Alessi v. Colvin
Filing
21
DECISION AND ORDER: The Commissioner's motion for judgment on the pleadings, Dkt. 13 , is hereby DENIED, and Plaintiff's cross-motion for judgment on the pleadings, Dkt. 15 , is hereby GRANTED. The Court hereby REMANDS this action to the Social Security Administration for further administrative proceedings consistent with this opinion, pursuant to the fourth sentence of 42 U.S.C. § 405(g). Ordered by Judge William F. Kuntz, II on 12/9/2015. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROSETTA ALESSI,
Plaintiff,
DECISION AND ORDER
14-CV-7220 (WFK)
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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WILLIAM F. KUNTZ, II, United States District Judge:
Plaintiff Rosetta Alessi ("Plaintiff') brings this action pursuant to 42 U.S.C. § 405(g)
alleging Carolyn W. Colvin, the Commissioner of Social Security ("Commissioner"), improperly
denied Plaintiff's request for Social Security Disability ("SSD") benefits. The Commissioner
filed a motion for judgment on the pleadings requesting an order affirming the Commissioner's
decision and dismissing the action. Dkt. 14 ("Commissioner's Motion"). Plaintiff filed a crossmotion for judgment on the pleadings requesting that the Court vacate the Commissioner's
decision and remand this action for additional administrative proceedings. Dkt. 16 ("Plaintiffs
Motion"). For the reasons that follow, the Commissioner's motion is DENIED and Plaintiffs
motion is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born on November 28, 1954. See Dkt. 19 ("R.") at 44. On January 9, 2012,
Plaintiff filed an application to the Social Security Administration ("SSA") for SSD benefits
under Title II and ){VIII of the Social Security Act claiming she became unable to work due to a
disabling condition beginning on December 30, 2011. Id at 27, 142. Plaintiff claimed she
suffered from severe back and knee pain, migraines, and degenerative disc disease. Id at 153.
Prior to her application for SSD benefits, Plaintiff worked as a manager in a restaurant owned by
her husband where her duties included keeping track of supplies, paying bills, ordering and
transporting missing items, supervising employees, doing waitressing work, stocking items, all
...
of which required her to lift at most 20 pounds occasionally and to lift 10 pounds frequently. Id
at 47-48, 145-146.
Plaintiffs claim was initially denied on April 9, 2012. Id. at 27. Plaintiff thereafter
requested a hearing before the Administrative Law Judge ("ALJ"), which was held on April 3,
2013 before ALJ James Kearns (the "ALJ"). Id at 27, 43. At the April 3, 2013 hearing,
Plaintiff, represented by counsel, described symptoms somewhat inconsistent with those
described in a January 24, 2012 disability questionnaire filled out by Plaintiffs daughter-in-law
Marie Alessi, including: severe back pain, inability to pick up objects with her hands, severe pain
beginning at her feet and traveling up to her hips and back, constant migraines, inability to cook
or pick up pots and pans, inability to go grocery shopping, inability to sit for more than an hour
(though Plaintiff also mentioned traveling to Sicily between the alleged onset of her disability
and the hearing), inability to walk more than half a block, inability to carry a large pocketbook,
extremely poor balance, and general dizziness and sleepiness as a result of her medications. Id
at49-52, 159-171.
On April 12, 2013, the ALJ issued a decision finding Plaintiff was not disabled. Id at
27-35. The Appeals Counsel denied Plaintiffs request for review on October 7, 2014. Id. at 1-3.
This denial became the Commissioner's final act.
DISCUSSION
I.
Standard of Review
When a claimant challenges the SSA's denial of disability benefits, the Court's function
is not to evaluate de novo whether the claimdnt is disabled, but rather to determine only "whether
the correct legal standards were applied and whether substantial evidence supports the decision."
Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on reh 'g, 416 F.3d 101 (2d Cir.
2005); see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive[.]"); Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009). Substantial evidence is "more than a mere scintilla"; it is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted) (citing Consol. Edison Co.
ofNY., Inc. v. NLRB, 305 U.S. 197, 229 (1938)); Moran, 569 F.3d at 112. The substantial
evidence test applies not only to the Commissioner's factual findings, but also to inferences and
conclusions of law to be drawn from those facts. See Carballo ex rel. Cortes v. Apfel, 34 F.
Supp. 2d 208, 214 (S.D.N.Y. 1999) (Sweet, J.). In determining whether the record contains
substantial evidence to support a denial of benefits, the reviewing court must examine the entire
record, weighing the evidence on both sides to ensure that the claim "has been fairly evaluated."
See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Grey v. Heckler, 721 F.2d 41~ 46 (2d
Cir. 1983)).
It is the function of the SSA, not the federal district court, ''to resolve evidentiary
conflicts and to appraise the credibility of witnesses, including the claimant." Carroll v. Sec '.Y of
Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Richardson, 402 U.S. at 399);
see also Clark v. Comm 'r ofSoc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Although the ALJ need
not resolve every conflict in the record, "the crucial factors in any determination must be set
forth with sufficient specificity to enable [the reviewing court] to decide whether the
determination is supported by substantial evidence." Calzada v. Asture, 753 F. Supp. 2d 250,
268-269 (S.D.N.Y. 2010) (Sullivan, J.) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984)) (quotation marks omitted). To fulfill this burden, the ALJ must "adequately explain his
reasoning in making the findings on which his ultimate decision rests" and must "address all
pertinent evidence." Kane v. Astrue, 942 F. Supp. 2d 301, 305 (E.D.N.Y. 2013) (Kuntz, J.)
(quoting Calzada, 753 F. Supp. 2d at 269). "[A]n ALJ's failure to acknowledge relevant
evidence or to explain its implicit rejection is plain error." Id. (internal quotation marks and
citations omitted). Remand is warranted when "there are gaps in the administrative record or the
ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.
1999).
II.
Determination of Disability and Parties' Cross-Motions
A. Applicable Law
For purposes of SSD benefits, disability is defined as the "ina~ility 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 12 months[.]" 42 U.S.C. § 423(d)(l)(A). The
impairments in question must be of"such severity that [the claimant] is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
othe{ kind of substantial gainful work which exists in the national economy[.]" 42 U.S.C. §
423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner must apply the five-step
sequential process set forth in 20 C.F.R. § 404.1520. See e.g., Rosa, 168 F.3d at 77. The
claimant bears the burden of proving the first four steps, while the burden shifts to the
Commissioner at the fifth step. Id. First, the Commissioner must determine whether claimant is
engaging in "substantial gainful activity." 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is not
so engaged, the second step is to determine whether the claimant has a "severe medically
determinable physical or mental impairment." 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant
_.,
has such an impairment, the third step is to determine whether the impairment or combination of
impairments meets or equals one of the listings in Appendix 1 of the regulations. 20 C.F.R. §
404.1520(a)(4)(iii). If the claimant's impairment does not match any of the listings, the fourth
step is to determine whether the claimant's residual functional capacity ("RFC") allows the
claimant to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant cannot
perform past relevant work, the final step is to determine whether the claimant can perform
another job based on his or her RFC, work experience, age, and education. 20 C.F.R. §
404.1520(a)(4)(v).
B. The ALJ's Decision
On April 12, 2013, the ALJ issued his decision denying Plaintiffs application for SSD
benefits. R. at 27-35. The ALJ followed the five-step procedure to evaluate Plaintiffs claim and
found that: (1) Plaintiff had not engaged in substantial gainful activity since December 30, 2011,
the alleged onset date; (2) Plaintiff had severe impairments of degenerative disc disease and
migraines, as well as a non-severe knee impairment; (3) Plaintiff did not have an impairment or
combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1; (4) Plaintiff had the RFC to perform the full range of"light work"
as defined in 20 C.F.R. 404.1567(b) 1; and (5) Plaintiff was capable of performing past relevant
work as a restaurant manager. Id. at 30-34.
Before determining that Plaintiff had the RFC to perform light work, the ALJ reviewed
Plaintiffs testimony, the January 24, 2012 disability questionnaire filled out by Marie Alessi,
and the medical evidence, including Plaintiffs October 28, 2011 lumbar MRI, Plaintiffs March
1
Light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds[,]" as well as "a good deal of walking or standing[.]" 20
C.F.R. 404.1567(b).
12, 2012 cervical MRI, Plaintiffs March 13, 2012 brain MRI, treatment notes from Dr. Joseph
Suarez, M.D., Dr. John Reilly, M.D., Dr. Germaine Rowe, M.D., and Dr. Theodore Strange,
M.D., Plaintiffs treating physicians, a report from Dr. Chitoor Govindaraj, M.D., a consultative
physician, and a report from C. Stewart, a state agency medical consultant. Id at 31-34.
The ALJ found Plaintiff "not fully credible to the extent that she felt she was disabled."
Id. at 32. In support of this finding, the ALJ cited the following inconsistencies: (1) Plaintiffs
brain MRI was normal, she had no record of neurological abnormalities, and her January 24,
2012 disability questionnaire stated she experienced headaches once a month for 24 hours, in
contrast with her statement at the hearing that she had constant migraines; (2) Plaintiffs claims
of extremely limited functionality were inconsistent with her January 24, 2012 disability
questionnaire answers, the MRis, and Plaintiffs own description of her activities, including a
two week trip to Sicily in August 2012; and (3) Plaintiffs statements regarding the level of her
pain were inconsistent with the conservative care she has undergone, the MRis, and the
statements that the lumbar braces and pain relief cream have led to some improvement. Id. at
32-33. The ALJ further found "[n]othing in the record reflects any form of debilitating condition
that would prevent the claimant from performing light exertion and returning to her past job."
Id at 33.
The ALJ gave "[g]reat weight" to consultative examiner Dr. Govindaraj's opinion that
Plaintiff could perform work-related activities as it was consistent with the record. Id at 33.
The ALJ, however, "g[ave] no significant weight" to the statements by Drs. Suarez, Reilly, and
Strange that Plaintiff could not work because those statements (1) spoke to an issue reserved to
the Commissioner; (2) were unsupported by the record of conservative care; (3) were
unsupported by MRis showing no disc herniations or significant spinal canal or foraminal
.•
stenosis; (4) were unsupported by any specific function-by-function assessments of Plaintiffs
physical work-related abilities; and (5) Plaintiff, as of January 24, 2012, was able to care for her
95-year-old mother and be independent almost all daily life activities. Id. at 33-34. The ALJ
also gave the state agency consultant C. Stewart's opinion "no significant weight" because "as a
single decision maker that consultant is not an acceptable medical source within the meaning of
20 CFR 404.1513(c)[.]" Id. at 34. Accordingly, the ALJ concluded Plaintiff could perform her
past relevant work as a restaurant manager, and was not under a disability from December 30,
2011 to April 12, 2013, the date of the ALJ's decision. Id. at 34.
C. The Parties' Cross-Motions
On August 10, 2015, the parties filed cross-motions for judgment on the pleadings.
Commissioner's Motion; Plaintiffs Motion; Dkt. 17 ("Commissioner's Reply"); Dkt. 18
C'Plaintiffs Reply"). The Commissioner argues the Court should affirm the ALJ's decision
because substantial evidence exists to support the ALJ's denial of SSD benefits.
Commissioner's Motion at 1. Plaintiff requests that the Court vacate and remand the ALJ's
decision because the ALJ (1) improperly failed to develop the record by failing to seek out
function-by-function assessments from treating physicians Ors. Suarez, Reilly, and Strange; (2)
gave undue weight to consultative examiner Dr. Govindaraj, who only saw Plaintiff once and did
not review the lumbar or cervical MRis; and (3) failed to properly assess Plaintiffs credibilit¥
and give appropriate weight to her subjective complaints. Plaintiffs Motion at 14-24. The
Commissioner responds that ( 1) the ALJ was not required to further develop the record as the
existing notes from Ors. Suarez, Reilly, and Strange, the report of Dr. Govindaraj, the MRis, and
Plaintiffs testimony constituted a complete record already; (2) the ALJ properly weighed Dr.
Govindaraj's opinion; and (3) the ALJ properly assessed Plaintiffs credibility. Commissioner's
Reply at 1-10.
For the reasons set forth below, the Court DENIES the Commissioner's motion,
GRANTS the Plaintiffs motion, and VACATES the ALJ's decision and REMANDS the case
for further administrative proceedings consistent with this opinion.
III.
The ALJ bad a Duty to Further Develop the Record
Plaintiff first argues remand is appropriate because the ALJ was required to further
develop the record. Plaintiffs Motion at 14;.18. Generally, ifthe record contains a gap or is
otherwise incomplete, then, even under the amended regulations effective March 26, 2012,
courts in the Second Circuit have held the ALJ has an affirmative duty to further develop the
record. See, e.g., Merriman v. Comm 'r o/Soc. Sec., 14-CV-3510, 2015 WL 5472934, at *1-2
(S.D.N.Y. Sept. 17, 2015) (Gardephe, J.) (internal citations omitted) (finding ALJ had
affirmative duty to develop record by seeking further information from physicians regarding
functional limitations caused by plaintiffs elbow problem and mental illness); Vazquez v.
Comm 'r o/Soc. Sec., 14-CV-6900, 2015 WL 4562978, at *17 (S.D.N.Y. July 21, 2015) (Francis,
Mag. J.) (internal citations omitted) (finding ALJ had affirmative duty to develop record by
seeking further information from physician where ALJ felt physician's statement required
clarification); Garcia v. Colvin, 12-CV-2140, 2014 WL 119433, at *7 (E.D.N.Y. Jan. 10, 2014)
(Garaufis, J.) (finding clear gap in record triggered ALJ's affirmative duty to develop record
where ALJ found there was "no evidence" regarding whether the plaintiff had a ''worsening
condition").
Failure to develop the record by failing to seek a medical source opinion containing a
function-by-function assessment will not always result in remand, as the lack of such an
assessment will not always render the record incomplete. See, e.g., Tankisi v. Comm 'r ofSoc.
Sec., 521 F. App'x 29, 33-34 (2d Cir. 2013) (extensive record including medical source
statement regarding functional limitations by one treating physician contained sufficient
evidence from which the ALJ could assess the Plaintiff's RFC); Pellam v. Astrue, 508 F. App'x
87, 90 (2d Cir. 2013) (ALJ not required to seek medical source statement by treating physician
where ALJ possessed treatment notes of treating physicians regarding functional limitations and
most of the consultative examiner's RFC assessment).
However, where failure to seek a medical source opinion renders the record incomplete,
then an ALJ may be found to have failed to develop the record. For example, "[i]n Tankisi,
although the administrative record did not contain formal opinions from treating physicians, a
treating source had otherwise assessed Tankisi's limitations, and the ALJ had before him the
functional assessments of multiple consultative examiners." Hernandez v. Comm 'r ofSoc. Sec.,
13-CV-959, 2015 WL 275819, at *2 (N.D.N.Y. Jan. 22, 2015) (Sharpe, J.) (citing Tankisi, 521 F.
App'x at 34) (internal quotation marks omitted). In contrast, "[i]n Pellam, the Second Circuit
explicitly left open the question of whether a record would be rendered incomplete by the failure
to request a medical source opinion from a treating physician if the ALJ made his RFC
determination without the support of any expert medical source opinion concerning the
claimant's limitations." Id (citing Pellam, 508 F. App'x at 90 n.2) (internal quotation marks and
brackets omitted).
Here, the record considered by the ALJ included the lumbar and cervical MRis, the
treatment notes from Plaintiffs treating physicians, and a functional assessment by Dr.
Govindaraj. However, the record is insufficient to establish that Plaintiff had the RFC to
perform "light work."
Foi example, most of the acceptable medical source opinions considered by the ALJ do
not provide any information which could help assess Plaintiff's ability to lift, stand, walk, or
otherwise perform "light work." See generally R. While Dr. Reilly made note of Plaintiffs
symptoms, recommended Plaintiff to Dr. Rowe for pain management, reviewed the lumbar and
cervical MRis, and wrote Plaintiff was ''totally disabled," he made no findings on Plaintiffs
ability to stand, sit, walk, or lift. Id. at 272-273. Similarly, while Dr. Rowe recounted Plaintiff's
symptoms and history, reviewed and summarized Plaintiffs lumbar and cervical MRI results,
stated Plaintiff's left-sided radicular pain had subsided, and prescribed a cervical and lumbar
brace and a compounding pain relief cream because of Plaintiffs inability to tolerate the side
effects of the pain medications Mobic, Ultracet, Vicodin extra strength, Motrin, and Flexeril, she
never opined as to Plaintiffs ability to stand, sit, walk, or lift. Id. at 306-310. Likewise, while
Dr. Strange wrote a letter on March 27, 2013 stating Plaintiffs back pain does not allow her to
perform work of any kind, based on a review of Dr. Suarez's records and her MRis, he made no
findings about Plaintiff's ability to stand, sit, walk, or lift. Id at 281.
Moreover, the only two doctors who did opine on Plaintiffs ability to perform "light
work" -Dr. Suarez and Dr. Govindaraj -provide contradictory reports. Id. at 246-247, 303.
While Dr. Suarez found (1) Plaintiff could not sit or stand for long periods of time, (2) Plaintiff
could not lift, push, or pull anything more than five to ten pounds on an occasional basis, and (3)
Plaintiff had a "total disability" and would "not be able to return to any type of gainful
employment[,]" Dr. Govindaraj found Plaintiff (1) refused to bend more than thirty degrees
because she said it would cause her pain, but had no clinical evidence of any abnormality in the
spine, (2) Plaintiffs knees had normal range of motion and no significant abnormality, (3)
Plaintiff's motor and sensory systems and reflexes were normal, (4) Plaintiffs range of motion
of back and joints were normal, (5) Plaintiff's hand dexterity was normal, (6) Plaintiff had no
evidence of muscle spasm, (7) Plaintiff's gait and posture were normal, (8) Plaintiff was
"medically cleared and stable with no restriction in standing, walking, sitting or weight
restriction", and (9) Plaintiff's medical prognosis was "good." Id. at 246-247, 303. Furthermore,
Dr. Suarez did not perform any further function by function analysis, and Dr. Govindaraj did not
review the lumbar or cervical MRls. Id. at 245-248, 303.
Based on the foregoing, there is insufficient basis in the record to determine whether
Plaintiff had the RFC to perform "light work" especially because Dr. Govindaraj, the sole
medical source whose functional assessment the ALJ gave "great weight" to did not review the
lumbar and cervical MRls, which showed some abnormalities. Id. at 33, 221, 293. Moreover,
doctors who did review the lumbar and cervical MRis and concluded Plaintiff would be unable
to return to any kind of work, did not provide full explanations for their findings. Id. at 273, 281,
303.
While the ALJ himself considered the MRis, the ALJ is not a medical professional who
can interpret the MRis to assess Plaintiffs RFC. See, e.g., Merriman, 2015 WL 5472934 at *18
("Because an RFC determination is a medical determination, an ALJ who makes an RFC
determination in the absence of supporting expert medical opinion has improperly substituted his
own judgment for that of a physician, and has committed legal error.") (internal quotation marks
and citation omitted); Hernandez, 2015 WL 275819 at *2 ("Without the advice of ... a medical
source, the ALJ, as a layperson, cannot bridge the gap between [the plaintiff's] impairments and
the functional limitations that flow from those impairments.") (citation omitted).
Accordingly, given the gaps in the record and the absence of a thorough and sufficient
medical assessment of Plaintiffs ability to sit, stand, walk, or lift from any physician who had
seen the lumbar and cervical MRis, the ALJ committed legal error by deciding Plaintiff could
perform past relevant work without seeking to fill this gap. See, e.g., Merriman, 2015 WL
5472934 at *2. On remand, the ALJ should re-contact Drs. Suarez, Reilly, and Strange for
medical assessments of Plaintiffs ability to sit, stand, walk, and lift, and weigh these
assessments against Dr. Govindaraj's report. See, e.g., Beckwith v. Comm 'r ofSoc. Sec., 13-CV1555, 2015 WL 860763 at *7 (N.D.N.Y. Feb. 27, 2015) (Suddaby, J.) (instructing ALJ to recontact treating physician for clarification of contradictory statements regarding the claimant's
functional abilities).
Furthermore, the ALJ used his own interpretation of Plaintiffs lumbar and cervical MRis
to support his assessment that Plaintiff was not fully credible. R. at 33. To the extent that the
ALJ's assessment of Plaintiffs credibility relied on the ALJ's own evaluation of the MRis in the
absence of supporting expert medical opinion, the ALJ is hereby instructed to reconsider that
assessment. See, e.g., Hernandez, 2015 WL 275819 at *2.
The Court hereby VACATES the ALJ's decision and REMANDS the case for further
administrative proceedings consistent with this opinion, pursuant to the fourth sentence of 42
U.S.C. § 405(g).
CONCLUSION
For the reasons stated herein, the Commissioner's motion for judgment on the pleadings,
Dk. 13, is hereby DENIED, and Plaintiffs cross-motion for judgment on the pleadings, Dkt. 15,
is hereby GRANTED. The Court hereby REMANDS this action to the Social Security
Administration for further administrative proceedings consistent with this opinion, pursuant to
the fourth sentence of 42 U.S.C. § 405(g).
s/WFK
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