Genovese v. Colvin

Filing 25

MEMORANDUM & ORDER: The Plaintiff's motion 18 for judgment on the pleading is GRANTED and the Commissioners motion 16 is denied. The case is remanded to the Commissioner of Social Security for further proceedings. Ordered by Judge Frederic Block on 5/15/2014. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------x
DOMINICK GENOVESE,
Plaintiff,
-against-

MEMORANDUM AND ORDER
13-CV-03338 (FB)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
----------------------------------------------------x

Appearances:
For the Plaintiff:
CHRISTOPHER BOWES, ESQ.
54 Cobblestone Drive
Shoreham, NY 11786

For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
JAMES R. CHO, ESQ.
Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

BLOCK, Senior District Judge:
Plaintiff Dominick Genovese (“Genovese”) seeks review of the final decision of
the Commissioner of Social Security (“Commissioner”) denying his application for
disability benefits under the Social Security Act (the “Act”). Both parties move for
judgment on the pleadings. After reviewing the parties’ submissions and hearing oral
argument, the Court grants Genovese’s motion and remands for further proceedings. The
Commissioner’s motion is denied.

I
In August 2010, Genovese injured his back while bending over a sink to wash his
hands. At the time, he was employed as an immigration investigator for the Department
of Homeland Security. He experienced severe pain in his back and neck, as well as his
left side elbow, leg, arm and hand. Because of his pain, Genovese quit working on
August 30, 2010, and on January 26, 2011, he filed an application for Disability Benefits
Insurance (“DBI”). The Social Security Administration (“SSA”) denied his claim. An
Administrative Law Judge (“ALJ”) conducted a hearing and also denied his claim. The
Appeals Council denied his request for review, rendering final the Commissioner’s
decision to deny benefits. Genovese timely sought judicial review.
In applying the familiar five-step process,1 the ALJ found as to the first four steps
that Genovese: (1) had not engaged in substantial gainful activity since August 30, 2010,
the alleged onset date; (2) had multiple severe impairments; (3) did not suffer from an
impairment meeting the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1; and (4) was able to perform his past relevant work as an investigative

1

The Social Security Administration’s regulations set forth a five-step process for
determining disability. The Commissioner must find a claimant disabled if she determines “(1)
that the claimant is not working, (2) that he has a ‘severe impairment,’ (3) that the impairment is
not one that conclusively requires a determination of disability, (4) that the claimant is not
capable of continuing in his prior type of work, [and] (5) there is not another type of work the
claimant can do.” See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002) (citing 20 C.F.R. §
404.1520(b)-(f)).
2

immigration officer. AR 41-42.2 As part of step four, the ALJ determined that Genovese
had the residual functional capacity (“RFC”) to perform work at a sedentary level, with
occasional bending, squatting, or kneeling. AR 37. After determining that Genovese
could do his past work, the ALJ denied his application because she did not need to
proceed to step five. AR at 41; see also 20 C.F.R. 404.1565.
Geneovese argues that the ALJ erred because in reaching her determination, she
considered, but did not give controlling weight to the opinion of four treating
physicians—Drs. Wilen, Maloney, Naik, and Parnes—all of whom opined on the nature
and severity of Genovese’s impairments. Instead, the ALJ gave controlling weight only
to Dr. Tranese, a consulting examiner.
1. Treating Physicians
Dr. Wilen, who examined Genovese on November 11, 2010, diagnosed Genovese
with multiple disc herniations in the thoracic spine, significant bulging and arthritis
throughout the cervical and lumbar spine, and cervical and lumbar radiculopathy. He
opined that Genovese was “totally disabled.” Id. at 243. Dr. Wilen completed a
Functional Assessment and stated that Genovese could stand and/or walk for less than
two hours in an eight-hour work day, sit for less than four hours in an eight-hour work
day, and regularly lift more than five but less than ten pounds. Dr. Wilen also reported

All citations to “AR” are to the Administrative Record.

2

3

that Genovese would require frequent breaks during the day, would require medications
that interfered with his ability to function in the work setting, would have difficulty
concentrating on his work, and would average two or more sick days per month. See AR
at 330.
Dr. Maloney, who saw Genovese on November 16, 2010, also found degenerative
changes, especially at T11-12, and an MRI conducted on November 30, 2010, revealed
mild multilevel discogenic degenerative disease.

Dr. Maloney also completed a

Functional Assessment and found the same limitations as Dr. Wilen. He opined that
Genovese was “disabled from all work.” AR at 376.
Treating physicians Dr. Naik and Dr. Parnes examined Genovese and they, too,
found degenerative changes. Additional objective evidence was reviewed: a lumbar
spine MRI revealed multilevel spondylosis and annular fissures at L3/L4, L4/L5, and
L5/S; and a separate MRI performed on January 4, 2011, revealed mild to moderate
discogenic degenerative changes superimposed on an element of congenital narrowing
of the spinal canal. Dr. Parnes opined that Genovese “cannot climb, push, pull, crouch,
balance, crawl, bend, reach or lift.” AR at 344. He also concluded that Genovese “can
only sit for less than 2-4 hours in an 8-hour day and he can only stand for less than 1-2
hours in an 8-hour day, as well as walk for less than 1-2 hours in an 8-hour day and
requires frequent period of rest where he must lie down.” AR at 344-45. He concluded
that Genovese was “totally disabled” AR at 342.
4

2. Dr. Tranese - Consultative Examiner
On March 1, 2011, Dr. Tranese conducted a consultative orthopedic examination
at the request of the Commissioner. Genovese told Dr. Tranese “that he is able to perform
cooking chores once per week,” and that he independently showers, bathes, dresses, and
grooms himself. AR at 278. Dr. Tranese diagnosed discogenic low back pain with
radicular symptoms and episodic neck pain.
Without reviewing any objective medical reports such as MRIs or x-rays, and
instead relying only on his observations, Dr. Tranese concluded that Genovese “may
have mild to moderate restriction with heavy lifting and mild restriction with frequent
bending, squatting, and kneeling,” but that “there [we]re no other physical functional
deficits.” AR at 279.
II
“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);
see also 42 U.S.C. § 405(g). “[S]ubstantial evidence . . . means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted); see also Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013). The non-adversarial nature of a Social
Security hearing requires the ALJ “to affirmatively develop the record,” regardless of

5

whether the claimant is represented by counsel. Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009). It is the ALJ’s duty “to investigate the facts and develop the arguments both
for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111(2000).
The Court concludes that the ALJ violated the treating physician rule because she
discredited the findings of the four treating physician opinions without providing good
reasons for doing so. A treating physician’s opinion as to the nature and severity of a
claimant’s impairment is controlling if it is “well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2); see also §
416.927(c)(2) (same). If an ALJ refuses to give controlling weight to a treating source,
she must consider certain factors in deciding how much weight to give, including “(i) the
frequency of examination and the length, nature and extent of the treatment relationship;
(ii) the evidence in support of the treating physician’s opinion; (iii) the consistency of the
opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v)
other factors brought to the Social Security Administration’s attention that tend to
support or contradict the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(emphasis added). “Failure to provide ‘good reasons’ for not crediting the opinion of a
claimant’s treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999).
The ALJ dismissed all of Genovese’s treating physician opinions in a single
6

cursory paragraph, falling well short of her obligation to provide “good reasons” for
doing so. Id. Even if good reasons existed, they were absent from her opinion because
she failed to fulfill her duty to affirmatively develop the record by “investigat[ing] the
facts and develop[ing] the arguments both for and against granting benefits.” Sims, 530
U.S. at 111. In particular, the ALJ failed to develop the record to resolve the apparent
inconsistency between Genovese’s treating physicians’ conclusions that he suffers from
severe functional limitations and the MRIs and x-rays that show only mild degenerative
disease.
Moreover, the ALJ focused only on those findings of Dr. Tranese—all of which
he made without reference to the objective medical evidence—that contradicted the other
four doctors while ignoring their areas of agreement. This was improper because the ALJ
“cannot simply selectively choose evidence in the record that supports his conclusions.”
Gecevic v. Sec’y of Health & Human Servs., 882 F. Supp. 278, 285-86 (E.D.N.Y. 1995).
The ALJ also found Genovese not credible because he occasionally drove his car.
She viewed this as evidence that contradicted his treating physician reports. While this
raises a question about how extensively his pain limits him, this alone is insufficient to
discredit the treating physician opinions in their entirety. Instead, the ALJ failed to
address the seven factors that must be considered when a claimant’s subjective
complaints suggest greater severity than can be shown solely by objective medical

7

evidence. See 20 C.F.R. § 404.1529(c)(3).3 Aside from driving a car, no additional
evidence contradicted Genovese’s reports of his limitations and symptoms related to his
back pain. That Genovese has a girlfriend with whom he occasionally eats dinner does
not obviate a claim of back pain. Nor does Genovese’s decision to decline steroidal
injections: the record shows that he was taking oral steroid medication and wished to
avoid steroid accumulation. In short, in evaluating Genovese’s credibility, the ALJ
impermissibly substituted her view for that of his treating physicians and ignored medical
evidence. See Shaw v. Chater, 221 F.3d 126, 134–35 (2d Cir. 2000). Thus, upon remand
the ALJ must also reconsider Genovese’s credibility; after the ALJ properly considers
the medical evidence, it may support his subjective complaints.
III
When the Court cannot say that “application of the correct legal standard could
lead to only one conclusion,” further proceedings are appropriate. Schaal v. Apfel, 134
F.3d 497, 504 (2d Cir. 1998). Although the case must be remanded because the ALJ
erred by rejecting medical opinions of Genovese’s treating physicians without providing
good reasons, see Snell, 177 F.3d at 133, the record appears to show inconsistencies
3

The seven factors set forth in the Social Security Administration’s regulations include:
(i) claimant’s daily activities; (ii) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (iii) precipitating and aggravating factors; (iv) the type,
dosage, effectiveness, and side effects of any medication the claimant takes or has taken to
alleviate pain or other symptoms; (v) treatment, other than medication, the claimant receives or
has received for relief of pain or other symptoms; (vi) any measures the claimant uses or has
used to relieve pain or other symptoms; and (vii) other factors concerning the claimant’s
functional limitations and restrictions due to pain or other symptoms. See 20 C.F.R. §
404.1529(c)(3).
8

between those opinions and the objective evidence. See also Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000) ("Upon a finding that . . . an ALJ has applied an improper legal
standard, we generally vacate and instruct the district court to remand the matter to the
Commissioner for further consideration.").
IV
For the foregoing reasons, the Commissioner’s motion is denied, and the case is
remanded for further proceedings.
SO ORDERED.
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
May 15, 2014

9