McAllister v. Colvin
Filing
20
ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioner's cross-motion for judgment on the pleadings is denied. Plaintiff's motion for judgment on the pleadings is denied, but plaintiff's motion to remand is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/9/2016. (Akers, Medora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-2673 (JFB)
_____________________
GENESIS MCALLISTER,
Plaintiff,
VERSUS
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
September 9, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff, Genesis McAllister (“plaintiff”),
commences this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act (“SSA”),
challenging the final decision of the
Commissioner
of
Social
Security
(“Commissioner”)
denying
plaintiff’s
application for disability insurance benefits.
An Administrative Law Judge (“ALJ”) found
that plaintiff had the residual functional
capacity to perform “the full range” of
sedentary work, of which there were a
significant number of jobs in the national
economy, and, therefore, that plaintiff was
not disabled. The Appeals Council denied
plaintiff’s request for review.
Procedure 12(c). The Commissioner opposes
plaintiff’s motion and cross-moves for
judgment on the pleadings.
For the reasons set forth herein, the
Commissioner’s cross-motion for judgment
on the pleadings is denied. Plaintiff’s motion
for judgment on the pleadings is denied, but
plaintiff’s motion to remand is granted.
Accordingly, the case is remanded to the ALJ
for further proceedings consistent with this
Memorandum and Order. Remand is
warranted because the ALJ erred by failing to
explain the weight he assigned to the
opinions of plaintiff’s treating physician, Dr.
Slaven,1 and failing to properly assess the
factors for determining what weight to give
those opinions.
Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
1
As discussed, infra, on remand, in addition to
evaluating Dr. Slaven’s opinion according to the
treating physician rule, the ALJ should also consider
the new evidence submitted to the Appeals Council by
Dr. Slaven.
I.
A.
maintaining concentration and has to “write
everything down so [she] can remember.”
(AR at 134-37.) Plaintiff indicated both of
her knees have braces and immobilizers and
both of her wrists have braces. (AR at 139.)
Plaintiff
also
indicated
that
she
“occasionally” has difficulty when dressing
herself, bathing, and caring for her hair. (AR
at 131.) She stated she has to “sit down now
to shave [her] legs,” that it is “hard to get on
and off” the toilet, and that she does not feed
herself. (Id.)
BACKGROUND
Factual Background
The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. A
more exhaustive recitation is contained in the
parties’ submissions to the Court and not
repeated herein.
1.
Personal and Work History
Plaintiff was born on January 22, 1976
(AR at 97), is a high school graduate, and is
trained in tax preparation. (AR at 112.)
Plaintiff stated she lives with her husband and
4-year-old son. (AR at 129-30.) Plaintiff’s
work history consists of the following:
kitchen manager/waitress from January 2003
until February 2004 (AR at 113), hotel front
desk employee and housekeeper from March
2004 until August 2005, supermarket video
clerk/cashier from August 2005 until
September 2006 (id.), tax consultant from
September 2006 until January 2007 (AR at
141), and waitress from October 2006 to
January 2008 (AR at 113). Plaintiff stopped
working in 2008 after becoming pregnant and
suffering from impairments. (AR at 112.)
Plaintiff reported she cares for her 4-yearold son in the following ways: dresses, feeds,
and bathes him, drives him to and from
school (four days per week), launders his
clothes, cooks for him, puts him to bed and
plays with him. (AR at 130, 134.) Plaintiff
also stated that she cooks all the meals for her
family daily but not “big meals” (AR at 13132), and that she is able to do the “cleaning,”
“laundry,” and “household repairs.” (AR at
132.) However, she indicated that she has to
“sit to do dishes or fold laundry now.” (Id.)
She also said she needed to rest after an hour
or two of doing chores. (AR at 139.) Plaintiff
also reported that she shopped once per week
and maintained a savings account, but that it
was “hard to drive [herself] all the time.” (AR
at 133.) Plaintiff stated that she watches
television “everyday” but “[does not] do
social activities anymore” since her
conditions began. (AR at 134.)
On November 19, 2012, plaintiff
completed a “Function Report,” which
detailed her daily activities, as well as how
her condition affected her ability to perform
various tasks. (AR at 129-39.) Plaintiff
indicated that she “can’t lift more than 20
[pounds] anymore,” “can’t stand for [too]
long anymore about 10 minutes,” that it
“hurts to walk for long periods,” that she
cannot walk longer than one block before
needing to “stop and rest,” that she “can’t sit
for longer than 10 minutes at a time,” that it
“hurts to climb stairs, . . . kneel, . . . [and]
squat,” that she has “occasional pain in [her]
hands and wrists,” and that she has difficulty
2.
Medical History
On March 19, 2012, plaintiff saw Jodi H.
Scherpirro, D.O., at Long Island Medical
Care Service for an upper respiratory
infection. (AR at 299-300.) Plaintiff reported
her medications were Ibuprofen and
Naproxen. (AR at 299.) At the time, she
weighed 220 pounds. (Id.) The lung
examination
was
unremarkable
and
2
extremities were normal, with no edema and
normal pulses. (Id.)
that time, she weighed 220 pounds, and her
lungs were clear. (Id.)
Plaintiff visited Dr. Ben Benatar, an
orthopedic surgeon, on March 20, 2012. She
reported right knee pain and clicking, as well
as lower back pain radiating to her right
buttock and thigh. (AR at 324.) She stated she
had difficulty kneeling, sitting down, and
getting up. (Id.) Plaintiff stood erect when
examined. (Id.) She had limited motion in her
lumbar spine and tenderness in her
paralumbar muscles. (Id.) Dr. Benatar noted
that, due to a lower back and right knee
injury, plaintiff had reduced mobility with
difficulty standing, walking, sitting and
squatting. (Id.) Consequently, Dr. Benatar
recommended physical therapy in addition to
a weight loss program. (Id.) He concluded
that plaintiff had a “marked disability.” (Id.)
On July 18, 2012, plaintiff consulted Dr.
Benatar after suffering from wrist pain,
swelling, and difficulty with movement. (AR
at 321.) Upon examination, there were 20
degrees of palmar flexion and 30 degrees of
dorsiflexion. (Id.) Dr. Benatar diagnosed
acute synovitis in her left wrist, and referred
her to a rheumatologist and for an MRI. (Id.)
On July 20, 2012, an MRI of plaintiff’s
left wrist was taken. The results revealed:
focal fluid collection in the extensor carpi
radialis brevis tendon sheath consistent with
the presence of stenosing tenosynovitis;
degeneration at the joint between the
trapezoid and base of the third metacarpal
with posterior osteophyte formation in a
carpal boss configuration; and no evidence of
tendon or ligament tears; and mild synovitis.
(AR at 288, 290.)
On May 14, 2012, plaintiff returned to Dr.
Benatar and complained of pain in her left
wrist. (AR at 323, 325.) On examination, the
only tenderness in the left wrist was on the
dorsum over the distal radius at the radian
carpal junction. (Id.) Range of motion was
“fairly good” and comfortable. (Id.) Dr.
Benatar indicated that plaintiff should
continue to wear a wrist immobilizer brace
and take Norco for pain. (Id.)
On July 31, 2012, plaintiff told Physician
Assistant Montebello that she had pain in
both wrists. (AR at 291-96.) She weighed 220
pounds at this time. (AR at 291.) Plaintiff’s
right wrist was tender without any redness or
swelling. (Id.) She had diffuse body
tenderness. (Id.) Physician Assistant
Montebello diagnosed: pain in joint, site
unspecified; unspecified adverse drug effect;
absence of menstruation; and other malaise
and fatigue. (AR at 291-92.) She prescribed
Naproxen for plaintiff’s joint pain and Zoloft
for fatigue. (AR at 292.)
An MRI of plaintiff’s right wrist was
conducted on May 24, 2012. The results
revealed the following: extensor carpi ulnaris
tendinosis with an intrasubstance tear; small
ganglion cyst of no clinical significance; mild
degeneration in the anterior portion of the
scapholunate ligament related to an old
sprain; and trace distal radioulnar joint
effusion of no clinical significance. (AR at
284-87.)
Plaintiff subsequently complained to Dr.
Benatar, on August 15, 2012, that she had
difficulty rising from a seated position, and
experienced “clicking, popping, and pain in
both knees.” (AR at 320.) Plaintiff’s left wrist
was significantly swollen, tender and warm
to touch, with a marked reduction in range of
motion. (Id.) Dr. Benatar indicated there was
Plaintiff saw Physician Assistant Karen A.
Montebello on June 14, 2012. (AR at 297.)
The diagnosis was acute pharyngitis. (Id.) At
3
left wrist cartilage destruction on the MRI; he
believed “everything is traumatic in nature,”
but referred plaintiff to a rheumatologist to
rule out other possible sources of pathology.
(Id.) He also renewed prescriptions for
Ibuprofen and Norco. (Id.)
Plaintiff stated she had right wrist and right
knee pain, which had started four years ago,
after giving birth. (AR at 260.) Injections of
oral Prednisone had helped heal the
symptoms. (Id.) She stated that in the last
three months she experienced the following:
left knee pain, left wrist pain, neck pain,
lower back pain, and bilateral shoulder pain.
(Id.) Her hands were stiff as well. (Id.) At that
time, plaintiff weighed 230 pounds. (Id.)
Chest, neck, back, extremities, and
neurological examinations were normal. (Id.)
There was tenderness in the left wrist and left
knee pain on motion. (Id.) There was no
edema, and plaintiff had full range of motion
in all joints without any inflammation. (Id.)
Dr. Mir diagnosed that plaintiff’s symptoms
suggested psoriatic arthritis. (Id.) As a result,
he prescribed a Prednisone taper and
Plaquenil. (Id.)
On September 18, 2012, plaintiff spoke
with rheumatologist Prachi Anand, M.D.
(AR at 257-59.) Plaintiff stated she had
generalized pain “all over.” (AR at 258.) She
further indicated she had experienced
bilateral knee and wrist pain for four years,
and arm pain throughout the past one to two
months. (AR at 257.) There was no synovitis
in the wrists, knees, ankle, or feet. (AR at
258.) There was tenderness in both arms and
shoulders. (Id.) Dr. Anand diagnosed that
plaintiff “likely had fibromyalgia” and
prescribed Flexeril. (Id.)
Plaintiff told Dr. Benatar, on October 2,
2012, that she had pain in her left knee. (AR
at 319.) Dr. Benatar’s notes indicate that
plaintiff had experienced lower back and left
wrist problems in the past, but her main
complaint was left knee pain, with clicking,
popping, and occasional buckling. (Id.) Upon
examination, there was tenderness of the
patellofemoral joint of the left knee with
crepitus during range of motion testing. (Id.)
Ligaments were stable, but there was marked
hypermobility of the patella from the lateral
subluxed resting location. (Id.) Dr. Benatar
diagnosed
chondromalacia
of
the
patellofemoral joint of the left knee. (Id.) As
a result, he instructed that plaintiff do
quadricep strengthening exercises. (Id.) Dr.
Benatar also indicated that a recent MRI
revealed degenerative changes in plaintiff’s
left wrist. Thus, he prescribed a wrist corset
and taught plaintiff wrist strengthening
exercises. (Id.)
Plaintiff returned to Dr. Modi on
November 5, 2012. (AR at 309-14.) She
stated she had joint and muscle pain, but
denied joint swelling. (AR at 309.) She
indicated she suffered from fatigue, poor
sleep, irritable bowel symptoms, and a past
history of anxiety. (Id.) Plaintiff’s motor
strength was normal. (AR at 310.) She had
tenderness in her elbow. (Id.) There was no
swelling in her hands, wrists, or shoulders.
(Id.) Plaintiff had no swelling or pain on
range of motion in her knees. (Id.) Dr. Modi
diagnosed insomnia, raised antibody titer,
arthralgias in multiple sites, chronic pain,
fibromyalgia, and anxiety disorder of
unknown etiology. (AR at 311.) He
prescribed Cymbalta, referred plaintiff to
pain management, and recommended a daily
exercise routine. (Id.)
On November 27, 2012, plaintiff
indicated to Dr. Benatar that she suffered
from pain in both knees, hips, shoulders,
lower back, and occasionally in her ankles
and wrists. (AR at 318, 383.) Dr. Benatar
On October 12, 2012, plaintiff consulted
Waseem Mir, M.D. (AR at 260-61, 307-08.)
4
provided that plaintiff had patellofemoral
pain syndrome in her left knee, effusion in
both knees, and a very tender wrist. (Id.)
Plaintiff weighed 225 pounds at the time.
(Id.) Dr. Benatar took note of plaintiff’s
recent diagnosis of fibromyalgia, but left the
treatment of that condition to her
rheumatologist. (Id.) However, he prescribed
Tylenol and Norco to relieve pain. (Id.) He
also recommended that plaintiff continue
with her exercise program and stretches. (Id.)
at 276.) Plaintiff had full range of motion in
her cervical spine, without any paravertebral
tenderness, muscle spasm, or trigger points.
(Id.) There were full ranges of motion in the
shoulders, elbows, forearms, wrists, and
fingers. (Id.) She did not have any joint
inflammation, effusion, instability, muscle
atrophy, or sensory abnormalities in her
upper extremities. (Id.) Plaintiff reported
tenderness in her left wrist and lumbar spine.
(Id.)
On December 5, 2012, Chaim Shtock,
D.O., consultatively examined plaintiff. (AR
at 274-79.) Plaintiff reported a history of the
following conditions: asthma since 2002;
lower back, right thigh, right knee, and right
wrist pain that started in 2008 while pregnant;
bilateral knee arthritis since 2009; right wrist
carpal tunnel syndrome diagnosed in 2010;
fibromyalgia diagnosed in 2010; headaches
since 2010; and bilateral wrist osteoarthritis
diagnosed in 2012. (AR at 274-75.) At this
time, plaintiff complained of lower back,
bilateral knee, and bilateral wrist pain. (AR at
274.) Her medications consisted of: Protonix;
Ibuprofen, Naproxen, Melatonin, Predisone,
Cymbalta, and Norco. (AR at 275.) Plaintiff
also noted she smoked one pack of cigarettes
per day. (Id.) She reported that she did the
following activities independently: cooked,
cleaned,
washed
laundry,
shopped,
showered, dressed, and groomed herself. (Id.)
She also watched television and listened to
the radio. (Id.) X-rays of the lumbosacral
spine and left knee had negative results. (AR
at 276, 278-79.) Plaintiff’s weight was 226
pounds at the time. (AR at 275.) She walked
on heels and toes without difficulty, and did
not need any help changing or getting on or
off the examination table. (AR at 275-76.)
She did not use any assistive devices. (AR at
276.) Plaintiff could only squat 30 percent
due to knee pain. (AR at 275.) Hand and
finger dexterity were intact and grip strength
was 4+/5 on the right and 4/5 on the left. (AR
Dr. Shtock diagnosed the following: lower
back pain, bilateral knee pain; reported
history of bilateral wrist pain; reported
history of asthma; status post Cesarean
section; reported history of fibromyalgia;
reported history of gastritis; reported history
of headaches; and reported history of carpal
tunnel syndrome. (AR at 277.) He provided
that plaintiff had “mild to moderate”
limitations for heavy lifting, squatting,
kneeling, crouching, and sitting and standing
for long periods. (Id.) Dr. Shtock specifically
indicated she had moderate limitations for
frequent stair climbing and walking long
distances. (Id.) She also had mild limitations
for frequent bending and using her hands for
fine and gross manual activities due to left
wrist weakness, tenderness, and pain. (Id.)
However, plaintiff had no limitations
performing overhead activities using both
arms. (Id.)
On February 21, 2013, plaintiff visited Dr.
Benatar due to pain in her left knee, left hip,
left thigh, and wrists. (AR at 382.) The lateral
ligaments of the left wrist were “exquisitely
tender.” (Id.) There also was clicking and
patellofemoral pain in both knees. (Id.) Given
these findings, Dr. Benatar continued
plaintiff’s prescriptions for Flexeril and
Norco. (Id.)
Plaintiff was in a car accident on February
28, 2013. (AR at 337.) She spoke with her
5
primary care physician, Anthony Foto, D.O.,
on March 11, 2013. (Id.) Her complaints
consisted of the following: mid- to lowerback pain, knee pain, bilateral shoulder pain,
neck pain and stiffness, difficulty turning her
head from side to side, and difficulty walking
and bending. (AR at 337-38.) Examination
revealed no neurological deficits. (AR at
337.) Dr. Foto diagnosed backache, muscle
spasm, and rib sprain. (AR at 337-38.) He
prescribed Lidoderm and Zomig for migraine
headaches. (Id.)
was from her fibromyalgia. (AR at 339-40.)
However, plaintiff was not in acute distress.
(AR at 339.) Examination showed the
following: no cyanoisis, clubbing, edema in
the extremities, and pulses were normal. (Id.)
There were no neurological deficits. (Id.)
Both ribs were tender, and there was
paraspinal muscle spasm. (Id.) Based upon
these findings, Dr. Foto prescribed Medrol
Dosepak. (AR at 340.)
Dr.
Benatar
assessed
plaintiff’s
complaints of shoulder pain on June 13,
2013. (AR at 380.) The left shoulder showed
a “marked reduction” in range of motion and
tenderness. (Id.) Dr. Benatar also noted signs
of impingement or tendinitis in the left
shoulder. (Id.) He recommended exercises
and stretches for plaintiff’s shoulder. (Id.) Dr.
Benatar renewed her prescriptions for Mobic
and Norco. (Id.) Plaintiff was also instructed
to return for a steroid injection if she felt it
was necessary. (Id.)
On July 30, 2013, plaintiff first visited
rheumatologist Stacy Slaven, M.D. (AR at
341-42.) Plaintiff indicated that she suffered
from pain in her knees, hips, wrists,
shoulders, neck, and lower back, as well as
joint stiffness and some mild numbness and
tingling in her fingers. (AR at 341.) She had
stopped taking Cymbalta due to fatigue; she
took Meloxicam, a nonsteroidal antiinflammatory drug (NSAID), for her pain.
(Id.) The examination indicated that plaintiff
was not in any distress. (Id.) Lung and
extremities examinations were normal. (Id.)
She had intact strength and no focal
weakness. (Id.) There were diffuse tender
points in the bilateral upper back, anterior
chest, lower back, and extremities. (Id.)
There was tenderness in the shoulders and
wrists, and crepitus in both knees. (Id.) There
was no active synovitis or joint effusion. (Id.)
Dr. Slaven diagnosed the following: pain in
joint, multiple sites; backache, unspecified;
other
and
unspecified
nonspecific
immunological findings; and myalgia and
myositis,
unspecified.
(Id.)
She
recommended plaintiff continue Meloxicam.
(AR at 342.) Plaintiff was instructed to go for
further testing and imaging to see if, in
addition to mechanical pain, there was an
inflammatory connection. (AR at 341-42.)
On July 24, 2013, plaintiff stated the
following to Dr. Foto: she had severe pain in
her knees, back, wrist, and legs, more severe
over the last two weeks, and she thought it
On August 19, 2013, an MRI of plaintiff’s
spine revealed the following: mild
degenerative disc change with trace right
asymmetric ventral disc osteophyte complex
On April 30, 2013, plaintiff complained to
Dr. Benatar that she had back, neck, shoulder,
and wrist pain. (AR at 381.) The left wrist
was “especially symptomatic” that day. (Id.)
Plaintiff stated that the anti-inflammatory
Mobic, used daily, helped her. (Id.) She also
took Norco. (Id.) Dr. Benatar noted that
plaintiff had multiple joint problems, and that
she would experience periodic swelling of
both feet, ankles, elbows, and wrists. (Id.)
Plaintiff also had chondromalacia in her left
knee. (Id.) This was a “separate issue from
her fibromyalgia.” (Id.) Dr. Benatar
concluded that she was “essentially disabled
by this disease.” (Id.)
6
at C4-C5 and no disc herniation resulting in
canal stenosis or neural impingement. (AR at
343, 355.)
On September 20, 2013, a left knee MRI
showed the following: joint effusion,
proximal patellar tendinosis, and a fissure
through the medial patellar cartilage. (AR at
347.) There was no evidence of meniscal or
ligament tears. (Id.)
Plaintiff underwent physical therapy for
cervicalgia from August 21 through
September 27, 2013 after complaining of
neck, shoulder, wrist, knee, back, and thigh
pain. (AR at 371-74.)
A right knee MRI performed on
September 24, 2013, displayed an increasing
focal signal abnormality as compared to 2010
and 2011 MRIs. (AR at 348-49.) There was
also small to moderate joint effusion but no
thickened plica. (AR at 348.)
On August 28, 2013, Dr. Benatar noted
that, after plaintiff’s February 2013 car
accident, she complained of pain in her right
shoulder, neck, and left knee. (AR at 379.)
Reportedly, a lumbar MRI revealed
degenerative changes with facet joint
arthropathy. (Id.) X-rays of the left-shoulder
and both wrists and hands were normal. (Id.)
X-rays of the cervical spine showed
degenerative changes. (Id.) As a result, Dr.
Benatar prescribed Hydrocodeine and
recommended shoulder MRIs. (Id.)
On September 24, 2013, Dr. Slaven
completed a residual functional capacity
form. (AR at 350-54, 356, 358-64.) She
indicated that she had seen plaintiff on July
30, 2013, for an initial consultation. (AR at
350.) Dr. Slaven diagnosed the following:
mechanical neck/back pain, left shoulder
tendonitis, and possible inflammatory
arthritis. (Id.) According to plaintiff, the pain
occurred daily. (AR at 353.) Dr. Slaven
concluded that plaintiff was unable to “stand
and/or sit upright for at least six hours” per
day as “joint and neck/back pain was
exacerbated with extended standing or
sitting.” (AR at 350-52.) Plaintiff could stand
for thirty minutes at one time and walk nonstop for approximately fifteen to thirty
minutes. (Id.) Dr. Slaven noted that plaintiff
could rarely (with 0 to 30% frequency) reach
in any direction or handle objects with her
hands and fingers. (AR at 352.) Plaintiff
could lift five to ten pounds and carry less
than five pounds; activities such as
lifting/pulling exacerbated joint pain. (AR at
353.) Dr. Slaven did not state that plaintiff
had difficulty bending, squatting, or
kneeling. (Id.) Plaintiff did suffer from pain
in the left shoulder and both wrists. (Id.) Dr.
Slaven further noted that plaintiff could not
continue or resume work at her previous
employment. (AR at 354.) Moreover, Dr.
Electrodiagnostic testing performed on
August 29, 2013, showed no dysfunction in
plaintiff’s cervical spine or bilateral upper
extremities. (AR at 375-77.)
On August 29, 2013, a left shoulder MRI
showed the following: moderate to highgrade articular sided partial-thickness tear of
the supraspinatus tendon; low-grade
intrasubstance delaminating partial-thickness
tear of the supraspinatus tendon; and a mild
edema in the distal clavicle, possibly
degenerative
as
there
was
mild
acromioclavicular (AC) joint osteoarthrosis.
(AR at 344.)
A right shoulder MRI performed on
September 4, 2013, revealed the following:
mild rotator cuff tendinosis, with minimal
superior surface fraying on the supraspinatus
tendon, and minimal AC joint arthrosis. (AR
at 345-46.)
7
Slaven concluded that plaintiff’s disability
was not likely to change. (Id.)
and the knee was tender to palpation. (Id.)
Sensation and muscle strength were full (5/5)
throughout; reflexes were equal and
symmetric. (Id.) Gait was normal. Plaintiff
was instructed to follow up with her
orthopedist and rheumatologist. (AR at 389.)
On September 27, 2013, plaintiff saw
Dawne Kort, M.D., due to complaints of back
pain. (AR at 366-70.) Dr. Kort diagnosed
back strain/back spasm. (AR at 366.) She also
administered a Toradol injection, prescribed
Flexeril, and stated that plaintiff should rest
and follow up with her primary care
physician. (AR at 366-67.)
Dr. Slaven submitted a Medical Source
Statement, dated March 13, 2014, as part of
plaintiff’s additional evidence to the Appeals
Council. (AR at 399-401.) Dr. Slaven
diagnosed the following conditions: chronic
neck and back pain, chronic pain
syndrome/fibromyalgia,
and
possible
inflammatory arthritis. (AR at 399.) Dr.
Slaven opined that plaintiff could only sit for
two hours in a work day, stand/walk for one
hour, and occasionally lift and carry up to
nine pounds. (AR at 400.) She could
occasionally balance and kneel, but never
climb, stoop, crawl, crouch, push/pull, or
bend/twist. (Id.) However, plaintiff could
drive continuously. (Id.) She could
occasionally handle, finger, and reach. (AR at
401.) Dr. Slaven also indicated that she had
first seen plaintiff in July 2013, but plaintiff
had noted having symptoms in 2009. (Id.)
3.
Additional Medical Evidence
Submitted to the Appeals Council
Plaintiff submitted additional evidence to
the Appeals Council. This evidence included
four treatment notes from internist Priti Patel,
M.D., dating from February 9, 2009 to July
17, 2010. (AR at 386-97.) These treatment
notes showed that plaintiff principally
complained of right knee pain. (Id.) On
November 21, 2009, Dr. Patel noted that
plaintiff was still able to perform activities of
daily living and work. (AR at 394.) During
this time, the right knee revealed no
deformity, swelling, or limitation in range of
motion. (AR at 396.) Movement and
palpation were painful. (Id.) Gait, sensation,
and muscle strength were normal. (Id.)
Examination findings were essentially the
same on April 27, 2010. (AR at 392.) Plaintiff
requested that Dr. Patel complete a disability
form and prescribe pain medication, but Dr.
Patel referred her to an orthopedist, with
whom plaintiff did not follow up. (AR at
390.) On July 17, 2010, plaintiff was
ambulating without assistance and was able
to sit comfortably on the examination table
with no signs of pain. (AR at 388.)
Examination of plaintiff’s back revealed no
limitation on range of motion; however,
movements were painful and there was
tenderness of the paravertebral muscles. (Id.)
There was no swelling or atrophy of the right
knee. (Id.) Ranges of motion were painful,
4.
Plaintiff’s Testimony at the
Administrative Hearing
On October 10, 2013, plaintiff testified at
a hearing before an ALJ. Plaintiff testified
that since 2008 she suffered from the
following
impairments:
fibromyalgia,
arthritis, tendonitis, and tears in both of her
shoulders and wrists. (AR at 39-40, 42.) She
claimed that these impairments have limited
the things she could do. (AR at 40.) “Every
day,” she experienced pain either in her
wrists, knees, neck, back, or shoulders. (AR
at 40, 42.) When asked how often she
experiences the pain, she stated “everyday
something is hurting [her].” (AR at 40.) She
testified it has gotten “very much worse”
since she first experienced it in 2008. (AR at
8
42.) During the hearing, plaintiff testified that
she had pain in both knees, the right wrist,
back, and neck. (AR at 53.) Plaintiff took
Neurotin, Norco, Mobic, and Flexeril. (AR at
41.) She indicated they made her tired
throughout the day. (AR at 54.) She used a
heating pad on “anything that is hurting.”
(AR at 40.) She did not use a cane or wear a
back brace; she had wrist and knee braces.
(AR at 51-53.) Plaintiff testified she could
“barely walk” without the knee braces. (AR
at 52.) She stated she had also been going to
physical therapy for three or four years. (AR
at 41.) She stated that neither the medication
nor therapy had helped. (AR at 41.) Plaintiff
testified she had a “lot of problems” climbing
stairs because it hurt her back and knees; it
took a long time, and she had to lean on the
wall. (AR at 48-49.)
she could hold a cup of coffee, use a knife and
fork, and open a car door. (AR at 49.) She
indicated that she had no difficulty filling out
forms. (AR at 51.) Plaintiff further estimated
she “could not lift more than ten pounds” and
that the pain in her right wrist (the hand she
uses to write) is “overall, at a 9” out of 10.
(AR at 53.)
B.
Procedural History
On September 28, 2012, plaintiff filed an
application for disability insurance benefits,
claiming she was disabled since February 18,
2012, due to the following: fibromyalgia;
irritable bowel syndrome; interstitial cystitis;
arthritis; obesity; and pain in her back, knee,
and wrist. (AR at 97-98, 111.) On January 9,
2013, the application was denied (AR at 67),
and she requested a hearing before an ALJ.
(AR at 71.) Plaintiff’s hearing was held
before ALJ Seymour Rayner on October 10,
2013. (AR at 36-56.) In a decision dated
January 10, 2014, the ALJ found plaintiff not
disabled. (AR at 18-35.) On March 31, 2014,
plaintiff requested review from the Appeals
Council and also sought to amend the
disability onset date from February 28, 2012
to April 1, 2011. (AR at 213.) On May 4,
2015, the Appeals Council denied plaintiff’s
request for review, and the ALJ’s decision
became the final decision of the
Commissioner. (AR at 1-7.) This action
followed.
Plaintiff testified that her husband worked
from 5:30 a.m. to approximately 3:30 p.m.
(AR at 43-44.) Her in-laws lived upstairs.
(AR at 45-46.) Plaintiff got her five-year-old
son up and off to school in the morning, and
drove him to the bus stop, but stated that this
activity “causes pain.” (AR at 40.) She stated
that her husband did “most” of the household
shopping, all of the cleaning, and cared for
their son when he got home from school.
(AR at 42.) Plaintiff also indicated that her
mother-in-law washed all of the laundry, and
her father-in-law did all of the cooking. (AR
at 45-46.) Plaintiff testified that she
“occasionally” shopped for food, sometimes
folded the laundry, and occasionally washed
the dishes while sitting down. (AR at 45, 47.)
She “sometimes” went out to restaurants with
her family, and occasionally went to the bank
and post office. (AR at 48-49.) Plaintiff also
testified she had driven herself to the hearing.
(AR at 48.) The past year she went to North
Carolina to visit her mother. (AR at 49-50.)
She used a computer to research and send
emails. (AR at 50.) She went out to get her
nails done. (AR at 47.) Plaintiff stated that
II.
STANDARD OF REVIEW
A district court may set aside a
determination by an ALJ “only if it is based
upon legal error or if the factual findings are
not supported by substantial evidence in the
record as a whole.” Greek v. Colvin, 802 F.3d
370, 374-75 (2d Cir. 2015) (citing Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008); 42
U.S.C. § 405(g)). The Supreme Court has
defined “substantial evidence” in Social
9
Security cases to mean “more than a mere
scintilla” and that which “a reasonable mind
might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation and
quotation marks omitted); see Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
Furthermore, “it is up to the agency, and not
[the] court, to weigh the conflicting evidence
in the record.” Clark v. Comm’r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998). If the court
finds that there is substantial evidence to
support the Commissioner’s determination,
the decision must be upheld, “even if [the
court] might justifiably have reached a
different result upon a de novo review.” Jones
v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)
(internal citation and quotation marks
omitted); see also Yancey v. Apfel, 145 F.3d
106, 111 (2d Cir. 1998) (“Where an
administrative decision rests on adequate
findings sustained by evidence having
rational probative force, the court should not
substitute its judgment for that of the
Commissioner.”).
III.
A.
The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. See 20
C.F.R. §§ 404.1520, 416.920. The Second
Circuit has summarized this procedure as
follows:
The first step of this process
requires the [Commissioner]
to determine whether the
claimant
is
presently
employed. If the claimant is
not
employed,
the
[Commissioner]
then
determines
whether
the
claimant has a “severe
impairment” that limits her
capacity to work. If the
claimant has such an
impairment,
the
[Commissioner]
next
considers
whether
the
claimant has an impairment
that is listed in Appendix 1 of
the regulations. When the
claimant has such an
impairment,
the
[Commissioner] will find the
claimant disabled. However,
if the claimant does not have a
listed
impairment,
the
[Commissioner]
must
determine, under the fourth
step, whether the claimant
possesses
the
residual
functional capacity to perform
her past relevant work.
Finally, if the claimant is
unable to perform her past
relevant
work,
the
[Commissioner] determines
whether the claimant is
capable of performing any
other work.
DISCUSSION
The Disability Determination
A claimant is entitled to disability benefits
if the claimant is unable “to engage in any
substantial gainful activity by reason of any
medically determinable physical or mental
impairment which can be expected to result
in death or which has lasted or can be
expected to last for a continuous period not
less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A). An individual’s physical or
mental impairment is not disabling under the
SSA unless it is “of such severity that he is
not only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy.” Id. § 1382c(a)(3)(B).
10
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996) (internal quotation marks
omitted)). The claimant bears the burden of
proof with respect to the first four steps; the
Commissioner bears the burden of proving
the last step. Id.
1.
In concluding that plaintiff was not
disabled under the SSA, the ALJ adhered to
the five-step sequential analysis for
evaluating applications for disability
benefits. (AR at 21-30.)
The Commissioner “must consider” the
following in determining a claimant’s
entitlements to benefits: “(1) the objective
medical facts; (2) diagnoses or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
the claimant or others; and (4) the claimant’s
educational background, age, and work
experience,” Id. (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)
(per curiam) (internal quotation marks
omitted)).
B.
The ALJ’s Decision
a.
Substantial Gainful Activity
At step one, the ALJ must determine
whether the claimant is presently engaging in
substantial gainful activity. 20 C.F.R. §
404.1520(b). “Substantial work activity is
work activity that involves doing significant
physical or mental activities,” id. §
404.1572(a), and gainful work activity is
work usually done for pay or profit, id. §
404.1572(b). Individuals who are employed
are engaging in substantial gainful activity.
Analysis
Here, the ALJ determined that plaintiff
had not engaged in substantial gainful
activity since the initial alleged onset date of
February 18, 2012 through her date last
insured of December 31, 2012. (AR at 23.)
Substantial evidence supports this finding,
and plaintiff does not challenge its
correctness. (Pl. Br. at 2.)
According to plaintiff, the ALJ erred by:
(1) failing to support his determination of
plaintiff’s residual functional capacity with
substantial evidence; and (2) failing to apply
the correct legal standards for determining
what severe impairments plaintiff had, and
whether plaintiff met a listed impairment.
Plaintiff also contends that the ALJ: (1) failed
to support his decision with substantial
evidence; (2) failed to follow agency
regulations; (3) failed to apply the correct
legal standards; and (4) overlooked or
rejected persuasive proof that plaintiff is
disabled. As set forth below, the Court
concludes that the ALJ failed to properly
consider Dr. Slaven’s opinions under the
treating physician rule, and also failed to
properly assess the factors for determining
what weight to give those opinions. The
Court remands for these reasons.
b.
Severe Impairment
At step two, if the claimant is not
employed, the ALJ determines whether the
claimant has a “severe impairment” that
limits her capacity to work. An impairment or
combination of impairments is “severe” if it
significantly limits an individual’s physical
or mental ability to perform basic work
activities. 20 C.F.R. § 404.1520(c); see also
Perez, 77 F.3d at 46.
Here, the ALJ found that plaintiff had the
following severe impairments: fibromyalgia;
arthritis of the lower back and both knees;
tendinosis of the right wrist; and
11
tenosynovitis of the left wrist. (AR at 23.)
The ALJ found that “there is no evidence of
medically
determinable
shoulder
impairment(s) until MRI studies in August
and September 2013.” (AR at 23, 345-47.)
The ALJ further found that “while medically
determinable impairments, there is no
evidence in the record that irritable bowel
disease or obesity resulted in more than
minimal limitations in the claimant’s ability
to perform basic work-related physical
activities through the date last insured and
therefore, these impairments are found not to
be severe.” (AR at 23.)
reversible error committed when ALJ
excluded hearing loss and gastrointestinal
impairments as severe because ALJ
identified other severe impairments and
considered hearing loss and gastrointestinal
impairments in subsequent steps); see also
Reices-Colon v. Astrue, 523 F. App’x 796,
798 (2d Cir. 2013) (finding any error by ALJ
in excluding claims of anxiety disorder and
panic disorder from step two of analysis
would be harmless because ALJ identified
other severe impairments and specifically
considered the claims of anxiety and panic
attacks in subsequent steps); Stanton v.
Astrue, 370 F. App’x 231, 233 n.1 (2d Cir.
2010) (finding remand would not be
warranted due to ALJ’s failure to recognize
disc herniation as a severe impairment
because “the ALJ did identify severe
impairments at step two, so that [plaintiff’s]
claim proceeded through the sequential
evaluation process” and ALJ considered the
“combination of impairments” and “all
symptoms” in making determinations).
Plaintiff
challenges
the
ALJ’s
determination that there was “no evidence of
a
medically
determinable
shoulder
impairment” prior to the date last insured and
that plaintiff’s obesity resulted in only
“minimal” limitations to her ability to
perform basic work-related physical
activities before the date last insured. (AR at
23; Pl. Br. at 4.) As a threshold matter, the
Court notes that the ALJ should have
provided a more detailed explanation of his
decision as to why plaintiff’s other medical
conditions did not constitute severe
impairments. It is difficult to undertake a
meaningful review where there is only a
conclusory sentence in support of the nonsevere finding, which does not indicate the
reasoning underlying the decision. However,
the Court finds no reversible error with
regard to the ALJ’s assessment of plaintiff’s
impairments because the ALJ identified other
severe impairments at step two of the analysis
so that plaintiff’s claim proceeded through
the sequential evaluation process, and in
those subsequent steps, the ALJ considered
plaintiff’s claims of shoulder and obesity
impairments in addition to her other
impairments. Specifically, the ALJ indicated
that he considered the “entire record.” (AR at
24.) See Viverito v. Colvin, 2016 WL 755633,
at *9 (E.D.N.Y. Feb. 25, 2016) (finding no
c.
Listed Impairments
At step three, if the claimant has a severe
impairment, the ALJ next considers whether
the claimant has an impairment that is listed
within Appendix 1 of the regulations. When
the claimant has such an impairment, the ALJ
will find the claimant disabled without
considering the claimant’s age, education, or
work experience. 20 C.F.R. § 404.1520(d).
Here, the ALJ found that none of
plaintiff’s impairments, alone or in
combination, met or medically equaled the
severity of one of the listed impairments in
the Listing of Impairments, 20 C.F.R. Part
404, Subpart P, Appendix 1. (AR at 23.)
Although plaintiff has not contended that any
of her impairments fall under 20 C.F.R. Part
404, Subpart P, Appendix 1, plaintiff does
argue that remand is necessary because the
12
ALJ “provided no explanation to support his
assertion that plaintiff did not meet or equal a
listing; he simply recited the criteria of 1.02
and 1.04, and stated there is no evidence for
either.” (Pl. Br. 5-6.) As a threshold matter,
the Court notes that the ALJ should have
provided a more detailed explanation of his
decision as to why plaintiff “did not have an
impairment or combination of impairments
that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.152(6)).”
(AR at 24.) However, the Court finds no
reversible error with regard to the ALJ’s
assessment of plaintiff’s impairments under
Appendix 1 because while “[t]he ALJ must
justify this determination with more than a
brief conclusory statement” that the claimant
does not meet the listings, McHugh v. Astrue,
No. 11-CV-00578 (MAT), 2013 WL
4015093, at *6 (W.D.N.Y. Aug. 6, 2013),
“the absence of an express rationale for an
ALJ’s conclusions does not prevent us from
upholding them ‘so long as we are able to
look to other portions of the ALJ’s decision
and to clearly credible evidence in finding
that his determination was supported by
substantial evidence.’”
See Salmini v.
Comm’r of Soc. Sec., 371 F. App’x 109, 112
(2d Cir. 2010) (summary order) (quoting
Berry v. Schweiker, 675 F.2d 464, 469 (2d
Cir. 1982)). Here, the ALJ’s rationale at step
three is not something the Court would be
“unable to fathom,” id. at 469, and is
supported by other portions of the ALJ’s
decision, along with plaintiff’s own
testimony, notwithstanding the fact that the
ALJ could have been more specific during
the step three analysis.
d.
the claimant’s residual function capacity
“based on all the relevant medical and other
evidence in [the] case record.” 20 C.F.R. §
404.1520(e). The ALJ then determines at step
four, whether, based on the claimant’s
residual function capacity (“RFC”), the
claimant can perform her past relevant work.
Id. § 404.1520(f). When the claimant can
perform her past relevant work, the ALJ will
find that she is not disabled. Id.
Here, the ALJ determined that plaintiff
was unable to perform her past relevant work,
which was “light” work, but found her
capable of “the full range of sedentary work.”
(AR at 24, 29.) In reaching this conclusion,
the ALJ relied upon the findings from the
following sources: plaintiff’s orthopedic
consultation with Dr. Chaim Shtock who
examined plaintiff for the Social Security
Administration on December 5, 2012; a
report of consultation with Dr. Anang Modi
of the Queens Long-Island Medical Group on
November 5, 2012; a report of consultation
with Dr. Waseem Mir of New York
Integrative Rheumatology & Arthritis Care
on October 30, 2012; MRI studies in 2011
and 2012; and x-rays of the lumbosacral
spine and the left knee in December 2012.
(AR at 24-25.)
The ALJ noted that plaintiff claimed at the
hearing that she had been recently diagnosed
with fibromyalgia but “ha[d] been suffering
with its effects since 2008.” (AR at 28.) He
noted that she claimed it causes pain in both
of her wrists, knees, back and shoulders and
hurts “everyday” and that she used a heating
pad and was prescribed medications
including Neurontin, Gabipentin, Norco and
Mobic. (Id.) The ALJ also indicated that
plaintiff testified she had arthritis, tendonitis
and tears in her shoulder. (Id.) The ALJ found
that plaintiff’s “medically determinable
impairments could reasonably be expected to
cause some of the alleged symptoms;” but
Residual Function Capacity and Past
Relevant Work
If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses
13
that plaintiff’s “statements concerning the
intensity, persistence and limiting effects of
these symptoms are not persuasive as they
were not supported by the weight of the
medical evidence.” (AR at 28.)
unremarkable.” (AR at 26.) The ALJ also
noted that an examination by Karen A.
Montebello, RPA-C, on July 31, 2012,
revealed plaintiff was in “no acute distress.”
(Id.) The ALJ then explained that “a great
deal” of the medical evidence in the record
relates to the claimant’s impairments after the
date last insured such as various MRIs in
2013, but that there was also MRI evidence
of plaintiff’s impairments prior to the date
last insured. (Id.) The ALJ next mentioned
reports from Dr. Anthony Foto, addressing
examinations in March and July of 2013,
noting that they occurred several months
after the expiration of insured status. (AR at
27.) The ALJ explained that, while progress
reports from Dr. Benatar covering the period
of August 2008 to November 27, 2012 do
provide multiple complaints of pain, “no
physical limitations” besides plaintiff’s
difficulty, kneeling, squatting, sitting down,
and arising from a seated position were
mentioned. (Id.) Finally, the ALJ took notice
of a January 18, 2012 progress note from Dr.
Benatar indicating that plaintiff “was
disabled by her injury: she cannot kneel; she
cannot squat; and she has difficulty standing
and walking.” (Id.) However, the ALJ found
that this “would not preclude” plaintiff from
performing sedentary work. (Id.)
The ALJ described plaintiff’s medical
history, as stated in the record, based upon the
above sources. (AR at 25-29.) Specifically,
the ALJ noted that, based upon Dr. Shtock’s
examination of plaintiff on December 5,
2012, plaintiff appeared to be “in no acute
distress” and that “she could walk on heels
and toes without difficulty but was unable to
squat beyond 30% capacity due to knee
pain.” (AR at 25.) Range of motion in the
shoulders, elbows, forearms, wrists and
fingers was full bilaterally, and there was no
joint inflammation, effusion, or instability.
(Id.) There was also full range of motion of
the hips and ankles bilaterally despite some
swelling. (Id.) The ALJ furthered noted that
plaintiff informed Dr. Shtock that she is
“independent” in various tasks including
cooking, cleaning, laundry, shopping,
showering, dressing and grooming; and
watches television and listens to the radio
contrary to her testimony at the hearing. (Id.)
The ALJ then noted that similar findings
were made by Dr. Waseem Mir during his
rheumatologic consultation with plaintiff on
October 30, 2012, who concluded “there was
full range of motion of all joints” and the
“extremities revealed no deformities.” (Id.)
The ALJ concluded that, based upon a
consultation with Dr. Anang Modi of the
Queens-Long Island Medical Group,
performed at the request of both Dr. Foto and
Dr. Benatar on November 5, 2012, plaintiff
had “pain localized to one or more joints with
localized swelling” and “no motor
disturbances.” (Id.) As a result, the ALJ
found that on three of the last examinations
performed prior to the expiration of insured
status on December 31, 2012, “physical
examination findings were essentially
The ALJ found that, as for the opinion
evidence submitted by plaintiff, “great
weight” is given to Dr. Shtock, a consulting
physician who performed a comprehensive
examination for the Social Security
Administration on December 5, 2012, albeit
with the exception of his opinion regarding
mild-to-moderate limitation with sitting long
periods, since “this is not supported by the
medical evidence in the record.” (AR at 29.)
The ALJ also gave “great weight” to Dr.
Benatar’s opinion “that the claimant cannot
kneel or squat and has difficulty standing and
walking.” (Id.) The ALJ found that Dr.
14
Benatar’s opinion is “consistent with other
medical evidence in the record.” (Id.)
during an 8-hour workday, allowing for
normal breaks, and to occasionally
stand/walk in between sitting.” (AR at 2829.) Finally, the ALJ explained that plaintiff
stated to Dr. Shtock that she participates in a
“fairly broad range of activities including
being independent in cooking, cleaning,
laundry, shopping, showering and dressing,”
while denying doing many of these things at
the hearing and attributing them to other
people. (AR at 29.)
The ALJ articulated that his residual
functional
capacity
assessment
was
“supported by objective medical evidence,”
other evidence “based on the requirements of
20 CFR 404.1529 and SRRs 96-4p and 967p,” and “opinion evidence in accordance
with the requirements of 20 CFR 404.1527
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.”
(AR at 27.) In assessing plaintiff’s RFC, the
ALJ proceeded in following the two-step
process: (1) he decided “whether there is an
underlying medically determinable physical
or
mental
impairment(s)--i.e.,
an
impairment(s) that can be shown by
medically acceptable clinical and laboratory
diagnostic
techniques—that
could
reasonably be expected to produce the
claimant’s pain or other symptoms;” (2) he
“evaluate[d] the intensity, persistence and
limiting effects of the claimant’s symptoms
to determine the extent to which they limit
plaintiff’s functioning,” after “an underlying
physical or mental impairment(s) that could
reasonably be expected to produce the
claimant’s pain or other symptoms has been
shown.” (AR at 27-28.) Specifically, the ALJ
found that as far as plaintiff’s claim that she
could not sit for more than 10 minutes, there
is “little objective medical evidence to
support this claim” and “that while it is
understandable that her knee and back
problems may prevent her from performing
activities requiring prolonged standing or
walking; frequent bending and kneeling or
squatting at all, there is no medical basis for
finding that she has any limitations in sitting
and would be unable to sit for up to 6 hours
Plaintiff challenges the ALJ’s assessment
of her residual functional capacity. For the
reasons explained infra, the Court finds that
the ALJ failed to properly consider Dr.
Slaven’s medical opinions in making this
determination2 and also failed to properly
assess the factors for determining what
weight to give those opinions.
e.
Other Work
At step five, if the claimant is unable to
perform her past relevant work, the ALJ
determines whether the claimant is capable of
adjusting to performing any other work. 20
C.F.R. § 404.1520(g). To support a finding
that an individual is not disabled, the
Commissioner has
the burden of
demonstrating that other jobs exist in
significant numbers in the national economy
that the claimant can perform. Id. §
404.1560(c). In this case, the ALJ considered
plaintiff’s age, education, work experience,
and residual functional capacity, in
connection with the Medical-Vocational
Guidelines set forth at Appendix 2 of Part
404, Subpart P of Title 20 of the Code of
Federal Regulations, and found that plaintiff
2
To the extent that plaintiff argues that the ALJ failed
to consider all of her impairments in assessing her
residual functional capacity, the Court disagrees. The
ALJ noted plaintiff’s medical history and impairments
including that of shoulder impairment(s) and obesity
(AR at 23), and indicated that he “considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective
medical evidence” in making his determination (AR at
27). Nonetheless, the Court finds that the ALJ’s
assessment of plaintiff’s residual functional capacity
still warrants remand due to the failure to follow the
treating physician rule, as discussed infra.
15
has the ability to perform a significant
number of jobs in the national economy. (AR
at 30.)
a.
Legal Standard
The Commissioner must give special
evidentiary weight to the opinion of a treating
physician. See Clark, 143 F.3d at 118. The
“treating physician rule,” as it is known,
“mandates that the medical opinion of a
claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
also, e.g., Rosa v. Callahan, 168 F.3d 72, 7879 (2d Cir. 1999); Clark, 143 F.3d at 118.
The rule as set forth in the regulations,
provides:
Plaintiff argues that the ALJ erred at step
five by exclusively relying on the “grids” to
determine whether plaintiff could perform
any work, noting that “exclusive reliance on
the grids is inappropriate where the
guidelines fail to describe the full extent of a
claimant’s physical limitations,” Rosa v.
Callahan, 168 F.3d 72, 78 (2d Cir. 1999), and
argues that Dr. Slaven’s opinion identified
additional limitations (on plaintiff’s ability to
stoop at work (AR at 400)) that are not
incorporated in the grids. For the reasons
discussed below, the ALJ failed to properly
apply the treating physician rule to Dr.
Slaven’s opinion at step four. Thus, the ALJ’s
failure to do so at step five also constitutes an
additional ground for remand based upon
exclusive reliance on the “grids” without
considering Dr. Slaven’s opinions.
Generally, we give more
weight to opinions from your
treating sources, since these
sources are likely to be
medical professionals most
able to provide a detailed,
longitudinal picture of your
medical impairment(s) and
may
bring
a
unique
perspective to the medical
evidence that cannot be
obtained from the objective
medical findings alone or
from reports of individual
examinations,
such
as
consultative examinations or
brief hospitalizations. If we
find that a treating source’s
opinion on the issue(s) of the
nature and severity of your
impairment(s)
is
wellsupported
by
medically
2. Treating Physician Rule
Plaintiff argues, among other things,3 that
the ALJ and Appeals Council failed to follow
the treating physician rule because the ALJ
did not consider, or even mention, Dr.
Slaven’s opinion when assessing plaintiff’s
residual functional capacity. The Court
agrees that the ALJ failed to apply the proper
standard for evaluating the medical opinion
of Dr. Slaven and remands the case on this
basis.
plaintiff’s testimony. The Court need not consider this
issue given the remand on other grounds (namely, the
ALJ’s failure to adhere to the treating physician rule).
However, the Court directs the ALJ on remand to
reconsider plaintiff’s testimony, after properly
applying the treating physician rule, in light of all the
factors in 20 C.F.R. 404.1529(c)(3).
3
Plaintiff also argues that the ALJ failed to properly
assess her credibility. (Pl. Br. at 22.) Specifically,
plaintiff contends that the ALJ erroneously concluded
that plaintiff claimed an “inability to sit for more than
10 minutes” at a time. (Pl. Br. at 22; AR at 28.)
Relatedly, and more generally, plaintiff argues that the
ALJ failed to consider the factors in 20 C.F.R.
404.1529(c)(3) and SSR 96-7p when evaluating
16
acceptable
clinical
and
laboratory
diagnostic
techniques and is not
inconsistent with the other
substantial evidence in your
case record, we will give it
controlling weight.
refuses to accord controlling weight to the
medical opinion of a treating physician must
consider various ‘factors’ to determine how
much weight to give the opinion.” Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(citing 20 C.F.R. § 404.1527(d)(2)). “Among
those factors are: (i) the frequency of
examination and the length, nature and extent
of the treatment relationship; (ii) the evidence
in support of the treating physician’s opinion;
(iii) the consistency of the opinion with the
record as a whole; (iv) whether the opinion is
from a specialist; and (v) other factors
brought
to
the
Social
Security
Administration’s attention that tend to
support or contradict the opinion.” Id. (citing
20 C.F.R. § 404.1527(d)(2)). “Failure to
provide ‘good reasons’ for not crediting the
opinion of a claimant’s treating physician is
ground for a remand.” Snell, 177 F.3d at 133.
20 C.F.R. § 404.1527(c)(2).
Although treating physicians may share
their opinions concerning a patient’s inability
to work and the severity of the disability, the
ultimate decision of whether an individual is
disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he
Social Security Administration considers the
data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.”).
“Furthermore, the ALJ has the duty to
recontact a treating physician for clarification
if the treating physician’s opinion is unclear.”
Stokes v. Comm’r of Soc. Sec., No. 10-CV0278 (JFB), 2012 WL 1067660, at *11
(E.D.N.Y. Mar. 29, 2012) (quoting Ellett v.
Comm’r of Soc. Sec., No. 1:06-CV-1079
(FJS), 2011 WL 1204921, at *7 (N.D.N.Y.
Mar. 29, 2011) (internal quotation marks
omitted)); see also Calzada v. Astrue, 753 F.
Supp. 2d 250, 277 (S.D.N.Y. 2010) (“If the
ALJ is not able to fully credit a treating
physician’s opinion because the medical
records from the physician are incomplete or
do not contain detailed support for the
opinions expressed, the ALJ is obligated to
request such missing information from the
physician.”); Mitchell v. Astrue, No. 07-CV285 (JSR), 2009 WL 3096717, at *17
(S.D.N.Y. Sept. 28, 2009) (“If the opinion of
a treating physician is not adequate, the ALJ
must ‘recontact’ the treating physician for
clarification.”
(citing
20
C.F.R.
§§404.1512(e), 416.912(e))). Such an
obligation is linked to the ALJ’s affirmative
When the Commissioner decides that the
opinion of a treating physician should not be
given controlling weight, she must “give
good reasons in [the] notice of determination
or decision for the weight [she] gives [the
claimant’s] treating source’s opinion.” 20
C.F.R. § 404.1527(c)(2); see also Perez v.
Astrue, No. 07-CV-958 (DLJ), 2009 WL
2496585, at *8 (E.D.N.Y. Aug. 14, 2009)
(“Even if [the treating physician’s] opinions
do not merit controlling weight, the ALJ must
explain what weight she gave those opinions
and must articulate good reasons for not
crediting the opinions of a claimant’s treating
physician.”); Santiago v. Barnhart, 441 F.
Supp. 2d 620, 627 (S.D.N.Y. 2006) (“Even if
the treating physician’s opinion is
contradicted by substantial evidence and is
thus not controlling, it is still entitled to
significant weight because the treating source
is inherently more familiar with a claimant’s
medical condition than are other sources.”
(internal citation and quotation marks
omitted)). Specifically, “[a]n ALJ who
17
duty to develop the record. See Perez, 77 F.3d
at 47.
b.
Dousewicz v. Harris, 646 F.2d 771, 774 (2d
Cir. 1981) (holding that, although the doctor
did not treat claimant for Social Security
disability benefits during relevant period
prior to date claimant last met the earnings
requirement, the doctor’s opinion was still
entitled to “significant weight”). Moreover,
opinions of treating physicians are “binding
in the absence of substantial evidence to the
contrary even if the treating physician[s’]
evaluations [were] made after the last date on
which the claimant met the special earnings
requirement.” Henningsen v. Comm’r of
S.S.A., 111 F. Supp. 3d 250, 267 (E.D.N.Y.
2015) (quoting Allan v. Sec. of HHS, No. 87civ-1322C, 1989 WL 280263, at *4-5
(W.D.N.Y. Sept. 15, 1989) (alterations in
original) (internal quotation marks omitted)).
Further, this Court has held that when the
ALJ fails to state the amount of weight he
gave to a treating physician’s opinion remand
is required. Branca v. Comm’r of SSA, No.
12-CV-643 (JFB), 2013 WL 5274310, at *12
(E.D.N.Y. Sept. 18, 2013) (remanding when
the ALJ erred by “failing to explain the
weight he assigned to the opinions of
plaintiff’s treating physicians and failing to
properly assess the factors for determining
what weight to give those opinions”); Torres
v. Comm’r of S.S.A., No. 13-CV-330 (JFB),
2014 WL 69869, at *1, *9 (E.D.N.Y. Jan. 9,
2014); Balodis v. Leavitt, 704 F. Supp. 2d
255, 265-68 (E.D.N.Y. 2010) (finding
remand was warranted when the ALJ did not
“explicitly” apply and weigh the various
factors that must be considered in
determining how much weight to give an
opinion of a treating physician).
Analysis
The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Slaven, the treating physician,
who initially examined plaintiff on July 30,
2013, and concluded plaintiff’s symptoms
started in 2009 (during the period before the
date last insured). (AR at 341, 401.)
The Commissioner correctly notes that
Dr. Slaven did not examine plaintiff until
seven months after the date last insured (AR
at 341), and that plaintiff was involved in a
car accident after the relevant period (AR at
379). Furthermore, the Commissioner is
correct in the assertion that a physician’s
opinion may potentially be entitled to less
weight if the examination occurred after the
date last insured and no connection is made
between the recent diagnosis and plaintiff’s
condition during the date last insured. See
Vilardi v. Astrue, 447 F. App’x 271 (2d Cir.
2012) (finding plaintiff’s reliance on medical
evidence demonstrating a worsening of her
condition after the date last insured was of
“little value”); Behling v. Comm’r of S.S.A.,
369 F. App’x 292 (2d Cir. 2010) (holding
new impairments arising after the date last
insured are not relevant). However, even if
Dr. Slaven did not treat plaintiff during the
period prior to plaintiff’s date last insured,
that fact alone does not show that Dr.
Slaven’s opinion warrants no consideration
or weight. See Wenk v. Barnhart, 340 F.
Supp. 2d 313, 322 (E.D.N.Y. 2004) (holding
that the treating physician rule, under which
medical opinions of treating physicians are
given controlling weight in Social Security
disability cases, applies to retrospective
diagnoses, which relate to some prior time
period during which the diagnosing physician
may or may not have been a treating source);
The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Slaven because he did not even
mention Dr. Slaven in his opinion (AR at 2130), notwithstanding that during plaintiff’s
summation at the hearing before the ALJ,
plaintiff’s attorney stated that Dr. Slaven was
18
plaintiff’s “treating physician” (AR at 55).
Because the ALJ failed to evaluate Dr.
Slaven’s opinion under the treating physician
rule and failed to address the factors set out
in 20 C.F.R. § 404.1527(d)(2), remand is
necessary.
Newbury v. Astrue, 321 F. App’x 16, 18 (2d
Cir. 2009). Thus, the Court disagrees with
the Commissioner’s assertion that Dr.
Slaven’s opinion was “irrelevant in
determining plaintiff’s limitations during the
period at issue in this case,” and that “the ALJ
properly focused his consideration on
plaintiff’s functioning prior to and up to her
date last insured for disability benefits,
December 31, 2012.” (Def. Br. at 34.) None
of the points articulated by the Commissioner
were identified by the ALJ as a basis for his
refusal to give Dr. Slaven’s opinion
controlling weight or for his failure to even
mention Dr. Slaven’s opinion at all. Such
post hoc rationalizations are insufficient, as a
matter of law, to bolster the ALJ’s decision.
Demera v. Astrue, No. 12-CV-432 (FB),
2013 WL 391006, at *3 n.3 (E.D.N.Y. Jan.
24, 2013) (holding that the Commissioner’s
“post hoc rationalizations for the ALJ’s
decision are not entitled to any weight”).
Further, to the extent that the
Commissioner argues that the ALJ was
correct in not assigning significant weight to
Dr. Slaven’s opinion because (1) it was made
after plaintiff’s date last insured; (2) it does
not relate to the relevant period; and/or (3)
plaintiff was in a car accident during the
period she saw Dr. Slaven, so plaintiff’s
medical conditions changed, thereby making
Dr. Slaven’s opinion irrelevant, these
arguments are impermissible post hoc
rationalizations by the Commissioner, as
evidenced by the fact that the ALJ never even
mentioned Dr. Slaven’s name in his decision,
let alone offered these explanations for
discounting Dr. Slaven’s opinion. See
Losquadro v. Astrue, No. 11-CV-1798 (JFB),
2012 WL 4342069, at *15 (E.D.N.Y. Sept.
21, 2012) (citing Burlington Truck Lines v.
U.S., 371 U.S. 156, 168 (1962) (holding that
“a reviewing court ‘may not accept appellate
counsel’s post hoc rationalizations for agency
action’”)); see also Snell, 177 F.3d at 134;
Thus, in light of the ALJ’s failure to assess
Dr. Slaven’s opinion under the treating
physician rule and the factors set out in 20
C.F.R. § 404.1527(d)(2), the Court concludes
that remand is necessary so that the ALJ can
properly consider Dr. Slaven’s opinion.4
decision”); see also James v. Comm’r of Soc. Sec., No.
06-CV-6108 (DLI/VVP), 2009 WL 2496485, at *11
(E.D.N.Y. Aug. 14, 2009); Toth v. Colvin, No. 5:12CV-1532 (NAM/VEB), 2014 WL 421381, at *6
(N.D.N.Y. Feb. 4, 2014). “[W]here newly submitted
evidence consists of findings made by a claimant’s
treating physician, the treating physician rule applies,
and the Appeals Council must give good reasons for
the weight accorded to a treating source’s medical
opinion.” James, 2009 WL 2496485, at *10. Contrary
to the Commissioner’s argument that detailed analysis
is not required in denial notices issued by the Appeals
Council, the treating physician rule nonetheless
applies and requires that good reason be provided for
disregarding a treating physician’s opinion. See
Glessing, 2014 WL 1599944, at *14 (remanding for
failure to provide rationale for disregarding newly
submitted evidence of treating physician’s opinion in
Appeals Council’s denial of request for review); Toth,
4
Plaintiff also argues that the Appeals Council failed
to consider additional evidence (namely, a Medical
Source Statement, which provided updated and more
detailed medical information) that Dr. Slaven
submitted following the ALJ’s decision. Although the
Appeals Council acknowledged that it had received
Dr. Slaven’s submission and included it in the record
(see AR at 6), it did not explicitly address this
additional documentation in rendering its conclusion
that there was “no reason” to review the ALJ’s
decision (AR at 1). The failure to do so constitutes a
further ground for remand. See Glessing v. Comm’r of
Soc. Sec., No. 13-CV-1254(BMC), 2014 WL
1599944, at *14 (E.D.N.Y. Apr. 21, 2014) (finding
remand warranted where Appeals Council listed
physician’s letter among additional evidence received
and made part of the record, but merely stated that the
newly submitted information did “not provide a basis
for changing the Administrative Law Judge’s
19
IV.
CONCLUSION
For the reasons set forth above, the
Commissioner’s cross-motion for judgment
on the pleadings is denied. Plaintiff’s motion
for judgment on the pleadings is denied, but
plaintiff’s motion to remand is granted. The
case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
September 9, 2016
Central Islip, NY
***
Plaintiff is represented by Jeffrey Delott, of
the Law Offices of Jeffrey Delott, 366 North
Broadway, Suite 410, Jericho, NY 11753.
The Commissioner is represented by
Candace Scott Appleton, United States
Attorney, Eastern District of New York, 271
Cadman Plaza East, 7th Floor, Brooklyn,
New York, 11201.
2014 WL 421381, at *6 (same). Thus, on remand, the
ALJ should also consider Dr. Slaven’s Medical Source
Statement and evaluate it in accordance with the
treating physician rule.
20
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