Vlado v. Colvin
Filing
24
ORDER denying 13 Commissioner's Cross-Motion for Judgment on the Pleadings; granting 16 Plainitff's Motion for Judgment on the Pleadings. For the reasons discussed in the attached Memorandum and Order, Plaintiff's motion for judg ment on the pleadings is granted and the Commissioner's cross-motion for judgment on the pleadings is denied. The Commissioner's decision is vacated, and this action is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 3/29/2017. (Hawkins, Salah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ERICA VLADO,
Plaintiff,
MEMORANDUM & ORDER
16-CV-794 (MKB)
v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social Security
Administration
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Erica Vlado filed the above-captioned action pursuant to 42 U.S.C. § 405(g),
seeking review of a final decision of the Commissioner of Social Security (the “Commissioner”)
denying her claim for supplemental security income under the Social Security Act (the “SSA”).
(Compl., Docket Entry No. 1.) Plaintiff moves for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure, arguing that Administrative Law Judge Dina
Loewy (the “ALJ”) erred by (1) failing to give controlling weight to the opinion of Plaintiff’s
treating physician, (2) failing to develop the record and (3) failing to credit Plaintiff’s testimony.
(Pl. Mot. for J. on the Pleadings (“Pl. Mot.”), Docket Entry No. 16; Pl. Mem. in Supp. of Pl.
Mot. (“Pl. Mem.”), Docket Entry No. 17.) The Commissioner cross-moves for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that the ALJ’s
decision was supported by substantial evidence. (Comm’r Cross-Mot. for J. on the Pleadings
(“Comm’r Mot.”), Docket Entry No. 13; Comm’r Mem. in Supp. of Comm’r Mot. (“Comm’r
1
Pursuant to Fed. R. Civ. P. 25(d), the caption has been updated to reflect the new Acting
Commissioner of Social Security, Nancy A. Berryhill, who took office on January 23, 2017.
Mem.”), Docket Entry No. 14.) For the reasons discussed below, the Court grants Plaintiff’s
motion for judgment on the pleadings, denies the Commissioner’s cross-motion for judgment on
the pleadings and remands the case for further proceedings consistent with this Memorandum
and Order.
I.
Background
Plaintiff is thirty-four years old. (Certified Admin. Record (“R.”) 154, Docket Entry No.
10.) Plaintiff does not have any children. (R. 40.) Plaintiff attended school until the fourth
grade and then received private tutoring until the age of sixteen. (R. 178, 539.) Plaintiff has
never been employed. (R. 178.)
On May 30, 2012, Plaintiff applied for supplemental security income, alleging that she
had been disabled since 1999 due to Crohn’s disease, anxiety and depression. (R. 154, 174, 178.)
A disability adjudicator initially denied her application on September 11, 2012, and Plaintiff
requested a hearing before an administrative law judge (“ALJ”). (R. 65, 71, 122.) The ALJ held
a hearing on June 12, 2014, and Plaintiff appeared via video with her non-attorney
representative. (R. 35–56, 150.) By decision dated August 22, 2014, the ALJ denied Plaintiff’s
application, finding that she was not disabled. (R. 5–17.) Plaintiff sought review before the
Appeals Council, which review was denied on December 18, 2015, making the ALJ’s decision
the Commissioner’s final decision. (R. 1–3, 30.) Plaintiff filed a timely appeal with the Court.
2
a.
Hearing before the ALJ
The ALJ held a hearing on Plaintiff’s application on June 12, 2014, and heard testimony
from Plaintiff and Cherie Plante, a vocational expert.2 (R. 35–56.) Plaintiff appeared via video
with her non-attorney representative and Plante appeared via telephone. (R. 38, 150.)
i.
Plaintiff’s testimony
Plaintiff testified as follows. At the time of the hearing, she was single and did not have
any children. (R. 40.) Plaintiff and her mother lived together. (R. 40.) Her only source of
income was public assistance. (R. 40.) Plaintiff was unemployed and has never held a job.
(R. 41.) She attended public school until the fourth grade and had a private home-school tutor
thereafter. (R. 40-41.) On an average day, she focused on adhering to her diet, taking her
medication, completing errands that were “not very far away from home” and attending doctor’s
appointments. (R. 41.) She was able to cook, clean, shop for groceries and do laundry. (R. 42.)
Her friends visited her at her home, and if she ventured outside or traveled to the mall, she had to
“know where the nearest bathrooms” were. (R. 42.) She did not have any problems walking;
she could stand for ten to fifteen minutes before she became dizzy; she could sit for three-to-four
hours, unless she was “irritated” from using the restroom frequently and needed to lay down on
her stomach; and she could lift five-to-ten pounds. (R. 47–49.)
Plaintiff testified that she was disabled because her Crohn’s disease caused her to visit the
restroom repeatedly during the day, which in turn caused her fear and anxiety whenever she left
home because she may have needed to find a restroom quickly and could find herself unable to
access one. (R. 42–43.) She took Imodium and “Pepto-Bismol” tablets for relief, which reduced
2
The vocational expert, Cherie Plante, was identified in the hearing transcript incorrectly
as Sherry Grant. (Compare R. 35 (transcript) with R. 151 (curriculum vitae of Cherie Plante).)
3
the frequency with which she had to use the restroom, but they did not alleviate the nausea.
(R. 43–44.) She was only able to reduce the frequency of her need to use the restroom by not
eating or drinking. (R. 44.) She did not eat before attending the hearing because she wanted to
avoid having to use the restroom repeatedly. (R. 50–51.) In 2008, Plaintiff was hospitalized for
dehydration, but she had not been hospitalized since then. (R. 44.) The same year, she also had
surgery to remove “obstructions and [] blockages” in her colon and intestines. (R. 46–47.)
Plaintiff had not been hospitalized for any obstructions since the surgery. (R. 46–47.) The
surgeon also removed “all of the bile salts from [her] intestines,” which removal resulted in
Plaintiff having to visit the restroom frequently. (R. 51.)
Plaintiff had a prescription for Humira, which her mother or sister administered by
injection once a week. (R. 44–45.) She also had a prescription for Colestipol, which was for
“the bile salts for the Crohn’s.” (R. 46.) The side-effects of her medications were “extreme
anemia, dizziness, nause[a] and headaches.” (R. 49–50.) As a result of her Crohn’s disease,
Plaintiff suffered from episodes of anemia. (R. 45.) Two weeks prior to the hearing, Plaintiff,
for the first time, received an iron infusion due to anemia. (R. 45.) Plaintiff tried to control her
Crohn’s disease with a diet consisting of “clean foods” such as “chicken,” “mashed potatoes,”
“yogurts with cultures” and “clean cereal, like Rice Krispies.” (R. 50.) She avoided foods such
as “raw fruits and vegetables,” “sweets,” “soda,” “spicy foods” and “peanuts.” (R. 50.)
ii.
Vocational expert testimony
Before vocational expert Plante began her testimony, the ALJ informed her of Plaintiff’s
age, level of education and lack of prior work experience. (R. 52–53.) The ALJ then told Plante
to assume the following:
a hypothetical claimant that can do medium work, never climbing
ramps or stairs; never climbing ladders, ropes or scaffolds;
frequently balancing, stooping, kneeling; occasionally crouching or
4
crawling. . . . [W]orking in a facility where she is indoors and has
access to a bathroom on the premises; work limited to simple/routine
tasks; no fast-paced production requirements and no assembly line
work.
(R. 54.) The ALJ asked Plante if “there are any jobs [such] hypothetical claimant could
perform.” (R. 54) Plante testified that the hypothetical person could perform the job of a “drycleaner helper,” “cleaner, industrial” and “cleaner II.” (R. 54.) If the hypothetical person would
be “off task ten percent of the day,” Plante opined that the same jobs would still be available.
(R. 54.) But Plante opined that the jobs would not be available if the hypothetical person would
be “off task [twenty] percent of the day.” (R. 54.)
b.
Medical evidence
i.
Mount Sinai Hospital Medical Center
Plaintiff was diagnosed with Crohn’s disease in 1999. (R. 272.) In 2008, she began
receiving treatment at Mount Sinai Hospital Medical Center (the “Medical Center”).3 (R. 343.)
On July 14, 2008, Plaintiff visited the Medical Center complaining of pain on the right side of
her abdomen. (R. 356–57.) The attending triage nurse believed that Plaintiff’s pain was due to a
complication resulting from her Crohn’s disease. (R. 356.) The nurse recommended urgent
treatment for Plaintiff. (R. 356.) After a computerized tomography (“CT”) scan, a radiologist
observed that Plaintiff had an “extensive perianal fistula disease” and a “large multiloculated
complex structure” in the right lower quadrant, which was closely associated with abnormal
appearances in her bowel loops and the right side of her uterus. (R. 358.) The radiologist also
3
The record contains documents pertaining to Plaintiff’s treatment prior to 2008, but
many of them are either copies of lab reports without any medical opinions or handwritten notes
that the Court is unable to decipher. (See R. 245–64.)
5
observed that Plaintiff had an abscess related to Crohn’s disease or a tubo-ovarian abscess.
(R. 358.) Plaintiff was held at the Medical Center for further evaluation. (R. 359.)
On July 22, 2008, physicians at the Medical Center performed an exploratory laparotomy,
ileocolic resection, anterior resection, loop ileostomy, right salpingo-oophorectomy, left
salpingtomy and cytstoscopy, and left ureteral stent placement to remove the abnormalities
observed by the radiologist. (R. 349–50, 353–56.) On July 29, 2008, the Medical Center
discharged Plaintiff with instructions to return for follow-up visits. (R. 351–52.)
Plaintiff returned to the Medical Center on February 27, 2009, for a reversal of the loop
ileostomy. (R. 347–48.) The Medical Center discharged Plaintiff one week later, on March 4,
2009. (R. 347.)
ii.
Dr. Kenneth Miller
Plaintiff began treatment with Kenneth Miller, M.D., a gastroenterologist, on April 6,
2009. (R. 519.) Between April 6, 2009 and April 10, 2013, Plaintiff presented to Dr. Miller
approximately bimonthly.4 (R. 395–591.) During her visits with Dr. Miller, Plaintiff’s reports of
her symptoms and ailments predominantly were consistent, and included: stomach pain, diarrhea,
irritation of the buttocks, nausea, fatigue, dizziness, shortness of breath and anxiety. (See, e.g.,
R. 395–96, 503–10, 569–70, 589.) Dr. Miller diagnosed Plaintiff with possible irritable bowel
syndrome, Crohn’s disease of the small bowel and colon, depression and anxiety, unspecified.
(R. 396–97, 522, 590–91.) Dr. Miller prescribed Humira, Colestid and 6-MP to treat Plaintiff’s
Crohn’s disease and the related symptoms, as well as Lexapro and Seroquel to treat Plaintiff’s
anxiety. (R. 397, 483, 508–09, 514, 569–71, 590–91.) Dr. Miller also recommended that
Plaintiff take Pepcid as needed. (R. 397.) During visits with Dr. Miller in August of 2009,
4
Because many of Dr. Miller’s notes are handwritten, the Court is unable to decipher
some of the contents and some of the dates of Dr. Miller’s reports.
6
December of 2009 and May of 2011, Plaintiff reported that the prescribed medications improved
her Crohn’s disease and the related physical symptoms. (R. 494, 508–09, 512). In addition,
during visits with Dr. Miller in October of 2011 and February of 2012, she reported that the
prescribed medications improved her anxiety. (R. 478, 484–85.)
While Plaintiff was under his care, Dr. Miller ordered colonoscopies and biopsies of
Plaintiff’s bowel and intestinal tract. (R. 448, 460–61, 472, 569.) The colonoscopies revealed a
distal colonic surgical deformity; single polyp in the transverse colon; distal, ileocolic and
ileolieal anastomosis; “a single ulcer just distal to the ileocolic anastomosis that was strictured”
and could be passed only with a gastro-scope; scarred colonic mucosa; digitally dilated anal
stricture; scared ileal mucosa; inflammatory pseudo polyps; deeply intubated terminal ileum; a
stricture deep in the neo-terminal ileum that could not be traversed; mild cryptitis in the ileum;
no active Crohn’s in the ileum; and no mass lesions. (R. 448, 460–61, 472, 569.) Dr. Miller also
ordered laboratory tests for Plaintiff in July of 2011, which revealed that Plaintiff had anemia.5
(R. 491.)
On December 1, 2011, and February 9, 2012, Dr. Miller wrote identical letters “to whom
it may concern,” stating:
[Erica Vlado] has been under my care for the past [three] years for
the treatment of severe Crohn’s disease. She has been unable to
work due to her condition. Her condition leads to frequent trips to
the bathroom, making travel difficult. She also gets severe
abdominal pain at times due to adhesions and partial small bowel
obstructions that occur unpredictably, and when they do, she is
unable to do any task.
5
Dr. Miller ordered several other laboratory tests while he was treating Plaintiff. The
results of which are included in the Record. (R. 399–445, 496–97.) The Court does not recount
these test results in detail because they do not contain opinions from Dr. Miller or the testing
physicians.
7
(R. 480–81.) On December 12, 2012, Dr. Miller completed a Physical Medical Assessment
Form related to Plaintiff’s application for supplemental security income. (R. 564–68.)
Dr. Miller repeated the diagnoses he made previously. (R. 564–65.) In addition, Dr. Miller
stated that: Plaintiff’s prescribed medications decrease her symptoms; the side effects of the
medications limit her activities; her conditions likely would last at least twelve months; her
“flare-up[s]” force her to lie down due to “severe” pain; and she has an “ongoing” anxiety
disorder. (R. 565–67.) Dr. Miller opined that Plaintiff could travel to work alone by bus or
subway and her limitations would cause “good days and bad days.” (R. 566–67.) On July 5,
2013, Dr. Miller amended the form and opined that Plaintiff likely would miss four days of work
per month due to her limitations. (R. 568.)
iii. Consultative Examinations
1.
Dr. Chitoor Govindaraj
On August 23, 2012, Chitoor Govindaraj, M.D., examined Plaintiff in connection with
her application for supplemental security income. (R. 541–43.) Dr. Govindaraj reported no
abnormal findings, and opined that “the patient is medically cleared [with] [n]o restriction [in]
sitting, standing or walking or weight restriction.” (R. 542–43.) Dr. Govindaraj diagnosed
Plaintiff with a history of Crohn’s disease and stated that her “[o]verall medical prognosis is
good.” (R. 543.)
2.
Dr. Fritz Galette
On August 17, 2012, Fritz Galette, Ph. D., examined Plaintiff after she was referred to
him by the New York State Office of Temporary and Disability Assistance. (R. 539.) Plaintiff
reported that she traveled to the examination by herself via bus and avoided going places where
she could not access a restroom quickly. (R. 539.) Plaintiff also reported that she dropped out of
school when she was sixteen years old, had a “history of learning and academic problems,” never
8
had a job, was on public assistance, did not have any children and was living with her mother.
(R. 539.) Dr. Galette noted that Plaintiff’s medical history was “remarkable for [Crohn’s] disease
and irritable bowel syndrome,” that Plaintiff had no prior history of psychological, psychiatric or
counseling treatment and that Plaintiff took anxiety medication that was “prescribed by her
gastroenterologist.” (R. 539.) Dr. Galette examined Plaintiff and found that: Plaintiff had an
anxious mood and affect; her short term memory was below average; her long term memory
intact; her knowledge of general facts was below average; she was able to perform simple
calculations; her thought processes and content were unremarkable; she had no perceptual
abnormalities; she denied hallucinations as well as suicidal and homicidal thoughts or ideations;
her speech was of a normal rate and rhythm; her language use was adequate and followed a
logical pattern; she was able to express thoughts and feelings; and her insight and judgment
appeared limited. (R. 539–40.) Dr. Galette summarized that Plaintiff had a history of anxiety
with panic attacks as well as learning and academic problems. (R. 540.) Dr. Galette diagnosed
Plaintiff with a history of anxiety disorder and estimated borderline intellectual ability; he issued
a rule-out6 diagnosis for a learning disorder. (R. 540.)
3.
Dr. L. Blackwell
On September 10, 2012, L. Blackwell, Ph. D., a psychologist for the Social Security
Administration, examined Plaintiff and opined that Plaintiff had an “Anxiety Disorder” that did
not satisfy the standard for a “medically determinable impairment.” (R. 544, 549.)
Dr. Blackwell opined that Plaintiff had no limitations regarding her activities of daily living;
6
A “rule-out” diagnosis means that the physician is unable to make a medical
determination based on the evidence currently available to him or her. See Talavera v. Astrue,
697 F.3d 145, 150 (2d Cir. 2012).
9
mild limitation in maintaining social functioning; moderate limitation in maintaining
concentration, persistence or pace; and no repeated episodes of deterioration, each of extended
duration. (R. 554.) As to Plaintiff’s residual functional capacity (“RFC”), Plaintiff’s mental
abilities were moderately limited in five areas: (1) understanding and remembering detailed
instructions; (2) carrying out detailed instructions; (3) completing a normal workday and
workweek without interruptions from psychologically based symptoms; (4) performing at a
consistent pace without rest periods that were unreasonable in number and length; and
(5) responding appropriately to changes in the work setting. (R 558–59.) Plaintiff had no
limitations in the other sixteen areas. (R. 558–59.) Plaintiff took anxiety medication prescribed
by her gastroenterologist. (R. 560.)
Dr. Blackwell determined that the results of Plaintiff’s examination were “remarkable for
mood and affect anxious”; revealed a below average short term memory; and “insight and
judgement appear[ed] limited.” (R. 560.) Plaintiff reported that she suffered from panic attacks
when she had to use the restroom suddenly but was unable to make it to the restroom. (R. 560.)
Dr. Blackwell concluded that:
Based on clinical findings, claimant’s allegations are partially
credible but any limitations are no more than mild to moderate.
Claimant is able to perform personal care, clean, cook, do laundry,
travel alone via walking and public transportation and shop for food
and clothes; she goes out [three times] a week. Claimant is capable
of understanding, carrying out and remembering simple
instructions, using appropriate judgement to make simple workrelated decisions, responding appropriately to supervision and coworkers and dealing with changes in a routine work setting.
Claimant retains the capacity to perform work with simple task[s].
(R. 560.)
10
4.
Federation Employment & Guidance Service
On March 15, 2013, Plaintiff was examined by the Federation Employment & Guidance
Service (“FEGS”). (R. 613–32.) Social worker Robin Kaynor conducted Plaintiff’s intake
review. (R. 613.) Plaintiff reported that she lived in an apartment with her mother. (R. 615–16.)
She also reported that she had completed the fifth grade. (R. 617.) She had anxiety, which was
related to her Crohn’s disease and was being treated by Dr. Miller. (R. 620–21.) In the two
weeks prior, there were “several days” where Plaintiff felt “down, depressed or hopeless”; had
“little interest or pleasure in doings things”; had “trouble falling or staying asleep or sleeping too
much”; felt “tired” or had “little energy”; and had “poor appetite” or overate. (R. 621.) Kaynor
determined that Plaintiff’s “depression severity” was “mild.” (R. 621, 624.)
Plaintiff also reported that she traveled alone by bus to the FEGS appointment but
avoided traveling during rush hour due to her Crohn’s disease. (R. 622.) She spent her days at
home unless she had a doctor’s appointment. (R. 622.) She was able to “wash dishes, wash
clothes, sweep/mop, vacuum, make beds, shop [for] groceries, cook meals, get dressed, bath[e],
use [the] toilet [and] groom [her]self.” (R. 622.) Her prescription medications were Colestid,
Humira and 6-MP. (R. 627.)
FEGS physician David Guttman, M.D., examined Plaintiff and made the following
findings. (R. 627.) Plaintiff had gastrointestinal issues due to Crohn’s disease and suffered from
diarrhea two to three times per day. (R. 628.) Her abdomen was soft with minimal tenderness in
the lower left quadrant and no masses. (R. 628.) She had anxiety, unspecified, and regional
enteritis. (R. 628, 631–32.) He opined that it would be difficult for Plaintiff to maintain stamina
during the work day. (R. 632.) He also opined that if she obtained employment, she would
require a modified work environment that allows for frequent and necessary breaks. (R. 632.)
11
iv. Dr. David Hudesman
On June 25, 2013, Plaintiff started seeing David Hudesman, M.D. (R. 603.) Plaintiff
reported that she was having stomach pain and ten bowel movements per day, which would come
on suddenly. (R. 603.) As a result, she had lost fifteen pounds in four months. (R. 603.)
Dr. Hudesman examined Plaintiff and noted that her abdomen was soft with tenderness in the
lower left and upper right quadrants. (R. 604.) Dr. Hudesman diagnosed Plaintiff with regional
enteritis, unspecified, diarrhea, generalized abdominal pain and weight loss. (R. 604.)
Dr. Hudesman ordered magnetic resonance imaging (“MRI”), a colonoscopy and biopsies for
Plaintiff. (R. 604.) Dr. Hudesman recommended that Plaintiff continue taking Humira and 6-MP
as well as Colestipol to manage her “bile salt diarrhea.” (R. 604.)
Dr. Hudesman performed Plaintiff’s colonoscopy on August 15, 2013. (R. 609–10.) The
pre-procedure examination revealed normal findings from the perianal and digital rectal
examinations, normal mucosa in the colon, normal neo-terminal ilieum and small internal
hemorrhoids during the retroflexion examination. (R. 609.) The colonoscopy revealed healed
Crohn’s ileocolitis, internal hemorrhoids without complication, diarrhea, digestive system
disease, small bowel mucosa with mild chronic nonspecific inflammation in the neo-terminal
ilieum, transverse and descending colonic mucosa with chronic nonspecific inflammation,
sigmoid colonic mucosa with lymphoid aggregate and rectal colonic mucosa with focal chronic
nonspecific inflammation. (R. 610–11.) Dr. Hudesman recommended that Plaintiff continue
taking her medications and follow a “low residue diet, indefinitely.” (R. 610.)
As a result of Dr. Hudesman’s request, Plaintiff had an MRI on October 28, 2013, which
revealed the following: under distention of the small bowel; a patulous loop of the small bowel
within the lower pelvis, which may have represented a pseudo-sacculation from prior
inflammatory bowel disease; anastomosis in the ileum of the small bowel; mild wall thickening
12
in the small bowel; mild adema in the mesentery; small lesions; and no abnormalities in the
stomach, duodenum and large bowel. (R. 606–07.)
Plaintiff met with Dr. Hudesman on January 9, 2014, and reported improved abdominal
pain, diarrhea that resulted in one to ten bowel movements per day and significant stress and
anxiety. (R. 600.) Dr. Hudesman examined Plaintiff and noted that her abdomen was soft and
had no tenderness, her rectum had an anal fissure and she had external hemorrhoids. (R. 601.)
Dr. Hudesman diagnosed Plaintiff with regional enteritis, unspecified, diarrhea and anal fistula.
(R. 601.) Dr. Hudesman opined that Plaintiff’s diarrhea may be caused by her severe anxiety and
stress. (R. 601.) He prescribed hemorrhoidal cream and recommended that Plaintiff continue
taking Humira and 6-MP. (R. 601.) He also recommended that Plaintiff continue her current
anti-anxiety medication, but noted that he would refer Plaintiff to a psychiatrist and change her
anti-anxiety prescription if the medication did not improve her anxiety. (R. 601.)
c.
The ALJ’s decision
The ALJ conducted the five-step sequential analysis as required by the Social Security
Administration under the authority of the SSA.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the application date, May 30, 2012. (R. 10.) At step two, the ALJ found that Plaintiff had
severe impairments of Crohn’s disease and anxiety disorder. (R. 10.) At step three, the ALJ
found that Plaintiff’s impairments failed to meet or equal an impairment listed in Appendix 1 of
the Social Security Regulations. (R. 10.)
At step four, the ALJ found that Plaintiff had the RFC:
to peform medium work . . . except [that] the claimant can
occasionally climb ramps or stairs. She can never climb ladders,
ropes or scaffolds. She can frequently balance, stoop and kneel. She
can occasionally crouch. She can never crawl. She is limited to
working in a facility where she is indoors and has access to a
13
bathroom on the premises. She is limited to performing simple
routine tasks with no fast-paced production requirements and no
assembly line work. The claimant would be off task [ten percent] of
the work day.
(R. 12.) In conducting the step-four analysis, the ALJ noted that Plaintiff alleged that she could
not work due her Crohn’s disease symptoms. (R. 12.) The ALJ found that Plaintiff’s
impairments “could reasonably be expected to cause the alleged symptoms,” but her “statements
concerning the intensity, persistence and limiting effects are not entirely credible . . . .” (R. 12.)
The ALJ found that the record failed to reflect “frequent medical treatment” even though
Plaintiff asserted that she had frequent exacerbations of her Crohn’s disease. (R. 12.) The ALJ
found that Plaintiff “clearly” had a “positive response to changes in her medication regimen.”
(R. 12.)
The ALJ discredited Plaintiff’s assertion of her mental limitations related to her anxiety
because she had “not received any inpatient or outpatient treatment for her mental impairments
and [] only received medications from her gastroenterologist.” (R. 12.)
The ALJ assigned the following weights to the medical opinions of the various doctors:
“little weight” to Dr. Guttman, the FEGS consultative physician; “little weight” to Dr. Galette,
the consultative psychiatrist; “great weight” to Dr. Blackwell, the Commissioner’s consultative
psychologist; and “great weight” to Dr. Govindaraj, the consultative physiological physician.
(R. 14–15.) The ALJ did not assign a specific weight to the opinion of Dr. Miller, one of
Plaintiff’s treating physicians, but found that his opinion was “not supported by the objective
medical evidence of record.” (R. 15.) The ALJ also did not mention or assign any weight to
Dr. Hudesman’s opinions. (See R. 14–15.)
At step five, the ALJ found that Plaintiff had no past relevant work, but concluded that,
based on her age, education, work experience and RFC, Plaintiff could perform jobs that existed
14
in significant numbers in the national economy, which jobs included dry cleaner helper; cleaner,
industrial; and cleaner II. (R. 15–16.)
II. Discussion
a.
Standard of review
“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), as amended on reh’g in part, 416
F.3d 101 (2d Cir. 2005); see also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam).
“Substantial evidence is ‘more than a mere scintilla’ and ‘means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Lesterhuis v. Colvin, 805
F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); McIntyre
v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (same). Once an ALJ finds facts, the court “can
reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault v.
Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation marks
omitted). In deciding whether substantial evidence exists, the court “defer[s] to the
Commissioner’s resolution of conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118,
122 (2d Cir. 2012); McIntyre, 758 F.3d at 149 (“If evidence is susceptible to more than one
rational interpretation, the Commissioner’s conclusion must be upheld.”). The Commissioner’s
factual findings “must be given conclusive effect so long as they are supported by substantial
evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotations
omitted). If, however, the Commissioner’s decision is not supported by substantial evidence or
is based on legal error, a court may set aside the decision of the Commissioner. Box v. Colvin,
3 F. Supp. 3d 27, 41 (E.D.N.Y. 2014); see Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). “In
15
making such determinations, courts should be mindful that ‘[t]he Social Security Act is a
remedial statute which must be ‘liberally applied’; its intent is inclusion rather than exclusion.’”
McCall v. Astrue, No. 05-CV-2042, 2008 WL 5378121, at *8 (S.D.N.Y. Dec. 23, 2008)
(alteration in original) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
b.
Availability of benefits
Supplemental security income is available to individuals who are “disabled” within the
meaning of the SSA.7 To be considered disabled under the SSA, a plaintiff must establish his or
her inability “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 twelve months.”
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairment must be of “such severity that he is
not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B). The Commissioner has promulgated a five-step
analysis for evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit
has described the steps as follows:
The first step of this process requires the [Commissioner] to
determine whether the claimant is presently employed. If the
claimant is not employed, the [Commissioner] then determines
whether the claimant has a “severe impairment” that limits her
capacity to work. If the claimant has such an impairment, the
[Commissioner] next considers whether the claimant has an
impairment that is listed in Appendix 1 of the regulations. When the
claimant has such an impairment, the [Commissioner] will find the
claimant disabled. However, if the claimant does not have a listed
impairment, the [Commissioner] must determine, under the fourth
7
Supplemental security income is available to individuals who are either sixty-five years
of age or older, blind or disabled and who meet certain income requirements. 42 U.S.C.
§§ 1382(a), 1382c(a)(1)(A); 20 C.F.R. § 416.202. The only issue before the Court is whether
Plaintiff is disabled.
16
step, whether the claimant possesses the residual functional capacity
to perform her past relevant work. Finally, if the claimant is unable
to perform her past relevant work, the [Commissioner] determines
whether the claimant is capable of performing any other work. If
the claimant satisfies her burden of proving the requirements in the
first four steps, the burden then shifts to the [Commissioner] to
prove in the fifth step that the claimant is capable of working.
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996)); see also Lesterhuis, 805 F.3d at 86 n.2 (describing the “five-step sequential
evaluation for adjudication of disability claims, set forth at 20 C.F.R. § 404.1520”); McIntyre,
758 F.3d at 150 (describing “the five-step, sequential evaluation process used to determine
whether a claimant is disabled” (citing 20 C.F.R. § 416.920(a)(4)(i)–(v))).
c.
Analysis
Plaintiff argues that the ALJ violated the treating physician rule because she failed to:
(1) assign controlling weight to Dr. Miller’s opinion or provide logical and well-explained
reasons for discrediting Dr. Miller’s opinion; and (2) consider the opinions of Dr. Hudesman, one
of Plaintiff’s treating physicians. (Pl. Mem. 13–21.) The Commissioner argues that the ALJ’s
decison is supported by substantial evidence because Dr. Miller’s opinions were not supported by
the evidence in the record and were contradicted by the other medical opinions. (Comm’r Mem.
14–21.) For the reasons explained below, the Court finds that the ALJ violated the treating
physician rule.
“[A] treating physician’s statement that the claimant is disabled cannot itself be
determinative.” Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir. 2012) (quoting Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)
(same). But a treating physician’s opinion as to the “nature and severity” of a plaintiff’s
impairments will be given “controlling weight” if the opinion is “well-supported by medically
17
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the plaintiff’s] case record.”8 20 C.F.R. § 404.1527(c)(2); see
Lesterhuis, 805 F.3d at 88 (discussing the treating physician rule); Petrie v. Astrue, 412 F. App’x
401, 405 (2d Cir. 2011) (“The opinion of a treating physician is accorded extra weight because
the continuity of treatment he provides and the doctor/patient relationship he develops place[s]
him in a unique position to make a complete and accurate diagnosis of his patient.” (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))).
If an ALJ declines to give a treating physician’s opinion controlling weight, the ALJ must
consider a number of factors to determine how much weight to assign to the treating physician’s
opinion, specifically: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount
of medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Selian, 708 F.3d at
418 (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)); see also Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2) and discussing the factors).
The ALJ must set forth the reasons for the weight assigned to the treating physician’s opinion.
Halloran, 362 F.3d at 32. While the ALJ is not required to explicitly discuss the factors, it must
be clear from the decision that the proper analysis was undertaken. See Petrie, 412 F. App’x at
406 (“[W]here ‘the evidence of record permits us to glean the rationale of an ALJ’s decision, we
do not require that he have mentioned every item of testimony presented to him or have
8
The regulations define “treating source” as the claimant’s “own physician,
psychologist, or other acceptable medical source who provides [a claimant] . . . with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the
claimant].” Brickhouse v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009) (quoting 20 C.F.R.
§ 404.1502).
18
explained why he considered particular evidence unpersuasive or insufficient to lead him to a
conclusion of disability.’” (quoting Mongeur, 722 F.2d at 1040)). Failure “to provide good
reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand.”
Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 77 (2d Cir. 2012); see also Halloran, 362 F.3d
at 32–33 (“We do not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physicians[’] opinion . . . .”).
In addition, although a “claimant has the general burden of proving that he or she has a
disability within the meaning of the Act, . . . ‘because a hearing on disability benefits is a
nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the
administrative record.’” Burgess, 537 F.3d at 128 (alteration omitted) (first citing Draegert v.
Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); and then quoting Melville v. Apfel, 198 F.3d 45, 51
(2d Cir. 1999)); see also Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013)
(“Unlike a judge at trial, the ALJ has a duty to ‘investigate and develop the facts and develop the
arguments both for and against the granting of benefits.’” (quoting Vincent v. Comm’r of Soc.
Sec., 651 F.3d 299, 305 (2d Cir. 2011))). Pursuant to the ALJ’s duty to develop the record, the
ALJ must attempt to fill gaps in the record. See Rosa v. Callahan, 168 F.3d 72, 79 & n.5 (2d Cir.
1999) (explaining that the ALJ must attempt to fill “clear gaps” in the record, but “where there
are no obvious gaps . . . and where the ALJ already possesses a ‘complete medical history,’” the
ALJ is under no obligation to seek additional information); 20 C.F.R. § 416.912(d)(2) (requiring
the ALJ to develop claimant’s complete medical history). This duty is present “[e]ven when a
claimant is represented by counsel.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(collecting cases); see also Rockwood v. Astrue, 614 F. Supp. 2d 252, 279 (N.D.N.Y. 2009)
(“[A]n ALJ has an affirmative duty to develop the record, even if the claimant is represented by
19
counsel, if the medical record is ambiguous or incomplete.” (first citing Tejada v. Apfel, 167 F.3d
770, 774 (2d Cir. 1999); and then citing Rosa, 168 F.3d at 79)).
i.
The ALJ failed to explain her reasons for not giving controlling
weight to treating physician Dr. Miller’s opinion
The ALJ’s failure to explain her reasons for not giving controlling weight to Dr. Miller’s
opinion as required by the Social Security Regulations requires remand.
As explained above, a court has grounds to remand a case involving an application for
social security benefits when an ALJ fails to provide “good reasons” for not giving controlling
weight to a treating physician’s opinions. Sanders, 506 F. App’x at 77; see also Halloran, 362
F.3d at 32–33. In addition, when an ALJ does not give controlling weight to a treating
physician’s opinion, it must be clear from the decision that the ALJ considered the factors
articulated in the Social Security Regulations for determining what weight to assign to a treating
physician’s opinion. See Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(d)(2) and
discussing the factors); Petrie, 412 F. App’x at 406. Together, these rules require that “[a]fter
considering the factors, the ALJ must comprehensively set forth [her] reasons for the weight
assigned to the treating physician’s opinion.” Burgess, 537 F.3d at 129 (internal quotation marks
omitted) (citing Holloran, 362 F.3d at 33).
Here, the ALJ’s decision declining to give controlling weight to Dr. Miller’s opinion
reads as follows:
20
[Plaintiff’s] treating endocrinologist, Dr. Kenneth Miller, opined
that [Plaintiff] would miss about [four] days per month on average
due to Crohn’s disease. Although, Dr. Miller maintained a treatment
relationship with [Plaintiff], his opinion that [Plaintiff] would miss
about [four] days per month is not supported by the objective
medical evidence of record. As discussed above, [Plaintiff] has not
required frequent treatment to address her symptoms of Crohn’s
disease, and the medical evidence documents a positive response to
alterations in her medication regimen. Dr. Miller’s opinion is also
inconsistent with [Plaintiff]’s activities of daily living, which
include shopping, traveling independently and doing chores.
(R. 15.)
Notably, the ALJ did not find that Dr. Miller’s opinion was contradicted by the other
medical opinion evidence; she found that it was unsupported by or inconsistent with Plaintiff’s
infrequent medical treatment and Plaintiff’s testimony about her activities of daily living. (See
id.) The Second Circuit has held that when a physician’s opinion is not contradicted by another
medical opinion, there “must be overwhelmingly compelling evidence in order to overcome it.”
Giddings v. Astrue, 333 F. App’x 649, 652 (2d Cir. 2009) (citing Burgess, 537 F.3d at 129); see
also Wilson v. Colvin, No. 15-CV-06377, 2016 WL 5661973, at *3 (W.D.N.Y. Oct. 3, 2016)
(“[W]hen a medical opinion stands uncontradicted” the conflicted evidence “must be
overwhelmingly compelling in order to overcome it” (quoting Giddings, 333 F. App’x at 652));
Glessing v. Comm’r of Soc. Sec., No. 13-CV-1254, 2014 WL 1599944, at *10 (E.D.N.Y. Apr.
21, 2014) (“But here, the ALJ did not refer to any medical opinion that contradicted the medical
opinion of [the plaintiff’s treating physician], and ‘when a medical opinion stands
uncontradicted, [the conflicting evidence] . . . must be overwhelmingly compelling in order to
overcome it.’” (alteration omitted) (quoting Giddings, 333 F. App’x at 652)).
In Giddings, the claimant challenged an ALJ’s decision finding that the claimant had the
RFC to perform light work and therefore was not disabled. 333 F. App’x at 651. The claimant
21
argued that the RFC determination was not supported by substantial evidence, specifically, the
ALJ rejected an opinion regarding the claimant’s exertional limitations without explaining why
that opinion lacked support in the record. Id. at 650–51. The Second Circuit agreed. Id. at 651–
52. The Second Circuit held that the RFC determination was erroneous because the ALJ failed
to provide sufficient reasons for rejecting the opinion of a consulting physician, Dr. Hargraves,
which opinion contained more limited exertional demands than those contained in the RFC
determination. Id. The Court explained that the ALJ “did not refer to any medical opinion that
contradicted the medical opinion of Dr. Hargraves” regarding Plaintiff’s exertional limitations.
Id. at 652 (emphasis added). Therefore, the Court held that any evidence the ALJ relied on to
undermine Dr. Hargraves’ opinion “must be overwhelmingly compelling.” Id. at 652. (citing
Burgess, 537 F. 3d at 129). The Court noted that “Dr. Hargraves’[] opinion [was] the only
medical opinion referenced by [the] ALJ [] that explicitly addresse[d]” the claimant’s exertional
limitations, and that the ALJ discredited that opinion based on “the claimant’s reports of her
daily activities.” Id. The Court held that the ALJ’s reliance on the claimant’s reports of her
daily activities “failed to provide the compelling critique needed to overcome” Dr. Hargraves’
opinion. Id. The Court explained that the ALJ erred in finding that the claimant’s testimony
undermined Dr. Hargraves’ opinion because her testimony was consistent with the exertional
limitations in Dr. Hargraves’ opinion. Id. at 652–55. The Court noted that “the other medical
reports analyzed by [the] ALJ [] do not address, much less undercut the exertional limitations
indicated by Dr. Hargraves,” and therefore held that those opinions failed to provide “a sufficient
basis for [the] ALJ [] to have disregarded Dr. Hargraves’[] opinion.” Id. at 653. Based on the
ALJ’s errors, the Court remanded the case to the ALJ. Id. at 655.
22
Here, there are three reasons why the evidence the ALJ relied on was not
“overwhelmingly compelling.” First, the ALJ relied on Plaintiff’s testimony about her activities
of daily living to contradict Dr. Miller’s opinion that Plaintiff likely would miss four or more
days of work per month, but does not explain how Plaintiff’s ability to shop, travel
independently and do chores undermines Dr. Miller’s opinion and does not “refer to any medical
opinion that contradict[s]” Dr. Miller’s opinion. (R. 15); see Giddings, 333 F. App’x at 652. As
in Giddings, the ALJ’s failure to provide a thorough explanation for rejecting Dr. Miller’s
opinion is troubling in light of Plaintiff’s entire testimony. See Giddings, 333 F. App’x at 652–
55. Although the ALJ noted that Plaintiff testified that she was able to shop, travel
independently and do chores, she ignored Plaintiff’s limitations in completing each of those
tasks. Plaintiff testified that she was able to shop and travel independently, but also testified that
she was in constant stress whenever she left home because she may have use the restroom
suddenly and there may not be a restroom nearby. (R. 42–43.) As to Plaintiff’s testimony that
she could do chores, the ALJ asked Plaintiff if she could “cook/clean” and “do laundry,” to
which Plaintiff responded “yes.” (R. 42.) Nothing in Plaintiff’s testimony contradicts
Dr. Miller’s opinion that Plaintiff likely would miss work more than four times per month.
Accordingly, Plaintiff’s testimony is not substantial evidence that undermines Dr. Miller’s
opinion. See Giddings, 333 F. App’x at 654 (holding that the claimant’s testimony was not
substantial evidence that undermined a physician’s opinion because the claimant’s testimony was
“consistent with, if not supportive of,” the physician’s opinion). In addition, the RFC
determination was flawed because the ALJ discussed the other medical opinions in the record,
but did not “refer to any medical opinion that contradict[s]” Dr. Miller’s opinion that Plaintiff
23
likely would miss work more than four days per month.9 See (R. 15); Giddings, 333 F. App’x at
652–55. Thus, the Court finds that the ALJ failed to cite “overwhelmingly compelling” evidence
sufficient to undermine Dr. Miller’s opinion. See Giddings, 333 F. App’x at 652–55 (first citing
Burgess, 537 F.3d at 129; and then citing McBrayer v. Sec. of Health and Human Servs., 712
F.2d 795, 799 (2d Cir. 1983)); see also Wilson, 2016 WL 5661973, at *3–4 (remanding a case to
an ALJ because the ALJ afforded little weight to an uncontradicted medical opinion by first
misconstruing and then relying on statements the plaintiff made during his testimony); Glessing,
2014 WL 1599944, at *10–11 (“But here, the ALJ did not refer to any medical opinion that
contradicted the medical opinion of [the plaintiff’s treating physician], and ‘when a medical
opinion stands uncontradicted, [the conflicting evidence] . . . must be overwhelmingly
compelling in order to overcome it.’” (alteration omitted) (quoting Giddings, 333 F. App’x at
652)).
Second, the ALJ found that Dr. Miller’s opinions were not supported by the record
because Plaintiff’s treatment was infrequent. (R. 15.) However, whether Plaintiff sought
medical treatment on a regular basis does not weigh against Plaintiff if the ALJ never asked
Plaintiff about the reason for her infrequent medical treatment. See Soc. Sec. Ruling 16-3p, 2016
9
The Commissioner argues that Dr. Miller’s opinion was contradicted by the opinions of
Dr. Govindaraj, a consultative physician, and Dr. Guttman, Plaintiff’s second treating physician.
(Comm’r Mem. 16–18.) The Court does not address these arguments because the ALJ did not
express such reasoning in declining to give Dr. Miller’s opinion controlling weight, and the
Court may not affirm the ALJ’s decision based on the Commissioner’s post hoc arguments. See
Lesterhuis v. Colvin, 805 F.3d 83, 89 (2d Cir. 2015) (holding that courts “may not affirm an
administrative action on grounds different from those considered by the agency” (citation and
internal quotation marks omitted)); McAllister v. Colvin, No. 15-CV-2673, 2016 WL 4717988, at
*17 (E.D.N.Y. Sept. 9, 2016) (“Such post hoc rationalizations are insufficient, as a matter of law,
to bolster the ALJ’s decision.”); Demera v. Astrue, No. 12-CV-432, 2013 WL 391006, at *3 n.3
(E.D.N.Y. Jan. 24, 2013) (“The ALJ did not provide these explanations, however, and post
hoc rationalizations for the ALJ’s decision are not entitled to any weight.” (citation omitted)).
24
WL 1119029, at *8 (2016) (stating that the Commissioner will not deny a person’s application
for social security benefits “without considering possible reasons he or she may not . . . seek
treatment consistent with the degree of his or her complaints[,] [and] [the Commissioner] may
need to . . . , at an administrative proceeding, ask why he or she has not . . . sought treatment in a
manner consistent with his or her complaints”); see also Burger v. Astrue, 282 F. App’x 883,
884–85 (2d Cir. 2008) (remanding a case to an ALJ because, although the plaintiff explained her
reasons for not seeking “regular medical care, . . . the ALJ was obliged himself to develop the []
record more fully to ensure an accurate assessment”); Nigino v. Astrue, No. 04-CV-3207, 2009
WL 840382, at *7 (E.D.N.Y. Mar. 30, 2009) (finding that “an ALJ must not draw any inference
about an individual’s symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the individual may
provide, or other information in the case record, that may explain infrequent or irregular medical
visits or failure to seek medical treatment” (quoting Soc. Sec. Ruling 96–7p, 1996 WL 374186,
at *7 (1996))); see generally Moran v. Astrue, 569 F.3d 108, 114 (2d Cir. 2009) (remanding a
case to an ALJ because, inter alia, the ALJ did not question the plaintiff regarding certain
physical limitations before finding that those limitations rendered the plaintiff not disabled).
Because the ALJ never asked Plaintiff why she did not receive “frequent treatment,” she erred by
relying on that fact to discredit Dr. Miller’s opinion. See id.; see also Burgess, 537 F.3d at 129
(holding that, in making a decision, “the ALJ must not only develop the proof, but carefully
weigh it” (citations omitted)).
In addition, the ALJ did not explain why she considered Plaintiff’s treatment infrequent,
which explanation would be helpful given the evidence in the record documenting Plaintiff’s
medical treatment. The record reflects that on an almost monthly basis between April of 2009
25
and December of 2012, Plaintiff either saw Dr. Miller or had tests performed that were ordered
by Dr. Miller. (R. 395–588.) Plaintiff then sought treatment from FEGS on March of 2013 and
saw Dr. Miller again in April of 2013. (R. 589–92, 613–33.) Thereafter, in July of 2013,
Plaintiff began treatment with Dr. Hudesman, which treatment continued bimonthly until
January of 2014. (R. 600–12.) Because the record reflects otherwise, the ALJ must explain why
she found that Plaintiff failed to seek “frequent treatment” in order for the Court to determine if
that finding constituted substantial evidence that could undermine Dr. Miller’s opinion. See
Rugless v. Comm’r of Soc. Sec., 548 F. App’x 698, 700 (2d Cir. 2013) (holding that remand was
required because “we need some explanation of why” the ALJ discredited the opinion of the
plaintiff’s treating physician).
Third, the ALJ’s decision does not show that she considered the factors she was required
to consider when determining the weight to assign Dr. Miller’s opinion. These factors include
“the amount of medical evidence supporting the opinion” and “the consistency of the opinion
with the remaining medical evidence.” Selian, 708 F.3d at 418. Even though the record contains
extensive documentation regarding Dr. Miller’s treatment of Plaintiff between 2009 and 2013,
including multiple examinations and laboratory tests, the ALJ failed to explain why that evidence
does not support Dr. Miller’s opinion and why his opinion is therefore not entitled to controlling
weight. See Lesterhuis, 805 F.3d at 88 (holding that a treating physician’s opinion is entitled to
controlling weight when it is supported by clinical examinations and laboratory tests unless it is
contradicted by substantial evidence in the record); Winchell v. Comm’r of Soc. Sec., No. 14-CV543, 2015 WL 7432377, at *3 (N.D.N.Y. Nov. 23, 2015) (remanding a case to an ALJ based on a
finding that his decision to not give controlling weight to treating physician’s opinion was
unsupported by substantial evidence because the plaintiff’s “gastrointestinal problems were well
26
documented, including the results of several” medical tests and examinations). In addition, as
previously noted, the ALJ did not find or state that Dr. Miller’s opinion was contradicted by
other medical opinion evidence.
Based on the foregoing, the Court finds that the ALJ did not have “overwhelmingly
compelling” evidence that entitled her to deny giving controlling weight to Dr. Miller’s opinion.
See Giddings, 333. F. App’x at 652. The ALJ therefore failed to provide “good reasons” for not
giving controlling weight to Dr. Miller’s opinion. See id. at 654–55.
ii.
The ALJ failed to consider the opinions of treating physician Dr.
Hudesman
The ALJ also erred by failing to consider and assign any weight to the opinions of Dr.
Hudesman.
According to the evidence in the record, Dr. Hudesman treated Plaintiff for her Crohn’s
disease and her anxiety from July of 2013 to January of 2014. (R. 600–12.) Dr. Hudesman
examined Plaintiff on three separate occasions, made observations regarding Plaintiff’s physical
and mental limitations, issued and monitored Plaintiff’s prescription medications, ordered and
analyzed an MRI of Plaintiff’s midsection, a colonoscopy and biopsies, and considered
recommending that Plaintiff see a psychiatrist. (Id.) Accordingly, Dr. Hudesman was a treating
physician. See Brickhouse v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009) (noting that a
“treating source” is a claimant’s “own physician, psychologist, or other acceptable medical
source who provides [a claimant] . . . with medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship with [the claimant].” (quoting 20 C.F.R. § 404.1502)).
Dr. Hudesman’s opinions were rendered after Plaintiff filed her application on May 30, 2012, and
therefore are relevant to determining whether Plaintiff was disabled after May 30, 2012. (See
R. 600–12.)
27
Nevertheless, in both recounting the evidence and assigning weight to the various
physicians’ medical opinions, the ALJ never mentioned Dr. Hudesman and did not assign any
weight to his opinions. (See R. 12–15.) The ALJ’s failure to consider and assign any weight to
Dr. Hudesman’s opinions or explain why his opinions were entitled to no weight is a separate
and independent reason for remanding this case to the ALJ. See Lesterhuis, 805 F.3d at 89
(remanding a case to the ALJ because “[n]either the ALJ nor the Appeals Council analyzed the
substance of [an] opinion” by one of the plaintiff’s treating physicians); Burgess, 537 F.3d at 132
(remanding a case to the ALJ because “the reports of [one of the plaintiff’s treating
physicians] . . . w[ere] not expressly mentioned by the ALJ”); Smith v. Astrue, No. 10-CV-6018,
2013 WL 1681146, at *6 (E.D.N.Y. Apr. 17 , 2013) (remanding to the ALJ because “the ALJ
refers to [one treating physician] only once in his ten-page decision . . . [and] fails to mention [a
second treating physician] at all”); Colon v. Astrue, No. 10-CV-3779, 2011 WL 3511060, at *12
(E.D.N.Y. Aug. 10, 2011) (finding that because “the ALJ failed to give . . . any consideration to
the opinion of” the plaintiff’s treating physician, “the ALJ committed legal error in his decision
and . . . remand is appropriate”).
In sum, the Court finds that remand is appropriate because the ALJ failed to give good
reasons for not giving controlling weight to Dr. Miller’s opinions and failed to consider and
assign any weight to Dr. Hudesman’s opinion.10
10
Because the Court remands based on the ALJ’s errors regarding the treating physician
rule, the Court does not address Plaintiff’s arguments that the ALJ failed to develop the record as
to Dr. Hudesman’s opinions or that the ALJ’s credibility finding regarding Plaintiff’s testimony
was not supported by substantial evidence. (See Pl. Mem. 18–23.) The Court notes, however,
that the ALJ should carefully develop the record as to any unanswered questions she may have
regarding Plaintiff’s physical or mental limitations and the medical opinions or lack thereof
pertaining to those limitations. See Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir.
2013) (“Unlike a judge at trial, the ALJ has a duty to ‘investigate and develop the facts and
develop the arguments both for and against the granting of benefits.’”).
28
III. Conclusion
For the foregoing reasons, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion for judgment on the pleadings. The
Court vacates the Commissioner’s decision and remands this action for further administrative
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is
directed to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 29, 2017
Brooklyn, New York
29
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