Prochaska v. Colvin
MEMORANDUM and ORDER: The Commissioners motion 17 for judgment on the pleadings is denied, and Prochaskas motion 16 is granted insofar as the case is remanded to the Commissioner for further proceedings. The Clerk of the Court is directed to remand this case back to the Commissioner of Social Security. Ordered by Judge Frederic Block on 3/28/2014. (Innelli, Michael) Modified on 3/28/2014 (Innelli, Michael).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KENNETH B. PROCHASKA,
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.
60 East 42nd Street, Suite 520
New York, NY 10165
For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
BLOCK, Senior District Judge:
Kenneth Prochaska (“Prochaska”) seeks review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for Disability
Insurance Benefits (“DIB”). Both parties move for judgment on the pleadings. For the
reasons stated below, the Commissioner’s motion is denied and Prochaska’s motion is
granted insofar as the Court remands the case for further proceedings.
In April 2010, Prochaska began experiencing lower back pain that shot down to his
left foot. At the time, he was employed as a construction worker. Because of his pain, he
filed an application for DIB on March 15, 2011, alleging disability since April 24, 2010. The
Social Security Administration denied his claim. Upon Prochaska’s request, an
Administrative Law Judge (“ALJ”) conducted a hearing and denied his claim. Following
an appeal of the ALJ’s determination, the Appeals Council denied his request for review,
rendering final the Commissioner’s decision to deny benefits. Prochaska timely sought
The relevant evidence proffered at the hearing before the ALJ is summarized below.
A. Medical Evidence
1. Treating Physician Dr. Ranjana Mehta
On April 12, 2010, Prochaska saw Dr. Ranjana Mehta for lower back pain that shot
down to his left foot. After x-rays revealed mild degenerative changes and lumbarization
at the level of S1, he was diagnosed with lumbosacral radiculopathy. On May 14, 2010, an
“MRI” showed degenerative changes most notable for a disc extrusion at L5-S1 causing
impingement of the descending left S1 nerve root and severe right neural foraminal
narrowing and lumbarization of the S1 vertebral body. He also had muscle spasms on
examination. Dr. Mehta then saw him on August 11, 2011, and again on October 19, 2011,
reporting no change in his condition.
Dr. Mehta completed a Multiple Impairment Questionnaire dated February 22, 2012,
stating a diagnosis of lumbago and herniated nucleus pulposus with radiculopathy of S1
down the left leg. In this report, he cited to MRI findings that supported his diagnosis,
stated that Prochaska’s prognosis was poor, and noted that Prochaska was not a
malingerer. His clinical findings included muscle spasm, ambulation with a cane, a
distressed appearance, and an inability to sit for long periods of time. He further opined
that Prochaska was able to sit less than one hour total and stand/walk less than one hour
total in an eight-hour workday. He concluded that the symptoms and limitations described
within the questionnaire were present since 2010. Dr. Mehta opined, in essence, that
Prochaska could not perform even sedentary work.
2. Evaluating Physician Dr. Edmee Henriquez
On December 16, 2010, Dr. Edmee Henriquez evaluated Prochaska on referral from
Dr. Mehta. Dr. Henriquez diagnosed chronic back pain and recommended neurology and
orthopedic surgery evaluations. He saw Prochaska on two other occassions, on June 27,
2011 and on July 19, 2011. During both visits, Prochaska’s pain remained at a 7 on a 10point scale.
3. Treating Neurologist Dr. Henry Moreta
Dr. Henry Moreta began treating Prochaska on May 11, 2010. An examination
revealed moderately severe left paralumbar sacroiliac notch tenderness, and positive
straight leg raising at 30 degrees on the left. Neurological abnormalities included weakness
of the left gastrocnemius (graded at 4/5), decreased pinprick sensation in a left S1
distribution, absent left ankle jerk, and an abnormal gait. Dr. Moreta saw Prochaska again
on May 18, 2010, found his symptoms to be unchanged, and diagnosed severe left
lumbosacral radiculopathy secondary to left L5-S1 disc herniation.
4. Examining Orthopedic Surgeon Dr. Enrico Mango
Dr. Enrico Mango evaluated Prochaska on February 14, 2012. Consistent with the
other physicians that had examined and treated Prochaska, Dr. Mango diagnosed chronic
bilateral lumbosacral spine radiculopathy with bulging discs at L2-3, L4-5, and L5-S1 with
lumbarization of the S1 vertebral body and severe foraminal narrowing at L5-S1. He
further concluded that Prochaska “cannot perform even sedentary work.” AR at 17.
Dr. Mango completed a Lumbar Spine Impairment Questionnaire dated February
20, 2012 and, similar to Dr. Mehta, opined that Prochaska’s prognosis was “poor” and that
he was not a malingerer. AR at 228. Dr. Mango noted Prochaska’s primary symptoms
included low back pain with bilateral radicular symptoms on the left more than right,
numbness of the left foot, decreased range of motion, and difficulties performing activities
of daily living. He opined that Prochaska was able to sit two to three hours total,
stand/walk two to three hours total in an eight-hour workday, and required unscheduled
breaks to rest approximately every thirty minutes.
5. SSA Consultative Examiner Dr. Erlinda Austria
Dr. Erlinda Austria evaluated Prochaska once, on April 20, 2011, at the request of
the SSA. An examination revealed a limping gait, an inability to heel or toe walk, use of a
cane, squatting limited to halfway down, pain with lumbar flexion to thirty degrees and
lateral flexion and rotation to twenty degrees, and positive straight leg raising in the supine
position. Dr. Austria diagnosed progressive low back pain radiating to the left lower
extremity and disc extrusion at L5-S1 with impingement and right neural foraminal
Dr. Austria opined that Prochaska had “mild to moderate limitations
squatting, bending, and engaging in prolonged sitting, standing, and walking,” AR at 186187, but that, in effect, he could still perform sedentary work.
B. Prochaska’s Testimony
Prochaska testified that he discontinued working due to his back impairment. He
stated that he has problems with his attention and concentration when awake, and has
difficulty sleeping at night due to his pain. He estimated that he can sit for up to one hour,
and stand for up to one hour. He stated that surgery was recommended, but that he had
no interest in pursuing it because his father had two back surgeries that did not help his
father’s pain. He stated he lives with his father, and that he does little work around the
house. He further stated that he has difficulty dressing himself and cannot tie his own
C. The ALJ’s Decision
In a decision dated March 16, 2012, ALJ Andrew Weiss concluded that Prochaska
was not disabled because he retained the residual functional capacity to perform the full
range of sedentary work. Applying the first three steps of the sequential five-step
evaluation process, the ALJ found that: (1) Prochaska had not engaged in substantial
gainful activity since April 24, 2010; (2) his lumbar radiculopathy qualified as a severe
impairment; and (3) his lumbar spine impairments did not meet or medically equal the
criteria for a listed impairment. In determining Prochaska’s credibility, the ALJ found his
statements concerning the intensity, persistence and limiting effects of his symptoms to be
The ALJ then found that Prochaska had the residual functional capacity (“RFC”) to
perform the full range of sedentary work. Applying that RFC to the remaining two steps,
the ALJ found (4) that Prochaska was unable to perform any past work, but (5) that he
could perform other work existing in significant numbers in the national economy. In
support of these findings, the ALJ’s conclusory opinion stated that he assigned “little
weight” to the opinion issued by treating physician Dr. Ranjana Mehta that Prochaska
cannot perform even sedentary work. Similarly, the ALJ assigned “little weight” to the
opinion issued by examining physician Dr. Enrico Mango, who had concluded that
Prochaska “cannot perform even sedentary work.” AR at 17. Instead, the ALJ accorded
“significant weight” to the opinion of one-time consultative examiner Dr. Erlinda Austria,
who opined that Prochaska could still perform sedentary work.
Prochaska first contends that the ALJ erred in finding that his lumbar radiculopathy
does not meet or medically equal the criteria for a listed impairment. Second, he argues that
the ALJ’s RFC determination was not supported by substantial evidence. In that regard,
he contends that the ALJ improperly discounted the opinion of treating physician Dr.
Ranjana Mehta, and that of examining physician Dr. Enrico Mango. Instead, Prochaska
argues, the ALJ favored the opinion issued by one-time consultative examiner Dr. Erlinda
Austria. Finally, he asserts that the ALJ failed to properly evaluate his credibility.
“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” refers to “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)). In determining whether substantial
evidence supported the agency’s findings, “the reviewing court is required to examine the
entire record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.” Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983).
A. Listed Impairment
At step three of the disability evaluation, a claimant whose impairment “meets or
equals” one of the listed impairments is “conclusively presumed to be disabled and entitled
to benefits.” Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); see also 20 C.F.R. §§
404.1520(a)(4)(iii) (“If you have an impairment(s) that meets or equals one of our listings
. . . and meets the duration requirement, we will find that you are disabled.”),
416.920(a)(4)(iii) (same). Prochaska contends that his back impairment meets or equals
listing 1.04(A). That section requires a showing of “[d]isorders of the spine . . . resulting in
compromise of a nerve root . . . or the spinal cord,” coupled with “[e]vidence of nerve root
compression characterized by neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
The ALJ’s analysis, in its entirety, in regard to step three consisted of the following:
The record does not establish that the severity of the claimant’s
impairments rises to listing levels. In reaching this conclusion,
the undersigned has specifically considered Listing 1.04, which
pertains to the claimant’s lumbar radiculopathy. The record
does not demonstrate that the claimant’s condition is
accompanied by nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss with sensory or reflex loss, and a positive
straight leg raising test (sitting and supine); spinal
arachnoiditis; or lumbar spinal stenosis resulting in
pseudoclaudication and inability to ambulate effectively, as
required by the listing.
The ALJ’s finding fails to set forth a specific rationale in support of his foregoing
conclusion; rather, his analysis is a mere recitation of the requirements enumerated in §
1.04(A). He never mentioned the evidence that suggests that Prochaska’s impairments may
very well have met or medically equaled a listed impairment.
Nevertheless, the absence of an express rationale does not prevent the Court from
upholding the ALJ’s determination that Prochaska’s condition is not equivalent to the 1.04
listing. See Berry v. Schweiker, 675 F.2d 464, 468-69 (2d Cir. 1982) (stating that although the
Commissioner should set forth a sufficient rationale in support of his decision to find or
not to find a listed impairment, the absence of an express rationale will not preclude the
Court from upholding the ALJ’s determination). A review of the record, and portions of
the ALJ’s decision, establish that the ALJ’s conclusion was supported by substantial
Prochaska’s examinations did not consistently reveal the requisite findings of
“muscle weakness, sensory loss, and positive straight leg raising.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 1.04(A). In May 2010, Dr. Moreta, his neurologist, found that his muscle
strength was normal at 5/5 in all muscle groups except in the left gastrocnemius, which
was only slightly reduced to 4/5, and noted decreased pinprick sensation in the left S1
distribution and an absent left ankle jerk. In November 2010, however, Prochaska’s
examination with treating physician Dr. Mehta revealed only muscle spasms; there were
no abnormal findings of motor, sensory or reflex loss. In April 2011, SSA consultative
examiner, Dr. Austria, found full 5/5 strength in the proximal and distal muscles of
Prochaska’s lower extremities, normal and equal reflexes, and no muscle atrophy or
sensory abnormalities. Further, a February 2012 examination with Dr. Mango made no
mentioned of any motor or sensory abnormalities and noted only that the remainder of the
neurological examination was normal.
While his straight leg raising was positive in the left leg only in May 2010 and in
both legs in February 2012, the one-time examination by Dr. Austria established that his
straight leg raising was normal at 90 degrees bilaterally in the sitting position. That being
said, Dr. Austria did find that his straight leg raising was 80 degrees on the right and 70
degrees on the left in the supine position. The reports in the record containing other
positive tests, though, do not state that the straight leg raising was done in both supine and
sitting positions. Since straight leg raising tests must be positive from both the sitting and
supine positions, it cannot be said that Prochaska satisfies Section 1.04(A). 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.04(A). Although the ALJ failed to set forth a sufficient rationale in
support of his decision not to find a listed impairment, his conclusion was nevertheless
supported by substantial evidence.
B. Treating Physician Rule
Under the Commissioner’s regulations, opinions from treating physicians are to be
given “controlling weight” as to the nature and severity of the claimant’s impairment, as
long as they are “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial evidence in [the] case record.”
Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998) (quoting 20 C.F.R. § 404.1527(d)(2)). If the
opinion of a treating physician is not accorded controlling weight by the ALJ, it must be
evaluated according to specific regulatory criteria. See id. § 404.1527(d)(2).1 The ALJ must
“give good reasons in [the] notice of determination or decision for [whatever] weight [he
accords the] treating source’s opinion. Id.
Prochaska argues that the ALJ misapplied the treating-physician rule with respect
to opinions rendered by Dr. Mehta and Dr. Mango. Only Dr. Mehta, however, who
Those criteria, which govern the evaluation of all medical opinions, include: “(i)
the frequency of examination and the length, nature, and extent of the treatment
relationship; (ii) the evidence in support of the opinion; (iii) the opinion’s consistency
with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other
relevant factors [that tend to support or contradict the opinion].” Schaal, 134 F.3d at 503
(citing 20 C.F.R. § 404.1527(d)). Two other criteria— whether the physician has
examined the claimant and whether the physician has treated the claimant— are
presumed to exist for the opinion of a treating physician, but must be considered when
evaluating any other medical opinion. See 20 C.F.R. § 404.1527(d).
examined Prochaska on numerous occasions over a two-year period, is properly labeled
a treating physician; with respect to Dr. Mango, the record does not establish a relationship
extending beyond one report and one isolated visit on February 14, 2012. See 20 C.F.R. §
404.1527(d)(2) (suggesting that the hallmark of a treating physician is that he can provide
“a detailed, longitudinal picture of [the claimant’s] medical impairments”); see also Miles
v. Harris, 645 F.2d 122, 126 (2d Cir. 1981) (citing Selig v. Richardson, 379 F. Supp. 594, 601
(E.D.N.Y. 1974) (“Opinions of the treating physician are entitled to substantially greater
weight than the impressions of a doctor who sees the claimant only once. . . .”).
Although the ALJ was not duty-bound to accord controlling weight to the opinion
of Dr. Mango, he was required to do so with respect to the opinion of Dr. Mehta. Given Dr.
Mehta’s status as a treating physician, his Multiple Impairment Questionnaire was entitled
to controlling weight if it was well-supported by medically acceptable clinical and
laboratory diagnostic techniques and was not inconsistent with the other substantial
evidence in the case record. See 20 C.F.R. § 404.1527(d); see also Green-Younger v. Barnhart,
335 F.3d 99, 106 (2d Cir. 2003). Dr. Mehta’s Multiple Impairment Questionnaire specifically
identified, as clinical findings that demonstrated and supported his diagnosis,
abnormalities of muscle spasms, ambulation with a cane, a distressed appearance, an
inability to sit for long periods of time, and the MRI findings. In other words, medicallyacceptable clinical and diagnostic findings served as the basis for Dr. Mehta’s report and
his opinions about Prochaska’s physical limitations.
Dr. Mehta’s opinion is also not inconsistent with the other substantial evidence in
the record. For instance, Dr. Mango, completed a Lumbar Spine Impairment Questionnaire
which was consistent with Dr. Mehta’s opinion. Dr. Mango, too, cited Prochaska’s
prognosis as “poor.”
AR at 228. Dr. Mango diagnosed him with chronic bilateral
lumbosacral spine radiculopathy with bulging discs at L2-3, L4-5, and L5-S1 with
lumbarization of the S1 vertebral body and severe foraminal narrowing at L5-S1. Similar
to Dr. Mehta’s report, Dr. Mango also cited MRI results that supported his findings. Dr.
Mango further noted clinical findings, including a limited range of motion in the lumbar
spine, tenderness and spasms of the paravertebral muscles, an abnormal gait, and positive
straight leg raising test at 15 degrees on the left and 40 degrees on the right. Dr. Mango
opined that Prochaska was able to sit two to three hours total and stand or walk two to
three hours total in an 8-hour workday; and further, that he needed to get up and move
around every 30 minutes. In short, treating physician Dr. Mehta’s opinion was consistent
with other substantial evidence in the record.
The ALJ, however, gave “little weight” to Dr. Mehta’s opinion that the claimant
cannot perform even sedentary work, “as it is not consistent with the substantial evidence
of record.” AR at 17. Similarly, the ALJ gave “little weight” to Dr. Mango’s opinion, stating
that “it was not consistent with the substantial evidence of record.” AR at 17. Instead, the
ALJ gave “significant weight” to the opinion of Dr. Austria, a one-time consultative
examiner. AR at 17. The ALJ was not entitled to accord little weight to treating physician
Dr. Mehta’s opinion in favor of Dr. Austria’s opinion without explaining his reasons for
doing so. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). By discounting Dr. Mehta’s
opinion, without evaluating the regulatory criteria or providing “good reasons” in his
decision, the ALJ violated the treating-physician rule. See 20 C.F.R. § 404.1527(d).
Accordingly, because the ALJ did not provide good reasons for discounting the opinions
of Dr. Mehta and Dr. Mango, remand is necessary. Upon remand, the ALJ should reassess
C. Evaluation of Subjective Complaints
Prochaska next contends that the ALJ improperly discredited his statements about
his symptoms and limitations. To evaluate the credibility of a claimant’s subjective
complaints, the 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. When a claimant’s
subjective complaints suggest a greater severity than can be shown solely by objective
medical evidence, the ALJ must consider other relevant factors, including the claimant’s
daily activities, the frequency and intensity of the pain and other symptoms, the
medications taken and their side effects, and other treatment administered to alleviate pain.
See 20 C.F.R. § 404.1529(c)(3).
The ALJ found that although Prochaska’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” his “statements concerning
intensity, persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” AR at 16.
The ALJ stated that he found the MRI imaging studies did not support the alleged severity
of Prochaska’s impairments: “Although the record confirms a diagnosis of lumbar
radiculopathy, it does not support the claimant’s allegations of disability.” AR at 16. The
ALJ impermissibly substituted his own view of the evidence since several doctors found
Prochaska to suffer from severe functional limitations that would prevent him from doing
even sedentary work. See Shaw v. Chater, 221 F.3d 126, 134–35 (2d Cir. 2000); see also Balsamo
v. Chater, 142 F.3d 75, 91 (2d Cir. 1998) (“[W]hile an [ALJ] is free to resolve issues of
credibility as to lay testimony or to choose between properly submitted medical opinions,
he is not free to set his own expertise against that of a physician who [submitted an opinion
to or] testified before him.”). This is especially true in making the credibility determination,
given that SSR 96-7p provides that a credibility “determination or decision cannot be made
solely on the basis of objective medical evidence” simply because “[s]ymptoms cannot be
measured objectively through clinical or laboratory diagnostic techniques. . .” Moreover,
“allegations concerning the intensity and persistence of pain or other symptoms may not
be disregarded solely because they are not substantiated by objective medical evidence.”
See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) (stating that an ALJ may not discredit
subjective complaints solely due to lack of objective support).
The ALJ also noted that, “[s]ignificantly, the claimant has only had conservative
treatment and has not required emergency room treatment or hospitalization for
exacerbation of his symptoms.” AR at 16. While the ALJ properly considered this one
factor, he completely ignored any other relevant considerations in making his credibility
determination. In the same vein, the ALJ also failed to consider statements made by
physicians such as Dr. Mehta and Dr. Mango that Prochaska was “not a malingerer.” Also
absent from the ALJ’s credibility determination included relevant considerations such as
Prochaska’s work history, daily activities, and any medications taken and their side effects.
Despite Prochaska giving detailed testimony on his daily activities, and other relevant
factors such as his symptoms and resulting limitations, the ALJ failed to weigh one single
other consideration. The ALJ failed, therefore, to assess Prochaska’s credibility in
accordance with 20 C.F.R. § 404.1529(c)(3).
Furthermore, because the ALJ improperly discounted the opinions of treating
physician Dr. Mehta and examining physician Dr. Mango in determining Prochaska’s RFC,
the ALJ must also reconsider his credibility. The ALJ found his 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 fully support
Having determined that the ALJ erred at step four, remand is appropriate.
Prochaska argues for a remand solely for calculation of benefits, or alternatively, for a
remand for further administrative proceedings. Remand solely for calculation of benefits
is appropriate where “the record provides persuasive proof of disability and a remand for
further evidentiary proceedings would serve no purpose.” Parker v. Harris, 626 F.2d 225,
235 (2d Cir. 1980); see also Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999). Where there are
gaps in the administrative record or the ALJ has applied an improper legal standard,”
however, remand for further proceedings is proper. Rosa, 168 F.3d at 82-83.
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 496
(2d Cir. 2009). The ALJ erred by rejecting treating physician Dr. Mehta’s opinion, as well
as by failing to furnish good reasons for rejecting examining physician Dr. Mango’s
opinion. The duties of reviewing the record, weighing conflicting evidence, and drawing
conclusions as to Prochaska’s RFC fall to the ALJ in the first instance. Given that the ALJ
erred at step four in assessing Prochaska’s RFC, the new RFC determination will also
change the ALJ’s step five analysis. Consequently, remand for further administrative
proceedings is appropriate. See Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999) (“[A] remand
for further proceedings is the appropriate remedy when an erroneous step four
determination has precluded any analysis under step five.”).
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings is denied, and Prochaska’s motion is granted insofar as the case is remanded to
the Commissioner for further proceedings.
_/S/ Frederic Block_
Senior United States District Judge
Brooklyn, New York
March 28, 2014
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