Avera v. Colvin

Filing 20

MEMORANDUM and ORDER: The plaintiff's motion 13 for judgment on the pleadings is granted and the defendant's motion 15 for judgment on the pleadings is denied. The case is remanded to the Commissioner for further proceedings. On remand, the Commissioner should develop the record as necessary and accord any physicians opinion appropriate weight based on specifically identified and well-supported evidence. Ordered by Judge Frederic Block on 2/3/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GARRICK AVERA,
Plaintiff,
-againstCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

MEMORANDUM AND ORDER
1:15-cv-05999 (FB)

Defendant.
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Appearances:
For the Plaintiff
For the Defendant
CHRISTOPHER J. BOWES
ROBERT L. CAPERS
Center for Disability Advocacy Rights, Inc. United States Attorney
100 Lafayette Street, Suite 304
Eastern District of New York
New York, New York 10013
271 Cadman Plaza East
Brooklyn, New York 11201
By: RUKHSANAH L. SINGH
Assistant United States Attorney
BLOCK, Senior District Judge:
Garrick Avera (“Avera,” “plaintiff,” or “claimant”) seeks review of the final decision
of the Commissioner of Social Security (“Commissioner”) denying his application for

disability and disability insurance benefits under the Social Security Act (“SSA”).1 Both
parties move for judgment on the pleadings. For the reason stated below, the case is remanded
to the Commissioner for further proceedings consistent with this Memorandum and Order.
I.
A forty-seven year-old resident of Brooklyn, New York, Avera never graduated high
school but obtained a general educational degree in 1992. From 1996 through 2012, he
labored as a technician and mechanic for various oil and plumbing companies, including
United Metro Energy Corporation, Kraus Plumbing and Heating, and Pronto Plumbing and
Heating. During a normal eight-hour working day, Avera handled large objects for eight
hours, walked and stood for three, stooped and reached for four, crouched for two, and
kneeled and climbed for one. In 2012, he earned roughly fourteen dollars per hour.
On July 7, 2012, Avera was found lying on the street with gunshot wounds to his right
hip and right ankle. Avera was subsequently hospitalized at Brookdale Hospital (“Hospital”).
Over the next twelve days, Avera underwent three surgeries to stabilize his fractured femur
with a metal rod and surgical screws. Although these operations appeared to succeed, Avera
nevertheless stopped engaging in substantial gainful activity as a result of his injuries.

Title II of the SSA provides for the payment of disability insurance benefits to
those whose disability prevents them from pursuing gainful employment via the
Social Security disability insurance (“SSDI”) program. 42 U.S.C. § 423. The
SSA’s sixteenth title provides for the payment of disability benefits via the
Supplemental Security Income (“SSI”) program. Id. § 1381. When a person files
for disability, he or she typically seeks benefit under both programs. See Heckler v.
Day, 467 U.S. 104, 106–07 (1984) (explaining programs). Avera did so.

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Avera filed an application for disability and disability insurance benefits on July 24,
2012, and listed his onset date as July 7, 2012. Avera’s claim was initially denied on
November 2, 2012. At Avera’s request, a hearing before an Administrative Law Judge
(“ALJ”) was held on October 3, 2013.
On April 3, 2014, the ALJ held that Avera was not disabled within the meaning of the
SSA. Applying the SSA’s five-step sequential evaluation process,2 the ALJ determined that
(1) Avera had not engaged in substantial gainful activity since July 7, 2012, the alleged onset
date, and (2) the subtrochanteric fracture of his right hip constituted a severe impairment.
Nonetheless, the ALJ concluded that this impairment did not meet or medically equal the
SSA’s requisite level of severity, as set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, so
as to trigger Avera’s automatic classification as disabled.
The ALJ then determined that Avera had the residual functional capacity (“RFC”) to
perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a). Namely, the
ALJ found that Avera could “lift/carry 10 pounds occasionally, 5 pounds frequently,
stand/walk 2 hours and sit 6 hours out of an 8-hour day with appropriate breaks.” AR 21. The

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SSA regulations establish a five-step process for evaluating disability claims. 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.” 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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ALJ also determined that Avera “can occasionally squat, kneel and climb stairs.” Id. In
reaching this conclusion, the ALJ “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence,” as well as other “opinion evidence.” Id.
The ALJ thereupon applied this RFC to the remaining step. He there determined that
Avera, though unable to perform any past relevant work, could perform other jobs identified
in the Medical Vocational Guidelines (“Grid”), 20 C.F.R. § 404, Subpart P, Appendix 2. In
particular, in light of Avera’s age, education, past relevant work experience, and RFC, the ALJ
concluded that plaintiff possessed skills transferable to other occupations with jobs existing
in significant numbers in the national economy. The ALJ, however, did not give one example.
The Appeals Council denied Avera’s request for review on August 18, 2015, and the
ALJ’s decision thereby became the Commissioner’s final one. Avera has sought timely
review. He argues that (1) substantial evidence does not support the ALJ’s findings as to the
work Avera could perform, which specifically contradicted the opinion of Avera’s treating
physician, Doctor Rana Suleman (“Suleman”); (2) the ALJ should have obtained the
testimony of a vocational expert rather than relying on the Grid; (3) the ALJ failed to secure
Avera’s complete records from the Hospital and therefore did not properly develop the record;
and (4) the Appeals Council improperly discounted post-hearing evidence gathered and
tendered by Avera’s counsel.
II.

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“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) (“ The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). “Substantial 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), cited in, e.g., Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). If contradictions appear in the record and an ALJ fails to reasonably
explain why he or she opted for one interpretation over another, the Commissioner’s findings
must fall. See, e.g., Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“Failure to provide "good
reasons" for not crediting the opinion of a claimant's treating physician is a ground for
remand.”); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“‘[T]he ALJ cannot arbitrarily
substitute his [or her] own judgment for competent medical opinion . . . .’”). “[T]he 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); see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing Mongeur,
722 F.2d at 1038).
The treating physician rule dictates that “the opinion of a claimant’s treating physician
as to the nature and severity of the impairment is given ‘controlling weight’ so long as it ‘is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is

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not inconsistent with the other substantial evidence in [the] case record.’” Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(c)(2)). For purposes of this
rule, “medical opinions” include “statements from physicians and psychologists and other
acceptable medical sources,” 20 C.F.R. § 404.1527(a)(2), and can take a variety of forms, cf.
Philpot v. Colvin, No. 12-CV-291 (MAD/VEB), 2014 WL 1312147, at *19 (N.D.N.Y. Mar.
31, 2014) (noting that the relevant treating physician’s opinion had been embodied in a
checklist); Gray v. Astrue, No. 09-CV-00584, 2011 WL 2516496, at *5 (W.D.N.Y. June 23,
2011) (same); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (same). If the ALJ
does not give a treating physician’s opinion controlling weight, he or she must provide “‘good
reasons’ for the weight given to that opinion.” Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d
Cir. 2004). “When the treating physician’s opinion conflicts with a non-treating,
non-examining physician's opinion, the ALJ may choose whom to credit in its analysis, but
‘cannot reject evidence for no reason or for the wrong reason.’” Morse v. Astrue, No. 12-CV6225-CJS, 2013 WL 3282883, at *4 (W.D.N.Y. June 27, 2013) (citing Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2007))). Even though the ALJ must generally afford greater weight to
a treating physician’s assessment, he or she must apply this same standard to the opinion
evidence of non-examining sources. 20 C.F.R. § 416.927(e)(2)(ii).
As his decision explains, the ALJ gave little weight to Suleman’s conclusion regarding
Avera’s disability – that Avera could only perform “less than sedentary” work – based on its
purported inconsistency with “the record as [a] whole” and the opinions of Doctors Reginald

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E. Manning (“Manning”) and Shannon Gearhart (“Gearhart”). AR 22. Suleman and Manning
were plaintiff’s long-time treating physicians, though the ALJ expressly relied on only one
of Manning’s reports, dated September 17, 2013. Gearhart, meanwhile, was a consultative
physician who submitted her sole report on October 8, 2012. Once the overall record is
perused, the ALJ’s findings cannot stand for three reasons.
First, while Manning identified plaintiff’s symptoms and course of treatment in the
report upon which the ALJ relied, Manning did not opine as to either the extent of Avera’s
current physical and mental limitations or the impact of any recommended treatment. See AR
288–90. The ALJ’s reliance thus ran afoul of his threshold duty to adequately develop “a full
record . . . as to the nature and severity of . . . [a] claimed disability” before deciding the
appropriate weight to give the opinion of a treating physician like Manning. Pabon v.
Barnhart, 273 F. Supp. 2d 506, 514 (S.D.N.Y. 2003); see also Peed v. Sullivan, 778 F. Supp.
1241, 1246 (E.D.N.Y. 1991), cited in Pabon, 273 F. Supp. 2d at 514. Such a failure serves as
an independent ground for vacating an ALJ’s decision. Moran v. Astrue, 569 F.3d 108,
114–15 (2d Cir. 2009).
Second, the ALJ ignored and consequently failed to adequately address the vagaries
cluttering Gearhart’s documentary and testimonial opinions. See Perez v. Chater, 77 F.3d 41,
47 (2d Cir. 1996) (“Because a hearing on disability benefits is a non-adversarial proceeding,
the ALJ generally has an affirmative obligation to develop the administrative record.”).
Gearhart referred to plaintiff’s “mild restrictions for prolonged sitting and moderate
restrictions for squatting, kneeling, climbing,” and more in a single examination to which the
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ALJ gave “[g]reat weight.” AR 22–23. Problematically, however, Gearhart defined neither
“mild” nor “moderate” and thereby improperly left the meaning of these adjectives to the
ALJ’s “sheer speculation.” Selian, 708 F.3d at 421. The ALJ, moreover, proceeded to
selectively treat Gearhart’s own testimony. For example, even as he granted some of
Gearhart’s conclusions notable weight for being “more consistent with the record,” AR 23,
the ALJ gave no precise reason for disregarding this same consultative physician’s less
favorable conclusion regarding Avera’s medical need for a cane, see id. Even aside from these
substantive issues, an “ALJ[] should not rely heavily on the findings of consultative
physicians” such as Gearhart “after a single examination.” Selian, 708 F.3d at 419.
Finally, the overall record is ambiguous as to what extent, if any, plaintiff’s severe
impairment has rendered him unfit to perform even sedentary work; it contains contradictions
between Suleman’s conclusions and other doctors’ findings–and within Gearhart’s own
testimony–that cannot be ignored without “good reason.” Bolden v. Comm’r, 556 F. Supp. 2d
152, 165 (E.D.N.Y. 2007) (citing Clark v. Comm’r, 143 F.3d 115, 118 (2d Cir. 1998)).
Despite his awareness of these discrepancies, the ALJ never provided specific and supportable
reasons for rejecting Suleman’s conclusions or privileging only certain aspects of Gearhart’s
words. See, e.g., Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988) (“If necessary to resolve
the inconsistency [between the opinions of the treating source and other sources], the
adjudicator will secure additional evidence and interpretation or explanation from the treating
source(s) and/or consulting source(s).”); Harris v. Colvin, 149 F. Supp. 3d 435, 441
(W.D.N.Y. 2012) (“An ALJ’s ‘failure to follow the procedural requirement of identifying the
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reasons for discounting the opinions and for explaining precisely how those reasons affected
the weight given ‘denotes a lack of substantial evidence, even where the conclusion of the
ALJ may be justified based on the record.’” (quoting Rogers v. Comm’r, 486 F.3d 234, 243
(6th Cir. 2007))).
In conclusion, because he failed to fully develop the record and appropriately weigh the
medical opinions, the ALJ erred.
III.
For the aforementioned reasons, the case is remanded to the Commissioner for further
proceedings. On remand, the Commissioner should develop the record as necessary and
accord any physician’s opinion appropriate weight based on specifically identified and wellsupported evidence.3
SO ORDERED
/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 3, 2017

The Court finds it unnecessary to now consider the remaining issues raised by
plaintiff because the ALJ must reconsider the overall record upon remand. See
Selian, 708 F.3d at 422.

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