on the presumption that the doctors overrelied on the self-reports of the claimant instead of on their
clinical findings.
Thus, although the record does not permit the court to
determine whether plaintiff is, in fact, entitled to disability
benefits, in light of the foregoing errors, the court concludes
40
that the case must be remanded to the SSA so that plaintiff’s
claim can be considered with a proper application of the
treating physician rule.
If the ALJ declines to give
controlling weight to Dr. Siskind’s opinion as to the nature and
severity of plaintiff’s impairment, plaintiff is entitled to a
comprehensive statement as to what weight is given and of good
reasons for the ALJ’s decision.
B.
The ALJ’s Credibility Determination
Plaintiff argues that the ALJ erred by: (1) applying
an improper legal standard in her credibility determination by
evaluating the consistency of plaintiff’s statements with the
ALJ’s own RFC assessment instead of the evidence in the record;
(2) failing to give proper weight to plaintiff’s testimony
regarding his subjective symptoms; and (3) failing to assess the
factors set forth in the Regulations before making her
credibility determination.
(Pl. Mem. at 16-17.)
A claimant’s statements of pain or other subjective
symptoms cannot alone serve as conclusive evidence of
disability.
Felix v. Astrue, No. 11-CV-3697, 2012 WL 3043203,
at *8 (E.D.N.Y. July 24, 2012) (citing Genier v. Astrue, 606
F.3d 46, 49 (2d. Cir. 2010) (citing 20 C.F.R. § 1529(a)); see
Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010).
If the
plaintiff offers statements about pain or other symptoms not
substantiated by the objective medical evidence, the ALJ is
41
required to engage in a credibility inquiry.
Felix, 2012 WL
3043203, at *8 (citing Meadors, 370 F. App’x at 183 (summary
order)).
The Commissioner has established a two-step process
that an ALJ must follow in evaluating a claimant’s credibility
with regard to her assertions about pain and other symptoms and
their impact on claimant’s ability to work.
Felix, 2012 WL
3043203, at *8 (citing Genier, 606 F.3d at 49); Cabassa v.
Astrue, No. 11-CV-1449, 2012 WL 2202951, at *13 (E.D.N.Y. June
13, 2012); Williams v. Astrue, No. 09-CV-3997, 2010 WL 5126208
at *13 (E.D.N.Y. Dec. 9, 2010) (internal citation omitted).
First, the ALJ must consider whether the claimant has a
medically-determinable impairment which could reasonably be
expected to produce the pain or symptoms alleged by the
claimant.
20 C.F.R. §§ 404.1529(b), 416.929(b).
Subjective
assertions of pain alone cannot form the grounds for a finding
of disability at this stage.
Genier, 606 F.3d at 49.
Second, if the claimant does suffer from an impairment
that could reasonably be expected to produce pain or the
symptoms alleged, the ALJ must then “evaluate the intensity and
persistence of the claimant’s symptoms.”
§§ 404.1529(c)(1), 416.020(c)(1).
20 C.F.R.
If the claimant’s statements
are not substantiated by the objective medical evidence, the ALJ
must engage in a credibility inquiry.
42
Meadors, 370 F. App’x at
183 (citing 20 C.F.R. § 404.1529(c)(3)).
Plaintiff’s
credibility will be given considerable weight if her statement
about pain is consistent with objective clinical evidence.
See
20 C.F.R. § 404.1529(c)(4); Kane v. Astrue, 942 F. Supp. 2d 301,
313 (E.D.N.Y. 2013).
The ALJ, however, is not required to discuss all seven
factors as long as the decision “includes precise reasoning, is
supported by evidence in the case record, and clearly indicates
the weight the ALJ gave to the claimant’s statements and the
reasons for that weight.”
Felix, 2012 WL 3043203 at *8 (citing
Snyder v. Barnhart, 323 F. Supp. 2d at 546-47 & n.5 (S.D.N.Y.
2004)).
“Because an ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility, his
decision to discredit subjective testimony may not be disturbed
on review if his disability determination is supported by
substantial evidence.”
Williams v. Astrue, No. 09-CV-3997, 2010
WL 5126208 at *13 (E.D.N.Y. Dec. 9, 2010) (citing Brown v.
Astrue, No. CV–08–3653, 2010 WL 2606477, at *6).
“An ALJ’s finding that a witness lacks credibility
must be ‘set forth with sufficient specificity to permit
intelligible plenary review of the record.’”
Morrison v.
Astrue, 08-CV-2048, 2010 U.S. Dist. LEXIS 115190, at *12
(E.D.N.Y. Oct. 27, 2010) (quoting Williams, 859 F.2d at 261);
see also Escalante v. Astrue, No. 11 Civ. 375, 2012 U.S. Dist.
43
LEXIS 879, at *23 (S.D.N.Y. Jan. 4, 2012) (“Conclusory findings
of a lack of credibility will not suffice; rather, an ALJ’s
decision ‘must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator gave
to the individual’s statements and the reasons for that
weight.’”) (quoting Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 61 Fed.
Reg. 34,483, 34,484 (July 2, 1996)).
SSR 96-7p provides in pertinent part:
It is not sufficient for the adjudicator to
make a single, conclusory statement that “the
individual’s
allegations
have
been
considered” or that “the allegations are (or
are not) credible.” It is also not enough for
the adjudicator simply to recite the factors
that are described in the regulations for
evaluating symptoms. The determination or
decision must contain specific reasons for the
finding on credibility, supported by the
evidence in the case record, and must be
sufficiently specific to make clear to the
individual and to any subsequent reviewers the
weight
the
adjudicator
gave
to
the
individual’s statements and the reasons for
that weight.
SSR 96-7p, 1996 WL 374186, at *2.
is required.
Absent such findings, remand
See Villani v. Barnhart, No. 05-CV-5503, 2008 WL
2001879, at *11 (E.D.N.Y. May 8, 2008).
44
Here, the ALJ determined that the plaintiff’s
impairments “could reasonably be expected to cause the alleged
symptoms” but the plaintiff’s statements regarding the
intensity, persistence and limiting effects of the symptoms are
not credible “to the extent they are inconsistent with the above
residual functional capacity assessment.”
(Tr. 29.)
The court respectfully finds that the ALJ’s
credibility analysis is insufficient.
As an initial matter, it
was improper for the ALJ to conclude that plaintiff’s statements
regarding the intensity, persistence, and limiting effects of
his alleged symptoms were “not credible to the extent they are
inconsistent with the . . . residual functional capacity
assessment.”
(Tr. 29 (emphasis added).)
Indeed, “it was
counterintuitive to reject [plaintiff’s] physical symptoms
simply because they were at odds with the ALJ’s RFC assessment;
rather, they [should have been] assessed in order to determine
[his] RFC.”
Stuart v. Colvin, No. 13-CV-04552, 2014 WL 4954487,
at *13 (E.D.N.Y. Sept. 30, 2014) (citing Jackson v. Astrue, No.
09-CV-1290, 2010 WL 3777732, at *5 (E.D.N.Y. Sept. 21, 2010)
(emphasis in original).
Moreover, although it was within the ALJ’s discretion
to make a final decision that plaintiff was not “entirely
credible,” the ALJ failed to make specific findings explaining
her credibility determinations based on specific evidence to
45
enable effective review.
The ALJ failed to state which of
plaintiff’s statements, if any, she found to be credible or not
credible, the weight given to plaintiff’s statements, and the
reasons for affording such weight.
See SSR 96-7p; Villani, 2008
WL 2001879, at *11 (remanding for determination of plaintiff’s
credibility, which must contain specific findings based upon
substantial evidence in a manner that enables effective review).
The ALJ considered some of the factors set forth in the
Regulations, 20 C.F.R. § 404.1529(c)(3)(i)-(vii), including
plaintiff’s daily activities, the location, duration, frequency,
and intensity of the symptoms, precipitating and aggravating
factors, and the effectiveness and side effects of plaintiff’s
medications.
(Tr. 29-30.) The ALJ’s analysis, however, was
insufficient because the ALJ failed to adequately detail the
bases for her credibility determination or “identify what facts
[s]he found to be significant, [or] indicate how [s]he balanced
the various factors.”
Kane, 942 F. Supp. 2d at 314 (citing
Simone v. Astrue, No. 08-CV-4884, 2009 WL 2992305, at *11
(E.D.N.Y. Sept. 16, 2009)); Williams, 2010 WL 5126208, at *20
(internal citation omitted).
Instead, the ALJ merely summarized
the plaintiff’s self-reports and testimony regarding his ability
to engage in sustained activity, without evaluating its
consistency with the evidence in the record.
The ALJ also
reiterated plaintiff’s testimony that he experiences shortness
46
of breath and chest pains every three months due to worry and
anxiety without assigning any weight to these statements or
evaluating them in the context of the medical record.
(Tr. 29.)
Only once did the ALJ specifically discredit plaintiff’s
statement with regard to his allegations of fatigue, which the
ALJ found was not corroborated by the record.
(Tr. 29.)
The opinion notes that plaintiff “described his
typical day as sitting and watching television,” that plaintiff
“reported being able to cook for himself and daughter” is “able
to use public transportation . . . lives in a three-story walk
up apartment . . . [and] goes on daily, one-mile walks with
periodic breaks,” (Tr. 29), but does not assess whether these
activities contradict other evidence from the record.
Indeed,
the “Second Circuit has held that an individual who engages in
activities of daily living, especially when these activities are
not engaged in ‘for sustained periods comparable to those
required to hold a sedentary job,’ may still be found to be
disabled.”
Kaplan v. Barnhart, No. 01-CV-8438, 2004 WL 528440,
at *3 (E.D.N.Y. Feb. 24, 2004) (quoting Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998)).
“That the plaintiff . . . can cook
daily, perform routine household chores once a week, go shopping
. . . does not, without more, necessarily contradict [his] claim
that [he] experiences pain when walking or sitting for more than
30 minutes.”
Larsen v. Astrue, No. 12-CV-414, 2013 WL 3759781,
47
at *3 (E.D.N.Y. July 15, 2014).
Without “further clarifications
as to the nature of these activities,” such daily activities
cannot “undermine the plaintiff’s allegations concerning her
pain.”
Id.
The ALJ concluded the “overall record shows that
[plaintiff’s] condition is stable and [that he] has no
musculoskeletal abnormalities to justify a limited ability to
sit for prolonged periods of time.” The ALJ failed to address
plaintiff’s allegations with respect to his shortness of breath
during physical exertion, his chest pains, or his fatigue.
The
ALJ cannot “simply selectively choose evidence in the record
that supports [her] conclusions” and must give specific reasons
indicating why she found certain doctor appointments and medical
opinions more significant than others when assessing plaintiff’s
credibility.
Cabassa, 2012 WL 2202951, at *15 (citing Gecevic
v. Sec’y of Health and Human Servs, 882 F. Supp. 278, 286
(E.D.N.Y. 1995)).
Finally, plaintiff argues that the ALJ erroneously
relied on plaintiff’s receipt of unemployment benefits and his
statements that he is “ready, willing, and able to work,” (Pl.
Mem. at 18), however, courts in Second Circuit have held that an
ALJ may consider evidence that the claimant received
unemployment benefits and/or certified that he was ready,
willing, and able to work during the time period for which he
48
claims disability benefits as adverse factors in the ALJ’s
credibility determination.”
Felix v. Astrue, No. 11-CV-3697,
2012 WL 3043203, at *10 (E.D.N.Y. July 24, 2012).
Thus the ALJ
properly considered, but did not rely exclusively upon,
plaintiff’s willingness to work, noting that it did “not look
favorably on his allegations of disability.”
(Tr. 29.)
Accordingly, it was proper for the ALJ to consider evidence of
the plaintiff’s unemployment compensation and stated willingness
to work in assessing plaintiff’s credibility, and the
plaintiff’s motion for judgment on the pleadings is denied with
respect to this ground.
However, the ALJ’s credibility
determination must be “set forth with sufficient specificity to
permit intelligible plenary review of the record.”
Morrison,
2010 U.S. Dist. LEXIS 115190, at *12 (internal quotation marks
and citation omitted).
Accordingly, the court remands this case
for a determination of plaintiff’s credibility, which shall
contain the ALJ’s specific findings in order to enable effective
review.
C.
New Evidence Submitted to the Appeals Council Warrants
Remand
Plaintiff argues that remand is warranted for the
consideration of new, material evidence presented to the Appeals
Council.
Under 42 U.S.C. § 405(g), the court may remand a case
“upon a showing that there is new evidence which is material and
49
that there is good cause for the failure to incorporate the
evidence into the record in a prior proceedings.”
42 U.S.C.
§ 405(g); see Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988);
see also 20 C.F.R. §§ 404.970.
New and material evidence
submitted after the ALJ’s decision, shall be considered “only
where it relates to the period on or before the date of the
administrative law judge hearing decision.”
20 C.F.R.
§ 404.970(b); Bailey v. Astrue, 815 F. Supp. 2d 590, 599
(E.D.N.Y. 2011) (citing Shalala v. Schaefer, 509 U.S. 292, 297
(1993)); Garcia v. Comm’r of Soc. Sec., 496 F. Supp. 2d 235, 242
(E.D.N.Y. 2007) (citing Perez v. Chater, 77 F.3d 41, 44 (2d Cir.
1996)).
In order for a court to remand a case and order
additional evidence to be taken before the Commissioner, the
evidence must satisfy three requirements.
Houston v Colvin, No.
12-CV-03842, 2014 WL 4416679, at *8 (E.D.N.Y. Sept. 8, 2014)
(citing Tirado v. Bowen, 842 F.2d 595, 567 (2d Cir. 1988));
Flanigan v. Colvin, 21 F. Supp. 3d 285, 307-08 (S.D.N.Y. 2014)
(citing Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991)).
The
evidence must be: (1) new; (2) material; and (3) there must be
good cause for failing to present this evidence in earlier
proceedings.”
Houston, 2014 WL 4416679, at *8; Bailey, 815 F.
50
Supp. 2d at 599-600 (citing Lisa v. Sec’y of Health & Human
Servs., 940 F.2d 40, 43 (2d Cir. 1991)).
Evidence is considered “new” when the evidence is not
merely a cumulative account of what already exists in the
record.
Houston, 2014 WL 4416679, at *8 (internal citation
omitted); Bailey, 815 F. Supp. 2d at 600 (internal citation
omitted).
To be material the evidence must be relevant to the
plaintiff’s condition during the alleged disability period and
probative.
Pollard v. Halter, 193 (2d Cir. 2004).
“The concept
of materiality requires, in addition, a reasonable possibility
that the new evidence would have influenced the [Commissioner]
to decide claimant’s application differently.”
Pollard, 377
F.3d at 193 (quoting v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988))
(internal quotation marks omitted); Houston, 2014 WL 4416670, at
*8 (quoting Tirado, 842 F.2d at 597 (2d Cir. 1988)).
Good cause
may be established by the non-existence of the evidence at the
time of the hearing.
Pollard, 377 F.3d at 193); Patterson v.
Colvin, 24 F. Supp. 3d 356, 372 (S.D.N.Y. 2014) (internal
citation omitted); Canales v. Comm’r of Soc. Sec., 698 F. Supp.
2d 335, 341 (E.D.N.Y. 2010.
Where “new evidence” is submitted
to the Appeals Council and part of the administrative record for
judicial review, however, a showing of good cause is not
necessary where the evidence was presented to the Appeals
Council, but the Appeals Council declined to consider it.
51
See
Knight v. Astrue, 10-CV-5301, 2011 WL 4073603, at *12 (E.D.N.Y.
Sept. 13, 2011) (citing Perez, 77 F.3d at 45).
New and material
evidence will not warrant remand if it “does not add so much as
to make the ALJ’s decision contrary to the weight of the
evidence.”
Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir.
2010).
Plaintiff submitted additional evidence to the Appeals
Council after the ALJ made her April 18, 2011 decision,
consisting of the following: (1) a psychiatric evaluation and
Psychiatric Impairment Questionnaire from Dr. Eshkenazi dated
June 30, 2011; (2) additional medical records from Dr. Siskind’s
office dated August 14, 2009 to January 1, 2012; and (3) an MRI
report dated March 2, 2011.
(Tr. 5-6; see 459-511; 512-522.)
In a notice dated September 27, 2012, the Appeals Council
stated, without discussion, that it had “found no reason under
our rules to review the Administrative Law Judge’s decision” and
“denied [plaintiff’s] request for review.
1.
(Tr. 1.)
Dr. Eshkenazi’s Psychiatric Report
Dr. Eshkenazi’s evaluation is new and not merely
cumulative of the evidence that is already on the record.
Moreover, plaintiff has demonstrated good cause for failure to
submit this evidence to the ALJ because the psychiatric
evaluation report (June 30, 2011) did not exist at the time of
the hearing on January 25, 2011.
52
See Pollard, 377 F.3d at 193
(holding “because the new evidence submitted by [plaintiff] did
not exist at the time of the ALJ’s hearing, there is no question
that the evidence is “new” and that “good cause” existed for her
failure to submit this evidence to the ALJ.”).
Dr. Eshkenazi’s psychiatric evaluation report
constitutes material evidence of plaintiff’s psychiatric
condition during the relevant period.
New evidence is material
if it is (1) relevant to the plaintiff’s condition during the
period for which benefits were denied, spanning from the alleged
onset date through the ALJ’s decision and (2) shows a
“reasonable possibility” that new evidence would have influenced
the Commissioner to decide the plaintiff’s application
differently.
Felix v. Astrue, No. 11-CV-3697, 2012 WL 3043203,
at *12 (E.D.N.Y. July 24, 2012); Tirado v. Bowen, 842 F.2d 595,
597 (2d Cir. 1988).
Here, although the psychiatric evaluation
report post-dates the ALJ’s decision, the substance of the
report is relevant to the time period during which plaintiff is
claiming he was disabled.
Indeed, Dr. Eshkenazi opined that the
earliest date the mental limitations described in his evaluation
apply to plaintiff’s condition is July 2009.
(Tr. 522.)
Thus,
this retrospective diagnosis is relevant to the time period for
plaintiff’s disability determination.
See Dousewicz v. Harris,
646 F.2d 771, 774 (2d Cir. 1981) (noting that retrospective
diagnoses are valid under the Social Security Act); Raufova v.
53
Chater, No. 94-CV-5007, 1995 WL 561340 (E.D.N.Y. Sept. 20, 1995)
(holding that although the first treatment started after the
hearing and denial of appeals, the psychiatrist’s report filed
as additional evidence related back to the relevant period of
the benefit sought and the plaintiff’s retrospective diagnoses
was relevant to the disability determination); see also Bosmond
v. Apfel, No. 97-CV-4109, 1998 WL 851508, *12 (S.D.N.Y. Dec. 8,
1998) (“A post-determination diagnosis that indicates true
disability prior to the ALJ determination is relevant — whether
the diagnosis relates to a previously unrecognized condition, or
whether it reveals the depth of an illness recognized, but not
fully appreciated at the time of the hearing.”).
Furthermore, the psychiatric evaluation bears on
plaintiff’s mental conditions and there is a reasonable
probability that the evidence would have influenced the
Commissioner to decide the plaintiff’s application differently.
In his report, Dr. Eshkenazi’s diagnosed generalized anxiety,
dysthymic disorder, and heart problems (shortness of breath)
that resulted in the plaintiff being incapable of even low work
stress, likely absence from work more than three times a month,
and inability to carry on gainful employment.
(Tr. 514.)
This
evidence supports and corroborates the plaintiff’s contentions
that his fatigue and pain inhibit him from gainful employment.
See Pollard, 377 F.3d at 194 (finding that the new evidence of
54
the plaintiff’s psychological state corroborates the plaintiff’s
contention that he is limited in maintaining a healthy emotional
and physical state, and thus, is “pertinent and probative” to
the plaintiff’s condition).
The ALJ found that, “[w]ith regard
to his allegations of significant fatigue, the record does not
corroborate [plaintiff’s] statements.”
(Tr. 29.)
Because the
ALJ disregarded plaintiff’s self-reports regarding his fatigue,
and did not afford significant weight to any of the treating or
consultative physicians’ opinions regarding plaintiff’s fatigue,
the new evidence would be a material factor in the ALJ’s
assessment of plaintiff’s RFC.
Accordingly, on remand, the ALJ
should consider Dr. Eshkenazi’s psychiatric report.
2.
Dr. Siskind’s Additional Medical Reports
Plaintiff submitted additional reports from Dr.
Siskind dated August 21, 2009 through January 1, 2012.
459-510.)
(See Tr.
Many of the reports, for example an EKG Stress Test
Work Sheet dated August 21, 2009 and the results of an EKG
Stress Report dated August 4, 2010, were previously provided to
the ALJ and are therefore cumulative.
(Tr. 462-76, 481.)
Although Dr. Siskind’s August 4, 2010 test results
were not previously provided to the ALJ, they are based on the
same test for which results were reported by Dr. Blum and do not
provide new information.
(See Tr. 424.)
Moreover, the
additional treatment notes that were not previously provided to
55
the ALJ are merely cumulative to those already in the record.
Houston, 2014 WL 4416679, at *8 (internal citation omitted).
For example, in a report dated September 28, 2010, Dr. Siskind
noted plaintiff’s ability to walk ten blocks before stopping due
to shortness of breath and that he had good exercise capacity on
his stress test.
(Tr. 500.)
The ALJ already relied on similar evidence that
plaintiff had shortness of breath upon physical exertion, and
that he needed to take breaks during prolonged activity, in
reaching the conclusion that plaintiff’s RFC was consistent with
sedentary work.
Thus, the “new” evidence consisting of Dr.
Siskind’s treatment notes is duplicative but may be considered
on remand.
3.
MRI dated March 2, 2011
Plaintiff submitted an MRI report from the New York
Hospital Queens dated March 2, 2011 to the Appeals Council.
(Tr. 455-58.)
The MRI report indicated that plaintiff suffered
from atheromatous disease of the infra-renal abdominal aortas
and that there was an infra renal abdominal aortic aneurysm
present.
(Tr. 456.)
The MRI also showed ectasia, or a
distention, of both common iliac arteries, moderate stenosis in
the left external iliac artery by 50%, multiple severe stenosis
and short segment occlusions of the left anterior tibial artery
(arteries in the lower leg), and mild stenosis in the right
56
anterior tibial artery.
(Tr. 457-58.)
Although the examination
was conducted on March 2, 2011, it is not clear when the results
were reported.
In any event, the report was not available at
the time of plaintiff’s hearing, thus the report is “new” and
good cause is established.
Pollard, 377 F.3d at 193; Patterson
v. Colvin, 24 F. Supp. 3d 356, 372 (S.D.N.Y. 2014) (internal
citation omitted); Canales v. Comm’r of Soc. Sec., 698 F. Supp.
2d 335, 341 (E.D.N.Y. 2010).
Although the MRI report is material and relevant to
the disability period alleged by plaintiff, and provides
supplemental evidence with respect to plaintiff’s complaints
about his leg pain upon walking and his inability to sustain
prolonged activity due to fatigue, the ALJ already determined
that plaintiff was limited in his ability to walk and stand.
New and material evidence will not warrant remand if it “does
not add so much as to make the ALJ’s decision contrary to the
weight of the evidence.”
229 (2d Cir. 2010).
Rutkowski v. Astrue, 368 F. App’x 226,
Nonetheless, the new evidence of
plaintiff’s MRI may be considered on remand.
CONCLUSION
For the foregoing reasons, the court remands this
case for further proceedings consistent with this opinion.
Specifically, the ALJ should:
57
(1)
Review the totality of the evidence in the record and,
if she declines to afford controlling weight to Dr.
Siskind’s opinion regarding plaintiff’s physical
limitations, in particular, plaintiff’s inability to
sit for prolonged periods of time, provide a clear and
explicit statement of the “good reasons” for the
weight she does accord Dr. Siskin’s opinion in
accordance with the factors stated in 20 C.F.R. §§
404.1527(c)(2)-(6), 416.927(c)(2)-(6), and reconcile
Dr. Siskind’s opinion with the opinions of nonexamining sources as well as other evidence in the
record to adequately explain the ALJ’s RFC
determination;
(2)
Assess plaintiff’s credibility and provide the
specific findings in order to enable effective review;
and;
(3)
Consider the new evidence submitted to the appeals
council, in particular, the psychiatric report
provided by Dr. Eshkenazi.
SO ORDERED.
Dated: Brooklyn, New York
October 15, 2015
__________/s/ ______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
58
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