Hynes v. Astrue
Filing
12
ORDER denying 6 Motion for Judgment on the Pleadings; granting in part and denying in part 8 Motion for Judgment on the Pleadings: For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is denied. Plainti ff's cross-motion for judgment on the pleadings is denied but plaintiff's motion to remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. Specifically, on remand, the ALJ must consider all of Dr. O'Connor's submissions regarding plaintiff's disability (including those not available to him at the time he rendered his decision), and if the ALJ chooses to discount Dr. O'Connor's opinion, he must expl ain in detail his decision as outlined in the case law and the regulations. The ALJ must also assist plaintiff in developing the record if the submissions are inadequate to determine when plaintiff was depressed, how severe his symptoms were, and whe ther plaintiff was disabled and could not work. In addition, if plaintiff chooses to appear without counsel at the hearing, the ALJ must fully inform plaintiff of his right to counsel. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/26/2013. (Pilmar, Philip)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-719 (JFB)
_____________________
KENNETH HYNES,
Plaintiff,
VERSUS
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
June 26, 2013
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Kenneth Hynes (“plaintiff” or
“Hynes”) brings this action, pursuant to 42
U.S.C. § 405(g) of the Social Security Act,
challenging the decision of the Commissioner
of Social Security (“Commissioner”), dated
April 27, 2010, denying plaintiff’s application
for Disability Insurance Benefits (“DIB”).
The Commissioner found that plaintiff was
not disabled from September 11, 2001, the
alleged onset date, through March 31, 2006,
the date last insured. The Commissioner
further found that, during the period of
alleged
disability,
plaintiff’s
residual
functional capacity allowed him to engage in
the full range of light work, which existed in
significant numbers in the national economy.
The Commissioner now moves for judgment
on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). Plaintiff opposes the
Commissioner’s motion and cross-moves for
judgment on the pleadings, alleging that the
Administrative Law Judge (“ALJ”) erred by
failing to: (1) explain the weight given to the
opinion of plaintiff’s treating physician; (2)
contact plaintiff’s treating physician to clarify
ambiguities in the record; (3) explain the
rationale for the conclusion that plaintiff
could perform light work; and (4) inform
plaintiff of his right to counsel. Plaintiff also
contends that the Appeals Council failed to
consider additional evidence that plaintiff
submitted upon appeal of the ALJ’s
determination.
For the reasons set forth below, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is denied but
plaintiff’s motion to remand is granted.
Accordingly, the case is remanded to the ALJ
for further proceedings consistent with this
Memorandum and Order. Remand is
warranted because the ALJ failed to: (1)
explain why he was discounting the opinion
of plaintiff’s treating physician; (2)
adequately develop the record; and (3) inform
plaintiff of his right to counsel. In addition,
remand is warranted because the Appeals
Council failed to explain why it discounted
the additional evidence plaintiff submitted
from his treating physician.
81.) Dr. O’Connor noted plaintiff’s medical
history of diabetes mellitus, hyperlipidemia,
and tobacco abuse. (Id. at 380.) Dr. O’Conner
also assessed coronary artery disease. (Id. at
381.) During a follow-up visit on April 7,
2003, plaintiff complained of angina. (Id. at
379.)
Plaintiff underwent a carotid sonogram on
April 17, 2003, which revealed mild
atherosclerotic plaquing in the right and left
carotid bulbs, but no significant stenosis. (Id.
at 494.) The next day, plaintiff underwent an
exercise stress test. After exercising for 10
minutes, plaintiff had to stop the test due to
chest pain. However, the EKG response and
the nuclear perfusion imaging were normal.
(Id. at 499.) Dr. Mark Saporita, a cardiologist,
evaluated plaintiff on April 22, 2003. He
noted that plaintiff’s cardiac examination
showed no abnormalities and that the stress
test revealed hypertensive blood pressure
response to exercise and normal perfusion
imaging. (Id. at 498.) Dr. Saporita assessed
that plaintiff “probably” had “some element
of coronary disease” and had multiple cardiac
risk factors, but that he had a “relatively good
prognosis” because there were no segmental
defects and plaintiff was able to exercise for
10 minutes with a normal EKG response. (Id.)
I. BACKGROUND
A. Facts
The following summary of the relevant
facts is based upon the administrative record
(“AR”) as developed by the ALJ. A more
exhaustive recitation of the facts is contained
in the parties’ submissions to the Court and is
not repeated herein.
1. Plaintiff’s Work History
Plaintiff was born in 1954 and has a highschool education. (AR at 58, 107.) Plaintiff
was a heavy equipment operator and
mechanic for approximately 35 years. (Id. at
36.) Subsequently, plaintiff was a payloader
operator for approximately eight years. (Id. at
102.) From January 2001 to September 2001,
plaintiff worked as a truck mechanic. (Id.)
Plaintiff alleges that he became disabled on
September 11, 2001. After plaintiff’s alleged
onset date, plaintiff started his own business
as a handyman. (Id. at 40-41.) Plaintiff
completed some small jobs, but he claims that
the work was not steady and that he could not
complete any significant jobs due to his
disability. (Id. at 42.)
On April 23, 2003, a CT scan revealed
neural calcification of the aorta and iliac
arteries, consistent with vascular sclerosis.
(Id. at 469-70.) In addition, a May 1, 2003
chest x-ray revealed degenerative changes of
the thoracic spine and no evidence of acute
cardiopulmonary disease. (Id. at 471.)
During a follow-up appointment with Dr.
O’Connor on May 6, 2003, plaintiff
complained of fatigue and muscle aches,
which Dr. O’Connor indicated might be
related to Lipitor. (Id. at 378.)
2. Medical Evidence During Relevant
Period
Dr. John O’Connor first examined
plaintiff on December 13, 2002. (Id. at 380-
On August 3, 2004, plaintiff experienced
swelling of the tongue and Dr. O’Connor sent
2
4. Medical Source Statements
plaintiff to the emergency room. (Id. at 375,
377, 383-86.) The ER doctor determined that
plaintiff had massive tongue edema due to the
prescription medication Altace. (Id. at 386.)
The ER doctor also noted previous diagnoses
of hypertension and non-insulin dependent
diabetes mellitus. (Id.) An electrocardiogram
revealed normal sinus rhythm and a chest xray was normal. (Id. at 468, 507.)
On May 6, 2009, Dr. O’Connor completed
a medical source statement at the request of
the Commissioner. Dr. O’Connor stated that
plaintiff had suffered two strokes, with
current symptoms of partial loss of eyesight,
numbness and weakness of the extremities,
loss of balance, and forgetfulness. (Id. at 240.)
Dr. O’Connor also noted that plaintiff
suffered from fatigue, but that it was caused
more by his stroke than his depression. (Id. at
242.) The statement also listed plaintiff’s
medical history as including diabetes,
hypertension, high cholesterol, and coronary
artery disease, and Dr. O’Connor noted that
he had been treating plaintiff for those
conditions since 2002. (Id. 241.) Dr.
O’Connor concluded that plaintiff was
completely disabled and could not perform
any work-related activities, but did not
specify when he believed plaintiff first
became disabled. (Id. at 244.)
A May 16, 2005 carotid artery sonogram
revealed mild atherosclerotic thickening and
plaquing in the left common carotid artery.
(Id. at 506.) There was no evidence of flow
obstruction in either carotid artery, and
antegrade blood flow was demonstrated in
both vertebral arteries. (Id.) An EKG
performed on the same day was normal
except for a mildly dilated right atrium. (Id. at
505.)
Plaintiff
also
experienced
some
degenerative changes of the lower cervical
spine. A May 1, 2003 radiological study
revealed degenerative changes of the thoracic
spine. (Id. at 471.) This confirmed an MRI
that plaintiff underwent on November 28,
1998. (Id. at 612.)
Dr. O’Connor also submitted a letter dated
August 18, 2009. The letter states that
plaintiff suffered four strokes in February and
March 2009, causing short term memory loss,
loss of vision and balance, and fatigue. Dr.
O’Connor also noted that plaintiff had
suffered from depression for several years,
“but was in denial and refused treatment.” (Id.
at 354.)
3. Medical Evidence After Relevant
Period
In February 2009, plaintiff suffered a
series of strokes, which resulted in headaches
and reduced vision. (Id. at 169-235, 250-78,
282-95.) Plaintiff had several follow up visits
with Dr. O’Connor regarding his strokes. (Id.
at 373.)
Dr. Louis J. Avvento, who first saw
plaintiff when he was hospitalized for a stroke
in February 2009, completed a mental health
medical source statement on June 4, 2009 at
the request of the Commissioner. Dr. Avvento
disclosed that he had a personal history with
plaintiff because plaintiff’s wife was his
employee (id. at 301), but also that he had
been plaintiff’s physician for “many years”
(id. at 310).1 Dr. Avvento noted that plaintiff
On February 13, 2009, Dr. Naim Abrar
examined plaintiff regarding his type II
diabetes. Plaintiff reported that he had
diabetes for the past fourteen years. (Id. at
279.) Dr. Abrar noted that plaintiff might
benefit from insulin therapy, and he
prescribed oral medications and blood-sugar
monitoring. (Id. at 280-81.)
1
It is not clear from the record how Dr. Avvento could
note that he first saw plaintiff in February 2009 while
3
had a history of depression, mood swings, and
withdrawal, but that plaintiff had refused to
seek treatment. Dr. Avvento stated that
depression was the primary cause of
plaintiff’s fatigue prior to the strokes. Dr.
Avvento also noted that plaintiff was able to
independently perform most activities of daily
living, but could not drive or perform gainful
employment in his field. (Id. at 300-05.)
treatment because he “was too proud.” (Id. at
41.) Plaintiff stated that Dr. O’Connor knew
about his difficulties, but never recommended
that he seek psychological treatment. (Id. at
46.) Plaintiff’s wife indicated at the hearing
that he sought treatment one time when he
was required to see a counselor by his
employer. (Id. at 52.)
Plaintiff testified that during his insured
period, when he did leave his room, he was
able to drive and help with some household
activities, such as cooking and cleaning. (Id.
at 48-49.) However, plaintiff stated that he
could not socialize and did not even attend
some weddings and funerals. (Id. at 49.)
Dr. Avvento submitted a second letter on
March 4, 2010, stating that plaintiff’s “history
includes lengthy bouts of depression since
2001, initially declining medication but
recently accepting treatment with some
control of symptoms and improvement in the
depressive events.” (Id.at 365.)
6. Right to Counsel
At the request of the Commissioner, M.
Graff, Ph.D., completed a psychiatric review
technique form on July 7, 2009. Dr. Graff
reviewed the medical evidence in the record,
including the medical source statement of Dr.
Avvento, and concluded that there was
“insufficient evidence” to establish a
medically determinable impairment prior to
plaintiff’s date last insured. (Id. at 331; see
also id. at 343.)
Prior to the hearing, plaintiff received
notification from the Commissioner that he
could “have a friend, lawyer, or someone else
help you.” (Id. at 61.) The notice also stated
that “[t]here are groups that can help you find
a lawyer or give you free legal services if you
qualify.” (Id.) In the Notice of Hearing
plaintiff was sent on February 12, 2010, the
Commissioner informed plaintiff that “[i]f
you want to have a representative, please find
one right away.” (Id. at 68.)
5. Plaintiff’s Testimony
At the March 11, 2010 hearing in front of
the ALJ, plaintiff primarily testified regarding
his depression. Plaintiff stated that,
approximately three or four times a year, he
“used to spend a month in bed” and would not
“leave [his] room for a month.” (Id. at 41.)
Plaintiff stated that his month-long bouts of
depression would end very suddenly, but it
would then take a significant amount of time
to repair his familial relationships due to the
difficulty of spending a month away from his
family. (Id. at 43.) Plaintiff indicated that
depression runs in his family. (Id. at 52-53.)
Plaintiff testified that he did not seek
At the hearing, plaintiff was not informed
of his right to counsel.2 At the beginning of
the hearing, the ALJ asked plaintiff: “Mr.
Hynes, you’re represented by Miss Hynes?”
and plaintiff responded in the affirmative. (Id.
at 32.) The ALJ asked plaintiff’s wife if she
had reviewed the record. (Id.) The ALJ also
informed plaintiff’s wife of the definition of
“disabled” and that plaintiff’s disability would
need to be proved as of March 30, 2006, the
2
The ALJ’s decision erroneously states that
“[a]lthough informed of the right to representation, the
claimant chose to appear and testify without the
assistance of an attorney or other representative.” (AR
at 20.) The Commissioner concedes that this statement
is incorrect. (Comm’r Reply at 4.)
also stating that he had been plaintiff’s physician for
“many years.”
4
date last insured. (Id. at 34.) But again, at no
point did the ALJ inform the plaintiff that he
had the right to have an attorney present for
the hearing.
which he was limited, the length of the
impairment, or even to verify its
existence. Therefore, even giving the
claimant the benefit of the doubt, the
undersigned must conclude that while
depression may have been present in
some capacity, it was not a “severe”
impairment, in that there is no
evidence that it caused more than mild,
if any, limitations.
7. The ALJ’s Decision
The ALJ determined that plaintiff was not
disabled under the Social Security Act
through March 31, 2006. (Id. at 26.) The ALJ
concluded that plaintiff’s diabetes mellitus
and hypertension were severe impairments,
but that plaintiff’s depression “did not cause
more than minimal limitation in [plaintiff’s]
ability to perform basic mental work activities
and was therefore non-severe.” (Id. at 22.)
(Id. at 25 (internal citations omitted).)
Therefore, the ALJ concluded that plaintiff
could perform the full range of light work
during the relevant time period. (Id.) Because
there were jobs that existed in significant
numbers in the national economy that plaintiff
could have performed, the ALJ concluded that
plaintiff was not disabled. (Id. at 25-26.)
The ALJ found that there was no evidence
of a disabling mental impairment because
“there is no mention of depression” in “the
voluminous notes of treatment from Dr.
O’Connor.” (Id. at 24.) The ALJ also stated
that plaintiff “did not complain of any
symptoms related to depression, nor was he
prescribed any medications for depression
until 2009, according to his wife’s statement.”
(Id.)3 The ALJ stated:
8. Appeal and New Evidence
Subsequent to the ALJ’s decision, Dr.
O’Connor submitted a diabetes mellitus
residual functional capacity questionnaire
dated June 1, 2010. Dr. O’Connor indicated
diagnoses of diabetes mellitus, hypertension,
and strokes, and listed plaintiff’s various
symptoms. (Id. at 615.) Dr. O’Connor stated
that plaintiff also suffered from depression
and anxiety, which contributed to the severity
of his symptoms. (Id.) The doctor assessed
that plaintiff had numerous limitations in his
ability to sit, stand, and lift, and that plaintiff
would likely need to be absent from work
more than four days per month due to his
limitations. (Id. at 615-18.) On June 7, 2010,
Dr. O’Connor provided a letter stating that the
limitations described in his June 1, 2010
report dated back “prior to March 31, 2006.”
(Id. at 619.)
While third parties including the
claimant’s wife and sister allege that
the claimant was severely limited in
his activity during this period due to
depression, without any evidence of
the condition from a medical source, it
is impossible to conclude the level to
3
The Court notes that the source the ALJ cites for this
proposition contradicts the ALJ’s statement. Plaintiff’s
wife stated in a letter to the Commissioner prior to the
hearing that her “husband had suffered these bouts [of
depression] back as far as the 1990’s” and that “the
depression worsened” in 2000. (AR at 143.) It appears
that the ALJ may have meant that plaintiff never
complained to a doctor regarding his depression until
2009. As discussed infra, the ALJ should recontact Dr.
O’Connor on remand if the information in the record is
insufficient to determine whether plaintiff discussed his
symptoms of depression with his physician prior to the
date last insured.
Plaintiff appealed the ALJ’s decision. The
Social Security Administration’s Appeals
Council denied the request for review, stating
that it “considered the reasons you disagree
with the decision and the additional evidence”
5
that plaintiff submitted. (Id. at 1.) The
Council concluded that the additional
information “does not provide a basis for
changing the [ALJ’s] decision,” but the
decision does not state why the Council
discounted the new information provided by
Dr. O’Connor. (Id. at 2.)
than a mere scintilla” and that which “a
reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (citation and
internal quotation marks omitted); see also
Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.
1997). Furthermore, “it is up to the agency,
and not [the] 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
the court finds that there is substantial
evidence to support the Commissioner’s
determination, the decision must be upheld,
“even if [the court] might justifiably have
reached a different result upon a de novo
review.” Jones v. Sullivan, 949 F.2d 57, 59
(2d Cir. 1991) (citation and internal quotation
marks omitted); see also Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998) (“Where an
administrative decision rests on adequate
findings sustained by evidence having rational
probative force, the court should not
substitute its judgment for that of the
Commissioner.”).
B. Procedural History
On February 26, 2009 plaintiff filed for
DIB, alleging disability since September 11,
2001. (Id. at 93-94.) The application was
denied. (Id. at 59-62.) Plaintiff requested a
hearing, and a hearing was held before an
ALJ on March 11, 2010. (Id. at 30-57.) On
April 27, 2010, the ALJ issued a written
decision finding that plaintiff was not
disabled as of the last insured date of March
31, 2006. (Id. at 20-26.) Plaintiff requested
review of the ALJ’s decision, and submitted
additional evidence as discussed supra. The
Appeals Council denied plaintiff’s request for
review on December 19, 2011. (Id. at 1-5.)
Plaintiff filed this action on February 14,
2012. The Commissioner filed a motion for
judgment on the pleadings on July 16, 2012.
Plaintiff filed a cross-motion for judgment on
the pleadings on August 9, 2012. Defendant
filed a memorandum in further support of its
motion for judgment on the pleadings and in
opposition to plaintiff’s cross-motion on
August 27, 2012. The Court has carefully
considered all of the submissions of the
parties.
III. DISCUSSION
A. Disability Determination
1. Legal Standard
A claimant is entitled to disability benefits
if the claimant is unable “to engage in any
substantial gainful activity by reason of any
medically determinable physical or mental
impairment which can be expected to result in
death or which has lasted or can be expected
to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
An individual’s physical or mental
impairment is not disabling under the SSA
unless it is “of such severity that he is not
only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy . . . .” Id. § 1382c(a)(3)(B).
II. STANDARD OF REVIEW
A district court may only set aside a
determination by an ALJ that is “based upon
legal error” or “not supported by substantial
evidence.” Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998) (citing Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982)). The
Supreme Court has defined “substantial
evidence” in Social Security cases as “more
6
The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. See 20 C.F.R
§§ 404.1520, 416.920. The Second Circuit
has summarized this procedure as follows:
the claimant or others; and (4) the claimant’s
educational background, age, and work
experience.’” Id. (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)
(per curiam)).
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such
an
impairment,
the
[Commissioner]
next
considers
whether the claimant has an
impairment that is listed in Appendix
1 of the regulations. When the
claimant has such an impairment, the
[Commissioner] will find the
claimant disabled. However, if the
claimant does not have a listed
impairment, the [Commissioner]
must determine, under the fourth
step, whether the claimant possesses
the residual functional capacity to
perform her past relevant work.
Finally, if the claimant is unable to
perform her past relevant work, the
[Commissioner] determines whether
the claimant is capable of performing
any other work.
2. Analysis
Plaintiff argues that the ALJ’s decision is
not supported by substantial evidence and is
the result of legal error. Specifically, plaintiff
argues that the ALJ erred by failing to: (1)
explain the weight given to the opinion of
plaintiff’s treating physician; (2) contact
plaintiff’s treating physician to explain
ambiguities in the record; and (3) explain the
rationale for the conclusion that plaintiff
could perform light work. Plaintiff also
contends that the Appeals Council failed to
consider additional evidence that plaintiff
submitted upon appeal of the ALJ’s
determination.
As set forth below, this Court concludes
that this case shall be remanded to the
Commissioner because the ALJ failed to: (1)
give sufficient reasons for his decision not to
give controlling weight to the medical opinion
of Dr O’Connor, and (2) contact Dr.
O’Connor for clarification on the relevant
time period and severity of plaintiff’s
depression. Additionally, the Court finds that
the Appeals Council erred when it failed to
explain why Dr. O’Connor’s additional
submissions did not warrant review of the
ALJ’s decision.
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with regard to the first four
steps; the Commissioner bears the burden of
proving the last step. Brown, 174 F.3d at 62.
a. ALJ’s Decision
i. Substantial Gainful Activity
At step one, the ALJ must determine
whether the claimant is presently engaging in
substantial gainful activity. 20 C.F.R.
§ 404.1520(b). Substantial work activity is
work activity that involves doing significant
physical or mental activities, 20 C.F.R.
The Commissioner “must consider” the
following in determining a claimant’s
entitlement to benefits: “‘(1) objective
medical facts; (2) diagnoses or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
7
areas set forth in the regulations, and that
because there is “no medical evidence in the
record prior to the date last insured, . . . no
limitations can be established in any of the
functional areas . . . .” (AR at 22.)
§ 404.1572(a), and gainful work activity is
work usually done for pay or profit, 20 C.F.R.
§ 404.1572(b). Individuals who are employed
are engaging in substantial gainful activity. In
this case, the ALJ determined that plaintiff
had not engaged in any substantial gainful
activity since the alleged onset date of
September 11, 2001. (AR at 22.) Substantial
evidence supports this finding, and plaintiff
does not challenge its correctness.
ii.
The Commissioner’s determination is the
result of legal error. As discussed more fully
infra, the ALJ on remand must consider the
evidence that plaintiff submitted to the
Appeals Council that the ALJ did not have
access to, specifically, Dr. O’Connor’s
determination
that
plaintiff
exhibited
symptoms of depression during the insured
period. If the ALJ still finds that plaintiff’s
depression was not severe, the ALJ must fully
explain why he is discounting Dr. O’Connor’s
opinion as set forth in the regulations
discussed infra. In addition, if the ALJ
believes that the record is incomplete
regarding plaintiff’s depression, the ALJ must
contact Dr. O’Connor to affirmatively
develop the record.
Severe Impairment
If the claimant is not employed, the ALJ
then determines whether the claimant has a
“severe impairment” that limits his capacity
to work. An impairment or combination of
impairments is “severe” if it significantly
limits an individual’s physical or mental
ability to perform basic work activities. 20
C.F.R. § 404.1520(c); see also Perez, 77 F.3d
at 46. The ALJ in this case found that plaintiff
had severe impairments of diabetes mellitus
and hypertension. (AR at 22.)
iii.
The ALJ also determined that plaintiff had
a medically determinable impairment of
depression, but it did not cause more than
minimal limitation in plaintiff’s abilities to
perform work functions, and therefore, was
non-severe. (Id.) In evaluating mental
disorders, the Commissioner must consider
four broad functional areas in order to
determine a claimant’s degree of functional
limitation: (1) activities of daily living; (2)
social
functioning;
(3)
concentration,
persistence, or pace; and (4) episodes of
decompensation.
20
C.F.R.
§ 404.1520a(c)(3).
According
to
the
regulations, if the degree of limitation in each
of the first three areas is rated “mild” or
better, and no episodes of decompensation are
identified, then the reviewing authority
generally will conclude that the claimant’s
mental impairment is not “severe” and will
deny benefits. Id. § 404.1520a(d)(1). The ALJ
stated that he considered the four functional
Listed Impairment
If the claimant has a severe impairment,
the ALJ next considers whether the claimant
has an impairment that is listed in Appendix 1
of the regulations. When the claimant has
such an impairment, the ALJ will find the
claimant disabled without considering the
claimant’s age, education, or work
experience. 20 C.F.R. § 404.1520(d). In this
case, the ALJ found that plaintiff’s
impairments did not meet any of the listed
impairments in the Listing of Impairments, 20
C.F.R. Part 404, Subpart P, Appendix 1. (AR
at 23.) Substantial evidence supports this
finding and plaintiff does not challenge its
correctness.
iv. Residual Functional Capacity
If the claimant does not have a listed
impairment, the ALJ determines the
claimant’s residual functional capacity, in
8
light of the relevant medical and other
evidence in the claimant’s record, in order to
determine the claimant’s ability to perform
his past relevant work. 20 C.F.R.
§ 404.1520(e). The ALJ then compares the
claimant’s residual functional capacity to the
physical and mental demands of his past
relevant work. 20 C.F.R. § 404.1520(f). If the
claimant has the ability to perform his past
relevant work, he is not disabled. Id. If the
claimant is unable to perform his past work,
he is still not disabled if he “can make an
adjustment to other work.” Id. § 404.1520(g).
the burden of demonstrating that other jobs
exist in significant numbers in the national
economy that claimant can perform. Id.
§ 404.1560(c); see also Schaal v. Apfel, 134
F.3d 496, 501 (2d Cir. 1998).
In this case, the ALJ considered plaintiff’s
age, education, work experience, and residual
functional capacity, and found that prior to
March 31, 2006, there were jobs that existed
in significant numbers in the national
economy that plaintiff could perform. (AR at
25.)
b. Treating Physician Rule
In this case, the ALJ found that plaintiff
was not physically able to perform his past
work. (AR at 25.) However, the ALJ
determined that plaintiff had the residual
functional capacity to perform the full range
of light work. (Id. at 23.) Plaintiff challenges
the ALJ’s residual functional capacity
determination, arguing that Dr. O’Connor’s
treatment records “do not address the amount
of weight the plaintiff was able to lift” or the
“amount of time that the plaintiff could sit or
stand” prior to March 31, 2006. (Pl.’s Mem.
at 17.)
i. Legal Standard
The Commissioner must give special
evidentiary weight to the opinion of a treating
physician. See Clark, 143 F.3d at 118. The
“treating physical rule,” as it is known,
“mandates that the medical opinion of a
claimant’s treating physician [be] given
controlling weight if it is well supported by
the medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d
Cir. 1999); Clark, 143 F.3d at 118. The rule,
as set forth in the regulations, provides:
The Court finds that the Commissioner’s
determination that plaintiff had the residual
functional capacity to perform the full range
of light work is the result of legal error
because, as discussed infra, the Appeals
Council did not explain why it disregarded
plaintiff’s new evidence from Dr. O’Connor
and because the ALJ did not affirmatively
develop the record regarding plaintiff’s
depression.
Generally, we give more weight to
opinions from your treating sources,
since these sources are likely to be the
medical professionals most able to
provide a detailed, longitudinal picture
of your medical impairment(s) and
may bring a unique perspective to the
medical evidence that cannot be
obtained from the objective medical
findings alone or from reports of
individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a
treating source’s opinion on the
issue(s) of the nature and severity of
v. Other Work
At step five, if the claimant is unable to
perform his past relevant work, the ALJ
determines whether the claimant is capable of
adjusting to performing any other work. 20
C.F.R. § 404.1520(g). To support a finding
that an individual is not disabled, the SSA has
9
what weight she gave those opinions and must
articulate good reasons for not crediting the
opinions of a claimant’s treating physician.”);
Santiago v. Barnhart, 441 F. Supp. 2d 620,
627 (S.D.N.Y 2006) (“Even if the treating
physician’s opinion is contradicted by
substantial evidence and is thus not
controlling, it is still entitled to significant
weight because the treating source is
inherently more familiar with a claimant’s
medical condition than are other sources.”
(citation and internal quotation marks
omitted)). “Failure to provide ‘good reasons’
for not crediting the opinion of a claimant’s
treating physician is a ground for remand.”
Snell, 177 F.3d at 133.
your impairment(s) is well-supported
by medically acceptable clinical and
laboratory diagnostic techniques and
is not inconsistent with the other
substantial evidence in your case
record, we will give it controlling
weight.
20 C.F.R. § 404.1527(c)(2).
Furthermore, while treating physicians
may share their opinion concerning a patient’s
inability to work and the severity of disability,
the ultimate decision of whether an individual
is disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he
Social Security Administration considers the
data that physicians provide but draws its own
conclusions as to whether those data indicate
disability.”)
ii. Analysis
In concluding that plaintiff’s depression
did not render him disabled, the ALJ
described the absence of any mention of
depression in Dr. O’Connor’s treating notes,
as well as plaintiff’s ability to perform some
household tasks and his failure to seek
medical treatment. (AR at 24-25.) As for
plaintiff’s other ailments, the ALJ concluded
that plaintiff was not disabled because Dr.
O’Connor “gave [plaintiff] a good prognosis
and did not place any limitations on his
functioning.” (Id. at 25.)
If the opinion of the treating physician as
to the nature and severity of the impairment is
not
given
controlling
weight,
the
Commissioner must apply various factors to
decide how much weight to give the opinion.
See Shaw, 221 F.3d at 134; Clark, 143 F.3d at
118. These factors include: (i) the frequency
of examination and length, nature, and extent
of the treatment relationship; (ii) the evidence
in support of the opinion; (iii) the opinion’s
consistency with the record as a whole; (iv)
whether the opinion is from a specialist; and
(v) other relevant factors. See Clark, 143 F.3d
at 118; 20 C.F.R §§ 404.1527(d)(2),
416.927(d)(2). When the Commissioner
chooses not to give the treating physician’s
opinion controlling weight, he must “give
good reasons in [his] notice of determination
or decision for the weight [he] gives [the
claimant’s] treating source’s opinion.” 20
C.F.R § 404.1527(c)(2); see also, Perez v.
Astrue, No. 07-CV-958, 2009 WL 2496585,
at *8 (E.D.N.Y Aug. 14, 2009) (“Even if [the
treating physician’s] opinions do not merit
controlling weight, the ALJ must explain
Dr. O’Connor stated that plaintiff was
“completely disabled.” (Id. at 244.) Although
the ALJ was not required to determine that
plaintiff was disabled solely because of Dr.
O’Connor’s conclusion, the ALJ failed to
even
acknowledge
Dr.
O’Connor’s
assessment that plaintiff was disabled and
explain the rationale for not crediting the
doctor’s opinion, as required by the case law
and statutes cited supra. See, e.g., Taylor v.
Barnhart, 117 F. App’x 139, 140-41 (2d Cir.
2004) (remanding case because ALJ “did not
give sufficient reasons explaining how, and
on the basis of what factors, [the treating
physician’s] opinion was weighed,” and
10
discount the medical opinion of his treating
physician, violates his duty to develop the
factual record, regardless of whether the
claimant is represented by legal counsel.”);
Jones v. Apfel, 66 F. Supp. 2d 518, 523
(S.D.N.Y. 1999) (“Under the regulations, the
Secretary must develop the plaintiff’s
‘complete medical history,’ and make ‘every
reasonable effort’ to help the plaintiff get the
required medical reports.” (quoting 20 C.F.R.
§ 404.1512(d))). “When the claimant appears
pro se, as was the case here, the ALJ has a
heightened duty to develop the administrative
record prior to making a determination.”
Devora v. Barnhart, 205 F. Supp. 2d 164, 172
(S.D.N.Y. 2002).
stating that “we will continue remanding
when we encounter opinions from ALJ’s that
do not comprehensively set forth reasons for
the weight assigned to a treating physician’s
opinion” (citation and internal quotation
marks omitted)); Featherly v. Astrue, 793 F.
Supp. 2d 627, 632 (W.D.N.Y. 2011)
(remanding case when ALJ’s opinion
contained only a “conclusory discussion” of
the reasons for assigning certain weight to
two of plaintiff’s treating physicians and
failed to mention the weight assigned to the
opinions of other treating physicians).
It appears that the ALJ may have
discounted Dr. O’Connor’s opinion because
he found that “[i]n the voluminous treating
notes from Dr. O’Connor, there is no mention
of depression.” (AR at 24 (internal citation
omitted).) However, the ALJ cannot reject a
treating physician’s opinion on the sole basis
that it conflicts with the physician’s own
clinical findings. See Balsamo, 142 F.3d at
80. In addition, as discussed more fully infra,
if the ALJ “perceives inconsistencies in a
treating physician’s reports, the ALJ bears an
affirmative duty to seek out more information
from the treating physician and to develop the
administrative record accordingly.” Hartnett
v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y.
1998).
In addition to having an obligation to
develop the record generally, the ALJ was
required to recontact plaintiff’s treating
physician if the evidence from the treating
physician was “inadequate for [the
Commissioner] to determine whether [an
individual was] disabled.” 20 C.F.R.
§ 404.1512(e) (2010).4
The Court finds that Dr. O’Connor’s May
6, 2009 opinion that plaintiff is disabled and
August 18, 2009 opinion that plaintiff suffers
from depression are unclear because they do
not specify the time period of plaintiff’s
disability. As Dr. O’Connor treated plaintiff
both during and after the relevant time period,
and Dr. O’Connor clearly knew of plaintiff’s
depression, clarification would have assisted
the ALJ in making the disability
determination. See Papadopoulos v. Astrue,
No. 10 Civ. 7980, 2011 WL 5244942, at *8
The ALJ’s failure to give controlling
weight to Dr. O’Connor’s opinion could also
have been due to the doctor’s failure to
delineate the relevant time period of
plaintiff’s disability and state whether
plaintiff was disabled due to his depression
and other disabilities prior to his strokes.
However, “where there are deficiencies in the
record, an ALJ is under an affirmative
obligation to develop a claimant’s medical
history.” Rosa, 168 F.3d at 79; see also Shaw
v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)
(“For the ALJ to conclude that plaintiff
presented no evidence of disability at the
relevant time period, yet to simultaneously
4
The Commissioner modified the regulations in 2012
by removing the provision that required the agency to
recontact a treating physician when the evidence in the
record was inadequate to determine whether a claimant
was disabled. See 20 C.F.R. § 404.1512 (2012).
However, the Commissioner concedes that the Court
must apply the regulations in effect at the time of
plaintiff’s hearing on March 11, 2010. (See Comm’r
Reply at 3 n.1.)
11
new and material evidence is grounds for
remand. Shrack v. Astrue, 608 F. Supp. 2d
297, 302 (D. Conn. 2009) (Adopting Report
and Recommendation) (citing Snell v. Apfel,
177 F.3d 128, 134 (2d Cir. 1999) (remanding
case to Appeals Council when it failed to
explain why plaintiff’s treating physician’s
finding of disability was rejected));
Richardson v. Apfel, 44 F. Supp. 2d 556, 564
(S.D.N.Y. 1999) (“Absent a valid explanation
as to why the Appeals Council failed to seek
out the clinical or diagnostic findings it
required . . . the court is not satisfied that the
Commissioner has fulfilled his affirmative
obligation under the Social Security
regulations
and
Second
Circuit
jurisprudence.”).
(S.D.N.Y. Nov. 2, 2011) (“Because ‘further
findings’ would so plainly help to assure the
proper disposition of [plaintiff’s] claim,
remand is appropriate in this case.” (quoting
Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996))). In light of the ALJ’s affirmative duty
to develop the record, the limited medical
evidence regarding plaintiff’s depression,
plaintiff’s pro se status, and the unclear nature
of Dr. O’Connor’s original opinions regarding
plaintiff’s disability, the ALJ had a duty to
recontact Dr. O’Connor for clarification. See
Crysler v. Astrue, 563 F. Supp. 2d 418, 433
(N.D.N.Y. 2008) (Adopting Report and
Recommendation) (“[B]ecause plaintiff was
proceeding pro se, [the ALJ] was under an
enhanced duty to ensure a complete record
and, in this case, to contact [plaintiff’s
physicians] in order to ensure that all of the
facts relevant to his RFC determination were
sufficiently developed and considered.”).
Therefore, having reviewed the entire
record, including the ALJ’s decision,
plaintiff’s additional evidence that was
submitted to the Appeals Council, and the
Appeals Council decision, the Court finds that
the Commissioner made legal errors because
both the ALJ and the Appeals Council failed
to adequately explain why it discounted the
opinions of plaintiff’s treating physician. On
remand, the ALJ must fully consider the
opinions of Dr. O’Connor. If the ALJ chooses
not to give controlling weight to Dr.
O’Connor’s opinion, the ALJ must fully
explain his decision, as required by the cited
case law and regulations.
Following the ALJ’s decision, Dr.
O’Connor
submitted
two
additional
assessments of plaintiff’s disability, one of
which clarified that Dr. O’Connor believed
plaintiff was disabled during the relevant
period, prior to his strokes. The Appeals
Council denied review without mentioning
this significant new evidence. “When the
Appeals Council denies review after
considering new evidence, [the court should]
simply review the entire administrative
record, which includes the new evidence, and
determine, as in every case, whether there is
substantial evidence to support the decision of
the Secretary.” Perez, 77 F.3d at 46.
Remand in this case is also warranted
because, as stated supra, the ALJ failed to
adequately develop the record. “Nothing in
the record here indicates that the ALJ even
attempted to find witnesses to testify on
behalf of plaintiff,” Mann v. Chater, 95 CIV.
2997, 1997 WL 363592, at *7 (S.D.N.Y. June
30, 1997), or that the ALJ considered
recontacting Dr. O’Connor in light of his
ambiguous submissions. The ALJ failed in his
“duty to adequately protect a pro se
claimant’s rights by ensuring that all of the
relevant facts [were] sufficiently developed
The Court finds that not only should the
ALJ have more fully developed the record by
recontacting Dr. O’Connor, but that once Dr.
O’Connor submitted additional evidence, that
the Appeals Council failed to adequately
explain its reasons for denying review. The
“Appeals Council must give good reasons for
the weight it assigns to a plaintiff’s treating
physician’s opinion” and failure to consider
12
Robinson v. Sec’y of Health & Human Servs.,
733 F.2d 255, 257 (2d Cir.1984)) (alterations
in Lamay); see also Martino ex rel. C.P. v.
Astrue, 09-CIV-6479, 2012 WL 1506058, at
*9 n.1 (S.D.N.Y. Apr. 27, 2012) (stating that
the Second Circuit “reaffirmed in Lamay []
that the ALJ must ensure that claimant is
aware of his or her right to counsel”).
Although the issue has never been directly
decided by the Circuit, courts have concluded
that “[r]emand for lack of representation is
proper only if the lack of counsel resulted in
prejudice to the claimant or unfairness in the
proceeding.” Flores v. Astrue, 08 CIV. 2810,
2009 WL 1562854, at *8 (S.D.N.Y. May 27,
2009); see also Robinson, 733 F.2d at 258
(“[T]he failure of the ALJ to develop the
record fully and to afford [plaintiff], who was
unrepresented by counsel, an adequate
opportunity to do so, denied [plaintiff] a fair
hearing.”); Santana v. Apfel, 44 F. Supp. 2d
482, 484 (E.D.N.Y. 1999) (“The absence of
adequate notice of plaintiff’s right to counsel
clearly had a prejudicial effect on the fairness
of the hearing.”).
and considered.” Cruz v. Sullivan, 912 F.2d 8,
11 (2d Cir. 1990) (citation and internal
quotation marks omitted). The ALJ should
have, at the very least, contacted Dr.
O’Connor to discern: (1) the time period of
plaintiff’s disability, (2) the point at which Dr.
O’Connor first believed that plaintiff began
suffering from depression, and (3) why Dr.
O’Connor’s notes did not indicate any
discussion of depression or psychological
treatment during the relevant time period.
Accordingly, on remand, the ALJ must assist
plaintiff in developing the record, including
by contacting Dr. O’Connor if the ALJ
believes that Dr. O’Connor’s treatment notes
and submissions are inadequate to determine
whether plaintiff was disabled.
B.
Right to Counsel
In addition to the failure to affirmatively
develop the record and explain why Dr.
O’Connor’s opinion was discounted, the ALJ
failed to advise plaintiff at the hearing of his
right to counsel. Accordingly, remand is
warranted on this additional ground.
In this case, the ALJ clearly did not
inform plaintiff at the hearing of his right to
counsel. However, the Commissioner argues
that remand on this ground is not warranted
because: (1) the ALJ did not inform plaintiff
of his right to representation because
plaintiff’s wife was his representative; (2) the
ALJ ensured that plaintiff’s wife understood
the disability claims process and the burden of
proof; and (3) plaintiff has not alleged that he
was prejudiced by his proceeding without an
attorney. (Comm’r Reply at 5-7.)
“Although a claimant does not have a
constitutional right to counsel at a social
security disability hearing, she does have a
statutory and regulatory right to be
represented should she choose to obtain
counsel.” Lamay v. Comm’r of Soc. Sec., 562
F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C.
§ 406 and 20 C.F.R. § 404.1705). The law
requires the Commissioner to notify the
claimant “in writing . . . of the options for
obtaining attorneys to represent individuals in
presenting
their
cases
before
the
Commissioner of Social Security . . . [and]
also advise the claimant of the availability to
qualifying claimants of legal services
organizations which provide legal services
free of charge.” 42 U.S.C. § 406(c). However,
“at the hearing itself, ‘the ALJ must ensure
that the claimant is aware of [her] right [to
counsel].’” Lamay, 562 F.3d at 507 (quoting
The Commissioner’s first two arguments
are erroneous. The case law does not require
an ALJ to inform a claimant of the right to be
represented at a hearing, but instead to the
right to be represented “by counsel.”
Robinson, 733 F.2d at 257; see also Lamay,
562 F.3d at 509 (holding that claimant was
adequately informed of right to counsel when
13
ALJ informed her that she could “‘either . . .
have a postponement of the hearing and get a
lawyer or . . . [go] forward with the hearing
today. It’s your choice.’” (alterations in
original and emphasis added)). The ALJ’s
failure to inform plaintiff of his right to
counsel because plaintiff was represented by
his wife and the ALJ explained to her some
basic tenets of social security law does not
satisfy the requirement. See Holliday v.
Astrue, 05-CV-1826, 2009 WL 1292707, at
*10-11 (E.D.N.Y. May 5, 2009) (finding that
claimant was not adequately notified of her
right to counsel when “ALJ made no effort to
confirm that [claimant] actually understood
his oblique reference to legal counsel as ‘a
representative’”). Furthermore, as discussed
supra, plaintiff was prejudiced by his failure
to be represented by an attorney. When a
“claimant is handicapped by lack of counsel, .
. . the courts have a duty to make a searching
investigation of the record.” Gold v. Sec’y of
Health, Educ. & Welfare, 463 F.2d 38, 43 (2d
Cir. 1972) (citation and internal quotation
marks omitted). Having fully reviewed the
record, the Court finds that an attorney would
have assisted plaintiff in developing the
record by highlighting instances in Dr.
O’Connor’s statements regarding plaintiff’s
depression, and by possibly calling Dr.
O’Connor or other individuals to testify as
witnesses.
if the ALJ chooses to discount Dr.
O’Connor’s opinion, he must explain in detail
his decision as outlined in the case law and
the regulations. The ALJ must also assist
plaintiff in developing the record if the
submissions are inadequate to determine
when plaintiff was depressed, how severe his
symptoms were, and whether plaintiff was
disabled and could not work. In addition, if
plaintiff chooses to appear without counsel at
the hearing, the ALJ must fully inform
plaintiff of his right to counsel.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Date: June 26, 2013
Central Islip, NY
***
Plaintiff is represented Michael Brangan,
Sullivan & Kehoe, 44 Main Street, Kings
Park, NY, 11754 The attorney for defendant
is Loretta E. Lynch, United States Attorney,
Eastern District of New York, by Kenneth M.
Abell, 271 Cadman Plaza East, 7th Floor,
Brooklyn, NY 11201.
IV. CONCLUSION
For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is denied but
plaintiff’s motion to remand is granted. The
case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order. Specifically, on
remand, the ALJ must consider all of Dr.
O’Connor’s submissions regarding plaintiff’s
disability (including those not available to
him at the time he rendered his decision), and
14
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