Astuto v. Commissioner of Social Security
Filing
15
ORDER: For the reasons stated in the attached memorandum and order, the Court grants Plaintiff's 11 motion for judgment on the pleadings and denies the Commissioner's 12 cross-motion. The Commissioner's decision is remanded for further consideration consistent with this Order. The Clerk of Court is respectfully requested to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 9/28/2017. (Chivers, Jeffrey)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARYANN ASTUTO,
Plaintiff,
MEMORANDUM & ORDER
-against-
16-CV-1870 (PKC)
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Maryann Astuto (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration’s (“SSA”) denial of her claim for Disability
Insurance Benefits (“DIB”).
The parties have cross-moved for judgment on the pleadings.
(Dkts. 11, 12.) Plaintiff seeks reversal of the Commissioner’s decision and an immediate award of
benefits, or alternatively, remand for further administrative proceedings. The Commissioner seeks
affirmation of the denial of Plaintiff’s claims. For the reasons set forth below, the Court grants
Plaintiff’s motion for judgment on the pleadings and denies the Commissioner’s motion. The case is
remanded for further proceedings consistent with this Order.
BACKGROUND
I.
PROCEDURAL HISTORY
On August 16, 2006, Plaintiff filed an application for DIB, claiming that she has been
disabled since December 2, 1998, due to traumatic arthritis of the right ankle. (Tr. 30-32.) After
her claim was initially denied, Plaintiff appeared for a hearing before an administrative law judge
(“ALJ”) on July 22, 2008. (Tr. 30.) By decision dated September 23, 2008, the ALJ found that
Plaintiff was not disabled within the meaning of the Social Security Act at any time since
December 2, 1998. (Tr. 34-35.) After the SSA denied Plaintiff’s application for review, Plaintiff
filed an action in this Court seeking reversal or remand of the ALJ’s September 23, 2008 decision.
Astuto v. Comm’r of Soc. Sec., No. 10 Civ. 5842 (E.D.N.Y. filed Dec. 16, 2010). By stipulated
order dated May 2, 2011, this Court reversed and remanded the action for further administrative
proceedings, including “a new hearing; further development of the record; evaluation of treating
source opinion evidence, particularly that of John P. Reilly, M.D.; an orthopedic consultative
examination, if necessary; supplemental orthopedic medical expert and vocational expert
evidence, if warranted; and a new decision.” Stipulation and Order, Astuto, No. 10 Civ. 5842,
ECF No. 7.
After remand by this Court, Plaintiff appeared for another administrative hearing before a
different ALJ. (Tr. 39.) By decision dated April 19, 2012, the ALJ determined that Plaintiff was
not disabled at any time between the alleged onset date, December 2, 1998, and Plaintiff’s date
last insured, December 31, 1999. (Tr. 42-48.) On appeal from that decision, the SSA Appeals
Council remanded the case for a new ALJ hearing and decision because “[t]he official claims
folder, along with the hearing recording, [could ]not be located.” (Tr. 51.)
Plaintiff appeared for a third administrative hearing on September 25, 2014, before the
same ALJ that had issued the unfavorable decision dated April 19, 2012. (Tr. 18-25.) By decision
dated October 23, 2014, the ALJ determined that Plaintiff was not disabled between
December 2, 1998, and the date last insured, December 31, 1999. (Tr. 18-25.) The ALJ’s
October 23, 2014 decision became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review on February 19, 2016. (Tr. 5.) Plaintiff commenced
this action on April 18, 2016, seeking judicial review of the ALJ’s October 23, 2014 decision.
(Dkt. 1.)
2
II.
STANDARD OF REVIEW
Unsuccessful claimants for disability benefits under the Social Security Act (the “Act”)
may bring an action in federal district court seeking judicial review of the Commissioner’s denial
of their benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the
Court’s role is “limited to determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted). “Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971) (alterations and internal quotation marks omitted)). In determining
whether the Commissioner’s findings were based upon substantial evidence, “the reviewing court
is required to examine the entire record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Id. (quotation omitted). However, “it is up to the agency,
and not this court, to weigh the conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998). If there is substantial evidence in the record to support the
Commissioner’s findings as to any fact, those findings are conclusive and must be upheld.
42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013).
III.
ELIGIBILITY STANDARD FOR SOCIAL SECURITY DISABILITY BENEFITS
To receive DIB, claimants must be disabled within the meaning of the Act. Claimants
establish disability status by demonstrating an 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). The claimant bears the
3
initial burden of proof on disability status and must demonstrate disability status by presenting
medical signs and findings, established by “medically acceptable clinical or laboratory diagnostic
techniques,”
as
well
as
any
other
evidence
the
Commissioner
may
require.
42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(D). However, the ALJ has an affirmative obligation to
develop the administrative record.
Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09
(2d Cir. 2009). This means that the ALJ must seek additional evidence or clarification when the
claimant’s medical reports contain conflicts or ambiguities, if the reports do not contain all
necessary information, or if the reports lack medically acceptable clinic and laboratory diagnostic
techniques. Demera v. Astrue, No. 12 Civ. 432, 2013 WL 391006, at *3 (E.D.N.Y. Jan. 24, 2013);
Mantovani v. Astrue, No. 09 Civ. 3957, 2011 WL 1304148, at *3 (E.D.N.Y. March 31, 2011).
In evaluating disability claims, the ALJ must adhere to a five-step inquiry. The claimant
bears the burden of proof in the first four steps in the inquiry; the Commissioner bears the burden
in the final step. Talavera, 697 F.3d at 151. First, the ALJ determines whether the claimant is
currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the answer
is yes, the claimant is not disabled. If the claimant is not engaged in “substantial gainful
activity,” the ALJ proceeds to the second step to determine whether the claimant suffers from a
“severe impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is determined to be severe
when it “significantly limits [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). If the impairment is not severe, then the claimant is not
disabled within the meaning of the Act. However, if the impairment is severe, the ALJ proceeds
to the third step, which considers whether the impairment meets or equals one of the impairments
listed in the Act’s regulations (the “Listings”). 20 CFR § 404.1520(a)(4)(iii); see also 20 C.F.R.
Pt. 404, Subpt. P, App. 1.
4
If the ALJ determines at step three that the claimant has one of the listed impairments, then
the ALJ will find that the claimant is disabled under the Act. On the other hand, if the claimant
does not have a listed impairment, the ALJ must determine the claimant’s “residual functional
capacity” (“RFC”) before continuing with steps four and five.
The claimant’s RFC is an
assessment which considers the claimant’s “impairment(s), and any related symptoms . . . [which]
may cause physical and mental limitations that affect what [the claimant] can do in the work
setting.” 20 C.F.R. § 404.1545(a)(1). The ALJ will then use the RFC determination in step four
to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If
the answer is yes, the claimant is not disabled. Otherwise the ALJ will proceed to step five where
the Commissioner then must determine whether the claimant, given the claimant’s RFC, age,
education, and work experience, has the capacity to perform other substantial gainful work in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not
disabled; otherwise the claimant is disabled and is entitled to benefits. Id.
IV.
RELEVANT FACTS AND MEDICAL RECORDS
Plaintiff’s claim of disability stems from an ankle fracture that Plaintiff sustained in
January 1994, for which she underwent surgery on January 26, 1994. (Tr. 193-260, 227-28.) The
surgery was performed by Dr. Stephen Pollack, an orthopedist, and involved, among other things,
the installation of a metal plate on Plaintiff’s right fibula. (Tr. 227-28.) Plaintiff followed up with
Dr. Pollack for post-operative treatment in February, March, and August of 1994, and Dr. Pollack
reported that, as of August 29, 1994, Plaintiff’s fracture was “well healed,” although she had “los[t]
a few degrees of dorsiflexion of the ankle.” (Tr. 74-75.)
On November 13, 1995, Plaintiff was examined by Dr. Peter A. Godsick, a licensed
physician, in connection with an insurance claim proceeding. (Tr. 261-62.) Dr. Godsick reported
5
that Plaintiff “wore no orthotic devices [and] used no external aids for ambulation,” although she
had some “thickening” and decreased range of motion in her right ankle. (Tr. 261-62.)
Plaintiff visited Dr. Pollack again on July 21, 1997. (Tr. 274-75.) Dr. Pollack reported
that Plaintiff had “some complaints of mild pain in her ankle,” that “[e]xamination revealed the
incisions [in her ankle] to be well healed,” and that “the fracture [was] well healed,” but Dr. Pollack
also noted that Plaintiff “has lost approximately 5 [degrees] of dorsiflexion” and that “X-rays
demonstrated . . . evidence of traumatic arthritis.” (Tr. 274-75.)
Before her surgery in January 1994, Plaintiff had worked as a Dental Assistant for several
years. (Tr. 147.) After the surgery, however, starting in or around January 1998, Plaintiff began
a job as a receptionist for a financial firm. (Tr. 147.) According to Plaintiff, she took the
receptionist job because it was “a job sitting down,” which she “figure[d] [she] would be able
to do” even though her ankle had “[p]rogressively gotten worse” since the surgery. (Tr. 355.)
But, Plaintiff explained to the ALJ, the receptionist job did not work for her:
I couldn’t do it. I couldn’t sit. . . . I was calling out sick too much and I couldn’t
elevate my leg. My leg was swelling up and the commute, sitting for too many
hours was just too much for me. . . . And in time, it’s progressively gotten worse.
I can’t sit for a long period of time. I can’t stand. I can’t walk long. It’s really
taken a toll on me.
(Tr. 355.) Plaintiff stopped working as a receptionist on or around December 2, 1998, and she has
not engaged in gainful employment since that date. (Tr. 147.)
As noted above, Plaintiff visited Dr. Pollack on July 21, 1997, about six months before she
began working as a receptionist, and about eighteen months before her alleged onset date of
December 2, 1998. The administrative record is unclear, however, as to what treatment, if any,
Plaintiff received for her ankle after her visit to Dr. Pollack on July 21, 1997. Plaintiff asserts that
she continued to seek treatment for her ankle from Dr. Pollack from July 21, 1997 through
6
sometime in 2006 or 2007. (Tr. 174, 324.) But the administrative record does not contain any
documentation of such visits—indeed, the record does not contain any medical records for the
period of July 21, 1997 through May 2006. (Tr. 18-25.) According to Plaintiff, Dr. Pollack’s
records “were all destroyed,” and, “[i]n fact, [Plaintiff] wa[s] only able to obtain the 1997 [and
earlier] record[s] . . . from [Plaintiff’s] personal injury attorney who handled a third-party lawsuit
resulting [from] the original injury.” (Tr. 324; see also Tr. 330-31.)1
The gap in Plaintiff’s medical history ends on May 6, 2006, when Plaintiff visited Dr.
John R. Reilly of the Orthopaedic Associates of New York. (Tr. 291.) Dr. Reilly’s notes from the
May 6, 2006 evaluation indicate that Plaintiff “has been having pain in [her ankle] now fairly
constantly since she had a fracture and was fixed surgically with plate and screws by Dr. Pollack
in 1993,” and that “[r]ight now [Plaintiff] is just relying on Advil.” (Tr. 291.) Dr. Reilly noted
that Plaintiff “ambulates independently with a limp to the right[,] has “mild restriction in flexion
and extension” in her right ankle, and “[n]o swelling” in her ankle. (Tr. 291.) Dr. Reilly’s overall
impression was “[t]raumatic arthritis, right ankle, status post fracture and ORIF.”2 (Tr. 291.)
Dr. Reilly recommended the following treatment:
[C]ontinue conservative care with Motrin 800, a sleeve for some support, weight
control and some heat. Dr. Pollack had [alluded] in the past that he did not feel that
hardware removal would eliminate all her pain but clearly it has the potential for
some relief particularly over the lateral incision which is superficial. I did point out
to [Plaintiff] that the potential does exist . . . that the traumatic arthritic symptoms
1
The only document in the record that appears to have been generated by the medical
practice where Plaintiff was treated by Dr. Pollack is a letter, dated July 29, 1997, from Dr. Pollack
to a private law firm. (Tr. 274-75 (bearing the letterhead of “Staten Island Orthopaedic Associates,
P.C.”).)
2
“ORIF” refers to “open reduction internal fixation,” which is a surgical procedure that
consists of “reduction by manipulation of bone, after surgical exposure of the site of the fracture,”
and the “stabilization of fractured bony parts by direct fixation to one another with surgical wires,
screws, pins, rods, or plates.” Stedmans Medical Dictionary 33700, 633240, 766290.
7
would persist. Options down the road also might be to consider cortisone injection
or more rigid brace. Ultimately, if [t]he symptoms were to deteriorate her level of
function and quality of life, arthrodesis[3] would as well may need to be considered.
(Tr. 291.)
In connection with Plaintiff’s initial application for DIB, Dr. Reilly completed an RFC
assessment dated October 2, 2006. (Tr. 263-70.) Dr. Reilly opined in the assessment that Plaintiff
can occasionally lift 10 pounds, frequently lift less than 10 pounds, stand and/or walk with normal
breaks for less than two hours in an eight-hour workday, and sit with normal breaks for less than
about six hours in an eight-hour workday. (Tr. 264.) Dr. Reilly also opined that Plaintiff can never
engage in climbing, balancing, stooping, kneeling, crouching, or crawling due to her “severe
traumatic arthritis [in her] right ankle.” (Tr. 265.) Dr. Reilly also opined that Plaintiff did not
have any visual limitations and did not have any limitations in reaching, handling, fingering, or
feeling. (Tr. 266.)
Plaintiff continued to visit Dr. Reilly from May 2006 through July 2014, at first in one- or
two-month intervals, and later in six-month or longer intervals. (Tr. 291-314.) Dr. Reilly’s notes
from that time period are consistent in diagnosing Plaintiff with “traumatic arthritis,” observing
restricted motion and antalgic gait,4 and opining that Plaintiff is currently “disabled and unable to
work.” (Tr. 291-314.) Throughout this time, Plaintiff continued to regularly take 800mg ibuprofen
for pain, and Dr. Reilly did not recommend any other treatment, other than noting in June 2008
that Plaintiff “may likely require an ankle arthrodesis (fusion) in the future.” (Tr. 301.)5
3
Arthrodesis is “the stiffening of a joint by operative means.”
Dictionary 75830.
Stedmans Medical
4
Antalgic gait is “a characteristic gait resulting from pain on weight-bearing in which the
stance phase of gait is shortened on the affected side.” Stedmans Medical Dictionary 359070.
5
On October 19, 2008, Dr. Reilly opined that it was his “medical opinion, with a reasonable
degree of certainty, that any procedure to remove [Plaintiff’s] [metal plate] will not with any
8
In addition to Dr. Reilly’s treatment notes, the record also contains several letters from
Dr. Reilly to Plaintiff’s attorneys concerning Plaintiff’s medical limitations (Tr. 301-02, 311,
325-26), two of which bear mention here. By letter dated May 14, 2012, Dr. Reilly opined as
follows:
Based on the history available and her examination in 2006 with symptomatology,
range of motion restrictions and x-ray evidence of traumatic arthritis, it remains my
opinion that her condition was disabling prior to December 31, 1999[,] and in fact
believe that she was functionally limited subsequent to the fracture fixation to and
through the current time frame today with no intervals during which she was not
disabled.
(Tr. 311.) By letter dated January 19, 2015, Dr. Reilly opined as follows:
[During Plaintiff’s first visit on May 6, 2006,] I was able to and did review
numerous medical records including the operative report from Dr. Pollack for her
ankle surgery in 1994, IME reports and various office records through the period
of time that Dr. Stephen Pollack cared for her. I concluded that the type of injury
and surgery performed along with the natural history of this injury leads to the
traumatic arthritis developing. The nature of her post-operative management
indeed would be minimal, basically just oral anti-inflammatories and bracing since
physical therapy at that time would not be indicated and certainly, until the patient
wished an alternative surgery (ankle arthrodesis), there was no other more minimal
surgical interventions to consider. . . . [I]f and when the symptoms in her view
deteriorate adequately an ankle arthrodesis would be an appropriate Orthopaedic
treatment. Accordingly, it remains my opinion that to a reasonable degree of
medical certainty that Ms. Astuto reached Listed Impairment 1.02A before
December 31, 1999.
If there is anything further, please do not hesitate to contact me.
(Tr. 325-26.)
The administrative record does not contain any subpoenas for medical records. The record
also does not contain any interrogatories or other correspondence from the ALJ to Dr. Reilly to
significant expectation relieve her symptoms since they are not related to the hardware present in
the ankle but to the traumatic arthritis . . . .” (Tr. 302.)
9
follow up on Dr. Reilly’s medical notes and opinions or to seek additional information from him.
The record also does not contain any other evidence that the ALJ took steps to obtain information
from Dr. Reilly or any other medical expert in adjudicating Plaintiff’s claims after this Court
remanded the case for further proceedings in May 2011.
V.
THE ALJ’S DECISION
The ALJ’s October 23, 2014 decision followed the five-step evaluation process established
by the SSA to determine whether an individual is disabled. (Tr. 18-25.) At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity between her alleged onset date
(December 2, 1998) through her date last insured (December 31, 1999). (Tr. 21.) At step two, the
ALJ determined that Plaintiff suffered from traumatic arthritis of her right ankle, which qualified
as a severe impairment. (Tr. 21.)
At step three, the ALJ determined that Plaintiff’s impairment did not meet or medically
equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 21.) In
reaching this determination, the ALJ considered Listings 1.02 (“Major dysfunction of joint(s)”)
and 1.03 (“[I]nability to ambulate effectively”), and specifically found that Plaintiff’s impairment
did not meet either of those listings because “there is no evidence that the claimant had major
dysfunction of the right ankle joint during the relevant time period, nor had she lost the ability to
ambulate effectively.” (Tr. 21.) As support for this determination, the ALJ noted that “[a]n
examination conducted by All-State Insurance Company in 1995 revealed that the claimant did
not use any assistive devices or aids for ambulation,” that “an examination with Dr. [Stephen]
Pollack in July 1997 noted a loss of approximately 5 degrees of dorsiflexion, but did not note any
use of an assistive device or ambulation deficits,” and that “[t]he record then shows a gap in
10
treatment until May 2006 when the claimant began treatment with Dr. Reilly, who noted in his
initial examination of the claimant that she ambulated with a limp, but independently.” (Tr. 21.)
Having determined that Plaintiff’s impairment did not meet or medically equal any of the
impairments in the Listings, the ALJ determined Plaintiff’s RFC, finding that Plaintiff was able to
perform sedentary work with certain exceptions. (Tr. 21.) Specifically, the ALJ articulated the
following RFC:
[T]he undersigned finds that, through the date last insured, the claimant had the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) except she must be given the option to alternate between sitting and
standing every 30 minutes. Additionally, she can occasionally climb ramps and
stairs, but can never climb ladders, ropes or scaffolds. She can occasionally
balance, stoop, kneel, and crouch, but never crawl. She can perform jobs that do
not involve exposure to temperature extremes or hazards such as unprotected
heights or dangerous machinery. She can perform jobs that do not involve the
operation of foot controls or foot pedals [and] that allow her to elevate the right
lower extremity while in a seated position to below the knee level and around the
ankle level.
(Tr. 21-22.)
The ALJ acknowledged that his determination of Plaintiff’s RFC did not accord with
Plaintiff’s own description of the intensity, persistence, and limiting effects of her traumatic
arthritis. (Tr. 21.) The ALJ explained that “claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms during the relevant time period are not entirely
credible.” (Tr. 22.) The ALJ gave the following reasons for discounting Plaintiff’s description of
the disabling effects of her traumatic arthritis. First, the ALJ found that “the medical records show
no treatment whatsoever during [the] approximately one-year period” of December 2, 1998
through December 31, 1999. (Tr. 22.) Second, the ALJ noted that Dr. Pollack’s post-operative
notes indicated that Plaintiff had healed well from the operation and had only “mild” pain as of
July 1997. (Tr. 22.) Third, the ALJ emphasized again that “[a]fter the [July] 1997 examination
11
with Dr. Pollack, the record shows no further treatment until May 2006, when the claimant began
treatment with Dr. John Reilly.” (Tr. 23.) Fourth, the ALJ observed that when Plaintiff visited
Dr. Reilly in 2006, Dr. Reilly noted that Plaintiff ambulated independently, and recommended
“conservative management including Motrin, a sleeve for some support, weight control, and heat.”
(Tr. 23.)
In the course of determining Plaintiff’s RFC, the ALJ also criticized and gave “little
weight” to the medical opinions of Dr. Reilly. (Tr. 24.) The ALJ discounted Dr. Reilly’s opinions
for largely the same reasons he discounted Plaintiff’s own statements of the limiting effects of her
impairment. First, the ALJ afforded less weight to Dr. Reilly’s opinions because they were based
in part on Plaintiff’s own description of her symptomology, which the ALJ had already discounted
for the reasons stated above. (Tr. 24.) The ALJ then reiterated those very same reasons,
emphasizing that Dr. Reilly’s opinion is “entirely inconsistent with the total lack of any treatment
whatsoever from July 1997 until May 2006,” and that, “if Dr. Reilly truly believes the claimant’s
condition is as painful and debilitating as alleged, it raises the question why he has treated her so
minimally—essentially doing nothing other than prescribing a sleeve and Ibuprofen.” (Tr. 24.)
Finally, the ALJ opined that “it defies common sense that Dr. Reilly could tell with a reasonable
degree of certainty—based upon an examination from 2006—that the claimant had been totally
disabled since December 1999, almost 9 years before he ever met her.” (Tr. 24.)
After determining Plaintiff’s RFC, the ALJ asked a vocational expert to opine on whether
someone with Plaintiff’s limitations would be able to perform her past relevant work as a
receptionist. (Tr. 24.) Based on the vocational expert’s testimony, the ALJ concluded that Plaintiff
was capable of performing past relevant work as a receptionist. (Tr. 24-25.) On that basis, the
12
ALJ concluded that Plaintiff was not disabled from the alleged onset date (December 2, 1998)
through her date last insured (December 31, 1999). (Tr. 25.)
DISCUSSION
Plaintiff challenges the ALJ’s denial of benefits on two grounds. First, Plaintiff argues that
the ALJ erred in determining, at step three of his analysis, that Plaintiff’s impairment did not meet
or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Pl.’s Br., Dkt. 11, at ECF6 7-12.) Second, Plaintiff argues that the ALJ erred by failing to afford
proper weight to Dr. Reilly’s retrospective medical opinion that Plaintiff was completely disabled
during the relevant period. (Id.) In addition, as part of its “plenary review of the record,” Pratts
v. Chater 94 F.3d 34, 37 (2d Cir. 1996), the Court has considered, inter alia, whether the ALJ
erred in discounting Plaintiff’s statements concerning the intensity and limitations of her
symptoms on the ground that they were “not entirely credible.” (Tr. 23-24.) For the reasons stated
below, the Court finds that the ALJ erred in discounting Plaintiff’s statements concerning the
intensity and limitations of her symptoms without further developing the record. Furthermore, the
Court finds that the ALJ’s errors in this regard are grounds for remand to further develop the record
and issue a new decision, as explained more fully herein.7
As summarized above, the ALJ’s determination that Plaintiff was not disabled during the
relevant period was predicated on his finding that Plaintiff’s statements concerning the pain and
6
“ECF” refers to the pagination generated by the Court’s CM/ECF system, and not the
document’s internal pagination.
7
Because the Court reverses and remands on this ground, the Court need not address the
ALJ’s decision to afford “little weight” to Dr. Reilly’s medical opinion or the ALJ’s determination
that Plaintiff’s limitation did not meet or medically equal any of the impairments in the Listings.
On remand, the ALJ should reconsider those determinations de novo in light of the holdings made
in this Order.
13
limitations caused by her ankle were “not entirely credible.” (Tr. 22-23.)8
The ALJ discounted
Plaintiff’s statements on the purported grounds that (i) Plaintiff sought “no treatment whatsoever
during [the] approximately one-year period of December 2, 1998 through December 31, 1999”;
(ii) Dr. Pollack’s post-operative notes indicated that Plaintiff had only “mild” pain as of July 1997;
(iii) “[a]fter the 1997 examination with Dr. Pollack, the record shows no further treatment until
May 2006, when the claimant began treatment with Dr. John Reilly”; and (iv) Plaintiff’s treatment
has consisted of “conservative management including Motrin, a sleeve for some support, weight
control, and heat.” See supra.
The Court finds no error in the ALJ’s consideration of Dr. Pollack’s July 1997 treatment
notes, which reported that Plaintiff was in “mild pain,” as part of his overall evaluation of
Plaintiff’s pain statements. See S.S.R. 16-3P, 2016 WL 1119029, at *6 (Mar. 16, 2016) (in
evaluating claimant’s statements concerning intensity and limitations, ALJ may consider
“statements about symptoms [made] directly to medical sources”).
Similarly, the Court
acknowledges that the ALJ was permitted to consider Plaintiff’s treatment regime, i.e., ibuprofen
and a sleeve, as one factor in evaluating her pain statements. See Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008).
However, the Court finds that the ALJ committed error in discounting Plaintiff’s pain
statements based on his finding of “no treatment whatsoever” from July 1997 through May 2006.
Although there is a gap in Plaintiff’s medical records for the time period of July 1997 through May
2006, there is no affirmative evidence in the record—whether in the form of direct testimony or a
8
Although the ALJ’s decision does not explicitly say so, the context makes clear that the
“statements” to which the ALJ was referring were Plaintiff’s statements that the pain she
experienced in her ankle as a result of swelling, commuting, and sitting for too many hours “was
just to much for [her].” See supra (citing Tr. 355).
14
factual finding based on circumstantial evidence—that Plaintiff received “no treatment
whatsoever” during this timeframe. Indeed, Plaintiff notified the ALJ that she had continued to
receive treatment from Dr. Pollack during that timeframe, but that the corresponding medical
records had been destroyed. (Tr. 330-31.) Given this assertion by Plaintiff, the ALJ was not free
to conclude, as he did, that Plaintiff had sought “no treatment whatsoever” during this timeframe.
(Tr. 22.) Rather, as part of his duty to develop the record, the ALJ should have sought additional
records—either from Plaintiff, Plaintiff’s attorney, or Dr. Pollack’s offices—to determine whether
Plaintiff had in fact seen Dr. Pollack during the relevant timeframe and, if so, what records of that
treatment were available. See Burgess, 537 F.3d at 131 (holding that, where “the ALJ should have
been aware of [the] existence” of a relevant record that had not been included in the administrative
record, “the ALJ, given his duty to develop the record, should have requested the [record] be
supplied, rather than simply stating in his decision that ‘there was no [such record]’”).9
Furthermore, the Court finds that the ALJ’s failure to adequately develop the record as to
Plaintiff’s visits to Dr. Pollack from July 1997 through May 2006 is grounds for remand. As noted
above, the ALJ gave two reasons to discount Plaintiff’s pain statements other than Plaintiff’s
supposed gap in treatment—namely, Dr. Pollack’s report that Plaintiff had “mild pain” in July
1997, and the ostensibly “conservative treatment regime” that Plaintiff has undertaken for her pain.
As to the first reason, the Court finds that Dr. Pollack’s note of “mild pain” in July 1997 does not
contradict Plaintiff’s testimony that her pain intensified gradually the next year, culminating in the
need for Plaintiff to stop working due to the pain in December 1998. See supra (citing Tr. 355).
9
Indeed, the ALJ’s error here was particularly troubling—not only did he fail to take
reasonable steps to remedy a known gap in Plaintiff’s medical record, but he took the additional
step of drawing an adverse inference against Plaintiff, stating repeatedly that Plaintiff sought “no
treatment whatsoever” during the period of alleged disability. (Tr. 22-24.)
15
As to the second reason, the Court finds that the ALJ erred in characterizing Plaintiff’s treatment
regime as “conservative” without further developing the record and, if necessary, obtaining a
medical expert’s opinion as to what other treatment would have been given or prescribed to
Plaintiff if her pain levels were higher. Although the ALJ described Plaintiff’s treatment as
“minimal[]—essentially . . . nothing other than . . . a sleeve and Ibuprofen”—the ALJ did not
identify any other treatments that would have relieved Plaintiff’s pain, nor did he send
interrogatories to Dr. Reilly to obtain an explanation for Plaintiff’s conservative treatment regime.
The ALJ also did not retain a medical consultant qualified to opine on alternative treatments that
someone with Plaintiff’s physical impairment would normally have undertaken if they experienced
the pain levels that Plaintiff was claiming. (Tr. 18-25, 327-46.) Instead, the ALJ appears to have
relied on his own experience in concluding that a treatment regime consisting of “a sleeve and
Ibuprofen” was not consistent with Plaintiff’s claimed levels of pain. This approach not only
violates the basic rule that “[t]he ALJ is not permitted to substitute his own expertise or view of
the medical proof for the treating physician’s opinion,” Greek v. Colvin, 802 F.3d 370, 375 (2d
Cir. 2015), but it also ignores the record evidence that Plaintiff is allergic to at least one common
form of prescription pain reliever (see, e.g., Tr. 224 (noting that Plaintiff is allergic to Codeine)).
See also Burgess, 537 F.3d at 130 (holding that an ALJ cannot discount pain statements based on
a “conservative” treatment plan or the absence of “stronger pain medication” absent an
“overwhelmingly compelling type of critique that would permit the [ALJ] to overcome an
otherwise valid medical opinion”). Moreover, even if the ALJ were competent to determine
Plaintiff’s treatment regime as “conservative,” that determination alone would not be sufficient to
discount Plaintiff’s pain statements. See Burgess, 537 F.3d at 129 (“The fact that a patient takes
only over-the-counter medicine to alleviate her pain may . . . help to support the Commissioner’s
16
conclusion that the claimant is not disabled [only] if that fact is accompanied by other substantial
evidence in the record, such as the opinions of other examining physicians and a negative MRI.”).
In the final analysis, the Court finds that the ALJ erred in finding Plaintiff’s pain statements
“not entirely credible” without further developing the record. At a minimum, the ALJ should have
made reasonable efforts to determine whether Plaintiff had, in fact, as she claimed, visited Dr.
Pollack between July 1996 and May 2006, and, if so, the ALJ should have obtained any relevant
records of that treatment. In addition, before characterizing Plaintiff’s treatment regime as
“conservative” and discounting her pain statements on that basis, the ALJ should at least have
requested that Dr. Reilly explain why, in the nearly twenty years since Plaintiff’s alleged onset
date, Plaintiff had not received other modes of treatment or stronger pain medication. Once Dr.
Reilly responded to that request, the ALJ should have evaluated Dr. Reilly’s response as he would
any other medical opinion, including retaining, as necessary, an independent expert to evaluate Dr.
Reilly’s response.10 Accordingly, this action is remanded for further development of the record
and further proceedings consistent with this Order. See Kercado v. Astrue, No. 08 Civ. 478, 2008
WL 5093381, at *1 (S.D.N.Y. Dec. 3, 2008) (“It is well settled that the ALJ has an affirmative
duty to develop the record in a disability benefits case and that remand is appropriate where this
duty is not discharged.”); accord Lamorey v. Barnhart, 158 F. App’x 361, 362 (2d Cir. 2006)
(“Generally, when an ALJ fails adequately to develop the record, we remand for further
proceedings.”); S.S.R. 16-3P, 2016 WL 1119029, at *4 (Mar. 16, 2016) (“We will not evaluate an
individual’s symptoms without making every reasonable effort to obtain a complete medical
history unless the evidence supports a finding that the individual is disabled.” (footnote omitted)).
10
All of these errors also contributed to the ALJ’s unjustified rejection of Dr. Reilly’s
opinion regarding the longstanding nature of Plaintiff’s disabling condition. Thus, on remand, the
ALJ should, inter alia, re-evaluate Dr. Reilly’s medical opinions consistent with this Order.
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CONCLUSION
For the reasons set forth above, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion. The Commissioner’s decision is
remanded for further consideration consistent with this Order. The Clerk of Court is respectfully
requested to enter judgment and close this case.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: Brooklyn, New York
September 28, 2017
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