Gearon v. Berryhill

Filing 16

MEMORANDUM DECISION AND ORDER: For the reasons set forth, I remand for further development of the case. Ordered by Judge Ann M. Donnelly on 12/11/2018. (Greene, Donna)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

PATRICK GEARON,

Plaintiff,

MEMORANDUM DECISION
AND ORDER

-against-

17-cv-6675(AMD)

NANY A. BERRYHILL, Acting Commissioner
of Social Security

IN clerks office
US DISTRICT COURT E.D.N.Y.

Defendant.

^

1 ^ 2018 -k

^

BROOKLYN OFFICE
ANN M. DONNELLY,United States District Judge:

The plaintiff seeks review ofthe decision ofthe Commissioner of Social Security that he
was not disabled for purposes ofreceiving disability insurance benefits under Title II ofthe

Social Security Act. For the reasons set forth below,I remand the case for further proceedings.
On November 22,2013,the plaintiff applied for disability and disability insurance

benefits, alleging disability beginning on December 17,2012. His application was denied on
January 22,2014. On January 29,2014,the plaintiffrequested a hearing before an
Administrative Law Judge("ALJ"). ALJ Patrick Kilgannon conducted two hearings: July 14,
2015, when the plaintiff and a vocational expert testified, and July 12, 2016, when a medical

expert testified. (Tr. 38-79.) In a decision dated August 17, 2016, ALJ Kilgannon found that
although the 53-year old plaintiff had several severe impairments, he was not disabled because

his impairments did not equal the severity of one ofthe listed impairments in 20 CFR 404, and
because he still retained the residual function capacity("RFC")to perform "light work as defined
in 20 CFR 404.1567(b)," subject to certain limitations. (Tr. 23-24.) The Appeals Council
denied the plaintiffs request for review on September 26,2017, and the ALJ's decision became
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the final decision ofthe Commissioner. (Tr. 1-4.) The plaintiff commenced this action and
moved for summary judgment on the pleadings. (EOF Nos. 1,8.) The defendant made a cross-

motion forjudgment on the pleadings. (ECFNos. 13,14.)
DISCUSSION

A district court reviewing a final decision ofthe Commissioner 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). The court must uphold the Commissioner's factual findings if there is substantial
evidence in the record to support them. 42 U.S.C. § 405(g)."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." Richardson v. Perales,402 U.S. 389,401 (1971)(internal
citation omitted). "Although factual findings by the Commissioner are 'binding' when

'supported by substantial evidence,''[wjhere an error oflaw has been made that might have
affected the disposition ofthe case," the court will not defer to the ALJ's determination. Pollard
V. Halter, 377 F.3d 183, 188-89(2d Cir. 2004)(quoting Townley v. Heckler, 748 F.2d 109, 112

(2d Cir.1984)(internal citations omitted). Thus,"[e]ven ifthe Commissioner's decision is
supported by substantial evidence,legal error alone can be enough to overturn the ALJ's

decision." Ellington v. Astrue,641 F. Supp. 2d 322, 328(S.D.N.Y. 2009)

Johnson v.

Bowen,817 F.2d 983,985(2d Cir. 1987)).
The Listed Impairments

The plaintiff challenges the ALJ's decision that the plaintiffs severe impairments did not
meet or equal a listing under 20 C.F.R. § 404, Subpart P, Appendix 1. (ECF No. 8-1 at 16.) ALJ

Kilgannon found that the plaintiff had the following severe impairments: cervical and lumbar

disc disease, bilateral knee impairment, status-post right knee arthroscopic surgery, and hearing

loss. (Tr. 23.) However, ALJ Kilgannon decided that none ofthese impairments met the
severity of listings 1.02,1.04 and 2.10. (Tr. 24.) As I explain below, remand is necessary so that
the ALJ can reevaluate the evidence regarding the plaintiffs impairments.

After finding that a claimant has a medically determinable impairment that is "severe,"
the ALJ must determine whether the identified "impairment(s) meets or equals a listed
impairment in appendix 1." 20 C.F.R. § 404.1520(a). For all listings in Section 1 Musculoskeletal System impairments-"functional loss" is "the inability to ambulate effectively
on a sustained basis for any reason, including pain associated with the underlying
musculoskeletal impairment, or the inability to perform fine and gross movements effectively on
a sustained basis for any reason, including pain associated with the underlying musculoskeletal
impairment." 20 C.F.R. § 404, Subpart P, Appendix 1, Part 1, § 1.00(2). Pain may also be an
important factor contributing to functional loss. Id,

A court cannot determine whether an ALJ applied the law correctly or based his decision

on substantial evidence in the record ifthe ALJ does not explain why he reached a particular
decision. In those circumstances, the court has to remand the case. See Estrada ex rel. E.E. v.

Astrue, No.08-CV-3427,2010 WL 3924686, at *3(E.D.N.Y. Sept. 29,2010)(remand is
appropriate "[i]n circumstances ... where the ALJ has stated no findings or conclusions with

respect to a claim of disabling impairment, especially one to which the claimant arguably has
demonstrated the symptoms described"{quoting Aponte v. Secretary Dept. ofHealth and Human
Services, 728 F.2d 588,592-93(2d Cir.1984))); Jee also Pratts v. Chater,94 F.3d 34, 39(2d
Cir. 1996)("Remand is particularly appropriate where, as here, we are "unable to fathom the

ALJ's rationale in relation to the evidence in the record" without "further findings or clearer

explanation for the decision.")(internal citations omitted); fVong v. Astrue,2010 WL 1268059,
at *10(E.D.N.Y. Mar.31, 2010)(case remanded where ALJ provided insufficient "conclusory
conclusion" that plaintiff did not meet or equal a listing, but evidence suggested plaintiff met
listing criteria).

ALJ Kilgannon found that the plaintiffs knee impairment did not meet listing 1.02, but
did not explain how he reached that conclusion. (Tr. 24.) Listing 1.02 requires "gross
anatomical deformity... and chronic joint pain and stiffness vvdth signs of limitation of motion...
and findings on appropriate medically acceptable imaging ofjoint space narrowing, bony
destruction, or ankylosis ofthe affected joints." 20 C.F.R. § 404, Subpart P, Appendix 1, Part 1,
§ 1.02. The ALJ noted the multiple MRJs ofthe plaintiffs knees, and the plaintiffs complaints

of persistent pain when he walked. Moreover,the plaintiffs doctors diagnosed him with
problems in both knees,(Tr. 25-29, 267-69, 302-305, 312-13, 372-75, 439-40,471-75, 597-98,

636-70); treating physicians Katzmann, Singer, Chang, Villarica and Schwartz opined that the
plaintiffs knee problems rendered him disabled and unable to work,(Tr. 269,305, 375,440,

475). Given this record, the ALJ should explain on remand why he found that the plaintiffs
knee problems did not meet the requirements oflisting 1.02.
ALJ Kilgannon also found that the plaintiffs spinal problems did not meet listing 1.04
because the plaintiff did not present "sufficient evidence that he experiences nerve root
compression characterized by neuro-anatomic distribution of pain, limitation of motion ofthe
spine, and motor loss, sensory and reflex loss." (Tr. 24.) However,the record includes evidence

from the plaintiffs doctors that the plaintiff had back pain, limited movement, and motor loss.
For example. Dr. Hoffer found that the plaintiff had "very severe" nerve pain in his lumbar spine
and difficulty standing, walking, sitting, bending, lifting and kneeling. (Tr. 331,366, 1067.) Dr.

Chang also found that the plaintiff had decreased motion, spasms, pain and tenderness in his
spine. (Tr. 267-69,1095-98.) Dr. Villarca did an MRI ofthe plaintiffs spine, which showed
degenerative changes, decreased disc space, and hypolordosis consistent with muscle spasms.
(Tr. 272.) Dr. Liu diagnosed the plaintiff with multiple conditions related to the discs in his
spine, and noted the plaintiff had low range of motion that worsened over time, and muscle
spasms and pain. (Tr. 458,478,546,697.)

Listing 1.04 also requires a positive finding after a straight-leg raising test. 20 C.F.R.
§ 404, Subpart P, Appendix 1, Part 1,§ 1.04. Drs. Chang and Schwartz both found that the
plaintifftested positive on the straight-leg raising test. (Tr. 268,301.) The ALJ did not mention
Dr. Chang's findings, so it is not clear whether he considered them or gave them any weight.

Finally, ALJ Kilgannon found that the plaintiffs hearing impairment did not meet listing
2.10 because the plaintiff did not provide test results meeting the requirements for air conduction
hearing threshold, bond conduction hearing threshold, or word recognition. (Tr. 24.) Dr.
Nicolas Gno,an ear, nose and throat specialist, treated the plaintiff, but his records do not specify
whether he did those tests and what the results were. (Tr. 255-66.) Because there is a gap in the
record, the Commissioner had an affirmative duty to seek additional evidence. See Rosa v.

Callahan, 168 F.3d 72,79(2d Cir. 1999)(the Commissioner has an affirmative duty to seek out

additional evidence where there are gaps in the administrative record)(citing Schaal v. Apfel^
134 F.3d 496, 505(2d Cir. 1998)("[E]ven if the clinical findings were inadequate, it was the
ALJ's duty to seek additional information from Dr. Jobson sua sponte.

In addition, while ALJ Kilgannon decided that each of the plaintiffs impairments did not
"meet or equal" the relevant listing, he did not analyze whether the impairments are "medically
equivalent" to a listed impairment. See 20 C.F.R. § 404.1526. The ALJ should determine on

remand whether the plaintiffs severe impairments are medically equivalent to a listed
impairment in appendix 1. Because the plaintiff has multiple severe impairments, the ALJ
should also consider "the combined effect of all [] impairments without regard to whether any
such impairment, if considered separately, would be of sufficient severity... throughout the
disability determination process." 20 C.F.R. § 404.1523;see also Duncan v. Astrue, No.09CV-4462,2011 WL 1748549, at *22(E.D.N.Y. May 6, 2011)(quoting Burgin v. Astrue^ 348 F.
App'x 646,647-48(2d Cir. 2009)); Hernandez v. Astrue^ 814 F. Supp. 2d 168, 185(E.D.N.Y.
2011)("The ALJ's failure to consider the effects ofplaintiffs combined impairments in every
step ofthe five-step sequential process ...requires remand.").
The Treating Physician Rule

The plaintiff also challenges the ALJ's determination ofthe plaintiffs residual functional
capacity("RFC"),and says that the ALJ did not give appropriate weight to the plaintiffs treating
physicians. (ECF No. 8-1 at 18-19.) Moreover,the ALJ did not specify the weight
determination he accorded to the conclusions of Drs. Gno, Villarica, Chang or Singer, nor did he

explain why he gave "little" or only "some" weight to the opinions of Drs. Katzmann,Hoffer,
and Liu. {See id. at 18.) Therefore, remand is necessary.

The "treating physician" rule requires that"a treating source's opinion on the issue(s) of
the nature and severity" ofa claimant's impairment be given "controlling weight" if the opinion
is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record." Green-Younger v.
Barnhart,335 F.3d 99,106(2d Cir. 2003)(citing 20 C.F.R. § 404.1527(d)(2) and Shaw v.

Chater,221 F.3d 126, 134(2d Cir. 2000)). When the ALJ does not give a treating physician's
opinion controlling weight, he must "comprehensively set forth [his] reasons for the weight

assigned to a treating physician's opinion." Burgess v. Astrue, 537 F.3d 117,129(2d Cir. 2008)

(internal citations omitted). The failure to give "good reasons" for the weight assigned to a
treating physician's opinion constitutes a ground for remand. See 20 C.F.R. § 404.1527(c)(2);
Halloran v. Barnhart, 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."); Fontanez v. Colvin, No. 16-CV-01300, 2017 WL 4334127,at *18(E.D.N.Y. Sept.
28,2017)(the ALJ's "failure to provide 'good reasons' for not crediting a treating source's
opinion is ground for remand")(internal citations omitted).

The ALJ did not refer to the medical reports or opinions ofDrs. Villarica, Chang,or
Singer, all of whom treated the plaintiff. Dr. Villarica treated the plaintiff on multiple occasions
between October of2013 and May of2016, performed and analyzed the plaintiffs spinal MRI,
and diagnosed the plaintiff with bilateral knee strain/sprain, among other conditions. (Tr. 41648, 1098-1119.) Dr. Chang examined the plaintiffs spine and knees in October of2013,and

noted that the plaintiff had pain and decreased range of motion, and a positive straight-leg raising
test. (Tr. 267-69,1095-98.) Dr. Singer examined the plaintiff twice, did an MRI ofthe
plaintiffs knees, and opined that plaintiff could not return to work because of his back and knee

pain. (Tr. 368-76.) The ALJ should consider these treating physicians' opinions - all of whom

examined the plaintiff and made medical findings - and give good reasons for what weight they
are given.

ALJ Kilgannon gave "little weight" to the "multiple opinions from 2013,2014,and 2015

indicating that the claimant has either a'100% or total disability,"' including opinions from Drs.
Katzmann, Hoffer, and Liu. (Tr. 27.) The ALJ decided that "these opinions fail to provide a
function-by-function assessment ofthe claimant's limitations, are based on a definition of

disability that differs from that of Social Security... and are inconsistent with the claimant's

treatment notes, which fail to demonstrate that the claimant is unable to work in any capacity."
(Tr. 28.) He did not mention other parts ofthose doctors' conclusions, or whether he gave any
weight to them. Dr. Katzmaim,an orthopedic surgeon, treated the plaintiff for over two years,
from October of2013 to February of2016,for problems with his hands, knees, and lower back,

and operated on the plaintiffs right knee on April 14,2016. (Tr. 309-26,469-76,493-94, 1077-

79,1120-25.) Dr. Hoffer examined the plaintiff multiple times between December of2013 and
August of2014, diagnosed him with cervical radiculopathy, and found that he had difficulty
standing, walking, sitting, bending, lifting and kneeling. (Tr. 377-415, 1061-68.) Dr. Liu also

examined the plaintiff multiple times, from July of2014 through May of2016, and observed that
the plaintiff had back pain, a low range of motion, and displaced spinal discs. (Tr. 454-68,47781,495-501, 1080-85,1126-27.) ALJ Kilgannon's explanation for his decision to give little

weight to these doctors' opinions was not sufficient. See Floyd v. Calvin, No. 13-CV-4963,2015
WL 2091871, at *8(E.D.N.Y. May 5,2015)(the ALJ did not adequately explain why he found

the "opinion of Dr. Govindaraj—a non-treating physician who examined Plaintiff only once—^to
be so convincing and deserving of significant weight.").
The ALJ assigned the most weight to the conclusions of Dr. Kwok,the independent

medical examiner. Dr. Kwok never met or examined the plaintiff; he simply reviewed his
medical records. (Tr. 28.) Based on that review, he concluded that the plaintiff could lift, carry,

sit, stand, and walk enough to work, with certain limitations. (Tr. 1050-51.) "[AJlthougha
consultative examiner's opinion may constitute substantial evidence to support an ALJ's RJFC
determination, the opinion must nonetheless be supported by substantial evidence in the record
and the ALJ's determination should contain an assessment of such evidence." Bowers v.

Comm V ofSoc. Sec,, No. 5:16-CV-1392,2018 WL 582582, at *7(N.D.N.Y. Jan. 26, 2018);
Artinian v. Berryhill, No. 16-CV-4404, 2018 WL 401186, at *10(E.D.N.Y. Jan. 12,2018)("An

ALJ is permitted to accord greater weight to a consultative examiner's opinion ifthe conclusions
are more consistent with the medical evidence.") The ALJ decided that Dr. Kwock's opinions
were "generally consistent with the medical record as a whole while taking into account the

claimant's subjective allegations." (Tr. 28.) The ALJ gave Dr. Kwok's opinions significant
weight because they were "based on a thorough review ofthe medical record [and] a familiarity
with the Social Security's adjudicative process." (Tr. 28.) While Dr. Kwok may have reviewed
the plaintiffs records, his conclusion that the plaintiff could walk, sit, and stand was not
consistent with the opinions ofthe plaintiffs treating doctors, or with the plaintiffs testimony
that he is "unable to sit, stand, or walk for extended periods, and is precluded from lifting and

carrying heavy weight." (Tr. 25,28.) Given that discrepancy, the ALJ should explain why he
nevertheless decided that Dr. Kwok's opinion -in contrast to the opinions of the doctors that
treated the plaintiff- deserved significant weight. See, e.g. Rosa v. Callahan, 168 F.3d 72,79
(2d Cir. 1999)("Accordingly, we find nothing so 'overwhelmingly compelling' in the ALJ's

critique ofDr. Ergas's findings as to permit the Commissioner to 'overcome' an otherwise valid
medical opinion.")(internal citations omitted); Said v. Calvin, No. 14-CV-03514,2016 WL

8671843, at *12(E.D.N.Y. Sept. 30,2016).

On remand,the ALJ should determine the weight to be given to the opinions from the
plaintiffs treating physicians, and give "good reasons" for the determination. See Shaw v.

Chater, 221 F.3d 126,134(2d Cir. 2000)(even if the claimant's medical history is complete and
the ALJ decides to discredit a treating physician's opinion, the ALJ must "set forth her reasons

for the weight she assigns to the treating physician's opinion"). Ifthe ALJ finds that the

plaintiffs treating physicians' opinions are entitled to less weight, he should list the basis for that

decision. The ALJ should also reconsider Dr. Kwok's opinion, especially in light of the opinions
of treating physicians who examined the plaintiff many times over the course of several years,
and reevaluate the plaintiffs RFC.
Accordingly,for the reasons set forth above, I remand for further development ofthe
case.

SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
December 11, 2018

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