Childs v. Commissioner of Social Security Administration

Filing 26

MEMORANDUM and ORDER: The Commissioners motion 19 is denied, Childss motion 17 is granted, and the case is remanded for calculation of an award of benefits. Ordered by Judge Frederic Block on 10/17/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JEFFREY CHILDS
Plaintiff,

MEMORANDUM AND ORDER
15-CV-05991 (FB)

-againstCAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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Appearances:
For the Plaintiff:
LOUIS R. BURKO
16 Court Street Suite 2400
Brooklyn, New York 11241

For the Defendant:
BRIDGET M. ROHDE
Acting United States Attorney
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201
By:

MATTHEW MAILLOUX
Assistant U.S. Attorney

BLOCK, Senior District Judge:
Jeffrey Childs (“Childs”), who formerly worked as a police officer, 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. For the reasons stated

below, the Commissioner’s motion is denied, Childs’s motion is granted, and the case
is remanded for a calculation of an award of benefits.
I.
In December 2009, Childs filed an application for Disability Insurance Benefits.
He alleged disability, as of October 31, 2007, from pain in his neck, back, left hand,
shoulder and thigh. The Social Security Administration (the “SSA”) denied his
application, and he had a hearing before an Administrative Law Judge (“ALJ”). In a
decision dated September 14, 2011, the ALJ held that Childs was not disabled. The
Appeals Council denied review, and Childs sought review in this Court. On June 16,
2014, the parties voluntarily stipulated to a remand.
On remand, Childs appeared at another hearing before an ALJ, and, on March
16, 2015, the ALJ again held that Childs was not disabled. Applying the familiar fivestep evaluation process,1 the ALJ determined that: (1) Childs had not engaged in
substantial gainful activity from October 31, 2007, through December 31, 2011, the
date he was last insured for disability benefits under the Act; (2) his lumbar

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Under SSA regulations, the Commissioner must find that a claimant is 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)). The burden of proof is on the claimant for the first four
steps, but shifts to the Commissioner at the fifth step. See 20 C.F.R. § 404.1560(c)(2); Shaw v.
Chater, 221 F.3d 126, 132 (2d Cir. 2000).
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degenerative disc disease and status post left fourth metacarpal fracture were severe
impairments; but (3) his impairments did not meet or medically equal the criteria of
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then determined that Childs had the residual functional capacity
(“RFC”) to perform sedentary work with certain restrictions. Applying this RFC to
the remaining steps, the ALJ determined that (4) Childs was unable to perform his past
relevant work as a police officer and police sergeant, but (5) there were jobs existing
in significant numbers in the national economy that Childs could perform.
The Appeals Council denied Childs’s request for review, rendering final the
ALJ’s decision to deny benefits. Childs timely sought judicial review.
II.
“In reviewing a 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); see also Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013). Childs argues that (1) the ALJ made his RFC determination
without giving appropriate weight to the opinion of Childs’s treating physician and

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to Childs’s own testimony, (2) the ALJ’s RFC determination was not supported by
substantial evidence, and (3) substantial evidence did not support the ALJ’s
determination that there was other work in the national economy that Childs could
perform.
A. RFC Determination
The Commissioner has the burden to demonstrate that its RFC determination
is supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir.
1998). The ALJ determined that Childs had the RFC to perform sedentary work with
the following restrictions: “could not climb ladders ropes or scaffolds; all other
postural activities occasionally; avoid concentrated exposure to workplace hazards
including unprotected heights and dangerous machinery; alternate between sitting and
standing that could be accommodated with customary work breaks;2 and frequently
handle or finger with the left non-dominant upper extremity.” Administrative Record
(“AR”) at 336.
The ALJ’s RFC determination was based on Child’s medical history, his
hearing testimony, and the opinions of his treating physician— Dr. Brian Mignola—
and a consultative expert.
1. Medical History

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The ALJ defined “customary work breaks” as “a morning break, 15-minute-lunch
break, either a half-hour or an hour; and an afternoon break of 15 minutes[,]” during which a
person could sit and then stand. AR at 375.
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Childs’s medical history consistently supports his testimony and the opinions
of his treating physician.
In 2003, Childs received surgery on his left hand to realign a broken bone and
implant a plate and screws to hold the bone in place.3 AR at 136, 151-55. After his
surgery, a physical therapist examined Childs and found that he was unable to close
his hand and that he had decreased grip strength. Id. at 147.
In August 2006, an MRI showed a “large right-sided paracentral C6-C7 disc
herniation.” AR at 218. The condition caused some pain, numbness, and tingling.
Id. He was advised to begin physical therapy and chiropractic adjustment. An
EMG/NCV study that same month showed “mild chronic right C7 radiculopathy.”
Id. at 220.
In November 2007, an MRI showed “broad-based disk protrusion with
superimposed left paracentral disk herniation at the L5-S1 level,” “associated mass
effect on the left S1 nerve root and adjacent thecal sac,” and “a small, midline disk
protrusion in L4-L5.” AR at 186. Treating neurologist Dr. Michael Ng wrote that
Childs had recently experienced increased pain, and, based on the MRI results,
diagnosed him with “lumbrosacral radiculopathy of subacute onset in the right L4

3

Medical records refer to the procedure as “open reduction and internal fixation.” AR at
151; see also NIH, U.S. National Library of Medicine, Bone fracture repair - series—Procedure,
MEDLINE PLUS (last visited Oct. 4, 2017),
https://medlineplus.gov/ency/presentations/100077_2.htm.
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distribution” and “chronic left-sided L5-S1 clinical radiculopathy.” Id. However, an
EMG/NCV in January or July 2008 showed “no electrophysiological evidence of . .
. lumbosacral radiculopathy.” Id. at 193. A second MRI, also in July 2008, showed
no change compared to the results of Childs’s November 2007 MRI. Id. at 197.
2. Credibility of Childs’s Hearing Testimony
At his hearing, Childs testified that his spine and neck problems caused
numbess, tingling, and extreme pain; that he could not sit for more than about 10
minutes at a time, stand for more than 10 or 15 minutes at a time, or walk for more
than 10 or 12 minutes without needing to stop and lean against something. AR at 36667. He further testified that he was unable to fully close his left hand or reliably grip
objects with it. Id. at 368.
The ALJ found that Childs’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but that his statements
regarding “the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” AR at 338.
An ALJ must consider seven factors when a claimant’s subjective complaints
suggest greater severity than can be shown by objective medical evidence.4 See Box
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The seven factors set forth in the SSA regulations include: (i) claimant’s daily
activities; (ii) the location, duration, frequency, and intensity of the claimant’s pain or other
symptoms; (iii) precipitating or 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;
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v. Colvin, 3 F. Supp. 3d 27, 48 (E.D.N.Y. 2014) (holding that the ALJ’s credibility
analysis was not sufficient because he did not refer to or discuss any of the factors
listed in 20 C.F.R. § 404.1529(c)(3)). The ALJ did not expressly consider these
seven factors; instead, he determined that Childs’s testimony was not credible because
“the objective findings does no [sic] support the level of alleged limitations,
particularly in regard to the left hand difficulties.” Id. The ALJ’s determination was
based primarily on his findings that Childs received “no ongoing treatment” and that
“the exams do not document significant limitations.” Id.
Substantial evidence does not support the ALJ’s credibility determination.
First, it does not necessarily follow from Childs’s lack of ongoing treatment that his
symptoms were mild. Cf. Shaw v. Chater, 221 F.3d 126, 133 (2d Cir. 2000) (“Just
because plaintiff’s disability went untreated does not mean he was not disabled.”).
Second, objective evidence supported Childs’s testimony. The surgeon’s
isolated statement that Childs had “excellent range of motion” a few months after
surgery was ambiguous, given that the surgeon made the statement while
recommending that Childs receive physical therapy. Id. at 149. When Childs went
to therapy, the therapist confirmed the limitations Childs described in his testimony.
Id. at 147. Commissioner’s consultative examiner Dr. Chitoor Govindaraj’s opined
that Childs’s “[h]and dexterity is normal,” AR at 208, 327, but did not even specify
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).
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which hand he was describing.
Finally, the determination that Childs’s testimony is incredible because it is
inconsistent with the objective medical evidence contradicts the SSA regulations’
recognition that “symptoms sometimes suggest a greater severity of impairment than
can be shown by objective medical evidence alone.” 20 C.F.R. § 404.1529(c)(3). The
ALJ’s determination of Childs’s credibility was not proper.
3. Opinion of Treating Physician
In questionnaire responses, treating primary care physician Dr. Mignola opined
that Childs could perform less than sedentary work based on the following
considerations. Childs could not sit for more than 15 minutes without getting up and
walking or standing, could not stand for more than 10 minutes without sitting, needed
to walk around every 15 minutes for 5 minutes at a time, needed to shift between
sitting and standing or walking at will, and would need to lie down several times a day
at unpredictable intervals. AR at 319-20. These limitations were the result of
herniated discs in Childs’s lower back, two herniated discs in his neck, and metal rods
in his left hand. Id. at 320. Childs could not twist, stoop, crouch, climb stairs or
ladders, reach, perform fine or gross manipulation of objects, feel, or push and pull.
Id. He was required to avoid all exposure to extreme cold and heat, wetness,
humidity, noise, several irritants, and hazards such as machinery and heights because
those factors “may exacerbate pain and spasm, resulting in reinjury.” Id. at 321.
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The ALJ held that Dr. Mignola’s opinion was entitled to “little weight due to
the because [sic] it is not supported by the record in terms of the fact that the claimant
has basically only been treated with pain medications for his back, the consultative
examination findings [did] not support such severe restrictions, [and] the fact that
there is no justification whatsoever for many of the limitations included in Dr.
Mignola’s opinion.” Id. Although the treating physician’s opinion on a claimant’s
RFC is not entitled to controlling weight, see 20 C.F.R. § 416.927(d)(2)-(3), the ALJ’s
decision to give little weight to Dr. Mignola’s opinion was not supported by
substantial evidence.
First, Childs’s treatment was not limited to pain management; he underwent
acupuncture and physical therapy and received a recommendation for epidural steroid
injections. See AR at 223-24, 484-86. Childs declined the injections because he
believed they required the insertion of needles into his spine— a thought that
“terrified” him. AR at 369. In any event, again, lack of treatment does not show that
his symptoms were mild. Shaw, 221 F.3d at 133.
Second, consultative examiner Dr. Chitoor Govindaraj’s failure to report similar
findings does not justify the ALJ’s decision to reject Dr. Mignola’s opinion. See Rosa
v. Callahan, 168 F.3d 72, 81 (2d Cir. 1999) (“This Court has refused to uphold an
ALJ’s decision to reject a treating physician’s diagnosis merely on the basis that other
examining doctors reported no similar findings.”).
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After his 2011 exam, Dr.

Govindaraj reported that Childs “did not reveal any restriction in standing, sitting or
walking or weight restriction.” Id. at 327. However, the ALJ acknowledged that Dr.
Govindaraj’s 2011 report was inconsistent with his previous report and with objective
medical evidence documenting Childs’s herniated disks. The ALJ did not explain
why Dr. Govindaraj’s conclusions were nevertheless entitled to “some weight.” AR
at 340.
In his 2010 report— the only one that the ALJ found to be entirely credible—
Dr. Govindaraj stated simply that Childs was “cleared for sedentary occupation.” AR
at 208. However, that report did not include any opinion on Childs’s ability to
perform specific work-related tasks. Thus, the fact that it did not support Dr.
Mignola’s opinions regarding Childs inability to perform such tasks is unsurprising
and an insufficient basis to undermine Dr. Mignola’s opinion.
Third, the ALJ incorrectly found that Dr. Mignola provided no justification for
“many of the limitations included in [his] opinion.” AR at 340. On the contrary, Dr.
Mignola provided justifications for all of the limitations described in his report. See
id. at 320-21. In particular, Dr. Mignola stated that several environmental factors
could “exacerbate pain and spasm, resulting in reinjury.” Id. at 321. The ALJ either
ignored Dr. Mignola’s explanation or rejected it without relying on any medical
evidence to the contrary. However, “the ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.
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1999).
The ALJ’s determination that Dr. Mignola’s opinion was not entitled to
“significant probative weight” was not supported by substantial evidence.
Because the ALJ’s RFC determination was based on an erroneous assessment
of Dr. Mignola’s opinion, an improper determination of Childs’s credibility, and an
incomplete view of the medical history, it was not supported by substantial evidence.
B. Disposition
“Where the record provides persuasive proof of disability and a remand for
further evidentiary proceeding would serve no purpose, the court may reverse and
remand solely for the calculation and payment of benefits.” Henningsen v. Comm’r
of Soc. Sec. Admin., 111 F. Supp. 3d 250, 272 (E.D.N.Y. 2015). Thus, where
reversal “is based solely on the [Commissioner’s] failure to sustain his
burden of adducing evidence of [plaintiff’s] capability for gainful
employment and the [Commissioner’s] findings that [plaintiff] can
engage in ‘sedentary’ work is not supported by substantial evidence, no
purpose would be served by remanding the case for a rehearing . . . .”
Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000) (quoting Balsamo v. Chater, 142
F.3d 75, 82 (2d Cir. 1998)).
Here, as discussed above, the ALJ’s RFC determination was not supported by
substantial evidence. Moreover, the opinion of Dr. Mignola and the testimony of
Childs showed that he was unable to sit for more than 10 or 15 minutes at a time and
unable to stand for more than 10 or 15 minutes at a time. Sedentary work “generally
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involves up to two hours of standing or walking and six hours of sitting in an
eight-hour work day . . .” Curry, 209 F.3d at 123. Childs was therefore not capable
of performing sedentary work, even with “customary work breaks.” This is especially
so considering Childs’s limitation in the use of his left hand.
Because reversal here is based on the Commissioner’s inability to sustain his
burden and substantial evidence does not support the ALJ’s RFC determination, the
Court remands for the sole purpose of calculating an award of benefits. This
disposition is “particularly appropriate” given the amount of time Childs has diligently
and unsuccessfully sought benefits. Curry, 209 F.3d at 124. His application has been
pending for nearly eight years, and it has been over three years since the
Commissioner agreed to a remand for further proceedings. The Commissioner has
had multiple chances and ample time to reach the proper result. Thus, remand solely
to calculate an award of benefits is especially warranted where, as here, “a remand for
further evidentiary proceedings (and the possibility of further appeal) could result in
substantial, additional delay.” Id.

III.
For the foregoing reasons, the Commissioner’s motion is denied, Childs’s
motion is granted, and the case is remanded for calculation of an award of benefits.
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SO ORDERED.
/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 17, 2017

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