Smith v. Colvin
Filing
22
MEMORANDUM OF DECISION & ORDER granting 12 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. Based on the foregoing, it is hereby ordered that the Commissioners motion under FED. R. CIV. P. 12(c) for judgmen t on the pleadings is GRANTED; The Plaintiffs cross-motion under FED. R. CIV. P. 12(c) for judgment on the pleadings is DENIED; and The August 15, 2014 final decision of the Commissioner that the Plaintiff is not entitled to Social Security disabili ty insurance benefits for the Relevant Time Period is AFFIRMED in all respects. The Clerk of the Court is respectfully directed to close this case. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 9/27/2016. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT SMITH,
Plaintiff,
-againstCAROLYN COLVIN, Commissioner of Social Security,
Memorandum of
Decision & Order
14-cv-5868(ADS)
Defendant.
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APPEARANCES:
Law Offices of Sullivan & Kehoe, LLP
Attorneys for the Plaintiff
44 Main Street
Kings Park, NY 11754
By:
Michael Brangan, Esq., Of Counsel
U.S. Attorney’s Office, Eastern District of New York
Attorneys for the Defendant
610 Federal Plaza, 5th Floor
Central Islip, NY 11722
By:
Gail A. Matthews, Assistant U.S. Attorney
SPATT, District Judge:
On October 7, 2014, the Plaintiff Robert Smith (the “Plaintiff”) commenced this civil appeal
pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405 et seq., challenging a final
determination by the Defendant Acting Commissioner of Social Security Carolyn W. Colvin (the
“Commissioner”), that he is ineligible to receive Social Security disability insurance benefits.
Presently before the Court are the parties’ cross-motions, pursuant to Federal Rule of Civil
Procedure (“FED. R. CIV. P.”) 12(c), for judgment on the pleadings. For the reasons that follow, the
Commissioner’s motion for judgment on the pleadings is granted; the Plaintiff’s cross-motion for
judgment on the pleadings is denied; and the Commissioner’s denial of benefits is affirmed in its
entirety.
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I.
BACKGROUND
The Plaintiff, 55, worked as bus driver and bus inspector for 33 years. On February 1, 2013,
after allegedly suffering a right shoulder injury while pulling up a wheelchair lift, he applied for
Social Security disability insurance benefits. In his application for benefits, the Plaintiff asserted
that in addition to his right shoulder injury, he also suffered from hypertension and severe
impairments to his left shoulder and left knee. Although his on-the-job injury occurred on October
23, 2011, he alleged a disability onset date of September 21, 2012, when he stopped working.
On June 11, 2013, the Social Security Administration (“SSA”) denied his application.
On reconsideration, including a hearing held on October 22, 2013, Administrative Law Judge
Joseph Faraguna (the “ALJ”) upheld the SSA’s initial determination that the Plaintiff was not eligible
to receive disability insurance benefits. In particular, on December 17, 2013, the ALJ issued a written
decision concluding that, during the period of time from September 21, 2012 through the date of the
decision (the “Relevant Time Period”), the Plaintiff retained the functional capacity to perform light
work jobs that existed in significant numbers in the national economy.
On August 15, 2014, the Commissioner’s Appeals Council denied the Plaintiff’s request for
administrative appellate review of the ALJ’s determination, making the ALJ’s December 17, 2013
written decision the final decision of the Commissioner.
On October 7, 2014, the Plaintiff commenced this civil appeal.
On September 29, 2015, the parties’ cross-motions for judgment on the pleadings were fully
submitted to the Court.
A.
The Non-Medical Evidence
1.
The October 22, 2013 Administrative Hearing
On October 22, 2013, the Plaintiff, then 52, appeared with counsel for an administrative
hearing.
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a.
The Plaintiff’s Testimony
The Plaintiff testified that he is married and lives with his wife and two adult children.
He testified that he drove a bus for 33 years, first for a company called Triboro Coach and
later for the MTA. However, he testified that he has undergone total replacement surgeries on both
shoulders, which now render him unable to perform this work. The first surgery was performed by
Dr. Louis Bigliani in 2000. The second was performed by Dr. Charles Jobin in December 2012.
With regard to his symptoms, the Plaintiff testified that he experiences pain and limited
range of motion in his shoulders. In this regard, he testified that when he reaches or attempts to lift
his hands above his head, he experiences pain that he rates a 6/10 or 7/10. This pain causes him
difficulty performing certain activities of daily living, such as getting dressed and applying
deodorant. He also testified that he awakens during the night due to pain from sleeping on his side.
b.
The Testimony of Vocational Expert Frank Lindner
At the hearing, the ALJ called an independent vocational expert named Frank Lindner to
testify.
Mr. Lindner testified that he “totally agree[d]” that the Plaintiff could no longer drive a bus.
However, despite his physical impairments, Mr. Lindner identified one occupation, namely, “callout
operator,” that he believed the Plaintiff could perform. He described the job of a callout operator as
follows:
Compiles credit information for like companies that copy – collect bills, copy information on
to forms, telephone subscribers. It’s like working for like a credit company is what it would
be. The outlook for this job, locally like in New York would be 2,820 jobs, nationally would
be 5,650.
R. 83.
Mr. Lindner also stated that he could identify two other occupations that he believed the
Plaintiff could perform, but the ALJ did not ask him to do so.
The Plaintiff’s attorney declined to ask any questions of Mr. Lindner.
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2.
The October 31, 2013 Vocational Interrogatory
On October 31, 2013, at the request of the ALJ, a second independent vocational expert,
namely, Dr. David Vandergoot, completed a written vocational interrogatory form regarding his
impression of the Plaintiff’s vocational status based on a review of the evidence in the case file.
Dr. Vandergoot noted the Plaintiff’s past work as a bus driver and bus inspector, both of
which are semi-skilled, medium work jobs. He considered the following hypothetical question
posed by the ALJ:
Assume a hypothetical individual who was born on March 31, 1961, has at least a high school
education and is able to communicate in English . . . , and has work experience as [a bus
driver and bus inspector]. Assume further that this individual has the residual functional
capacity (RFC) to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except that he cannot perform grabbing or pushing and cannot use his right arm for
repetitive activities.
. . . Could the individual described [above] perform any of the claimant’s past jobs as actually
performed by the claimant or as normally performed in the national economy?
R. 203.
Dr. Vandergoot answered this question in the negative, opining that the exertional demands
of the Plaintiff’s past work exceeded his current capabilities. In particular, Dr. Vandergoot noted
that a “light work” RFC precluded work as a bus driver and/or inspector.
However, similar to Mr. Lindner, Dr. Vandergoot concluded that a hypothetical individual
operating within the Plaintiff’s limitations would nevertheless be able to perform the sedentary
requirements of representative occupations such as surveillance system monitor and school bus
monitor, as well as the light work requirements of a host/hostess.
B.
The Medical Evidence
The administrative record contains medical reports from a number of treating and consulting
physicians. The Court will summarize this evidence to the extent necessary to resolve the present
cross-motions.
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The earliest available treatment records come from the Plaintiff’s longtime treating
cardiologist Steven M. Kobren, M.D. who is affiliated with the New York University Langone
Medical Center and practices in Great Neck.
On December 29, 2008, the Plaintiff visited Dr. Kobren’s office for his hypertension. A
physical examination at the hands of Dr. Kobren’s colleague, Dr. Jeffrey Spivak, was unremarkable
and the notes from this visit do not reflect any complaints on the part of the Plaintiff. Dr. Spivak
refilled the Plaintiff’s prescription for Hyzaar, a blood pressure medication, and directed him to
follow up with Dr. Kobren.
On January 7, 2009, the Plaintiff complained to Dr. Kobren of shortness of breath, but denied
experiencing chest pain or other symptoms. An echocardiogram performed on that date revealed left
ventricular hypertrophy, indicating a heart murmur. Dr. Kobren also noted that the results of an
earlier electrocardiogram, performed on an unspecified date, had been abnormal, although he did not
elaborate on this finding and it does not appear that he recommended any additional treatment.
On February 24, 2010, the Plaintiff followed up with Dr. Kobren with complaints of unusual
chest discomfort, shortness of breath, and palpitations. However, other than some fatigue and
shortness of breath on exertion, the results of an exercise stress test and myocardial perfusion
imaging performed on that date were normal. An echocardiogram again showed left ventricular
hypertrophy, and the Plaintiff was continued on Hyzaar.
On April 17, 2012, the Plaintiff visited David M. Dines, M.D., a sports medicine specialist
affiliated with the Hospital for Special Surgery, who also practices in Great Neck. Dr. Dines noted
that the Plaintiff reported pain and discomfort in his right shoulder, which displayed crepitus – a
grating sound produced by the joint – and was restricted in all motion planes. Dr. Dines opined that
the Plaintiff’s only options for obtaining relief were intra-articular cortisone injections or a total
shoulder replacement. Based on severe osteoarthritis shown on x-rays and MRI images, Dr. Dines
recommended surgical repair.
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During an April 25, 2011 evaluation, Dr. Kobren noted that the Plaintiff’s hypertension was
well-controlled by prescription medication and a physical examination was unremarkable.
As noted above, on October 23, 2011, the Plaintiff, then 50, claims to have suffered an on-thejob injury pulling up a wheelchair lift on a bus. Apparently, he applied for Workers’ Compensation
benefits in connection with this injury.
On May 7, 2012, Dr. Kobren noted that there had been no changes in the Plaintiff’s relevant
medical history since his January 2009 visit, although the Plaintiff admitted to some fatigue and
tiredness. Dr. Kobren prescribed Levaquin, an antibiotic, and Allegra, an antihistamine, for a bout of
bronchitis, and encouraged the Plaintiff, who stood about six feet tall and weighed 255 pounds, to
lose weight. He also continued the Plaintiff on Hyzaar for his high blood pressure, which the doctor
again noted was under control.
The results of an exercise stress test and myocardial perfusion imaging performed on May 11,
2012 were normal.
In mid-2012, the Plaintiff also came under the care of Dr. Stephen Huish, a doctor of
osteopathic medicine affiliated with Physicians Medical Rehabilitation Associates, PLLC in Bayside.
The Court notes that a January 23, 2014 decision issued on the letterhead of the Chair of the
State Workers’ Compensation Board states that “Dr. Huish first examined the claimant on October
23, 2011,” namely, the date of the Plaintiff’s alleged injury. Id. However, no record of this visit was
provided for the Court’s review.
Dr. Huish’s earliest available treatment records reflect an office visit on August 15, 2012,
during which the Plaintiff complained of persistent bilateral shoulder pain. The pain had reportedly
worsened, although the Plaintiff reported some benefit from physical therapy. Dr. Huish noted
tenderness over the anterior and lateral aspects of the right shoulder and a limited range of motion in
that joint, namely, forward flexion to 98 degrees; abduction to 93 degrees; cross-body adducton to 12
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degrees, with pain; and “markedly restricted” internal and external rotations. The doctor noted
“ongoing, marked weakness” in the supraspinatus, one of the muscles comprising the rotator cuff.
With respect to the Plaintiff’s right shoulder, Dr. Huish’s diagnosis was a rotator cuff tear;
aggravation of glenohumeral osteoarthritis; and joint weakness. He opined that this condition was
causally connected to the workplace incident of October 23, 2011. Nevertheless, Dr. Huish noted
that the Plaintiff was making “objective, measurable progress” in physical therapy, which he
recommended be continued three times per week for the next month.
Dr. Huish also noted ongoing weakness and a limited range of motion in the Plaintiff’s left
shoulder, namely, forward flexion to 115 degrees; abduction to 107 degrees; cross-body adduction to
15 degrees, with pain; and “moderately-to-markedly restricted” internal and external rotations. He
noted a well-healed surgical site from the Plaintiff’s replacement surgery in 2000.
With respect to the left shoulder, Dr. Huish opined that the Plaintiff’s problems reflected a
consequential aggravation of the Plaintiff’s prior condition which previously required surgery.
On September 12, 2012, the Plaintiff followed up with Dr. Huish, again complaining of severe
bilateral shoulder pain. However, Dr. Huish noted that the Plaintiff had continued working and
reported some improvement in his range of motion due to physical therapy. Nonetheless, the
Plaintiff reported transferring many of his activities at work to his left side in an effort to protect the
right shoulder, which, in turn, worsened the pain in his left shoulder. He also reported some
difficulty sleeping and performing the activities of daily living.
Upon physical examination, Dr. Huish noted some continued tenderness over the anterior
and lateral aspects of the right shoulder and weakness in the right supraspinatus. Dr. Huish noted a
slight improvement in his range of motion, namely, forward flexion to 105 degrees (previously 98
degrees) and abduction to 100 degrees (previously 93 degrees). However, the Plaintiff was still
experiencing considerable pain and substitution in performing cross-body adducton to 12 degrees,
and his ability to perform extension, and internal and external rotations was unchanged.
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With respect to the left shoulder, the Plaintiff’s range of motion was slightly diminished,
namely, forward flexion to 110 degrees (previously 115 degrees); abduction to 105 degrees (previously
107 degrees); cross-body adduction to 12 degrees (previously 15 degrees); and unchanged internal
and external rotations.
On this date, September 12, 2012, Dr. Huish opined that the Plaintiff’s right shoulder injury
had resulted in a transfer of activities to the left side, with concomitant aggravation to his surgicallyrepaired left shoulder. Although he remained working, Dr. Huish declared the Plaintiff moderately
impaired for Workers’ Compensation purposes and recommended that he continue with physical
therapy three times per week.
Approximately two weeks later, on September 25, 2012, the Plaintiff reported to Dr. Huish
that several days earlier, on September 21, 2012 – the alleged disability onset date – he experienced
an acute onset of right shoulder pain while driving his bus. As a result, he reported difficulty lifting
his right arm.
Upon physical examination, the Plaintiff’s right shoulder was swollen and Dr. Huish noted
increased tenderness over the anterior and lateral aspects of the joint. His range of motion was
limited: forward flexion to 90 degrees (previously 105 degrees) and abduction to 80 degrees
(previously 100 degrees); cross-body adducton to 7 degrees (previously 12 degrees), with increased
pain and substitution; and extension to 5 degrees (previously 10 degrees). However, he was able to
perform internal and external rotations to 20 degrees and 40 degrees, respectively, whereas the
records from prior visits indicate no measurable ability to complete these motions.
The results of a physical examination of his left shoulder were substantially the same as in
his prior office visit.
On this date, Dr. Huish opined that the work incident allegedly having occurred on
September 21, 2012 had exacerbated his shoulder injury, which would require an additional 18 to 24
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sessions of physical therapy to return to his baseline functional status. He declared the Plaintiff to
be “temporarily totally disabled” for Workers’ Compensation purposes.
Apparently, the Plaintiff did not return to work after September 21, 2012.
Physical therapy progress notes from September 26, 2012 and October 1, 2012 indicate that
the Plaintiff reported intense right shoulder pain that he described as “excruciating every day.”
On October 16, 2012, the Plaintiff followed up with Dr. Huish. The notes from this visit
indicate that the Plaintiff reported improvement in his pain levels and range of motion, although he
was still “considerably restricted.” In this regard, the Plaintiff performed forward flexion to 107
degrees (previously 90 degrees, immediately after the alleged onset of disability); abduction to 103
degrees (previously 80 degrees); cross-body adducton to 20 degrees (previously 7 degrees); and
internal and external rotations to 25 and 45 degrees, respectively (previously 20 and 40 degrees,
respectively).
He also reported persistent left shoulder pain, and Dr. Huish noted that his range of motion
in that joint was unchanged since prior visits.
Overall, Dr. Huish noted that the Plaintiff was “progressing objectively,” despite remaining
“totally disabled” for Workers’ Compensation purposes.
On October 26, 2012, the Plaintiff visited Shariar Sotudeh, M.D. for a consultative orthopedic
evaluation in connection with his claim for Workers’ Compensation benefits.
Dr. Sotudeh noted that the Plaintiff drove himself to the appointment; was normal in
appearance; and ambulated with a normal gait. He sat comfortably and moved his head, neck, and
body freely throughout their meeting. Dr. Sotudeh noted that the Plaintiff had no difficulty getting
on and off the exam table, and turned from side to side and front to back freely.
Upon physical examination of the right shoulder, Dr. Sotudeh noted no heat, swelling,
effusion, erythema, or crepitus. The joint was negative for an impingement. He also measured the
Plaintiff’s range of motion and noted what he considered to be the normal range for each plane. The
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Plaintiff performed forward flexion to 90 degrees (170-180 degrees being normal); abduction to 90
degrees (170-180 degrees being normal); adduction to 45 degrees (45 degrees being normal);
extension to 40 degrees (40 degrees normal); internal rotation to 60 degrees (80-90 degrees being
normal); and external rotation to 60 degrees (80-90 degrees being normal).
On the left side, which Dr. Sotudeh also noted was negative for an impingement, the Plaintiff
performed forward flexion to 170 degrees (170-180 degrees being normal); abduction to 170 degrees
(170-180 degrees being normal); adduction to 45 degrees (45 degrees being normal); extension to 40
degrees (40 degrees normal); internal rotation to 80 degrees (80-90 degrees being normal); and
external rotation to 80 degrees (80-90 degrees being normal).
Based on these findings, Dr. Sotudeh diagnosed a right shoulder sprain/strain that was likely
causally related to his on-the-job accident in October 2011. Nevertheless, he opined that the Plaintiff
remained capable of performing sedentary duties, with a restriction against repetitive use of the
right arm; grabbing; and lifting objects weighing more than 20 pounds.
Further, Dr. Sotudeh opined that there was no need for continued physical therapy, as it
would be considered palliative and not curative.
The following month, in November 2012, on referral from Dr. Kobren, the Plaintiff came
under the care of Dr. Charles Jobin, an orthopedic surgeon affiliated with New York Orthopaedic
Hospital Associates, P.C.
On November 6, 2012, Dr. Jobin noted that the Plaintiff had suffered from right shoulder pain
for approximately a year following his on-the-job injury, and also suffered from a subsequent
exacerbation of his condition, as described by Dr. Huish above. The Plaintiff reported 10/10 pain
when moving his right shoulder, but mild pain – 1/10 to 2/10 – when at rest. The pain reportedly
kept the Plaintiff awake at night and prevented him from lifting his right arm over his head and
performing certain activities of daily living, including practicing basic hygiene. At the time of this
initial visit, the Plaintiff was taking Aleve for his pain, which only afforded him temporary relief.
10
Upon physical examination, Dr. Jobin noted that the Plaintiff had 120 degrees of forward
elevation in his right shoulder, although with pain, and 20 degrees of external rotation. Dr. Jobin
noted some crepitus in the right glenohumeral joint. On the left side, he had 140 degrees of forward
elevation and 70 degrees of external rotation. He had intact external rotation strength bilaterally
and “intact thumbs down in abduction strength bilaterally” with some pain noted on the right side.
X-rays of the right shoulder revealed moderate to advanced glenohumeral arthritis, loss of
joint space, and what appeared to Dr. Jobin to be a B1 glenoid. Dr. Jobin also reviewed an MRI that
the Plaintiff brought with him from an outside facility. He noted that, although the Plaintiff did not
also produce a related radiology report, the images appeared to demonstrate a partial thickness
supraspinatus tear; advanced glenohumeral arthritis; and a B1 glenoid.
On this date, the Plaintiff consented to proceed with a total right shoulder arthroplasty,
which was scheduled for late-December 2012.
In the interim, the Plaintiff continued visiting Dr. Huish, who, on November 13, 2012, noted
restriction in the range of motion in the Plaintiff’s right shoulder, despite measurable improvement
in certain planes. For example, on this date, the Plaintiff performed forward flexion to 130 degrees
(previously 107 degrees) and abduction to 120 degrees (previously 103 degrees). However, he also
showed deficits in certain planes, namely, a five-degree decrease in cross-body adduction. Dr. Huish
stated that there were “marked deficits” in internal and external rotations, and weakness in the right
supraspinatus and subscapularis.
The results of a physical examination of his left shoulder were substantially the same as in
prior office visits.
Dr. Huish opined that the Plaintiff required total joint arthroplasty in his right shoulder and
noted that he remained out of work and 80% disabled for Workers’ Compensation purposes.
However, on the recommendation of Dr. Sotudeh to the Workers’ Compensation Board, Dr. Huish
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temporarily discontinued physical therapy for the Plaintiff’s right shoulder, a decision with which he
explicitly disagreed in his report.
On December 11, 2012, the Plaintiff followed up with Dr. Huish complaining of “a marked
increase” in pain in the right shoulder with diminished range of motion, strength and function. He
also reported increased pain at night; persistent pain in the left shoulder; and increased weakness in
the right supraspinatus and subscapularis. Dr. Huish noted a slightly restricted range of motion,
namely, forward flexion to 120 degrees (previously 130 degrees); abduction to 100 degrees
(previously 120 degrees); cross-body adduction to 10 degrees (previously 15 degrees); and extension
to 15 degrees (previously 20 degrees). However, the Plaintiff also showed improved internal and
external rotations, performing these motions to 30 and 55 degrees, respectively (previously 25 and
45 degrees, respectively).
Dr. Huish noted no change in the condition of the Plaintiff’s left shoulder, and recommended
that he resume physical therapy to restore him to baseline functional status.
A physical therapy progress note from December 13, 2012 indicates that the Plaintiff reported
very intense right shoulder pain and discomfort.
On December 27, 2012, the Plaintiff underwent a right total shoulder arthroplasty; biceps
tenodesis; and lesser tuberosity osteotomy repair at the hands of Dr. Jobin.
One week after the surgery, on January 3, 2013, Dr. Jobin noted that the Plaintiff was “doing
extremely well.” In particular, the Plaintiff had discontinued the use of narcotic pain relievers;
experienced no fevers, chills, or drainage; showered; and performed the at-home exercises
recommended by Dr. Jobin.
Further, the surgical wound was healing without any sign of infection, and the Plaintiff had
active assisted forward elevation of 130 degrees, with assisted external rotation to 30 degrees. The
Plaintiff had intact radial, ulnar, and median nerve distribution, as well as deltoid and axillary motor
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function, and intact biceps function. He experienced some slight tingling in the median nerve
distribution on the right side, but Dr. Jobin stated that this sensation was improving.
Radiographic images of the Plaintiff’s right shoulder taken on January 3, 2013 indicated that
the surgical hardware was intact and showed no evidence of acute fracture, malalignment, or
loosening of the prosthesis.
On January 8, 2013, the Plaintiff had his first postoperative visit with Dr. Huish, who also
noted that the surgical site was healed with no signs of infection. The Plaintiff was able to perform
forward flexion to 85 degrees and abduction to 80 degrees, but still experienced marked deficits in
the other shoulder motions. With regard to his right shoulder, Dr. Huish noted that the Plaintiff
would remain out of work and was “totally disabled from any occupation” for Workers’
Compensation purposes.
Further, Dr. Huish noted tenderness over the anterior aspect of the left shoulder and the
acromioclavicular joint. On the left side, the Plaintiff performed forward flexion to 135 degrees
(previously 110 degrees); abduction to 130 degrees (previously 105 degrees); cross-body adduction to
20 degrees (previously 12 degrees), with pain; and “moderately-to-markedly restricted” internal and
external rotations.
On January 31, 2013, the Plaintiff followed up with Dr. Jobin, who noted that the Plaintiff had
been attending physical therapy, where he did mostly stretching exercises. Dr. Jobin noted that the
Plaintiff had “almost no pain.”
Upon physical examination, Dr. Jobin noted that the surgical site was healing well with no
signs of infection. The Plaintiff had intact axillary nerve strength and sensation, and was able to
achieve forward elevation of 90 degrees; active assisted forward elevation to 130 degrees; external
rotation to 35 degrees; and assisted external rotation to 45 degrees.
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X-rays of the right shoulder was unremarkable and revealed that the Plaintiff’s arthroplasty
was in “good position,” with the glenoid component “well seated without any radiolucent lines” and
the proximal humerus component “well aligned.”
Dr. Jobin advanced the Plaintiff’s course of physical therapy to include some gentle
strengthening exercises, in addition to stretching. He also prescribed Meloxicam, a nonsteroidal
anti-inflammatory medication.
Radiographic images of the Plaintiff’s right shoulder taken on January 31, 2013 again revealed
normal alignment and showed no evidence of hardware-related complications.
On February 5, 2013, the Plaintiff again followed up with Dr. Huish, complaining of
persistent left shoulder pain, but nevertheless reporting that he believed he was making progress in
physical therapy.
Upon physical examination, Dr. Huish noted no swelling at the surgical site, which, by then,
was well-healed. The Plaintiff experienced some weakness in the rotator cuff, but was able to
perform forward flexion to 90 degrees (previously 85 degrees during first postoperative visit);
abduction to 85 degrees (previously 80 degrees); and showed minimal improvements performing
internal and external rotations.
On the left side, the Plaintiff experienced persistent weakness in the rotator cuff and a
substantially unchanged range of motion.
Dr. Huish recommended a continued course of physical therapy and noted that the Plaintiff
would remain out of work as he was “totally disabled” for Workers’ Compensation purposes.
On February 25, 2013, the Plaintiff visited John F. Waller, M.D. for a second consultative
orthopedic evaluation in connection with his claim for Workers’ Compensation benefits.
Dr. Waller noted that the Plaintiff was normal in appearance; ambulated without an
assistive device; and had a normal gait. He sat comfortably; moved his head, neck, and body freely
14
during their conversation; and required no help getting on and off the exam table. He was able to
dress and undress his outerwear without assistance; and turned side to side and front to back freely.
Upon physical examination of the right shoulder, Dr. Waller noted no heat, swelling,
effusion, erythema, or crepitus. The joint was negative for impingement and cuff tear. He also
measured the Plaintiff’s range of motion and noted what he considered to be the normal range for
each plane. In this regard, the Plaintiff performed forward flexion to 80 degrees (180 degrees being
normal); abduction to 80 degrees (170 degrees being normal); adduction to 40 degrees (40 degrees
being normal); internal rotation to 45 degrees (80 degrees being normal); and external rotation to 45
degrees (80 degrees being normal).
On the left side, which was also negative for impingement and cuff tear, the Plaintiff
performed forward flexion to 160 degrees (180 degrees being normal); abduction to 140 degrees (170
degrees being normal); adduction to 40 degrees (40 degrees being normal); internal rotation to 45
degrees (80 degrees being normal); and external rotation to 45 degrees (80 degrees being normal).
Based on these findings, Dr. Waller diagnosed a resolving status post total shoulder
replacement on the right side which was causally related to the Plaintiff’s workplace incident.
However, Dr. Waller determined that there was no evidence of a consequential injury to the left
shoulder.
He recommended that the Plaintiff continue with his course of physical therapy
treatment.
Similar to Dr. Sotudeh, Dr. Waller concluded that the Plaintiff retained the capacity to
perform sedentary duties, with restrictions on repetitive use of the right arm, grabbing, and pushing.
One month later, on March 5, 2013, the Plaintiff followed up with Dr. Huish, who noted that
the surgical site on his right shoulder was well-healed, with no signs of infection or swelling. His
range of motion in that joint was mostly unchanged from the prior visit, except he displayed
improved internal and external rotations, to 35 and 40 degrees, respectively. Dr. Huish noted that
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the Plaintiff was making objective progress in physical therapy, which he recommended continue for
an additional four weeks.
However, the Plaintiff reportedly complained of worsening pain in his left shoulder and Dr.
Huish noted ongoing tenderness over the anterior aspect and weakness of the supraspinatus. His
range of motion on the left side was unchanged from prior visits.
According to Dr. Huish, the Plaintiff remained out of work and “totally disabled” for
Workers’ Compensation purposes.
Radiographic images of the Plaintiff’s right shoulder taken on March 13, 2013 again revealed
that the surgical hardware was intact and properly aligned.
On March 31, 2013, Dr. Jobin noted that the Plaintiff, now 10 weeks post-operative, was
doing “much better” and had “no arthritic pain” in his right shoulder. X-rays of the right shoulder
showed that the joint was healing and in a “good position.” However, the Plaintiff complained of
some discomfort in his left shoulder, which Dr. Jobin stated would be revisited at their next visit.
On April 4, 2013, the Plaintiff underwent CT scans of both shoulders and a sonogram of the
right shoulder. The sonogram revealed evidence of moderate partial thickness tears in the right
subscapularis and supraspinatus tendons. The CT scan of the same joint showed detachment and
mild proximal retraction of the lesser tuberosity, but no evidence of hardware loosening or
polyethylene wear.
The CT scan of the left shoulder revealed evidence of glenoid prosthetic component
loosening; overlying posterior polyethylene wear; and a possible rotator cuff tear.
On April 16, 2013, Dr. Huish noted that the Plaintiff’s physical therapy had been discontinued
pursuant to a Workers’ Compensation filing. Dr. Huish noted that he disagreed with this result,
stating in his report that the Plaintiff reported progressive worsening of pain in his postoperative
right shoulder, with increased stiffness and difficulty performing the activities of daily living.
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Upon physical examination, Dr. Huish noted increased swelling over the anterior aspect of
the right shoulder and weakness in the right rotator cuff. Forward flexion was to 85 degrees
(previously 90 degrees); abduction was to 80 degrees (previously 85 degrees); cross-body adduction
was to 15 degrees; internal rotation was to 30 degrees (previously 35 degrees); and external rotation
was to 40 degrees (unchanged).
On the left side, Dr. Huish noted persistent tenderness over the anterior aspect and
weakness at the supraspinatus. Nonetheless, the Plaintiff displayed only minor deficits in his range
of motion from prior visits: forward flexion to 130 degrees (previously 135 degrees); abduction to 120
degrees (previously 130 degrees); and cross-body adduction to 20 degrees (unchanged), with pain.
Further, the Plaintiff was able to perform internal and external rotations to 30 and 40 degrees,
respectively, whereas, during prior visits, Dr. Huish noted only a “moderately-to-markedly
restricted” ability to perform these motions.
Dr. Huish recommended that the Plaintiff’s physical therapy be resumed, and noted that the
Plaintiff would remain out of work as he was “totally disabled” for Workers’ Compensation
purposes.
On May 7, 2013, Dr. Huish noted that the Plaintiff’s physical therapy had been successfully
reinstated and that, as a result, the swelling in his right shoulder had decreased and his range of
motion had improved.
However the Plaintiff continued experiencing pain in his left shoulder, and Dr. Huish noted a
slight decrease in his range of motion. The Plaintiff remained out of work and “totally disabled” for
Workers’ Compensation purposes.
On June 12, 2013, the Plaintiff reported to Dr. Jobin that he felt “pretty good,” and the doctor
noted that the arthritic pain in his right shoulder was “gone,” except for some soreness when he used
his right arm for extended periods of time. According to the report from this visit, the Plaintiff had
“no restrictions in terms of his activity.”
17
Upon physical examination, the surgical site appeared well-healed, with no warmth or
redness and no mechanical symptoms. Despite some stiffness, the Plaintiff had forward elevation of
145 degrees, and external rotation of 50 degrees, with intact external rotation strength. Dr. Jobin
noted some “knee swelling,” although he did not specify which knee was affected, nor did he
elaborate on this symptom or recommend any related treatment.
X-rays of the right shoulder once again showed that the joint was well-positioned without
any complications.
On June 19, 2013, Dr. Huish noted that the Plaintiff’s right shoulder continued to improve as
a result of physical therapy. In this regard, the Plaintiff reported some persistent stiffness and pain,
although it “seem[ed] to be getting better.” Dr. Huish noted that the Plaintiff had restricted range of
motion, strength, and function on the right side. However, he displayed considerably increased
mobility on all planes, namely, forward flexion to 115 degrees (previously 85 degrees); abduction to
110 degrees (previously 80 degrees); cross-body adduction to 20 degrees (previously 15 degrees);
internal rotation to 40 degrees (previously 30 degrees); and external rotation to 45 degrees
(previously 40 degrees).
Dr. Huish also noted that the pain in the Plaintiff’s left shoulder persisted; that his range of
motion in that joint remained restricted; and he had continued weakness in the supraspinatus.
Dr. Huish continued the Plaintiff’s course of physical therapy treatment and declared him
“disabled/impaired” for Workers’ Compensation purposes.
An MRI of the Plaintiff’s left knee performed on August 26, 2013 revealed possible thickness
cartilage loss with a subjacent osteochondral lesion; intrameniscal mucoid degeneration of the
posterior horn of the medial meniscus without articular extension; a possible closed flap tear;
intrasubstance edema and a tear of the popliteus muscle with an adjacent multilobular ganglion cyst;
and small joint effusion.
18
On September 17, 2013, Dr. Huish noted that the Plaintiff had received a transcutaneous
electrical nerve stimulation (“TENS”) unit, i.e., a noninvasive method of pain management, and had
been using it at home “with significant relief.” The range of motion in the Plaintiff’s right shoulder
continued to improve, with forward flexion reaching 130 degrees (previously 115 degrees); abduction
reaching 120 degrees (previously 110 degrees); cross-body adduction to 25 degrees (previously 20
degrees); internal rotation to 40 degrees (unchanged); and external rotation to 50 degrees
(previously 45 degrees). There was continued weakness in the rotator cuff, although with “ongoing
improvement.”
Again, Dr. Huish noted the problem in the Plaintiff’s left shoulder, which continued to
restrict his range of motion. On this date, the Plaintiff was able to perform forward flexion to 115
(previously 130 degrees) and abduction to 110 degrees (previously 120 degrees). His ability to
perform cross-body adduction and internal and external rotations was unchanged. Dr. Huish noted
“considerable weakness” in the left rotator cuff.
Despite making “objective, measurable improvement” through a physical therapy regimen,
the Plaintiff remained out of work and “disabled from any occupation” for Workers’ Compensation
purposes.
On December 9, 2013, the Plaintiff’s right shoulder again showed improved range of motion,
and he was able to perform forward flexion to 140 degrees (previously 130 degrees); abduction to 125
degrees (previously 120 degrees); and cross-body adduction to 30 degrees (previously 25 degrees).
On this date, Dr. Huish noted that the Plaintiff’s ability to perform internal and external rotations
was grossly unchanged since the last visit, and that the Plaintiff had improved strength in his right
supraspinatus.
The condition of his left shoulder was also unchanged, and Dr. Huish characterized his range
of motion in that joint as “markedly restricted.” Dr. Huish noted that the Plaintiff remained out of
work and disabled for Workers’ Compensation purposes.
19
On April 4, 2014, the Plaintiff reported to Dr. Jobin a constant ache in the anterior aspect of
his right shoulder with overhead activity. His progress in physical therapy had slowed. Also, the
Plaintiff reported problems with his left shoulder, namely, a deep aching pain and associated loss of
strength and function. Nevertheless, the Plaintiff denied any feelings of joint instability. In fact, Dr.
Jobin noted that he had regained almost all of his strength.
X-rays of the right shoulder revealed evidence of lesser tuberosity nonunion, which Dr. Jobin
believed to be symptomatic. X-rays of the left shoulder showed some glenoid socket polyethylene
wear.
On May 22, 2014, Dr. Jobin performed a second surgery on the Plaintiff’s right shoulder, this
time an open repair and fixation of lesser tuberosity.
C.
The ALJ’s December 17, 2013 Decision
In this appeal, the Plaintiff challenges the ALJ’s findings contained in a December 17, 2013
written decision.
The ALJ found that, during the period of time from September 21, 2011 through the date of
his decision (previously defined as the “Relevant Time Period”) the Plaintiff suffered from a severe
impairment – namely, internal derangement of the right shoulder status post arthroplasty, and
residuals of left shoulder arthroplasty – which caused more than minimal limitations on his ability to
perform basic work activities.
In this regard, the ALJ noted that the Plaintiff had also alleged disability due to hypertension
and internal derangement of his left knee. However, the ALJ concluded that the record did not
support finding that either of these alleged conditions were severe impairments under the Act. In
particular, the ALJ found that the record established that the Plaintiff’s hypertension was wellcontrolled and there was no evidence of any symptomology or functional limitations related to his
high blood pressure. Also, the ALJ found that there was no evidence of left knee impairment other
than a single episode of swelling in June 2013, namely, nine months after the alleged disability onset
20
date. In this regard, the ALJ noted that the record contained no evidence that the Plaintiff sought or
received any regular course of treatment for any problem with his knees, or that his alleged knee
impairment limited his ability to perform any work-related activities.
Notwithstanding the severe impairment caused by the Plaintiff’s shoulder injuries, the ALJ
determined that he retained the residual functional capacity (“RFC”) to perform “light work,” as
that term is defined in 20 C.F.R. § 404.1567(b), except that he cannot perform grading or pushing
and cannot use his right arm for repetitive activities.
In reaching this conclusion, the ALJ noted that the Plaintiff’s upper body impairments could
reasonably be expected to produce his alleged symptoms, namely, a poor range of shoulder motion;
difficulty lifting his arms above his head; difficulty putting on a shirt and applying deodorant; and
pain at night. However, the ALJ found that the medical evidence in the record, which he thoroughly
summarized, did not entirely support the Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of those symptoms.
As for the Plaintiff’s treating physicians, the ALJ gave little weight to the medical opinion
furnished by Dr. Huish that the Plaintiff was “totally disabled.” The ALJ characterized this opinion
as “vague,” and noted that, to the extent that Dr. Huish declared the Plaintiff disabled for Workers’
Compensation purposes, that conclusion was entitled to no special significance, as it purports to
answer a question reserved for the Commissioner and applies an incorrect legal standard.
The ALJ assigned “great weight, but not controlling weight” to the opinion furnished by Dr.
Jobin, as it was largely supported by the objective medical evidence. However, the ALJ noted that,
contrary to Dr. Jobin’s assessment that the Plaintiff had no restrictions in terms of his activity, there
was, in actuality, evidence that the Plaintiff is somewhat limited in his ability to use his upper
extremities.
With respect to the consulting physicians, the ALJ assigned “some weight” to the opinion
furnished by Dr. Sotudeh that the Plaintiff was capable of “work activity consisting of sedentary
21
duties with no repetitive use of his right arm and no grabbing or heavy lifting over 20 pounds.” In
this regard, the ALJ noted that it was somewhat unclear what Dr. Sotudeh meant by the phrase
“sedentary duties.” Also, while there was evidence to support some restrictions on the Plaintiff’s use
of his upper extremities, the ALJ noted that there was no evidence of significant limitations on the
Plaintiff’s abilities to sit, stand, or walk, which would support a “sedentary work” RFC.
Finally, the ALJ also assigned “some weight” to the opinion furnished by Dr. Waller that the
Plaintiff was capable of “working sedentary duties only with no repetitive use of his right arm, and
no grabbing or pushing.” In this regard, the ALJ again noted that Dr. Waller’s use of the phrase
“sedentary duties” was not clear, and there was no evidence to support significant restrictions on the
Plaintiff’s abilities to sit, stand, or walk.
Thus, although the ALJ found that the Plaintiff was incapable of performing his past work as
a bus driver and a bus inspector – both of which require the exertional capacity to perform medium
work – given his age; his high school education; his ability to communicate in English; his prior work
experience; and his capacity to perform light work, the ALJ determined that there were nevertheless
jobs that existed in significant numbers in the national economy that the Plaintiff could have
performed.
In reaching this conclusion, the ALJ acknowledged that, due to the combined effect of the
Plaintiff’s limitations, he was unable to perform all or substantially all of the requirements of light
work. Therefore, “[t]o determine the extent to which these limitations erode the unskilled light
occupational base,” the ALJ relied upon the October 31, 2013 Vocational Interrogatory completed by
Dr. Vandergoot, which, as noted above, concluded that the Plaintiff could perform such
representative occupations as surveillance system monitor; school bus monitor; and host/hostess, all
of which exist in significant numbers in the national economy.
Therefore, the ALJ determined that the Plaintiff was not disabled under the Act during the
Relevant Time Period.
22
D.
The Present Appeal
In this appeal, the Plaintiff sets forth five arguments in support of overturning the ALJ’s
conclusion that he was not disabled during the Relevant Time Period.
First, the Plaintiff contends that the ALJ failed to develop the record because, at the October
22, 2013 administrative hearing, the ALJ did not ask any questions regarding the nature and severity
of the injuries to his left shoulder and left knee.
Second, the Plaintiff contends that the ALJ failed to properly weigh the medical evidence
pertaining to Dr. Huish. In particular, the Plaintiff argues that Dr. Huish was his treating physician
within the meaning of the Commissioner’s regulations, and therefore, the ALJ erred in failing to give
controlling weight to his repeated assertion that the Plaintiff was “disabled” for Workers’
Compensation purposes.
Third, the Plaintiff contends that, to the extent Dr. Huish’s opinion that the Plaintiff was
“disabled” conflicted with other medical opinions in the record, the ALJ should have solicited an
independent medical opinion to clarify the Plaintiff’s functional limitations. According to the
Plaintiff, the ALJ’s failure to do so constitutes legal error.
Similarly, fourth, the Plaintiff contends that the ALJ erred in failing to direct the Plaintiff to
undergo a consultative orthopedic evaluation. In this regard, the Plaintiff asserts that an evaluation
by a consulting physician would have assisted in clarifying the nature and severity of his
impairments.
Finally, the Plaintiff’s fifth ground for relief is essentially a reiteration of his first argument,
namely, that the Plaintiff was denied a full and fair administrative hearing because the ALJ failed to
ask specific questions about the alleged impairment to the Plaintiff’s left shoulder and left knee.
The Commissioner contends that these arguments lack merit; that the ALJ applied the
proper legal standards; and that substantial evidence in the record supports her denial of benefits in
all respects.
23
II.
A.
DISCUSSION
The Standard of Review
“Judicial review of the denial of disability benefits is narrow” and “[t]he Court will set aside
the Commissioner’s conclusions only if they are not supported by substantial evidence in the record
as a whole or are based on an erroneous legal standard.” Koffsky v. Apfel, 26 F. Supp. 475, 478
(E.D.N.Y. Nov. 16, 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).
Thus, “the reviewing court does not decide the case de novo.” Pereira v. Astrue, 279 F.R.D. 201,
205 (E.D.N.Y. 2010). Rather, “the findings of the Commissioner as to any fact, if supported by
substantial evidence, are conclusive,” id., and therefore, the relevant question is not “whether there is
substantial evidence to support the [claimant’s] view”; instead, the Court “must decide whether
substantial evidence supports the ALJ’s decision.” Bonet v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)
(emphasis in original). In this way, the “substantial evidence” standard is “very deferential” to the
Commissioner, and allows courts to reject the ALJ’s findings “ ‘only if a reasonable factfinder would
have to conclude otherwise.’ ” Brault v. SSA, 683 F.3d 443, 448 (2d Cir. 2012) (quoting Warren v. Shalala, 29
F.3d 1287, 1290 (8th Cir. 1994) (emphasis in original)). This deferential standard applies not only to
factual determinations, but also to inferences and conclusions drawn from such facts.” Pena v.
Barnhart, No. 01-cv-502, 2002 U.S. Dist. LEXIS 21427, at *20 (S.D.N.Y. Oct. 29, 2002) (citing Levine v.
Gardner, 360 F.2d 727, 730 (2d Cir. 1966)).
In this context, “ ‘[s]ubstantial evidence’ means ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).
An ALJ’s findings may properly rest on substantial evidence even where he or she fails to “recite
every piece of evidence that contributed to the decision, so long as the record ‘permits [the Court] to
glean the rationale of [his or her] decision.’ ” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013)
24
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). This remains true “even if contrary
evidence exists.” Mackey v. Barnhart, 306 F. Supp. 337, 340 (E.D.N.Y. 2004) (citing DeChirico v. Callahan,
134 F.3d 1177, 1182 (2d Cir. 1998), for the proposition that an ALJ’s decision may be affirmed where
there is substantial evidence for both sides).
The Court is prohibited from substituting its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review. See Koffsky, 26
F. Supp. at 478 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
B.
As to the Legal Sufficiency of the Plaintiff’s Administrative Hearing
(The First and Fifth Grounds for Relief)
“Before determining whether the Commissioner’s conclusions are supported by substantial
evidence, [the Court] ‘must first be satisfied that the claimant has had a full hearing under
the . . . regulations and in accordance with the beneficent purposes of the [Social Security] Act.’ ”
Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990)).
“In considering whether the plaintiff received a full and fair hearing, a court should consider such
factors as whether the ALJ asked questions regarding the disposition and extent of the claimant’s
subjective symptoms, the number of witnesses, and the length of the transcript.” Almonte v. Apfel,
No. 96-cv-1119, 1998 U.S. Dist. LEXIS 4069, at *21-*23 (S.D.N.Y. Mar. 31, 1998).
In this regard, it is well-settled that an ALJ has an affirmative duty to develop the
administrative record, see Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000), which “encompasses not
only the duty to obtain a claimant’s medical records and reports but also the duty to question the
claimant adequately about any subjective complaints and the impact of the claimant’s impairments
on [his or her] functional capacity,” Brown v. Comm’r of Soc. Sec., 709 F. Supp. 2d 248, 255-56 (S.D.N.Y.
2010).
For example, in Sarjeant v. Chater, No. 97-6282, 1998 U.S. App. LEXIS 28011 (2d Cir. Oct. 29,
1998), the plaintiff appealed from a district court decision upholding the Commissioner’s denial of
25
benefits. She argued that she had not received a full and fair administrative hearing because the ALJ
failed to question her sufficiently regarding her subjective complaints of pain. The Second Circuit
disagreed, relying on the following brief colloquy on the record:
Q: Where do you experience pain?
A: Well, my neck, I would say pretty well my entire back, my tailbone,
sometimes my knees, sometimes my feet.
Q: Do you have this pain all the time or does it come and go?
A: It just come and go [sic]. Then, like I say, I have to take medication for it.
And I’m also seeing a doctor in between that’s treating me for my pain.
Id at *6.
Further, in that case, the ALJ had explicitly asked the plaintiff whether there was anything
else that she felt was important for him to know in connection with her application for benefits.
Under those circumstances, the court concluded that the ALJ had provided the plaintiff with a
sufficient opportunity to testify about her subjective complaints of pain.
Similarly, in Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29 (2d Cir. 2013), the Second Circuit
affirmed summary judgment for the Commissioner in a case where the plaintiff argued that she was
denied a full and fair hearing because the Turkish interpreter provided by the SSA was ineffective.
The court rejected this argument, reasoning that the plaintiff failed to establish how any alleged
interpretation issue had disadvantaged her. In this regard, the court found it to be important that
the plaintiff’s counsel was present at the hearing and was given an opportunity at the close of the
proceedings to ask further questions, and thus ensure that the entirety of his client’s position was on
the record.
Several district court decisions are in accord. See, e.g., Gardner v. Colvin, No. 13-cv-787, 2014
U.S. Dist. LEXIS 146177, at *12-*13 (W.D.N.Y. Oct. 14, 2014) (rejecting the plaintiff’s claim that she
was denied a full and fair hearing where she testified as to her shoulder injury and subsequent
surgery; her functional limitations, including difficulty lifting her hands over her head; and the ALJ
gave counsel an opportunity to question the vocational expert witness about the extent of the
26
plaintiff’s functional limitations and the effect of those limitations on her ability to work); Maurice v.
Colvin, No. 12-cv-2114, 2014 U.S. Dist. LEXIS 91263, at *43-*44 (S.D.N.Y. July 2, 2014) (Report and
Recommendation) (finding that where the plaintiff was represented by counsel, and had a full
opportunity to confront the medical evidence by presenting witness testimony, introducing medical
documentation of her own, and cross-examining the vocational expert, but failed to exercise these
rights, she was estopped from complaining that she was denied a full and fair hearing); Pokluda v.
Colvin, No. 13-cv-335, 2014 U.S. Dist. LEXIS 59337, at *10-*11 (N.D.N.Y. Mar. 21, 2014) (Report and
Recommendation), adopted, 2014 U.S. Dist. LEXIS 58394 (N.D.N.Y. Apr. 28, 2014) (determining that
the plaintiff’s hearing had been “ ‘full and fair’ in every sense as that term is commonly understood”
where: she received notifications prior to the hearing explaining the process and her rights; she
attended the hearing, testified, and was able to hear and question all witnesses; she was allowed to
present evidence; the ALJ assembled and considered all of her medical records and credited opinions
expressed by her attending physicians; medical and psychiatric evaluations were completed; and
opinions were obtained from medical and vocational experts); Mikol v. Barnhart, 494 F. Supp. 2d 211,
223 (S.D.N.Y. 2007) (holding that the plaintiff had “clearly” received a full and fair hearing where he
was represented by counsel who was present at the hearing; the ALJ was supplied with and
reviewed the voluminous medical records prior to the hearing and questioned plaintiff regarding his
injuries; and counsel was permitted to ask questions of plaintiff and the vocational expert).
Applying these standards, the Court finds that the Plaintiff in this case was afforded a full
and fair administrative hearing in connection with his application for benefits.
Initially, the Court notes that the Plaintiff does not challenge any procedural aspects of the
hearing – that is, he does not dispute that he received adequate notice and time to prepare for the
hearing; that he appeared at the hearing and was ably represented by counsel of his own choosing;
that both he and the ALJ were provided with and reviewed all relevant medical evidence in advance
27
of the proceeding; that the Plaintiff was permitted to confront such evidence, by testifying on his
own behalf and calling witnesses to testify; and that his counsel was given an opportunity to
question any witnesses called by the ALJ.
Rather, the gravamen of the Plaintiff’s current contention is that the ALJ did not sufficiently
delve into the substantive issue of the nature and severity of certain of his impairments, as evidenced
by the fact that, apparently, the hearing was quite brief, generating only seven pages of testimony. In
this regard, the Plaintiff argues that, despite the underlying record being “replete with information
regarding [his] left shoulder condition,” the ALJ failed to ask any specific questions about it. Nor did
the ALJ ask any questions specifically concerning the Plaintiff’s alleged knee condition.
However, in the Court’s view, contrary to the Plaintiff’s conclusions, the transcript is clear
that the ALJ repeatedly referred to the pertinent medical evidence in the record; explicitly
questioned the Plaintiff about the alleged impairments to both shoulders, his knee, and the
attendant functional limitations; and that the Plaintiff and his counsel were given ample opportunity
to ensure that the entirety of the Plaintiff’s position was on the record:
Q:
A:
So, sir, what is the major problem you’re having here, is it your shoulders, is
it your right arm, what’s your number one health issue?
Both of my shoulders. I had two total shoulder replacements.
*
Q:
A:
Q:
ATTY:
*
*
Who has been treating you?
I had my first shoulder replacement done by Dr. Louis Bigliani back in 2000.
I just had my—
What exhibit is that, Counsel?
That’s not in there, Your Honor. That’s from the year 2000 which predates
the date of disability.
BY ADMINISTRATIVE LAW JUDGE:
Q:
A:
Q:
A:
Q:
A:
ALJ:
ATTY:
Okay. And what’s your second—
I had my second shoulder replacement in December of this year, December
27th.
Of 2012?
Yes.
And who did that?
Dr. Jobin, Charles Jobin.
Okay, Exhibit 9F, Counsel?
Yes, Your Honor, and the surgical chart is 4F, 5F and 6F, Your Honor.
28
*
Q:
A:
Q:
A:
ALJ:
ATTY:
*
*
Okay. What is the biggest problem you have that prevents you from
working?
Just range of motion. I don’t have no – the range of motion is, is bad.
What do you mean by that?
Just putting my hands straight over my head, anything. The arthritis pain is
gone but I have no range of motion.
So your upper body, your upper extremities. . . . Counsel, . . . what
arguments are you making, . . . what’s the essence of this case?
Well, Your Honor, . . . [h]e has a serious right shoulder condition with a
torn rotator cuff tear, tendinosis, arthritis, derangement 50 percent loss of
use. He’s overweight. He’s had a weight gain of at least over 10 pounds
since he stopped—
*
*
*
ALJ:
ATTY:
And he had both shoulders replaced?
Yes, Your Honor, one in 2000. They’re telling him that he needs another left
shoulder replacement. His right – he’s right-hand dominant and he had that
surgery December 22 [sic] of 2012 and he has also developed a right knee
condition and had his knee drained in September, and I have you the MRI
report.
CLMT: It’s the left knee.
ATTY: I’m sorry, left knee. And I gave you the MRI report of August 26, 2003 [sic],
it shows cartilage loss, degeneration of the posterior medial meniscus, a flap
tear, [edema], and he also has [ef]fusion. . . . I believe that’s [Exhibit] 11F.
We believe he has been unable to work since September 21, 2012. . . .
*
*
*
ALJ:
. . . What kind of pain do you have, sir?
CLMT: I have, I have pain when I try to reach for something, I’ll get, you know, on a
range of one to ten, I’ll get six, seven. It’s just—
ALJ:
When else do you have the pain?
CLMT: When I, I sleep. If I lay on my shoulders. I try to sleep on my back, that
doesn’t work. I’m a side sleeper. I wake up with pain when I sleep.
Putting—just putting on a shirt I, I have problems. Shirts, jackets, putting
on deodorant I have problems. It’s just—
R. 79-84.
As can be seen from the transcript, the Plaintiff specifically testified that he suffers from
impairments to “both shoulders” following “two total shoulder replacements” and that additional
surgery may be required to repair his left shoulder.
In addition, as the Commissioner points out, the Plaintiff concedes, for purposes of this
appeal, that the underlying administrative record is “replete” with medical data concerning the
29
nature and severity of his left shoulder injury – data which the Plaintiff does not dispute the ALJ
properly reviewed and considered in rendering his decision.
Similarly, the record is clear that, despite repeatedly being asked to describe his symptoms
and functional limitations, the Plaintiff failed at any point to identify a problem with his knee.
Nonetheless, his attorney identified the alleged knee injury for the ALJ, and specifically directed him
to the diagnostic and laboratory evidence in the record relating to this condition. The Court notes
that, again, the Plaintiff does not assert as a basis for relief in this appeal that the ALJ misevaluated
this medical evidence.
In sum, in the Court’s view, the record is clear that the ALJ repeatedly asked the Plaintiff and
his counsel open-ended questions regarding the Plaintiff’s alleged disability, during which they had a
full and fair opportunity to expound upon the extent of the left shoulder and knee impairments.
However, the record reveals that they apparently consistently failed to do so, focusing
predominantly on the Plaintiff’s right shoulder impairment and other conditions such as his obesity,
what are not at issue in this case. Accordingly, the Plaintiff cannot now be heard to complain that
ALJ breached his duty to develop a record by failing to more directly or persistently question the
Plaintiff for such information.
Further, and of importance, after expert witness Frank Lindner testified unequivocally that
there were jobs that existed in significant numbers in the national economy that someone within the
Plaintiff’s limitations could perform, the Plaintiff’s counsel was given, but waived, an opportunity to
cross-examine that witness.
Finally, at the close of the proceedings, the ALJ gave both the Plaintiff and his attorney
opportunities to add and/or clarify any information relevant to the Plaintiff’s application for
disability benefits. Both declined to do so, opting instead to rest on the Plaintiff’s written brief:
30
ALJ:
ATTY:
ALJ:
ATTY:
ALJ:
Counsel, what questions do you have or what else did you want to tell me, if
anything?
Your Honor, I have no questions of the vocational witness.
Anything else you want to say for the hearings?
I think the brief, 12E stands for itself, I think the testimony of my client is
very credible and supportive that he is unable to work.
Okay. All right, thank you.
*
*
*
REEXAMINATION OF CLAIMANT BY ADMINISTRATIVE LAW JUDGE:
Q:
A;
Sir, do you have anything else you want to tell me?
No, no, Your Honor.
R. 84-85.
Under these circumstances, the Court discerns no rational basis for concluding that the
Plaintiff was denied a full and fair administrative hearing or that the ALJ failed in his duty to develop
a record.
The Plaintiff relies on Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980), and Cruz v. Sullivan, 912
F.2d 8 (2d Cir. 1990), as standing for the general proposition that an ALJ breaches his duty to
develop the record where the transcript of an administrative proceeding is short. However, these
cases are factually distinguishable, as both involved pro se plaintiffs, to whom ALJs owe an especially
heightened duty to develop a record. See, e.g., Surita ex rel. Cifuentes v. Astrue, No. 07-cv-8461, 2008 U.S.
Dist. LEXIS 97868, at *21-*22 (S.D.N.Y. Nov. 21, 208) (Report and Recommendation), adopted, 2008
U.S. Dist. LEXIS 103328 (S.D.N.Y. Dec. 18, 2008).
Accordingly, to the extent the Plaintiff seeks to overturn the ALJ’s decision based on an
alleged violation of the ALJ’s duty to affirmatively develop the record and/or an alleged denial of a
full and fair administrative hearing, his cross-motion for judgment on the pleadings is denied.
C.
As to the ALJ’s Evaluation of the Opinion Furnished by Dr. Huish
(The Second Ground for Relief)
“The method by which the Social Security Administration is supposed to weigh medical
opinions is set forth at 20 C.F.R. § 404.1527[c].” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
31
Relevant here, “[t]he regulations say that a treating physician’s report is generally given more weight
than other reports and that a treating physician’s opinion will be controlling if it is ‘well-supported
by medically acceptable [evidence] and is not inconsistent with the other substantial evidence in
[the] record.’ ” Id. (quoting 20 C.F.R. § 404.1527(c)(2)).
This rule – the “Treating Physician Rule” – reflects the generally-accepted view that “ ‘the
continuity of treatment [a treating physician] provides and the doctor/patient relationship he
develops place him in a unique position to make a complete and accurate diagnosis of his patient.’ ”
Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (quoting Mongeur, 722 F.2d at 1039 n.2); see Genier v.
Astrue, 298 F. App’x 105, 108 (2d Cir. 2008) (noting that the regulations recognize that treating
physicians “are likely to be the medical professionals most likely to provide a detailed, longitudinal
picture of . . . medical impairment” (quoting 20 C.F.R. § 416.927(d)(2))).
Generally, where the ALJ declines to give controlling weight to a treating physician’s
opinion, he must provide the claimant with “good reasons” for doing so, and must consider various
factors to determine how much weight to give the opinion. See Blanda v. Astrue, No. 05-cv-5723, 2008
U.S. Dist. LEXIS 45319, at *18 (E.D.N.Y. June 9, 2008); 20 C.F.R. § 404.1527(c)(2). In particular, “to
override the opinion of the treating physician, [the Second Circuit] ha[s] held that the ALJ must
explicitly consider, inter alia, (1) the frequen[cy], length, nature, and extent of treatment; (2) the
amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d
409, 418 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129).
In this case, the Plaintiff asserts that the Treating Physician Rule required controlling weight
to be assigned to Dr. Huish’s assessment that he was “disabled” or “totally disabled” for Workers’
Compensation purposes, or in the alternative, to supply good reasons for not doing so. The Court
disagrees.
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On this issue, the Court’s recent analysis in DiCarlo v. Colvin, No. 15-cv-0258, 2016 U.S. Dist.
LEXIS 122312, at *38-*43 (E.D.N.Y. Sept. 9, 2016), is relevant.
As in that case, here, despite the fact that Dr. Huish is apparently a treating physician within
the meaning of the Commissioner’s regulations, it is well-settled that “(1) a medical source’s
conclusion that an individual is disabled is not entitled to controlling weight; [and] (2) a conclusion
as to disability status made in the Workers’ Compensation context is not binding.” Bynum v. Astrue,
No. 11-cv-5111, 2013 U.S. Dist. LEXIS 63792, at *7 (E.D.N.Y. May 3, 2013).
As to the first of these principles, one district court in this District (Block, J.) has
appropriately observed that:
[T]he treating physician rule does not require deference to [treating physicians’] conclusions
that [a claimant] is disabled because the “ultimate finding of whether a claimant is disabled
and cannot work” is an issue reserved to the Commissioner. Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). “[S]tatement[s] by a medical source that you are ‘disabled’ or ‘unable to work’ ”
are not “medical opinions . . . but are, instead, opinions on issues reserved to the
Commissioner” 20 C.F.R. §§ 404.1527(d)-(d)(1), 416.927(d)-(d)(1). As such, the regulations
make clear that the Commissioner need “not give any special significance to the source” of
those opinions. 20 C.F.R. §§ 404.1527)(d)(3), 416.927(d)(3); see Snell, 177 F.3d at 133. Thus,
[treating physicians’] assessments of [a claimant’s] “disability status” are not entitled to
controlling weight since the treating physician rule does not govern issues reserved to the
Commissioner. See Earl-Buck v. Barnhart, 414 F. Supp. 288, 293 (W.D.N.Y. 2006) (“A treating
source’s statement that plaintiff ‘is totally disabled,’ . . . is not considered a ‘medical opinion’
under the treating physician’s rule to which controlling weight should be assigned because it
represents an opinion on an issue reserved to the Commissioner.”)
Bynum, 2013 U.S. Dist. LEXIS 63792, at *7-*8.
Thus, in this case, contrary to the Plaintiff’s contention, Dr. Huish’s statements that the
Plaintiff was “disabled” for Workers’ Compensation purposes are not medical opinions that would
come within the purview of the Treating Physician Rule. They are, instead, conclusory statements
regarding the ultimate issue in the case. See Bartko v. Colvin, No. 13-cv-373, 2014 U.S. Dist. LEXIS
139117, at *17-*18 (N.D.N.Y. Sept. 5, 2014) (Report and Recommendation), adopted, 2014 U.S. Dist.
LEXIS 138038 (N.D.N.Y. Sept. 30, 2014) (rejecting the plaintiff’s argument that the ALJ erred in
failing to apply the Treating Physician Rule to a doctor’s opinion that he was totally disabled; noting
33
he had “cite[d] no authority, . . . and independent research fail[ed] to disclose, any statute,
regulation, ruling or judicial precedent stating that an ultimate-issue opinion from a treating medical
source is entitled to presumptive controlling weight under the treating physician rule, or that when
controlling weight is not afforded, that opinion must then be weighed according to the six
regulatory factors listed [in 20 C.F.R. § 404.1527(c)(2)], and also accompanied by a statement of
good reasons justifying the weight given. And, as ultimate-issue opinion is never presumptively
afforded controlling weight, it is doubtful that such authority exists. Application of the six
regulatory factors to an ultimate-issue opinion would be awkward at best” (emphasis in original)).
As to the second principle listed above, this and other courts have consistently recognized
that “[t]he disability standards under the Social Security Act and New York Workers’
Compensation Law are markedly distinct; ‘therefore, an opinion of disability rendered for purposes
of workers’ compensation is not binding under the Social Security Act.’ ” Fernandez v. Apfel, No. 98cv-6194, 2000 U.S. Dist. LEXIS 2856, at *20 n.8 (quoting Shiver v. Apfel, 21 F. Supp. 2d 192, 197
(E.D.N.Y. 1998)); see Provisero v. Colvin, No. 14-cv-1830, 2016 U.S. Dist. LEXIS 104503, at *37 (E.D.N.Y.
Aug. 8, 2016) (Spatt, J.) (noting that a treating physician’s assessment of a partial disability for
Workers’ Compensation purposes was “not determinative” in a civil appeal because “the standard
for what constitutes a ‘disability’ under the Social Security Act is more stringent” (citation
omitted)); Davies v. Astrue, No. 08-cv-1115, 2010 U.S. Dist. LEXIS 70401, at *14 (N.D.N.Y June 17, 2010)
(Report and Recommendation), adopted, 2010 U.S. Dist. LEXIS 70418 (N.D.N.Y. July 14, 2010)
(“Contrary to Plaintiff’s argument, the ALJ properly discounted [a treating physician’s] opinions
that Plaintiff was unable to work because they were rendered for a Worker’s Compensation claim”).
For these reasons, the Court finds that the ALJ correctly declined to give any special
significance to Dr. Huish’s pronouncements that the Plaintiff was disabled for Workers’
Compensation purposes. The Court also finds that, because Dr. Huish’s statements in this regard
34
were ultimate-issue opinions pertaining solely to an outside agency’s disability determination, the
ALJ was under no additional obligation to weigh the statements according to the Commissioner’s
regulatory factors and set forth good reasons for not doing so.
On the contrary, consistent with his duties under the regulations, the ALJ explicitly
considered Dr. Huish’s statements for the fact that they were made; thoroughly discussed the
balance of objective medical evidence contained in Dr. Huish’s records and the results of related
diagnostic studies of the affected joints; and, in the Court’s view, arrived at a reasoned and wellsupported RFC determination. See Social Security Ruling (“SSR”) 06-03p, available at 2006 SSR
LEXIS 5, at *17 (Jan. 1, 2006) (“[W]e are required to evaluate all the evidence in the case record that
may have a bearing on our determination or decision of disability, including decisions by other
governmental and nongovernmental agencies and . . . [t]herefore, evidence of a disability decision by
another government or nongovernmental agency cannot be ignored and must be considered”); see also
Davies, 2010 U.S. Dist. LEXIS 70401, at *14-*15 (although a treating physician’s disability assessment,
rendered for Workers’ Compensation purposes, was not binding or entitled to controlling weight,
the ALJ was obligated not to ignore it, and fulfilled his responsibilities by specifically discussing the
medical evidence underlying the opinion). Accordingly, applying these principles, the Court finds
no error in the ALJ’s approach.
Therefore, to the extent the Plaintiff seeks to overturn the ALJ’s decision based on an alleged
violation of the Treating Physician Rule and/or a misevaluation of the evidence relating to Dr. Huish,
his cross-motion for judgment on the pleadings is denied.
D.
As to the Need for an Expert Medical Opinion
(The Third Ground for Relief)
As noted above, the Plaintiff contends that, to the extent that Dr. Huish’s opinion that he
was “disabled” for Workers’ Compensation purposes conflicted with other medical opinions in the
35
record, the ALJ should have solicited an independent medical opinion to clarify the extent of his
functional limitations. In the Court’s view, this argument is without merit.
As an initial matter, the sole authority relied upon by the Plaintiff is a publication entitled
THE SOCIAL SECURITY ADMINISTRATION HEARINGS, APPEAL AND LITIGATION MANUAL, also known as
“HALLEX,” which provides, in part, that an ALJ may need to obtain expert testimony “when the
medical evidence is conflicting or confusing.” See HALLEX I-2-5-34(A) (Sept. 28, 2005).
However, as the Commissioner rightly notes, “courts in the Eastern District of New York
have held that ‘a failure to follow procedures outlined in HALLEX does not constitute legal error.’ ”
Valet v. Astrue, No. 10-cv-3282, 2012 U.S. Dist. LEXIS 7315, at *34-*35 n.21 (E.D.N.Y. Jan. 23, 2012)
(collecting cases); see also Harper v. Comm’r of Soc. Sec., No. 08-cv-3803, 2010 U.S. Dist. LEXIS 137500, at
*10-*11 (E.D.N.Y. Dec. 30, 2010) (cautioning against “frivolous appeals to the HALLEX” because that
publication “is simply a set of internal guidelines for the SSA, not regulations promulgated by the
Commissioner” and therefore, “[a] failure to follow proceudres outlined in HALLEX . . . does not
constitute legal error”).
Therefore, to the extent the Plaintiff contends that the ALJ violated a duty imposed by the
HALLEX, his argument is misplaced.
In any event, as a general matter, “ ‘[w]hether additional medical evidence is necessary to
adequately develop the record beyond that statutorily mandated by the Act is under the discretion of
the ALJ.’ ” Brown, 709 F. Supp. 2d at 257 (quoting Infante v. Apfel, No. 97-cv-7689, 2001 U.S. Dist.
LEXIS 6578, at *21 (S.D.N.Y. May 21, 2001)). Based on its own careful review of the entire record,
the Court finds that the ALJ did not abuse his discretion by failing to consult a medical expert to
“clarify and explain” the competing medical opinions.
First, for the reasons already stated, it can hardly be said that Dr. Huish’s conclusory
statement that the Plaintiff was “disabled” for Workers’ Compensation purposes created a genuine
36
conflict or even a material issue of fact regarding the medical evidence, which might require
clarification, explanation, or resolution of the kind urged by the Plaintiff.
Second, it is well-settled that an ALJ has no duty to further develop the record where there
are no obvious gaps and where he already possesses a complete medical history. See Johnson v. Colvin,
No. 14-cv-353, 2016 U.S. Dist. LEXIS 19180, at *10 (W.D.N.Y. Feb. 17, 2016); see also Rosa v. Callahan,
168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996), for the
proposition that, “where there are no obvious gaps in the administrative record, and where the ALJ
already possesses a ‘complete medical history,’ the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim”).
In this case, the Court discerns no obvious gaps in the administrative record, and the
Plaintiff has not identified any. Nor does the Plaintiff contend that, without the opinion of an
independent medical examiner, the ALJ lacked a complete medical history. On the contrary, as
outlined above, the administrative record in this case, which spans more than 500 pages, includes a
five-and-a-half-year treatment portfolio detailing the Plaintiff’s care under three treating physicians
and two consulting orthopedists, as well as voluminous physical therapy progress notes and the
results of multiple diagnostic tests. Thus, in the Court’s view, the ALJ already possessed a complete
medical history, and the evidence in the record was more than sufficient to permit the ALJ to
accurately assess the Plaintiff’s RFC.
Under these circumstances, the Court discerns no rational basis for the ALJ to have sought
an additional medical opinion and identifies no legal error in his decision not to do so. To the extent
the Plaintiff seeks to overturn the ALJ’s decision based on a failure to develop the record by not
obtaining additional medical evidence, his cross-motion for judgment on the pleadings is denied.
37
E.
As to the Need for an Additional Consultative Evaluation
(The Fourth Ground for Relief)
For substantially the same reasons as outlined above, the Court also disagrees with the
Plaintiff’s contention that the ALJ erred by failing to arrange for the Plaintiff to undergo an
additional consultative orthopedic evaluation before ruling on his application for benefits. Again,
the Plaintiff argues that, notwithstanding the wealth of medical evidence in the record, including the
opinions of two consulting orthopedists who examined him during the Relevant Time Period, a
third consulting orthopedist was needed to clarify the nature and severity of his impairments. In the
Court’s view, this argument is patently without merit.
Generally, “[a] consultative examination is used to ‘try to resolve an inconsistency in the
evidence, or when the evidence as whole is insufficient to allow [the ALJ] to make a determination
or decision’ on the claim.” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29 (2d Cir. 2013). However, upon
review of the entire record, and for the reasons already discussed, the Court finds that the evidence
in this case, which the ALJ discussed at length, was more than sufficient to permit a determination
on the Plaintiff’s claim.
To the extent the Plaintiff seeks to overturn the ALJ’s decision based on a failure to develop
the record by not arranging for an additional orthopedic consultation, his cross-motion for judgment
on the pleadings is denied.
III.
CONCLUSION
Based on the foregoing, it is hereby ordered that the Commissioner’s motion under
FED. R. CIV. P. 12(c) for judgment on the pleadings is GRANTED;
The Plaintiff’s cross-motion under FED. R. CIV. P. 12(c) for judgment on the pleadings is
DENIED; and
38
The August 15, 2014 final decision of the Commissioner that the Plaintiff is not entitled to
Social Security disability insurance benefits for the Relevant Time Period is AFFIRMED in all
respects.
The Clerk of the Court is respectfully directed to close this case.
It is SO ORDERED:
Dated:
Central Islip, New York
September 27, 2016
/s/ Arthur D. Spatt__________________________________
ARTHUR D. SPATT
United States District Judge
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