Jones v. Colvin

Filing 25

MEMORANDUM and ORDER: Granting in part and denying in part motions 17 & 19 for Judgment on the Pleadings. The case is remanded for furtherproceedings consistent with this Memorandum and Order. Ordered by Judge Frederic Block on 8/30/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JILLIAN JONES,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 16-CV-6540 (FB)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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BLOCK, Senior District Judge:
Jillian Jones seeks review of the Commissioner of Social Security’s final
decision denying her application for Disability Insurance Benefits. Both parties
move for judgment on the pleadings. The Commissioner found that Jones did not
have severe back or wrist injuries and that she did not need a cane.

The

Commissioner’s finding with respect to Jones’s back injury and need for a cane was
not supported by substantial evidence because the Commissioner failed to
adequately explain why she discounted some physicians’ opinions, relied on
negative evidence, misapplied the treating physician rule, and failed to fully develop
the record. The finding respecting the severe wrist injury, however, was supported
by substantial evidence. Therefore, Jones’s motion is granted in part and denied in
part and the Commissioner’s motion is granted in part and denied in part. The case
is remanded for further proceedings consistent with this Memorandum and Order.
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I.
Jones was born in 1962, has a high school education, and graduated from a
nursing school. She worked as a Certified Nurse Assistant from June 1989 until
December 2011, when she injured herself while trying to help a patient. She applied
for benefits in December 2013, alleging an onset date of December 1, 2011. After
her application was denied, she sought and participated in a hearing before
Administrative Law Judge (“ALJ”) Michael Friedman, where she was represented
by counsel. The ALJ’s decision became the final decision of the Commissioner after
the Appeals Council denied Jones’s request for review. The evidence developed by
the ALJ was as follows.
A.

Treatments for Back Injury
Jones first injured herself a year and a half prior to her alleged onset date,

when she “slid and jerked her back” while helping a patient with a shower.
Administrative Record (“AR”) at 218. She presented to Dr. Jean Compas, a family
practitioner, and complained of “unbearable” pain in her back as well as pain and
swelling around her left knee. Id. When she injured herself again at work on
December 1, 2011, she finally stopped working. She continued seeing Dr. Compas
for her back pain and was diagnosed with lumbosacral radiculitis in August 2012.
A November 2012 MRI showed various lower back injuries, including disc
desiccation, diffuse bulging of disks, and protruded disc herniation.
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Jones also saw Dr. Dwiref Mehta, an orthopedic surgeon, shortly after her
December 2011 injury and through April 2013. He diagnosed her with lumbar
myofasciitis and, throughout his treatment, performed various tests on her knee
(discussed infra) as well as straight leg raise tests for her back, all of which yielded
positive results. In February, he completed a medical source statement in which he
opined that Jones could lift, carry, push, and pull up to 20 pounds, attaching MRIs
and range of motion charts to the statement.
In late 2012, Jones also saw doctors at Family Chiropractic, P.C. (“Family
Chiropractic”), whose examinations revealed a variety of lower back injuries, as
well.
In May 2013, Dr. Compas opined that Jones was incapable of sitting for more
than 30 minutes at a time or for more than one hour in an eight-hour workday, had
to change positions for 15 minutes every 30 minutes, and was incapable of
occasionally lifting more than 5–10 pounds or carrying more than two pounds.
These findings were based both on Jones back injury and her knee injury.
B.

Treatments for Knee Injury
Jones’s accidents also resulted in significant injuries to her left knee. Both

Dr. Mehta and Dr. Compas, as well as Family Chiropractic, treated her for her knee
injuries, but the doctor that most extensively cared for Jones’s knee was Dr. Joseph
Feliccia, another orthopedic surgeon. At their first appointment in July 2012, Dr.
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Feliccia diagnosed Jones with advanced patellofemoral arthritis, injected her for
pain, and prescribed a knee brace and pain medication, with a recommendation for
continued physical therapy. Dr. Feliccia kept seeing Jones throughout 2012 and
2013, eventually recommending surgery, which he finally performed in June 2014.
Jones continued seeing him throughout 2014 and through mid-2015 for
postoperative care. On several occasions, he noted that Jones was able to perform a
full straight leg raise test with full extension.1 At their last examination in April
2015, Dr. Feliccia characterized Jones’s condition as a “permanent partial functional
disability in her ability to traverse stairs and walk for long periods of time.” AR at
385.
C.

Treatment for Wrist Injury
Jones injured her wrist in early 2013 when she fell due to her knee buckling

in pain. She discussed it with Dr. Feliccia at their March 2013 appointment. X-rays
revealed no fracture, and Dr. Feliccia advised Jones that she sprained her wrist, and
gave her some pain medication.
D.

Consultative Examination
In February 2014, Jones underwent a consultative examination with Dr. Ted

Woods, a preventative medicine specialist engaged by the Commission.

He

1

In some of his pre-operation reports, Dr. Feliccia would occasionally mention
negative straight leg raise tests as well.
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described her “chief complaint” as pain in her left knee and also mentioned pain in
her left wrist. In his report, Dr. Woods did not mention a back injury at all, although
the notes from musculoskeletal examination note a full range of motion in the lumbar
spine, with a notation that Jones was “slow to execute.” AR at 324.
E.

Jones’s Testimony
Jones testified at a hearing before the ALJ on June 25, 2015. She lives with

her husband, her adult daughter, and her grandson. Her husband and daughter work
and do the household chores. When she accompanies her husband to buy groceries,
it is only to direct him what to buy, as she herself can only lift a bag of chips or a
loaf of bread. She testified that she has difficulty sitting for long periods of time and
mostly lies down. Her husband and daughter prepare food for her to eat for when
she is left alone.
She described to feeling significant pain in her back, knee, and wrist. She said
she was prescribed Oxycodone but is concerned about developing an addiction and
so mostly takes Motrin for the pain.
Jones arrived to the hearing with a cane. She explained that she was “given”
the cane by Drs. Compas and Feliccia after her surgery and that she uses it
substantially all the time, although sometimes not inside the house. She testified that
she can only walk a few blocks at a time (with the cane) before she starts feeling that
her knees are about to buckle.
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F.

Vocational Expert Testimony
A vocational expert (“VE”) testified at the hearing as well. The VE did not

identify any particular jobs, but only confirmed to the ALJ that the work of a
Certified Nursing Assistant is classified at the medium exertional level..
G.

ALJ’s Decision
The ALJ rendered his decision on July 24, 2015. Applying the familiar five-

step sequential evaluation process,2 he concluded at step one that Jones has not
engaged in substantial gainful activity since the alleged onset date and has met the
Social Security Act’s insured status requirements through December 31, 2016. At
step two, the ALJ found that Jones has one severe impairment, which is the
derangement and degenerative joint disease of the left knee. He excluded Jones’s
alleged wrist or back injuries. At step three, the ALJ found that this impairment did
not meet the criteria for any presumptively disabling impairment in the Listing of
Impairments. At this step, the ALJ also found Jones’s claim to need a cane non                                                            
2

The Commissioner must determine “(1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of Impairments; (4)
based on a ‘residual functional capacity’ assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and (5) whether
there are significant numbers of jobs in the national economy that the claimant can
perform given the claimant’s residual functional capacity, age, education, and work
experience.” McIntyre v. Colvin, 748 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4)). The burden of proof is on the claimant in the first
four steps, but shifts to the Commissioner at the fifth step. Id.
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credible and noted that no treating sources indicated that a cane was medically
necessary.
The ALJ determined that Jones had the residual functional capacity (“RFC”)
to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b).3
Accordingly, at step four, he found that she could not perform her past work as a
Certified Nursing Assistant (which, as confirmed by the VE, is classified as medium
exertion work). At step five, taking into account the RFC and Jones’s age, education,
and work experience, he found that she is not disabled and that there are jobs that
exist in significant numbers in the national economy that she can perform.
II.
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial

3

20 C.F.R. § 404.1567(b) defines “light work” as follows:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or
leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to
do substantially all of these activities. If someone can do
light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long
periods of time. 
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evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.
2004). The Court will only set the Commissioner’s determination aside if it was
“based upon legal error or if the factual findings are not supported by substantial
evidence in the record as a whole.” Greek v. Colvin, 802 F.3d 370, 374–75 (2d Cir.
2015). Substantial evidence means “more than a mere scintilla,” Richardson v.
Perales, 402 U.S. 389, 401 (1971): it is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117,
127 (2d Cir. 2008) (quoting Perales, 402 U.S. at 401). “The court may not substitute
its own judgment for that of the [Commissioner], even if it might justifiably have
reached a different result upon de novo review.” Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
Jones challenges the Commissioner’s determination that she has the RFC to
perform the full range of light work. She primarily bases her argument on the ALJ’s
finding that her back and wrist injuries were not severe. She also contends that even
if those injuries were not severe, the ALJ did not properly account for their
cumulative contribution to her disability.4

Finally, she argues that the ALJ

improperly concluded that her use of a cane was not medically necessary.

4

See SSR 96-8p, 1996 WL 37184 (“While a ‘not severe’ impairment(s)
standing alone may not significantly limit an individual’s ability to do basic work
activities, it may—when considered with limitations or restrictions due to other
impairments—be critical to the outcome of a claim. For example, in combination
with limitations imposed by an individual’s other impairments, the limitations due
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A.

Was the Commissioner’s Decision with Respect to Jones’s Back Injury
Supported by Substantial Evidence?
1. The ALJ Did Not Satisfactorily Explain Why He Accorded More
Weight to Dr. Feliccia than to Dr. Mehta and Family Chiropractic.
The ALJ accorded “significant weight” to Dr. Feliccia’s opinion, which made

no reference to Jones’s back injury; the ALJ also noted that the consultative
examiner, Dr. Woods, was silent on it too. While he partially credited Dr. Mehta’s
opinion, it was only insofar as it was consistent with Dr. Feliccia’s opinion about the
knee injury. He did not mention Family Chiropractor at all.
The ALJ did not provide reasons for ignoring these doctors’ opinions. Jones
notes that though Dr. Feliccia is an orthopedic surgeon, she only saw him for her
knee injury, not her back injury. Meanwhile, Dr. Mehta assessed Jones’s back and
found her disabled. The ALJ made no mention of these findings and did not explain
why he accorded them no weight, even though they were based on objective medical
evidence, such as straight leg raise tests. And, again, the ALJ did not mention Family
Chiropractic at all, which also performed straight leg raise tests.5

to such a ‘not severe’ impairment may prevent an individual from performing past
relevant work or may narrow the range of other work that the individual may still be
able to do.”).
5
As mentioned previously, Dr. Feliccia also performed straight leg raise tests,
and unlike Dr. Mehta and Family Chiropractic, found negative results. The ALJ did
not refer to Dr. Feliccia’s straight leg raise tests, however. If he did take them into
account in deciding to weigh Dr. Feliccia’s opinions as to Jones’s back injury more
strongly than Dr. Mehta’s and Family Chiropractic’s opinions, he affords this Court
no opportunity to review the propriety of that decision.
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The Commissioner urges the Court to “glean the rationale of [the] ALJ’s
decision,” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983),6 but the Court
cannot do that when a doctor’s assessment has been entirely ignored, as Dr. Mehta’s
and Family Chiropractic’s were. See Murphy v. Sec’y of Health & Human Servs.,
872 F. Supp. 1153, 1158 (E.D.N.Y. 1994).
Because the ALJ did not adequately explain why he discounted these
opinions, the Court cannot find that he did so based on substantial evidence.
2. The ALJ Impermissibly Relied on Negative Evidence to Discount Dr.
Compas’s Opinion.
The ALJ also discounted Dr. Compas’s opinion in large part because the
doctor opined that Jones had a severe back injury even though Dr. Feliccia never
mentioned it. The ALJ’s reasoning appears to have been that since Dr. Feliccia never
mentioned the injury and was deemed highly credible, Dr. Compas must be deemed
non-credible. To the extent that the logic is not circular, it is legally dubious. See,
e.g., Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (silence from one

6

In the brief in support of her motion and responding to Jones’s motion, the
Commissioner actually cited to Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448
(2d Cir. 2012) for this language. Although that language does not appear in Brault,
the court there affirmed an opinion in which the ALJ implicitly rejected a “Daubertlike objection” to testimony from a VE. The court explained that it was permissible
for the ALJ not to directly respond to this argument because, by adopting the VE’s
opinion, the ruling made it clear to a reviewing court that the ALJ found the VE’s
testimony reliable. That context is a far cry from the instant case, where the doctor
ignored opinions based on objective evidence from a specialist for the very condition
the claimant was experiencing.
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doctor as to orthopedic impairments is not inconsistent with another doctor’s
diagnosis of impairments); Hawley v. Colvin, 13-CV-397, 2014 WL 3107967, at *3
(N.D.N.Y. July 8, 2014) (“Absent some evidence to the contrary, the only proper
inference to be made from such silence is that [the doctor] simply did not consider
that issue.”); Correale-Englehart v. Astrue, 687 F. Supp. 2d, 396, 436 (S.D.N.Y.
2010) (“[T]he ALJ cannot rely on evidentiary gaps when determining whether a
plaintiff has a RFC to perform certain work; he must instead support his
determination with positive evidence.”); Ray v. Astrue, 649 F. Supp. 2d 391, 405
(E.D. Pa. 2009) (“The mere absence of an assessment of limitations in the treatment
notes does not render these notes inconsistent with [another doctor’s] report.”).
In response, the Commissioner argues that Dr. Feliccia was treating Jones for
her back injury, relying on an entry in a Disability Report completed by Jones in
which she said, “This is my treating orthopedist who [sic] I see for my knee and back
pain.” AR at 155. This argument is not persuasive. Regardless of how Jones
characterized her treatment with Dr. Feliccia, the doctor’s reports make clear that
the focus of his treatment was almost entirely on Jones’s knee.
In short, the Commissioner improperly relied on Dr. Feliccia’s silence in
giving Dr. Compas’s opinion less weight.7

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The ALJ also noted that Dr. Compas suggested that Jones may have suffered
a fracture in her wrist, even though x-rays ordered by Dr. Felicia did not show a
fracture. Also, some of Dr. Compas’s notations were internally inconsistent: he
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3. The ALJ Failed to Apply the Treating Physician Rule.
The ALJ also all but ignored Dr. Compas’s and Dr. Mehta’s assessments of
Jones’s back injury—and entirely failed to even mention her treatment at Family
Chiropractic—while giving significant weight to the opinion of Dr. Woods, the nontreating consultative examiner. Under the well-known “treating physician rule,”
codified at 20 C.F.R. § 404.1527(c)(2), a treating physician’s opinion must be given
“controlling weight” when it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence” in the record. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
If an ALJ does not believe that a treating physician’s opinions are sufficiently
supported by facts, it is the ALJ’s affirmative duty to further inquire from the
physician. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (“[A]n ALJ cannot
reject a treating physician’s diagnosis without first attempting to fill any clear gaps
in the administrative record.”).
Additionally, when a treating physician’s weight is not accorded controlling
weight, § 404.1527(c) lists several factors that the ALJ must consider. Thus, the
ALJ is required to specify not only how much weight he accorded a treating
physician’s opinion, but how that decision was reached. See Halloran v. Barnhart,

noted that Jones can sit “30 minutes at a time” and stand and walk “15 minutes at a
time,” but also indicated she can do these activities “1–2 hours continuously.” These
inconsistencies are not sufficient to vitiate Dr. Compas’s entire opinion. 
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362 F.3d 28, 33 (2d Cir. 2004) (“We do not hesitate to remand when the
Commissioner has not provided ‘good reasons’ for the weight given to a treating
physicians opinion and we will continue remanding when we encounter opinions
from ALJs that do not comprehensively set forth reasons for the weight assigned to
a treating physician’s opinions.”). Although the ALJ did (arguably) discuss some of
these factors as to Dr. Compas, he did not do so as to Dr. Mehta or Family
Chiropractic.
Thus, the Court finds that the Commissioner’s decision was not supported by
substantial evidence.
B.

Was the Commissioner’s Decision with Respect to Jones’s Wrist Injury
Supported by Substantial Evidence?
In considering a claimant’s symptoms, including symptoms about pain, ALJs

follow a two-step process. First, the ALJ looks for a medically determinable
underlying impairment. Second, if one is found, the ALJ determines whether such
an impairment could reasonably be expected to produce the symptom. See SSR 967p, 1996 WL 374186; 20 C.F.R. § 404.1529.
No objective evidence was put in the record that would indicate severe,
ongoing wrist pain. Other than Jones’s testimony and complaints to the doctors that
examined her, no objective evidence, including x-rays or MRIs, indicated an
underlying impairment consistent with such symptoms.

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Thus, the ALJ was

essentially asked to perform a credibility determination as to Jones’s testimony.
That determination was supported by substantial evidence.
C.

Was the Commissioner’s Decision with Respect to Jones’s Need for a
Cane Supported by Substantial Evidence?
The ALJ failed to develop the record with respect to Jones’s need for a cane.

The record seemingly only contains two references to a cane. First, in a letter
describing a May 2013 evaluation, Dr. Feliccia noted in passing that Jones was using
a cane. AR at 295 (“She claims frequent sensations of her knee buckling and cannot
walk more than a few blocks with the external support of a cane.”). Second, at the
hearing, Jones testified that Drs. Compas and Feliccia “gave [her] a cane” after her
surgery. AR at 40. No prescription or notations from either doctor to that effect
appear in the record.
This paucity of evidence is precisely the kind of problem the regulations are
designed to address when they affirmatively require the Commissioner to consult
with claimants’ doctors to develop the record. See Shaw v. Chater, 221 F.3d 126,
131 (2d Cir. 2010) (“The ALJ has an obligation to develop the record in light of the
non-adversarial nature of the benefits proceedings, regardless of whether the
claimant is represented by counsel.”); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998) (discussing the ALJ’s duty to solicit additional information from doctors). No
prescription is required to purchase a cane. It is entirely possible that the use of a
cane was a medical necessity for Jones, but that the doctors told her so orally and
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she obtained one without a prescription. On the other hand, it is entirely possible
that Jones does not need a cane, or at least has not needed one for some time. If the
ALJ doubted Jones’s credibility due to the absence of medical evidence, he should
have consulted with her physicians. The ALJ was in no position to decide one way
or the other because, as noted, ALJs cannot rely on negative evidence to form a lay
opinion. Consequently, this Court cannot evaluate the record.
The matter of the cane was important. The ALJ found Jones’s RFC to be
consistent with an ability to exert a full range of light work. As noted supra, light
work requires individuals to “have the ability to do substantially all” of a range of
activities, including lifting and carrying objects. 20 C.F.R. § 404.1567(b). A
persistent need for a cane is not consistent with a full range of performance at a light
exertional level. Accord Feringa v. Comm’r of Soc. Sec., 15-CV-785, 2016 WL
5417403, at *7 (E.D.N.Y. Sept. 9, 2015) (remanding when ALJ did not take account
of need for cane use in finding a RFC for light work). Thus, the ALJ must further
develop the record to determine whether Jones needs a cane for ambulation—and if
so, how far she can actually walk with one.
III.
For the foregoing reasons, Jones’s motion for judgment on the pleadings is
granted in part and denied in part, the Commissioner’s motion for judgment on the

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pleadings is granted in part and denied in part, and the case is remanded for further
proceedings consistent with this Memorandum and Order.
SO ORDERED.

/S/ Frederic Block
______________________________
FREDERIC BLOCK
Senior United States District Judge

Brooklyn, New York
August 30, 2018

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