Littlejohn v. Colvin
ORDER granting 10 Motion for Judgment on the Pleadings; denying 14 Motion to Remand. The Clerk is directed to enter judgment, remanding plaintiffs claim only for a determination of benefits from November 17, 2011. Ordered by Judge Brian M. Cogan on 3/18/2017. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against CAROLYN W. COLVIN,
DECISION AND ORDER
COGAN, District Judge.
Plaintiff seeks judicial review of the determination of the Commissioner of Social
Security, following a hearing before an Administrative Law Judge (“ALJ”), awarding her partial
disability benefits. The ALJ found that plaintiff was not disabled as of her alleged onset date –
November 17, 2011 (the “early period”) – as she had sufficient residual functional capacity to do
sedentary work with significant limitations. However, the ALJ found that she became disabled
as of October 8, 2013 (the “later period”), which was still within her insured period.
Plaintiff was a New York City Corrections Officer who broke her ankle very badly,
specifically, a fracture on each side of the ankle, in a slip and fall accident at work on September
14, 2010. Her ankle was set and two weeks later, she underwent surgery to install ten screws and
a metal plate to stabilize the ankle. She was in a wheelchair for about three months after the
surgery and was then on crutches until June 2011. She has used a cane since that time. At the
time of her hearing before the ALJ (September 2, 2014), she was anticipating another surgery to
remove the hardware.
Both sides agree that the case should be remanded. Plaintiff contends that the case
should be remanded only for a calculation of benefits as to the early period because there is no
substantial evidence that could support a finding that she was not disabled as of November 17,
2011. Alternatively, plaintiff contends that the case should be remanded for a re-evaluation of
the evidence as to the early period. Of course, in either case, plaintiff wants the remand confined
to the early period, and to leave the finding of disability as to the later period undisturbed.
The Commissioner’s position is that the case should be remanded as to both the early and
the later period. The Commissioner contends that the ALJ erred as to the determination of nondisability for the early period; however, the only error that the Commissioner alleges is the
[T]he ALJ did not properly assess testimony regarding the limiting effects of
[plaintiff’s] symptoms. Plaintiff testified that due to chronic ankle pain, she had
to change position every ten minutes (i.e., could neither sit nor stand for more
than ten minutes at a time). Plaintiff also stated that she walked with a cane.
Notably, the record reflects that a cane had been prescribed. Yet, in determining
Plaintiff’s RFC, the ALJ does not discuss these limitations or the need for a cane.
As to the later period, the Commissioner contends that the ALJ’s finding of disability
also needs to be remanded because the ALJ erroneously based his finding on a diagnosis of
peripheral neuropathy made on February 24, 2014. That diagnosis, the Commissioner urges,
merely provided the objective basis for plaintiff’s complaint of numbness and tingling in her
toes, a complaint that plaintiff had made as far back as December 2010, and it continued
unabated thereafter. Therefore, the Commissioner argues, the ALJ could not have found that
petitioner’s condition “worsened” as of October 2013, which the Commissioner claims was
necessary to find her disabled.
I think the Commissioner has it backwards. If the ALJ had found that plaintiff was
disabled for both the early and later periods, no one could criticize that finding, as there is plenty
of evidence that would support it. The Commissioner does not dispute that plaintiff had
peripheral neuropathy and tarsal tunnel syndrome in February 2014, as was proven by an EMG
and found by her treating physician. That testing and diagnosis is clearly sufficient to support
plaintiff’s description of her symptoms, and all the medical evidence favorable to her prior to
that date, which in turn would be more than adequate to support a finding of disability.
Of course, the diagnosis of peripheral neuropathy with tarsal tunnel syndrome did not
spring like Athena from Zeus’ head. These are progressive conditions, and if she had them in
February 2014, she had at least aspects of its symptomology for some time prior. The ALJ
somewhat arbitrarily picked four months prior because that was when plaintiff started treatment
with the orthopedist who arrived at the diagnosis on the basis of the EMG, but the ALJ
discounted that orthopedist’s opinion that her impairment left too little functional capacity to
work as far back as her alleged onset date. Thus, the real question is, with a clear disability date
of February 2014, how far back does the disability go?
I do not see the Commissioner’s allegations of errors committed by the ALJ as material.
First, the use of a cane has little or no bearing on how long plaintiff can sit – which is the issue
here – and thus remanding the case so that the ALJ could specifically comment on her use of a
cane would serve no purpose. Moreover, the ALJ was clearly aware of her need for assistance in
ambulation as he noted that plaintiff “used a cane, which had been prescribed by her orthopedist
in 2011.” I therefore cannot see remanding the case as to the early period for that.
Second, I see no need to remand the case as to the earlier period so that the ALJ can
make a specific reference to plaintiff’s testimony that she has to change position every ten
minutes, as the Commissioner argues. It must be noted that in making an adverse credibility
finding as to plaintiff, the ALJ not only included the boilerplate language (“the undersigned finds
that the claimant’s medically determinable impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible prior to October 8, 2013 …”),
but he offered a specific example of why he was making this finding.
That is not to say that I think the basis for the ALJ’s adverse credibility determination
was adequate. The specific example he gave to justify the finding was that Dr. Howard Baum,
an orthopedic consultant of plaintiff’s choosing (not a state orthopedic consultant), had found in
2012 that although plaintiff’s loss of motion in the ankle and her toe numbness were permanent,
and she could not resume her position as a Corrections Officer, she could do light duty for her
employer if she was sitting. However, Dr. Baum did not opine on how long she could sit, and he
was also clear that he wanted plaintiff to have additional surgery. In addition, as Dr. Baum
noted, plaintiff told Dr. Baum that she needed the money and wanted to try to return to work in
any capacity. Read in its totality, Dr. Baum’s report is merely stating that she could try. I thus
see nothing in Dr. Baum’s report that would support the ALJ’s finding that plaintiff was not
sufficiently credible as to the early period, but was sufficiently credible as to the later period.
Putting aside plaintiff’s credibility, the important point is that the Commissioner is
seizing on alleged “errors” committed by the ALJ even though, in other cases, the Commissioner
takes the position that similar omissions by the ALJ do not warrant remand. See, e.g., Avera v.
Colvin, No. 15-cv-1253, 2017 WL 473842 (E.D.N.Y. Feb. 3, 2017) (Commissioner opposed
remand even though “the ALJ gave no precise reason for disregarding . . . [the plaintiff’s]
medical need for a cane”); Koch v. Comm’r of Soc. Sec., 14-CV-4755, 2016 WL 1273238
(E.D.N.Y. March 30, 2016) (Commissioner opposed remand where the ALJ omitted from her
credibility analysis certain activities that the plaintiff stated she couldn’t do, but accounted for
activities the plaintiff stated she could do); Kennedy v. Astrue, 09-CV-00143, 2010 WL 3338620
(N.D.N.Y. June 14, 2010) (Commissioner opposed remand where, in assessing the plaintiff’s
credibility, the ALJ failed to mention a majority of the plaintiff’s testimony regarding her
significant difficulty in performing daily activities). This leads me to conclude that the
Commissioner has searched the record for some arguable error as to the early period solely for
the purpose of justifying remand as to the later period. In effect, the Commissioner is seeking
reversal of the favorable decision of the ALJ and the Appeals Council.
The Commissioner’s stand-alone argument as to the later period is similarly
unpersuasive. There is no requirement in the regulations that an ALJ find a “worsening” of a
condition to select a later onset date than the one claimant asserts. Such a worsening can be one
justification for picking a particular date, but it would be equally plausible, in a hypothetical
case, for an ALJ to find insufficient evidence of disability before a certain date, and to still find
disability based on the addition of later-generated evidence that reflects a later date. See
Trombetta v. Chater, No. 95 Civ. 3216, 1997 WL 4573 (S.D.N.Y. Jan. 7, 1997) (affirming the
ALJ’s finding that the plaintiff was disabled as of 1992, but was not disabled prior to that date,
because there was no substantial evidence that the plaintiff’s symptoms began prior to 1992).
In fact, although the Commissioner tries to minimize the additional evidence by referring
to it as a mere diagnosis, the doctor who made the diagnosis of peripheral neuropathy and tarsal
tunnel syndrome during the later period, Dr. Timur Hanan, rendered a detailed medical source
statement after performing nerve conduction studies, which, together, constitute perhaps the
strongest evidence of disability in the record. And as the ALJ noted, the evaluation of Dr. Chaim
Shtock, made at the behest of the Commissioner, strongly suggested that plaintiff was disabled
during the later period.
Based upon this evidence, and all of the other evidence in the record from both periods, I
have no difficulty upholding the ALJ’s determination that plaintiff was disabled as of the
commencement of the later period. There was more than substantial evidence to support it and
the Commissioner does not have the right to seek review of a favorable determination. The case
will therefore be remanded only for consideration of the early period.
The remaining question is whether the remand that both parties request should be for an
award of benefits-only, or a re-evaluation of the record. The standard, in effect, is whether the
record is so one sided that an ALJ’s finding of non-disability could not be upheld as based upon
substantial evidence. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998).
This is a fairly close question, but on balance, the limited evidence that the Commissioner
cites for a re-evaluation as opposed to a benefits-only remand is mostly unpersuasive. First, the
Commissioner cites the fact that on January 10, 2012, plaintiff told Dr. Mark Eberle that she
needed money and wanted to return, in some capacity, to the Corrections Department, even
though she knew that she could not resume her guard duties. It seems to me that this cuts in
favor of a finding of disability, not against it, as plaintiff had a well-established, uninterrupted
work record in more than one job. See, e.g., Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.
1983) (“A claimant with a good work record is entitled to substantial credibility when claiming
an inability to work because of a disability.”); Bradley v. Colvin, 110 F. Supp. 3d 429, 447
(E.D.N.Y. 2015) (same). It is disingenuous to argue that the desire to return to work can be held
against a claimant with a good work record who seeks disability benefits. Desire to work does
not equal ability to work, and a lack of sloth in the context of a disability application should
usually result in commendation, not condemnation.
It would be one thing if plaintiff said she could perform a sedentary job because she
regularly sits comfortably for six hours a day, but plaintiff has said the opposite of that to every
physician who asked the question. Plaintiff is not an expert who could have assessed whether
she had sufficient functional capacity to perform sedentary work as would be required to work
for the Corrections Department. She may simply have been overly optimistic about her ability to
work in light of her desire to work. The fact that she went back and tried to work, and then had
to stop after a few months, according to her, because of her impairment, tends to suggest that she
was not exaggerating her symptoms.
For the same reason, the Commissioner’s reliance on Dr. Baum’s statement that she
could do “light duty” – an evaluation which, in any event, the ALJ gave only “little weight”
because it “was a one-time evaluation rendered within the purview of the Worker’s
Compensation law” – has little probative value. The report clearly reads as validating plaintiff’s
desire to try to return to work. The most that can be said of the report is that it was not entirely
clear to Dr. Baum that plaintiff could not do a sedentary job, and thus he wasn’t going to
preclude her from trying.
The Commissioner also cites a report by Dr. Paul Ackerman from December 12, 2011, a
couple of months after plaintiff unsuccessfully attempted to return to work and fifteen months
after her surgery, that plaintiff walked without a limp. It does, at least, raise some question as to
whether plaintiff was disabled on that date, but I frankly do not understand Dr. Ackerman’s
observation. He says that despite having ten screws and a metal plate holding her ankle together
after shattering it fifteen months earlier, plaintiff had no limp. I do not see how that is possible,
but I recognize I am not a doctor. I can only note that Dr. Ackerman had referred plaintiff for xrays less than two months earlier, and the radiologist found bone spurs, degeneration of the ankle
bones, swelling, and loss of the arch in the foot. It seems improbable to me that plaintiff, who, in
October 2012, had one flat foot and a host of other ankle problems, didn’t have any limp two
months later in December 2012. And, in fact, the findings of plaintiff’s treating physician, Dr.
Mark Eberle, contradict those of Dr. Ackerman. Only six days prior to Dr. Ackerman’s
observation of “no limp,” Dr. Eberle observed that plaintiff did have a limp, which he continued
to note existed for months after that. Dr. Ackerman’s observation clearly occupies an isolated
place in this record.
The only other evidence that the Commissioner cites in support of a re-evaluation remand
is that of Dr. Shtock. Ironically, the Commissioner here argues that Dr. Shtock’s opinion shows
non-disability, but the ALJ placed “significant weight” on Dr. Shtock’s opinion as showing
disability during the later period – although Dr. Shtock himself placed no temporal limitation on
his evaluation. As the Commissioner notes in his brief, there is a material inconsistency in Dr.
Shtock’s evaluation. In his narrative, Dr. Shtock stated that he found that plaintiff had moderateto-marked limitations on frequent stair climbing and standing for long periods, moderate
limitations on heavy lifting and squatting, and mild limitations on crouching, but that plaintiff
had no limitation on sitting for long periods. Yet in his Medical Source Statement, Dr. Shtock
indicates that plaintiff could only stay seated for 45 minutes at a time, and could not sit more
than four hours in an eight-hour workday. It seems to me that this inconsistency renders his
opinion of no value as to the early period.
In determining whether to remand for a re-evaluation or a benefits-only calculation, I also
note that the ALJ placed “significant weight” on the conclusions of a State Agency Medical
consultant, Dr. Murari Bijpuria, even though all Dr. Bijpuria did was review records. The
Commissioner, however, does not offer Dr. Bijpuria’s views as a reason to remand for a re-
evaluation. The ALJ credited Dr. Bijpuria’s findings, in part, because of the “specificity of her
explanations.” In fact, they were not very specific; his (or her) 1 opinions were mainly
conclusory. Dr. Bijpuria filled out a Residual Functional Capacity Assessment form, which is a
simple checkbox form, but he left blank most of the questions that called for a narrative
expansion on the checked answer.
The ALJ also credited Dr. Bijpuria because of his “specialty,” but he is only a general
surgeon, not an orthopedist, rheumatologist, or physical medicine specialist like plaintiff’s
treating physicians. Perhaps the reason that the Commissioner does not rely on Dr. Bijpuria’s
opinion in this review proceeding is that there is a significant amount of case law holding that
not too much weight should be given to a consultant who has merely examined patient records
and not even met, let alone examined, the patient. See, e.g., Vargas v. Sullivan, 898 F.2d 293,
295-96 (2d Cir. 1990) (“The general rule is that the written reports of medical advisors who have
not personally examined the claimant deserve little weight . . . .”) (internal quotation marks
omitted); Savage v. Colvin, No. 15-CV-5774, 2017 WL 776088, at * 10 (E.D.N.Y. Feb. 28,
2017) (“[T]he opinions of consultative and non-examining physicians are entitled to
comparatively little weight.”).
That brings us, then, to plaintiff’s main point, which is that the ALJ improperly
discounted plaintiff’s treating physicians. The ALJ’s decision was clearly imbalanced in this
regard. In finding non-disability, he relied primarily on Dr. Shtock, who examined her once, and
Dr. Bijpuria, who didn’t examine her at all. The ALJ gave “little weight” to Dr. Hanan,
purportedly because he had only treated plaintiff four times between October 8, 2013, and
February 24, 2014.
I think “Murari” is generally a male name but perhaps the ALJ knew better.
First, four times is four times as many as the one time that Dr. Shtock saw her, and four
times more than Dr. Bijpuria, who didn’t even meet her. Secondly, the ALJ was wrong.
Plaintiff had been receiving treatment from Dr. Hanan at least as early as June 11, 2012. In fact,
he has as long a treatment relationship with her as anybody else. If the ALJ was going to use the
commencement of treatment with Dr. Hanan as the onset date – which he did, although
mistaking it as October 8, 2013 – then the onset date should have been at least June 11, 2012.
The ALJ gave even shorter, or more erroneous, shrift to plaintiff’s other treating
physicians. The treating physicians who had the longest combined treating relationship with
plaintiff were Dr. Leo Batash and his partners, Dr. Maia Batash and Dr. Mark Eberle, of the
Continental Medical Group. They started treating her shortly after her surgery in 2010, and
continued until she transitioned to Dr. Hanan in June, 2012. The ALJ gave Dr. Leo Batash’s
opinion “little weight” because Dr. Leo Batash made a “one-time evaluation,” which was
rendered pursuant to the Worker’s Compensation law. The ALJ’s statement that Dr. Leo Batash
made a “one-time evaluation” was just flat out wrong; there are treatment notes showing that
plaintiff had at least three sessions with Dr. Leo Batash from shortly post-surgery through
January 13, 2011. From February 2011 to March 2011, plaintiff saw Dr. Maia Batash, who
reported that plaintiff’s ankle was still swollen and opined that plaintiff was 100% impaired. In
April 2011, plaintiff began to see Dr. Eberle, who treated plaintiff on many occasions and
generated significant treatment notes. The ALJ, however, made no reference to either Dr. Maia
Batash or Dr. Eberle.
These are not the only treating physicians that plaintiff had and the ALJ either ignored or
virtually ignored; there were several others. I am not going to recount their names and findings
except to note that the overwhelming thrust of their evaluations was entirely consistent with
plaintiff’s subjective complaints. To be sure, it is possible to cherry-pick isolated references out
of a few of them that arguably support a finding of non-disability, and to the extent the ALJ
referred to them, that is essentially what he did, but that is a practice which the case law
recognizes is contrary to objective analysis. See Aviles v. Comm’r of Soc. Sec., 15 Civ. 2992,
2016 WL 1642645, at *5 (E.D.N.Y. April 25, 2016); Anderson v. Astrue, No. 07-CV-4969, 2009
WL 2824584, at *10 (E.D.N.Y. Aug. 28, 2009); cf. Fiorello v. Heckler, 725 F.2d 174, 176 (2d
Cir. 1983) (“Although we do not require that, in rejecting a claim of disability, an ALJ must
reconcile explicitly every conflicting shred of medical testimony, we cannot accept an
unreasoned rejection of all the medical evidence in a claimant’s favor). Without exception,
plaintiff’s physicians were all specialists in physical medicine or rheumatology whose opinions
were entitled to far more consideration than the ALJ gave them. Their evaluations are
Resting a functional capacity determination upon the internally inconsistent report of one
medical consultant (Dr. Shtock); the opinion of a doctor who performed one records-only review
(Dr. Bijpuria); isolated snippets from some treating physicians; and a short gap period when
plaintiff tried and failed to resume work is simply insufficient. When Dr. Hanan received the
results of the EMG, which showed that plaintiff had a condition that was more than sufficient to
establish disability, that was the icing on the cake. Indeed, it confirmed what plaintiff had been
saying to her multiple treating physicians all along.
I see no way that this record could support a finding of non-disability. There is no
substantial evidence on which it could be based unless one were to ignore the abundant contrary
findings of several specialists who examined plaintiff most frequently and most in-depth. The
case is therefore remanded for the determination of benefits-only from the onset date of
November 17, 2011.
Plaintiff’s motion for judgment on the pleadings is granted. Defendant’s motion for
judgment on the pleadings is denied. The Clerk is directed to enter judgment, remanding
plaintiff’s claim only for a determination of benefits from November 17, 2011.
Digitally signed by Brian M.
Dated: Brooklyn, New York
March 18, 2017
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