Manfra Jr. v. Colvin
Filing
18
ORDER granting in part and denying in part 12 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is denied. Plain tiff's cross-motion for judgment on the pleadings is denied, but plaintiff's motion to remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order.. Ordered by Judge Joseph F. Bianco on 8/22/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-2844 (JFB)
_____________________
FRANK S. MANFRA JR.,
Plaintiff,
VERSUS
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
August 22, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff, Frank Manfra (“Manfra” or
“plaintiff”), brings 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”), dated December 20,
2013, denying plaintiff’s application for
disability insurance benefits (“DIB”)
beginning on March 15, 2012, through the
present. An Administrative Law Judge
(“ALJ”) found that plaintiff had the residual
functional capacity to perform light work as
defined in 20 CFR 404.1567(b), and that
although he was unable to perform any past
relevant work, there were a number of jobs in
the national economy that he could perform.
Therefore, the ALJ determined that plaintiff
was not disabled, and thus, was not entitled
to benefits. The Appeals Council denied
plaintiff’s request for review.
Plaintiff has moved for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c), or in the alternative,
remand, arguing that the ALJ erred by: (1)
failing to properly weigh the medical
evidence; and (2) failing to properly evaluate
plaintiff’s credibility. In addition, plaintiff
argues that the Appeals Council erred by
failing to properly consider new and material
evidence when it denied his request for
review. The Commissioner has opposed
plaintiff’s motion and filed a cross-motion
for judgment on the pleadings.
For the reasons set forth herein, the Court
denies plaintiff’s motion for judgment on the
pleadings, denies the Commissioner’s crossmotion for judgment on the pleadings, and
grants plaintiff’s motion to remand.
Accordingly, the case is remanded to the ALJ
for further proceedings consistent with this
Memorandum and Order. Remand is
warranted because the ALJ failed to properly
weigh the opinion of plaintiff’s treating
physician, Dr. Checo. Although the ALJ cited
medical evidence in support of her position,
the ALJ did not address evidence that
supported Dr. Checo’s opinion, nor did the
ALJ apply all of the required factors.
Accordingly, remand is warranted.
microwaves his own meals daily, and that his
sister also prepares food for him or he has
food delivered. (AR at 166-67.) Plaintiff
reported that he does “a little cleaning,” but
that otherwise, he sends out his laundry and
his sister takes care of the household. (AR at
167.) Additionally, plaintiff shops for food
every other week, in stores or by computer,
and can handle paying bills, counting change,
and running a savings account. (AR at 168.)
Plaintiff mainly socializes with others over
the phone or on the computer. (AR at 169.)
Plaintiff noted that, before his injuries, he
used to go out in public with friends or to eat,
but commented that now “leakage disrupts
long visits.” (AR at 167, 169.) He listed
playing sports as a hobby, but indicated that
he is no longer able to play. (AR at 168.)
Plaintiff also listed television as a hobby and
stated that he watches television all day. (Id.)
I. BACKGROUND
A. Factual Background
The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. A
more exhaustive recitation of the facts is
contained in the parties’ submissions to the
court and is not repeated herein.
1. Personal and Work History
Plaintiff was born on February 18, 1963.
(AR at 39, 176.) He was 49 years old on the
alleged onset date and 50 years old at the time
of the ALJ’s decision. (See id.) Plaintiff has a
high school education. (AR at 40, 156.)
Plaintiff noted that he has problems with
incontinence when standing, walking, sitting,
and climbing stairs; reported pain with
lifting, climbing stairs, and reaching; and
indicated that it is “hard to stand back up”
after kneeling or squatting. (AR at 169-70.)
Plaintiff described his lower back pain as
“stabbing” with the pain radiating to his legs,
and claimed that the pain can last from “hours
to days.” (AR at 172-73.) Plaintiff indicated
that his back pain began and started to affect
his activities in 2011. (AR at 172.) Plaintiff
reported that “basic” activities such as “just
standing or steps” can bring on pain,
depending on how he moves. (AR at 173.)
He claimed that he was only able to walk
about two blocks before having to stop and
rest, and is unable to finish his chores. (AR at
171.) Plaintiff reported that the pain affects
his ability to lift and, therefore, his ability to
work. (AR at 174.) Plaintiff reported that his
back pain and incontinence affect his sleep.
(AR at 165.) Plaintiff stated that he treated his
back pain with Cyclobenzaprine and
Meloxicam, which he began taking in
Prior to March 15, 2012, the alleged onset
date, plaintiff worked stocking produce at a
grocery store. (AR at 40-41, 156-57.) The job
required lifting up to 80 pounds. (AR at 157.)
Plaintiff worked stocking produce at the
same store for nearly 33 years. (AR at 156.)
On December 7, 2012, plaintiff
completed a “Function Report,” which
detailed his daily activities, as well as how his
condition affected his ability to perform
various tasks. (AR at 164-74.) According to
the report, plaintiff lives in a house with his
family and is able to travel alone by driving
and walking. (AR at 164, 167.) Plaintiff
reported that he goes outside “occasionally,”
depending on how he feels. (AR at 167.)
Plaintiff indicated that he has no problem
with personal care, and does not need special
help or reminders to take care of personal
needs and grooming or to take medicine. (AR
at 165-66.) Plaintiff reported that he
2
October 2012, but that they did not relieve his
pain for long. (AR at 173.) Plaintiff noted no
side effects. (AR at 174.) Additionally,
plaintiff reported using a back brace and
taking over-the-counter medication. (Id.)
too young to have urinary retention due to
BPH and advised that his serum PSA be
checked. (Id.) Dr. LaMonica also noted that
prostate cancer could be a possible cause.
(Id.) On April 6, 2012, plaintiff was also
examined by Dr. William Frank. (AR at 28182.) Dr. Frank noted generally normal
findings other than prolonged expiratory
phase. (AR at 281.) He also noted that a renal
ultrasound revealed a normal right kidney
and some mild hydronephrosis in the left
kidney. (AR at 282.) Dr. Frank diagnosed
sepsis secondary to urinary tract infection,
acute renal failure with obstruction of
possible underlying chronic renal failure, and
possible emphysema and chronic obstructive
pulmonary disease (“COPD”). (Id.) Plaintiff
had a “stable hospital course” and was
discharged in stable condition on April 9,
2012. (AR at 386-88.) A Foley catheter was
put in place, and his creatinine level dropped
to 4.8. (AR at 387.) Discharge diagnoses
were: (1) sepsis secondary to pyelonephritis;
(2) renal insufficiency, acute on chronic; and
(3) obstructive uropathy, most likely
secondary to BPH. (AR at 387-88.)
2. Medical History
On March 15, 2012, plaintiff was
admitted to Nassau University Medical
Center. (AR at 200-01.) Plaintiff had gone to
the emergency room complaining of stomach
cramps, excessive urination, blurred vision,
decreased appetite, chills, and weight loss of
thirty pounds since November 2011. (AR at
201.) Plaintiff’s blood pressure was 208/127
on admission. (Id.) The examination was
remarkable for distended bladder and
hyperactive bowl sounds. (Id.) Plaintiff’s
creatinine level was 14.1 mg/dL on
admission.1 (Id.) A Computed Tomography
(“CT”) scan showed a mildly enlarged
prostate and urinary bladder distension with
wall thickening. (Id.) A Foley catheter was
used to improve plaintiff’s creatinine levels,
and he began taking Sevelamer for
hyperphosphatemia and Flomax for benign
prostatic hyperplasia (“BPH”). (Id.) Plaintiff
was released, in stable condition, on March
20, 2012. (Id.)
On April 13, 2012, plaintiff had blood
drawn for a PSA test for Dr. LaMonica, and
results revealed that his PSA level was 5.8.
(AR at 254.) Plaintiff saw Dr. LaMonica on
April 26, 2012. (AR at 587.) Dr. LaMonica
noted that plaintiff’s PSA level “has come
down to 5.8 from greater than 8” and advised
a prostate needle biopsy due to concern of
prostate cancer based on plaintiff’s family
history. (Id.) On May 7, 2012, Dr. LaMonica
performed a prostate needle biopsy; the
results for prostate cancer were negative. (AR
at 256, 587.) On May 16, 2012, Dr.
LaMonica did a cystoscopic exam, which
revealed that plaintiff had a very high bladder
On April 5, 2012, plaintiff was admitted
to the emergency room at North Shore LIJ
Southside Hospital due to recurrent
symptoms of his prior hospitalization,
including urinary retention and fever after his
catheter was removed. (AR at 252-53, 386;
see also AR 385-581.)
Dr. Joanne
LaMonica, a urologist, examined plaintiff on
April 6, 2012. (AR at 252-53.) At this point,
plaintiff’s creatinine level was 6.1. (AR at
252.) Dr. LaMonica noted that plaintiff was
1
The normal range for creatinine in the blood may be
0.84 to 1.21 milligrams per deciliter. Creatinine Test,
Mayo
Clinic,
http://www.mayoclinic.org/testsprocedures/creatinine-test/details/results/rsc-
20179431 (last visited August 22, 2015). Generally, a
high serum creatinine level is a sign of kidney
dysfunction. Id.
3
neck. (AR at 587.) Dr. LaMonica
recommended a cystoscopy with a
transurethral incision of the bladder neck,
which she felt could be beneficial in
preventing plaintiff from being in urinary
retention. (Id.) Dr. LaMonica also requested
a urodynamic test prior to the cystoscopy to
ensure that plaintiff’s bladder function was
normal. (Id.)
Dr. LaMonica conducted a second
urodynamic assessment on October 5, 2012.
(AR at 597.) The results of this assessment
also showed a non-specific pattern of urinary
incontinence and included some elements of
stress incontinence along with mixed urgency
incontinence. (Id.) Dr. LaMonica further
noted that, although she sent plaintiff for
physical therapy to help with bladder
retaining and to increase the strength of the
pelvic floor muscles, there was no
improvement. (Id.) However, Dr. LaMonica
noted that the Imipramine seemed to have
improved the symptoms somewhat. (Id.)
Nevertheless, Dr. LaMonica noted that, even
with the medication, plaintiff continued to
require pads and had leaks with any kind of
physical activity. (Id.)
On June 12, 2012, plaintiff underwent
preoperative cardiac clearance for his
upcoming bladder neck surgery. (AR at 27980.) On June 14, 2012, an EKG revealed a
normal sinus rhythm and no acute ischemic
abnormalities. (AR at 645.) Plaintiff had a
normal cardiac workup and was given
clearance for the bladder neck surgery. (Id.)
Plaintiff underwent a transurethral resection
of the prostate (“TURP”) on June 18, 2012.
(AR at 586.) Following the procedure, on
August 1, 2012, plaintiff told Dr. LaMonica
that he had worsening urinary incontinence.
(AR at 589.) Dr. LaMonica had plaintiff
undergo an urodynamic assessment, which
showed several leaks throughout the study.
(Id.) The study also showed that plaintiff
could void at a relatively normal rate and
could hold a certain volume that was
acceptable. (Id.) Based on these findings, Dr.
LaMonica was unsure where the leak was
coming from. (Id.) Dr. LaMonica believed
the leakage may have been initiated from
increased intra-abdominal pressure, and thus,
could include a voluntary component. (Id.)
Dr. LaMonica was confused by plaintiff’s
history and noted that there was no reason
why the TURP procedure would cause
incontinence. (Id.) Dr. LaMonica referred
plaintiff for physical therapy to increase the
strength of his pelvic floor muscles. (Id.) On
September 6, 2012, Dr. LaMonica noted that
plaintiff continued to have severe
incontinence and prescribed Imipramine.
(AR at 590.)
On October 5, 2012, Dr. LaMonica
completed a bladder problem impairment
questionnaire. (AR at 600-04.) Dr. LaMonica
indicated that she had treated plaintiff on a
monthly basis since April 5, 2012, and had
most recently examined plaintiff on the date
of the exam. (AR at 600.) Dr. LaMonica
diagnosed plaintiff with mixed urinary
incontinence and listed his prognosis as
“unknown.” (Id.) Dr. LaMonica indicated
that the positive clinical findings supporting
her diagnosis were mixed urinary
incontinence as evidenced on urodynamic
assessment. (Id.) Dr. LaMonica listed
plaintiff’s primary symptoms as bladder
outlet obstruction, sepsis, and incontinence.
(AR at 601.) Dr. LaMonica noted that
plaintiff had some response to Imipramine
and no response to Flomax. (Id.) Dr.
LaMonica
opined
that
plaintiff’s
impairments would “maybe” be expected to
last at least twelve months and that she did
not know if plaintiff was a malingerer. (AR
at 601-02.) Dr. LaMonica noted that plaintiff
was incontinent with physical activity and
that urinary urgency would sometimes be a
problem. (AR at 602.) Dr. LaMonica
4
indicated that she believed plaintiff to have
psychological or social problems due to the
condition, noting that the situation was
humiliating, depressing, and affected him
socially. (Id.) According to Dr. LaMonica,
plaintiff was incapable of handling even low
stress work, could not “work with food and
be incontinent,” and would be absent from
work more than three times per month due to
his impairments or treatment. (AR at 603.)
Dr. LaMonica stated that plaintiff needed a
job that permitted access to a restroom and
that he would “commonly” need to take
unscheduled restroom breaks throughout the
work day. (Id.)
limited range of motion of the lumbar spine
secondary to pain, negative straight leg raise
in the bilateral lower extremities, and 5/5
muscle strength and 2/4 deep tendon reflexes
in the lower extremities. (Id.) Dr. Farakh
noted that plaintiff had not started physical
therapy or had the MRI since his last visit,
and directed that plaintiff begin physical
therapy and continue follow-up with a
neurologist. (Id.) Dr. Farakh also indicated
that he might refer plaintiff to a spine surgeon
for evaluation of chronic back pain and
weakness once the MRI was completed. (Id.)
An MRI of the lumbar spine, conducted
on November 14, 2012, revealed a very
minimal retrolisthesis at L1-L2, with tiny left
paracentral disc herniation and annular tear,
very minimal retrolisthesis at L2-L3 with
mild disk bulge and left lateral disc herniation
with annular tear close to the left L2 nerve
root, minimal disc bulges from L3 to L5, and
a small central disk herniation at L5-S1. (AR
at 663.)
Plaintiff was examined by Dr. Nabil
Farakh on October 20, 2012. (AR at 660.)
Plaintiff complained of pain in his lumbar
spine since lifting a fifty-pound box in
November 2011. (Id.) He said that,
afterwards, he noticed recurrent back pain
and weakness of his lower extremities, and
also began noticing urinary retention and
incontinence. (Id.) Plaintiff also reported
“some abnormal cracking and noise coming
from his lumbar spine with range of motion.”
(Id.) Dr. Farakh’s physical examination
revealed tenderness of the lumbar spine with
paravertebral muscle spasm and tenderness.
(Id.) Muscle strength was 5/5, and deep
tendon reflexes were 2/4 in the bilateral lower
extremities. (Id.) X-rays of the lumbar spine
showed
degenerative
changes
and
spondylolisthesis of L2/L3. (Id.) Dr. Farakh
directed that plaintiff continue follow-up
with his urologist, physical therapy and selfexercise, and also ordered magnetic
resonance imaging (“MRI”) of the lumbar
spine. (Id.) He also prescribed Flexeril and
Mobic. (Id.) Plaintiff returned to Dr. Farakh
on November 13, 2012, and reported no
changes in his symptoms. (AR at 658.) Upon
that examination, Dr. Farakh found continued
tenderness of the lumbar spine with
paravertebral muscle spasm and tenderness,
Plaintiff returned to Dr. Farakh on
December 11, 2012. (AR at 659.) An
evaluation of the lumbar spine revealed that
plaintiff still had tenderness on the lumbar
spine with paravertebral muscle spasms and
tenderness, and limited range of motion of
the lumbar spine secondary to the pain. (Id.)
Plaintiff also had negative straight leg raise in
the bilateral lower extremities, muscle
strength 5/5 bilateral lower extremities, and
deep tendon reflexes 2/4 of the patella tendon
of the lower extremities. (Id.) Dr. Farakh
stated that the MRI was consistent with
herniated disc of L1, L2 and L2, L3 and L5,
S1. (Id.) Dr. Farakh noted that he would refer
plaintiff to a spine surgeon, and
recommended physical therapy and selfexercise with limited heavy activity of the
spine. (Id.) He also advised plaintiff to use a
lumbar brace and follow up with a
neurologist. (Id.)
5
At the request of the Social Security
Administration, Dr. Shannon Gearhart
performed a consultative examination of
plaintiff on December 19, 2012. (AR at 61014.) Plaintiff reported lower back pain for
several years, beginning in the 1980s when
he was in a motor vehicle accident, which
progressively worsened until November
2011, when he felt as though his lower back
was “popping” when he lifted a heavy object
at work. (AR at 610.) Dr. Gearhart noted that
an MRI showed three herniated discs in
plaintiff’s lumbar spine and impingement of
his L2 existing nerve root. (Id.) Dr. Gearhart
noted that plaintiff had “constant” lower back
pain that averaged as a 6 on a 1 to 10 scale,
and that, although he had been recommended
to physical therapy, he had not attended due
to lack of insurance. (Id.) Dr. Gearhart noted
that plaintiff wore a back brace at all times,
which helped with his pain. (Id.) Dr. Gearhart
also noted that plaintiff had been diagnosed
with hypertension in 2011, and has had
constant urine leakage since his urinary
catheter was removed following his
hospitalization in April 2012 and his TURP
procedure in June 2012. (Id.) Plaintiff told
Dr. Gearhart that he believed that the L2
nerve impingement was an attributing cause
of his constant urinary incontinence. (Id.)
Plaintiff also stated that he had been
diagnosed with early-stage COPD, in April
2012. (AR at 611.) Plaintiff reported a history
of left knee surgery in 1995, and said that he
now had arthritis in the left knee with pain
upon walking over a half block at a time,
going up more than one flight of stairs, or
prolonged sitting or standing. (Id.) Plaintiff
told Dr. Gearhart that he could dress himself
daily, showered two to three times per week,
cooked with a microwave only, did light
cleaning, and spent time watching television,
listening to the radio, and socializing with
friends. (AR at 612.)
Upon examination, Dr. Gearhart found
plaintiff’s blood pressure to be elevated,
150/100, and advised him to see his primary
care physician within a week. (Id.) Dr.
Gearhart noted that plaintiff appeared to be in
no acute distress during the examination, had
a normal gait, could walk on his heels and
toes without difficulty, fully squatted, and
needed no assistive devices or help changing
for the exam, getting on or off the table, or
rising from the chair. (Id.) Dr. Gearhart noted
lumbar spine flexion to 70 degrees and
extension to 40 degrees, straight leg raising
as negative on the right and positive on the
left at 10 degrees, and limited range of
motion in the hips and knees. (AR at 613.) No
sensory defects were noted, and plaintiff had
full, 5/5, strength in all extremities. (Id.) Dr.
Gearhart diagnosed lower back pain, left
knee
pain,
chronic
renal
failure,
hypertension, and COPD. (AR at 614.) She
found plaintiff’s prognosis to be fair as to all
diagnoses but his COPD, which she indicated
was “stable.” (Id.) Dr. Gearhart opined that
plaintiff had “marked” restrictions in heavy
lifting, carrying, pushing and pulling, as well
as “moderate” restrictions in walking,
standing, sitting, and going up and down
stairs. (Id.) Dr. Gearhart also stated that
plaintiff needed to avoid smoke, dust, and
other known respiratory irritants. (Id.)
On January 2, 2013, Dr. Aaron J.
Woodall, a urologist, examined plaintiff. (AR
at 636.) A post-void residual urine test was
conducted with 13cc of urine remaining in
the bladder after urination. (Id.) A urinalysis
showed a trace amount of blood present. (Id.)
Dr. Woodall prescribed Imipramine and
Detrol and told plaintiff that he would
consider performing an anti-incontinence
procedure once plaintiff’s spinal evaluation
was complete. (Id.)
On January 4, 2013, plaintiff was seen by
Dr. Fernando J. Checo, an orthopedic
6
surgeon, for an evaluation for cauda equine
as the possible etiology of his urinary
incontinence. (AR at 622.) Plaintiff reported
difficulty voiding and in starting urination.
(Id.) Upon examination, plaintiff had a
normal gait and minimal pain to flexion,
extension, lateral bending, and rotation. (AR
at 623.) Dr. Checo reviewed the November
14, 2012 lumbar MRI, which showed that
plaintiff had a minimal disc bulge at L3-L4,
L4-L5, a small central disk herniation at L5S1 with no central compression or foraminal
compression, and a small retrolisthesis at L12 and L2-3. (Id.) Dr. Checo diagnosed
degenerative disc disease of the lumbar spine,
but found no clinical symptoms consistent
with cauda equine. (Id.)
lumbar spondylosis, and lumbar sprain. (Id.)
Dr. Checo made a referral to physical therapy
and recommended the use of antiinflammatories for as long as plaintiff’s
primary care physician believed it was
permissible for him to take them. (Id.)
Dr. Checo also completed a Lumbar
Spine Impairment Questionnaire on February
20, 2013, in which he restated his diagnoses
from his examinations of plaintiff. (AR at
629-35.) The clinical findings Dr. Checo
listed included limited range of motion at 20
degrees extension and 50 degrees flexion,
tenderness at the lumbar muscles, muscle
spasms at the right lumbar/sacral back,
abnormal gait evidenced by forward leaning
posture, muscle atrophy at bilateral quads,
and trigger points at the lumbar/sacral facet
joints. (AR at 629-30.) Dr. Checo indicated
that plaintiff had no swelling, sensory loss,
reflex changes, muscle weakness, crepitus, or
positive straight leg raising tests. (AR at 630.)
Dr. Checo cited the November 14, 2012 MRI,
L1-L2 paracentral disc herniation and
annular tear, L2-L3 central disc herniation,
and L5-S1 central herniation to support his
diagnoses. (Id.) Plaintiff’s primary symptoms
included mechanical back pain with flexion,
extension, and lateral bending, and pain to
palpation over the lumbar/sacral muscles.
(Id.) The nature of the pain resulted from
muscle sprain, spasms, and degenerative disc
disease located in the lumbar/sacral area. (AR
at 631.) Dr. Checo noted that plaintiff’s pain
was constant when he was upright and only
improved when he was lying down. (Id.) The
pain was precipitated by sitting for long
periods of time, twisting, and bending. (Id.)
Dr. Checo indicated that he had not been able
to completely relieve plaintiff’s pain without
unacceptable side effects. (Id.)
Dr. Mary Lanette Rees, a State agency
medical consultant, reviewed the evidence of
record on February 5, 2013, and stated that
she agreed with the residual functional
capacity (“RFC”) assessment for light work
with appropriate postural and environmental
restrictions, as previously provided by the
State agency single decision maker. (AR at
626-27.)
On February 20, 2013, plaintiff returned
to Dr. Checo for back pain. (AR at 687.) A
physical examination revealed that plaintiff
had a normal gait but “a lot of mechanical
symptoms,” including pain with flexion,
extension, lateral bending and rotation, pain
over the paralumbar muscles right ride worse
then left, and pain over the spinous processes.
(AR at 668.) Plaintiff had negative leg raises
bilaterally, but did have some pain in the
back. (Id.) Plaintiff also had diminished
range of motion to flexion; specifically, he
could flex to about 40 degrees, extend to
neutral, and had about 30 degrees of loss of
lateral bending on the right and left side. (Id.)
Dr. Checo diagnosed lumbar degenerative
disc disease at L3-L4 and L4-L5, lumbar disc
herniations at L3-L4, L4-L5, and L5-S1,
Dr. Checo further opined that plaintiff
was able to sit for a total of four hours in an
eight-hour work day and stand/walk for two
7
hours in an eight-hour work day. (Id.) Dr.
Checo also opined that plaintiff needed to get
up and move around for fifteen minutes on an
hourly basis. (AR at 632.) He explained that
plaintiff had the ability to frequently lift and
carry up to five pounds and occasionally up
to ten pounds, but never more. (Id.) Dr.
Checo stated that plaintiff’s symptoms were
frequently severe enough to interfere with his
attention and concentration, that his
impairments were likely to last at least twelve
months, and that plaintiff was only capable of
tolerating low stress in the workplace
because flare-ups from mechanical pain and
degenerative arthritis were caused by too
much activity. (AR at 633.) Dr. Checo
indicated that emotional factors did not
contribute to the severity of plaintiff’s
symptoms and functional limitations. (Id.)
Dr. Checo opined that plaintiff would have
good days and bad days, that he would need
to take unscheduled breaks to rest every two
hours in an eight-hour work day, and that he
would likely be absent from work more than
three times per month as a result of his
impairments or treatments. (AR at 634.)
According to Dr. Checo, plaintiff was not a
malingerer. (AR at 633.) Dr. Checo also
noted that plaintiff should avoid fumes,
gases, dust, heights, pushing, pulling,
kneeling, bending, and stooping. (Id.)
raising tests were negative. (Id.) Dr. Checo
ordered
an
electromyogram
(“EMG”) to evaluate for radiculopathy due to
plaintiff’s discomfort in his right thigh, and
also recommended that plaintiff continue to
take Mobic and attend physical therapy. (Id.)
However, plaintiff told Dr. Checo that he
could not afford the co-pay for physical
therapy. (Id.) An EMG conducted on April
25, 2013, showed no evidence of lumbosacral
radiculopathy or peripheral neuropathy. (AR
at 693-94.)
Dr. Checo examined plaintiff again on
May 22, 2013. (AR at 682.) Plaintiff reported
that his symptoms were about 30 to 40
percent improved, which he believed may
have been due to the anti-inflammatory
medication. (Id.) Dr. Checo’s findings
remained essentially the same as those from
the April 17, 2013 examination. (AR at 683.)
On June 25, 2013, plaintiff returned to
Dr. Checo, describing pain with mechanical
symptoms, though he said he was about thirty
percent better since his last evaluation. (AR
at 680.) During the examination, Dr. Checo
found pain with flexion, extension, lateral
bending and rotation, as well as pain over the
L5-S1 facet joints bilaterally. (AR at 681.)
Dr. Checo recommended that plaintiff
continue taking anti-inflammatories and
noted that he would be referring plaintiff to
Dr. Nambiar to evaluate for possible
injections. (Id.) Dr. Checo found no
additional symptoms or diagnoses when he
examined plaintiff on August 6, 2013. (AR at
678-79.) He gave plaintiff a prescription for
massage therapy, and advised plaintiff to
continue taking Mobic and to do home
physical therapy. (AR at 679.) Dr. Checo
noted that if plaintiff’s back symptoms did
not improve in six weeks, he would
recommend an epidural injection by Dr.
Nambiar. (Id.)
On February 27, 2013, Dr. Woodall
examined plaintiff and ordered a PSA test.
(AR at 637.) Dr. Woodall also referred
plaintiff for an incontinence evaluation. (Id.)
Plaintiff returned to Dr. Checo on April
17, 2013, and reported pain over his right
thigh that was occasionally shooting in
nature. (AR at 684.) A physical examination
found a normal gait with a slight leaned
forward posture and pain over the paralumbar
muscles bilaterally. (AR at 685.) During the
physical examination, plaintiff had full 5/5
strength in his legs, and the straight leg
8
On September 30, 2012, Dr. Woodall
completed a bladder problem impairment
questionnaire. (AR at 697-701.) Dr. Woodall
noted that plaintiff had been his patient since
April 12, 2012, and he had seen him every
couple of months. (AR at 697.) He diagnosed
incontinence and noted that there was clinical
evidence of microscopic hematuria, efflux
from the bilateral ureter, and status post
TURP. (Id.) Dr. Woodall noted that
plaintiff’s
primary
symptoms
were
incontinence and decreased urine stream, and
indicated that only plaintiff’s statements
supported his diagnosis. (AR at 698.) Dr.
Woodall reported that plaintiff’s symptoms
and functional limitations were not
reasonably consistent with his physical and
or emotional impairments because with
incontinence a patient can sit, stand, and
perform job duties. (Id.) He noted that
plaintiff was referred to Dr. Faroozi, but did
not go. (Id.) Dr. Woodall indicated that he
prescribed Detrol and had substituted
medications in an attempt to produce less
symptomatology or relieve side effects. (Id.)
Dr. Woodall noted that, according to
plaintiff, the urinary incontinence problem
was occasional, and did not opine as to how
often plaintiff must urinate or how frequently
urinary urgency would be a problem. (AR at
699.) Dr. Woodall indicated that plaintiff’s
impairments had lasted or could be expected
to last at least twelve months, and that urinary
frequency and or incontinence are known
side effects of the TURP procedure. (AR at
698-99.) Dr. Woodall did not answer whether
he thought plaintiff was a malingerer and said
that he did not know whether plaintiff had
developed psychological or social problems
due to the condition. (AR at 699.) Dr.
Woodall also noted that the degree to which
plaintiff could tolerate work stress was
“unknown.” (AR at 699-700.) Because Dr.
Woodall found that plaintiff’s impairments
were not likely to “produce ‘good days’ and
‘bad days,’” he did not estimate how
frequently plaintiff was likely to be absent
from work based on the impairments or
treatment. (AR at 700.) However, Dr.
Woodall opined that plaintiff would need a
job with ready access to a bathroom and
would sometimes need to take five-minute
unscheduled bathroom breaks during the
eight-hour work day (Id.)
3. Additional Medical Evidence Submitted
to Appeals Council
As part of his appeal, plaintiff submitted
additional records from Dr. Woodall and Dr.
P. Leo Varriale, an orthopedist who first
examined plaintiff on June 2, 2014. (See AR
at 2, 5.)
On May 23, 2013, a hematuria protocol
CT scan performed by Dr. Woodall showed a
slight disproportionate diminution in size of
plaintiff’s right kidney relative to the left.
(AR at 702.) However, Dr. Woodall noted
that disproportionate size was of doubtful
significance without associated cortical
atrophy and indicated that the kidneys were
otherwise unremarkable. (Id.) Dr. Woodall
opined that plaintiff appeared to have a
TURP defect in the prostate and a diffusely
moderately thickened urinary bladder,
“which may represent the sequela of chronic
outlet obstruction yet correlate.” (Id.)
At his initial examination with Dr.
Varriale on June 2, 2014, plaintiff
complained of lower back pain, which
radiated to his right knee. (AR at 710.) Dr.
Varriale noted that plaintiff reported that he
had taken prescription medications in the
past, but had stopped because he did not have
insurance and could not afford the
medication, and thus, was currently taking
Advil and Tylenol as needed. (Id.) Dr.
Varriale reviewed the November 2012 MRI,
reports from Dr. LaMonica, Dr. Farakh, and
Dr. Checo, a January 2013 impairment
9
questionnaire from the Central Orthopedic
Group, and an April 2013 electrodiagnostic
report from Dr. Alan Wolf. (AR at 711.)
Examination revealed mild spasms in the
lumbar spine, lumbar extension limited to 0
degrees and flexion to 30 degrees, positive
straight leg raising bilaterally, decreased
sensation at the right mid-tibia, and decreased
right knee reflexes. (Id.) Plaintiff displayed
full strength in his legs. (Id.) Dr. Varriale
diagnosed chronic lumbar radiculopathy, and
opined that, based on his physical
examination, case history, and file, plaintiff
was presently, “permanently totally disabled
from any type of work.” (Id.)
a competitive work environment, that
plaintiff’s experience of pain, fatigue, or
other symptoms would frequently be severe
enough to interfere with his attention and
concentration, and that he would need to take
unscheduled and unpredictable breaks to rest
during the work day. (AR at 707.) Dr.
Varriale opined that plaintiff’s condition was
expected to last at least twelve months, that
he was not a malingerer, and that he could not
work. (AR at 707-08.) Finally, Dr. Varriale
indicated that he believed that plaintiff’s
symptoms and limitations applied back as far
as March 15, 2012. (AR at 708.)
4. Testimony at the Administrative Hearing
On June 4, 2014, Dr. Varriale completed
a spinal impairment questionnaire. (AR at
703-08.) In the questionnaire, Dr. Varriale
reiterated his diagnosis. (See id.) Dr.
Varriale’s clinical findings included limited
range of motion, tenderness, and muscle
spasms in the lumbosacral spine, sensory loss
in the legs, and reflex changes in the knees.
(AR at 704.) Additionally, Dr. Varriale noted
positive straight leg raising bilaterally and
bladder incontinence. (Id.) Dr. Varriale
opined that plaintiff could sit for two hours
and stand and/or walk for one hour in an
eight-hour workday. (AR at 705.) Dr.
Varriale further noted that it was medically
necessary for plaintiff to avoid continuous
sitting in an eight-hour workday, and that
plaintiff must get up from a seated position to
move around every twenty minutes for ten
minutes each time. (AR at 706.) Dr. Varriale
opined that plaintiff could occasionally lift
and carry up to ten pounds, but could never
or rarely lift or carry more than ten pounds.
(Id.) Dr. Varriale noted that plaintiff could
ambulate effectively, and did not require a
cane or other assistive device to stand or
walk, and did not have significant limitations
in reaching, handling, or fingering. (AR at
706-07.) Dr. Varriale noted that plaintiff’s
symptoms would likely increase if placed in
a.
Plaintiff’s Testimony
Plaintiff testified before the ALJ on
November 8, 2013. (AR at 38-56.) He
testified that he had been unable to work
since March 2012, due to back pain,
incontinence, weakness, and shortness of
breath. (AR at 41-42.) Plaintiff explained that
he was admitted to the hospital with sepsis in
March 2012, and thereafter had TURP
surgery. (AR at 41, 53.) He was placed on
disability from his job as a produce worker at
Pathmark, but was fired once those benefits
ran out. (AR at 42.) Plaintiff testified that he
takes medication for his back pain and has
been prescribed cortisone shots, but he has
delayed the injections because he is afraid of
the shots based on information he has heard
about them. (AR at 43-44.) He testified that
he has been referred to other doctors for
alternative treatment options, including
massage therapy and physical therapy, but
did not go because they did not accept his
insurance. (AR at 49, 51.) Plaintiff testified
that, although Dr. Checo’s June 25, 2013
evaluation indicated that he reported being
thirty percent better since his last evaluation,
that was “not really” correct. (AR at 51.)
10
Plaintiff discussed his embarrassment at
having to wear adult diapers, which often
leaked, smelled, and had to be changed
frequently. (AR at 46.) Plaintiff estimated
that he could sit for 30-40 minutes before his
back pain became severe enough that he had
to get up and move around, but mentioned
that once he got up to relieve his back pain,
he experienced leakage. (AR at 52.) He also
estimated that he could stand for the same
amount of time before it became too painful,
but mentioned that he could only walk the
distance of three houses down, due to
shortness of breath and back pain. (AR at 5253.) Plaintiff told the ALJ that his pain,
fatigue, and weakness always affected his
ability to think. (AR at 54.) Plaintiff admitted
that he smoked a pack and a half of cigarettes
per day. (AR at 42, 54.)
limits; must avoid concentrated exposure to
fumes, odors, dusts, gases, and poor
ventilation; and needs a break of up to five
minutes every two hours and ready access to
a restroom could not perform plaintiff’s past
work. (AR at 58.) However, Ms. Clark found
that there were other jobs in the national
economy that such an individual could
perform, including hand trimmer, final
assembler, and office helper. (AR at 58-59.)
Ms. Clark explained that if the individual was
further restricted to taking a five-minute
break every hour, such an individual could
not do the other jobs described. (AR at 59.)
Ms. Clark further testified that if the
individual was limited to taking a ten to
fifteen minute break every two hours, such an
individual could not perform the alternate
jobs she described. (AR at 61.)
Plaintiff testified that he currently lives
with his sister, and that a typical day was
spent watching television, or playing guitar.
(AR at 40, 47, 50.) Plaintiff stated that he
does not go out much and had become a
“hermit.” (AR at 49.) He testified that,
despite the leakage and incontinence, he only
showers twice a week due to his back pain
and difficulty getting in and out of the
shower. (AR at 47.)
B. Procedural History
On September 25, 2012, plaintiff applied
for DIB, alleging disability since March 15,
2012, due to lumbar spine impairment,
herniated disc, and bladder impairment. (AR
at 127-33, 155; see AR at 74 (showing
effective filing date)). Plaintiff’s application
was initially denied on December 27, 2012,
(AR at 78-81), and plaintiff then requested a
hearing before an ALJ, (AR at 87-88). Upon
an informal remand to the state agency, a
revised determination was issued denying
plaintiff’s claim. (AR at 75.) On November
8, 2013, plaintiff appeared with an attorney
before ALJ April W. Wexler. (AR at 36-63.)
After considering the case de novo, the ALJ
issued a decision on December 20, 2013,
finding that, although plaintiff had the severe
impairments of incontinence and a back
impairment, plaintiff retained the RFC to
perform light work as defined in 20 CFR
404.1567(b). (AR at 23-24.) Based on
plaintiff’s RFC, the ALJ determined that
plaintiff was unable to perform his past work,
but was “capable of making a successful
b. Vocational Expert Testimony
A vocational expert, Edna Clark, also
testified at the administrative hearing on
November 8, 2013. (See AR at 56-62.) Ms.
Clark testified that a hypothetical individual
of plaintiff’s age, education, and work history
that is limited to light work in that he could
occasionally lift twenty pounds; frequently
lift ten pounds; sit for up to six hours, stand
or walk for approximately six hours in an
eight-hour day; occasionally climb ramps or
stairs; never climb ladders, ropes, or
scaffolds; occasionally balance, stoop, kneel,
crouch and crawl; push and pull without
11
adjustment to other work that exists in
significant numbers in the national
economy.” (AR at 30.) Thus, the ALJ
determined that plaintiff was not disabled
under the Act. (Id.)
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.”).
On January 7, 2014, plaintiff requested
review of the ALJ’s decision by the Appeals
Council. (AR at 16.) The Appeals Council
denied the request on March 20, 2015,
making the ALJ’s decision the final decision
of the Commissioner. (AR at 1-7.)
Plaintiff commenced this action on May
18, 2015, appealing the ALJ’s December 20,
2013 decision. The Commissioner served the
administrative record and filed an answer on
August 17, 2015. On November 19, 2015,
plaintiff filed his motion for a judgment on
the pleadings. On January 11, 2016, the
Commissioner responded and filed a crossmotion for a judgment on the pleadings. The
matter is fully submitted.
III.
DISCUSSION
A. 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 of not
less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A). An individual’s physical or
mental impairment is not disabling under the
SSA unless it is “of such severity that he is
not only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy.” Id. § 1382c(a)(3)(B).
II. STANDARD OF REVIEW
A district court may 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
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.,
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
12
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 four 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.
B.
Analysis
According to plaintiff, the ALJ erred by
failing to properly weigh the medical
evidence and by failing to properly evaluate
his credibility. As set forth below, the Court
agrees that the ALJ erred by failing to
adequately explain the reasons for
determining that the opinion of plaintiff’s
treating physician, Dr. Checo, should not be
afforded controlling weight, and remands on
this basis.
1. The ALJ’s Decision
Here, 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 23-30.)
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.
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Id.
Here, the ALJ determined that the
claimant had not engaged in substantial
gainful activity since March 15, 2012, the
alleged onset date. (AR at 23.) Substantial
evidence supports this finding, and plaintiff
does not challenge its correctness.
The Commissioner “must consider” the
following in determining a claimant’s
entitlement 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)).
b.
Severe Impairment
At step two, if the claimant is not
employed, the ALJ then determines whether
the claimant has a “severe impairment” that
13
limits his capacity to work. An impairment or
combination of impairments is “severe” if it
significantly limits an individual’s physical
or mental ability to perform basic work
activities. 20 C.F.R. § 404.1520(c); see also
Perez, 77 F.3d at 46.
404.1520(e). The ALJ then determines at step
four whether, based on the claimant’s
residual functional capacity, the claimant can
perform his past relevant work. Id. §
404.1520(f). When the claimant can perform
her past relevant work, the ALJ will find that
he is not disabled. Id.
Here, the ALJ found that plaintiff had the
severe impairments of incontinence and back
impairment. (AR at 23.) The ALJ stated that,
although plaintiff alleged COPD, there was
no evidence in the record to support
plaintiff’s allegation that COPD was a severe
impairment, within the meaning of the Act
and Regulations. (Id.) Substantial evidence
supports these findings, and plaintiff does not
challenge their correctness.
c.
In this case, the ALJ found that the
claimant had the residual functional capacity
to perform light work as defined in 20 CFR
404.1567(b). (AR at 24.) The ALJ concluded
that plaintiff could occasionally lift twenty
pounds, frequently lift ten pounds; sit for up
to six hours; stand and walk for
approximately six hours in an eight-hour
work day with normal breaks; occasionally
climb ramps or stairs; never climb ladders,
ropes or scaffolds; and occasionally balance,
stoop, kneel, crouch and crawl. (Id.)
Additionally, the ALJ found that plaintiff had
no limitation in his ability to push or pull, but
must avoid concentrated exposure to fumes,
odors, dusts, gases, and poor ventilation. (Id.)
The ALJ concluded that plaintiff needed a
break up to five minutes every two hours and
ready access to a restroom. (Id.)
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
in Appendix 1 of the regulations. When the
claimant has such an impairment, the ALJ
will find the claimant disabled without
considering the claimant’s age, education, or
work experience. 20 C.F.R. § 404.1520(d).
After consideration of the evidence, the
ALJ found that plaintiff’s medically
determinable impairments could reasonably
be expected to cause the alleged symptoms.
(AR at 25.) However, the ALJ then
concluded that plaintiff’s statements
concerning the persistence, intensity, and
limiting effects of these symptoms were “not
entirely credible.” (Id.) The ALJ provided a
summary of the medical evidence and
plaintiff’s testimony. (See AR at 25-28.) The
ALJ gave “some weight” to the opinions of
treating urologist Dr. LaMonica because,
although her assessment was partially
consistent with that of another treating
urologist, Dr. Woodall, the ALJ found that
Dr. LaMonica’s opinion that plaintiff could
not tolerate work-related stress, would be
Here, the ALJ found that 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.
(AR at 24.) Substantial evidence supports this
finding, and plaintiff does not challenge its
correctness.
d.
Residual Function Capacity and Past
Relevant Work
If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses
the claimant’s residual functional capacity
“based on all the relevant medical and other
evidence in [the] case record.” 20 C.F.R. §
14
absent more than three times per month, and
would not be able to work with food was not
supported by the record and was inconsistent
with opinions of other treating and examining
physicians. (AR at 26-27.) The ALJ gave
“little weight” to treating orthopedic surgeon
Dr. Checo’s opinion as to plaintiff’s
disability, finding that it was not supported
by his own physical and diagnostic
examination findings, which revealed very
minimal abnormalities in the lumbar spine
region. (AR at 27-28.) Additionally, the ALJ
noted that he gave Dr. Checo’s opinion little
weight because it was inconsistent with
plaintiff’s conservative treatment history and
plaintiff’s testimony regarding his daily
functioning. (AR at 28.) The ALJ also
determined that, although some weight
should be given to the consultative examiner
Dr. Gearhart’s assessment of plaintiff’s RFC,
“little weight” should be given to her
determination of disability because “her
medical source statement was grossly
inconsistent with her own physical
examination findings.” (AR at 27-28.)
However, the ALJ gave great weight to Dr.
Woodall’s opinion and assessment of
plaintiff’s residual functional capacity,
relating to the incontinence issue, finding it
was “supported by substantial evidence of
record, the conservative treatment history,
poor treatment compliance as well as the
claimant’s own testimony regarding his daily
activities.” (AR at 28.)
that must be considered when determining
how much weight to give a treating
physician’s opinion. Due to this error,
remand is necessary because the Court
cannot determine whether substantial
evidence supports the ALJ’s decision. See
Noutsis v. Colvin, No. 14–CV–5294 (JFB),
2016 WL 552585, at *7 (E.D.N.Y. Feb. 10,
2016); Branca v. Comm’r of Soc. Sec., No.
12–CV–643 (JFB), 2013 WL 5274310, at
*11 (E.D.N.Y. Sept. 18, 2013).
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 claimant can perform. Id. § 404.1560(c);
see, e.g., Schaal v. Apfel, 134 F.3d 496, 501
(2d Cir. 1998).
In this case, the ALJ concluded that
plaintiff could not return to his past relevant
work as a produce worker, but concluded
that, “considering the claimant’s age,
education, work experience, and residual
functional capacity, the claimant is capable of
making a successful adjustment to other work
that exists in significant numbers in the
national economy.” (AR at 29-30.) When
making this determination, the ALJ
considered the testimony given by the
Vocational Expert, Edna F. Clark, at the
November 8, 2013, hearing. (AR at 30; see
also AR at 56-62.) For the reasons set forth
below, the court finds that there were legal
errors in connection with the ALJ’s
assessment of plaintiff’s residual functional
capacity.
Plaintiff claims that the ALJ failed to
properly weigh the medical opinion
evidence, specifically with respect to Dr.
Checo, and thus, failed to properly determine
his residual functional capacity. For the
reasons set forth infra, the Court finds that
there were legal errors in connection with the
ALJ’s assessment of plaintiff’s residual
functional capacity. Specifically, the ALJ, in
giving little weight to Dr. Checo’s opinion,
failed to properly evaluate the various factors
15
2. Treating Physician Rule
issue(s) of the nature and severity of
your impairment(s) is wellsupported by medically acceptable
clinical and laboratory diagnostic
techniques and is not inconsistent
with the other substantial evidence
in your case record, we will give it
controlling weight.
Plaintiff argues, among other things, that
the ALJ failed to follow the treating
physician rule when she accorded little
weight to his treating orthopedist, Dr. Checo.
The Court agrees that the ALJ failed to apply
the proper standard for evaluating the
medical opinion of Dr. Checo, and remands
the case on this basis.
a.
20 C.F.R § 404.1527(c)(2).
Legal Standard
Although treating physicians may share
their opinion 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.”).
The Commissioner must give special
evidentiary weight to the opinion of a treating
physician. See Greek, 802 F.3d at 375 (“The
SSA recognizes a rule of deference to the
medical views of a physician who is engaged
in the primary treatment of a claimant.”); see
also 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
Greek, 802 F.3d at 375; Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008). The rule,
as set for in the regulations, provides:
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 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 quotation marks and citation
Generally, we give more weight to
opinions from your treating
sources, since these sources are
likely to be the medical
professionals most able to provide a
detailed, longitudinal picture of
your medical impairment(s) and
may bring a unique perspective to
the medical evidence that cannot be
obtained from the objective medical
findings alone or from reports of
individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a
treating source’s opinion on the
16
omitted)). Specifically, “[a]n ALJ who
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)); see also Greek,
802 F.3d at 375. “After considering the above
factors, the ALJ must ‘comprehensively set
forth [her] reasons for the weight assigned to
a treating physician’s opinion.’” Burgess,
537 F.3d at 129 (quoting Halloran, 362 F.3d
at 33). “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.
b.
the ALJ for further consideration of Dr.
Checo’s opinion in light of this Court’s
analysis.
The Court concludes that the ALJ did not
set forth in sufficient detail the reasons for
affording “little weight” to Dr. Checo’s
opinion. The Second Circuit has repeatedly
noted that an ALJ must “set forth her reasons
for the weight she assigns to the treating
physician’s opinion.” Shaw, 221 F.3d at 134;
see also Taylor v. Barnhart, 117 F. App’x
139, 140-41 (2d Cir. 2004) (remanding case
because ALJ “did not give sufficient reasons
explaining how, and on the basis of what
factors, [the treating physician’s] opinion
was weighed,” and stating that “we will
continue remanding when we encounter
opinions from ALJ’s that do not
comprehensively set forth reasons for the
weight assigned to a treating physician’s
opinion” (internal quotation marks and
citation omitted)); Torres v. Comm’r of Soc.
Sec., No. 13-CV-330 (JFB), 2014 WL 69869,
at *13 (E.D.N.Y. Jan. 9, 2014) (finding error
where ALJ assigned only “some weight” to
opinion of treating physician without
considering the 20 C.F.R. § 404.1527(d)(2)
factors); Black v. Barnhart, No. 01-CV7825(FB), 2002 WL 1934052, at *4
(E.D.N.Y. Aug. 22, 2002) (“[T]he treating
physician rule required the ALJ . . . to clearly
articulate her reasons for assigning
weights.”).
Analysis
The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Checo.
The ALJ stated that, because Dr. Checo’s
assessment was not supported by his own
physical and diagnostic examination findings
and was inconsistent with the conservative
treatment history and plaintiff’s own
testimony regarding his daily functioning,
she would be according the opinion little
weight in consideration of disability in this
case. (AR at 28.) As discussed below, the
reasons given by the ALJ for rejecting Dr.
Checo’s
opinion
are
insufficient.
Accordingly, the case must be remanded to
First, the ALJ noted that Dr. Checo’s
opinion was not supported by his own
physical and diagnostic examination
findings, explaining that these findings only
showed very minimal abnormalities in the
lumbar spine. (AR at 28.) However, a review
of the ALJ’s decision demonstrates that she
failed to properly consider Dr. Checo’s
examination findings. Specifically, in
discussing
Dr.
Checo’s
impairment
questionnaire, the ALJ noted that Dr. Checo
17
reported limited range of motion with lumbar
extension and flexion, tenderness and muscle
spasm over the lumbrosacral spine area, and
trigger points at the lumbrosacral facet joints;
however, the ALJ reported that Dr. Checo
“reported forward leaning posture, but no
other abnormalities” (AR at 27), which is
inconsistent with both the ALJ’s prior
recitation of the clinical findings noted in Dr.
Checo’s questionnaire and the questionnaire
itself, which indicated multiple abnormal
clinical findings. (AR at 629-30.) Further,
although the ALJ found that Dr. Checo’s
findings showed only very minimal
abnormalities in the lumbar spine, at no point
did the ALJ discuss which physical and
diagnostic
examination
findings
demonstrated only minor abnormalities.
Further, the ALJ did not mention that Dr.
Checo cited the November 14, 2012 MRI,
L1-L2 paracentral disc herniation and
annular tear, and L2-L3 central disc
herniation, and L5-S1 central herniation to
support his diagnoses. (AR at 630.)2 Thus,
the ALJ failed to properly consider Dr.
Checo’s evidence in support of his opinion.
Farakh included x-rays of the lumbar spine,
which showed degenerative changes and
spondylolisthesis, as well as deep tendon
reflexes of 2/4 in the lower extremities. (AR
at 608.) The ALJ also failed to discuss Dr.
Farakh’s November 14, 2012 examination of
plaintiff, where he noted a limited range of
motion of lumbar spine secondary to the pain.
(AR at 609.) These findings by Dr. Farakh are
consistent with Dr. Checo’s findings and
support the notion that plaintiff has more than
just minimal abnormalities in his lumbar
spine, as the ALJ found.
Apart from not addressing the findings
made by Dr. Checo that were consistent with
his opinion, the ALJ also failed to address
other medical evidence in the record that was
consistent with Dr. Checo’s opinion. See
Clark, 143 F.3d at 118. Specifically, although
the ALJ mentioned a November 13, 2012
physical examination by Dr. Farakh and
noted that Dr. Farakh found tenderness of the
lumbar spine with paravertebral muscle
spasms, but that the rest of the physical
examination was within normal limits (AR at
25), the ALJ did not discuss that the
November 13, 2012 examination by Dr.
Additionally, the ALJ found that Dr.
Checo’s opinion should be accorded little
weight because it was “inconsistent with the
conservative treatment history.” (AR at 28.)
Although the ALJ used the terminology
“conservative treatment history,” it appears
that the ALJ was actually alluding to
plaintiff’s non-compliance with Dr. Checo’s
course of treatment, rather than the
prescribed treatment itself. (See AR at 26
(“The doctor noted that, despite earlier
recommendations, the claimant did not
participate in the prescribed physical therapy
treatment. . . . In April 2013, Dr. Checo once
2
examination that was within normal limits (AR at 26),
she did not mention that Dr. Checo also discussed that
plaintiff had pain over the paralumbar muscles, right
and left, and small disc herniations and bulges. (AR at
685.)
Further, the ALJ did not point to any
other doctor in the record whose clinical
findings conflict with Dr. Checo’s opinion.
Although the ALJ afforded great weight to
Dr. Woodall, who opined that plaintiff
retained the ability to sit, stand, and perform
job duties, and found that claimant’s
symptoms and alleged functional limitations
were not consistent with objective physical
examination findings (AR at 28), Dr.
Woodall treated plaintiff for incontinence,
rather than for his back problems.
Additionally, although the ALJ noted that, during Dr.
Checo’s April 17, 2013 examination of plaintiff, Dr.
Checo noted a normal walk with slight leaned forward
posture, spinous processes that were intact, negative
straight leg-raising tests bilaterally, and a neurological
18
again reported that the claimant was not
compliant with the treatment regimen. He did
not start physical therapy and did not take the
prescribed
anti-inflammatory
medications.”).) When properly considered, a
plaintiff’s compliance with a course of
treatment goes to a plaintiff’s credibility,
rather than the weight a doctor’s opinion is
assigned. See Berardo v. Astrue, No. 08-CV0642 (TJM), 2010 WL 3604149, at *5
(N.D.N.Y. May 26, 2010) (“[T]he ALJ
properly considered Plaintiff’s testimony that
she sought treatment infrequently because
she lacked the money to pay for care in his
credibility assessment”), report and
recommendation adopted, No. 08-CV-642,
2010 WL 3522484 (N.D.N.Y. Sept. 2, 2010);
Canabush v. Comm’r of Soc. Sec., No. 1:13CV-429 (FJS/CFH), 2015 WL 1609721, at
*7 (N.D.N.Y. Apr. 10, 2015) (“The ALJ did
not reference plaintiff’s failure to manage
and treat his diabetes properly to negate other
compelling evidence or as the sole reason for
discrediting his testimony, but properly
mentioned it as one of the factors used in
analyzing plaintiff’s credibility”); Pimenta v.
Barnhart, No. 05-CIV-5698 (JCF), 2006 WL
2356145, at *6 (S.D.N.Y. Aug. 14, 2006)
(“The ALJ’s reasoning extended no further
than the conclusory statement that ‘this is a
classic case of a claimant’s failure to follow
prescribed treatment.’ . . . It is impossible to
determine from the ALJ’s decision what role
this conclusion played in his finding that
plaintiff was not disabled and not credible.”
(internal citation omitted)). Thus, any
consideration of plaintiff’s compliance with
Dr. Checo’s course of treatment should have
been considered in reference to plaintiff’s
credibility rather than the weight to give Dr.
Checo’s opinion as a treating physician.3
Further, the ALJ’s perception that the claimant was
non-compliant in taking his anti-inflammatory
medication is not grounded in fact. In her decision, the
ALJ noted that, based on Dr. Checo’s August 6, 2013
examination, the claimant “finally” began to take antiinflammatory medications on a per-needed basis. (AR
at 26.) However, this statement by the ALJ is not
supported by the medical records. Specifically, Dr.
Checo mentioned in his May 22, 2013 and June 25,
2013 treatment notes that he wanted plaintiff to
continue taking anti-inflammatory medication. (AR at
681, 683.) The only point where Dr. Checo referenced
that plaintiff was not taking anti-inflammatory
medication was in his April 17, 2013 treatment notes.
(AR at 684.) Further, the ALJ appears to have
confused Dr. Checo’s treatment notes from January 4,
2013, and February 20, 2013. Although the ALJ stated
that Dr. Checo’s January 4, 2013 notes indicate that
plaintiff had taken anti-inflammatory medications on
a per need basis only (AR at 26), such information
actually comes from Dr. Checo’s February 20, 2013
treatment notes, (see AR at 687). Dr. Checo’s January
4, 2013 notes do not include any information regarding
whether plaintiff had been prescribed or was taking
anti-inflammatory medications. (See AR at 690-92.)
refusal.” Pimenta, 2006 WL 2356145, at *6 (citing
Pascariello v. Heckler, 621 F. Supp. 1032, 1036
(S.D.N.Y. 1985)). Social Security Ruling (“SSR”) 8259 provides that a claimant may have legitimate
reasons for refusing treatment and gives examples of
legitimate reasons for failing to follow prescribed
treatment, including the individual’s inability to afford
the treatment when no free resources are available and
all possible resources have been explored. SSR 82-59,
1982 WL 31384, at *3-4. As noted supra, plaintiff’s
compliance or non-compliance with treatment is a
question relating to plaintiff’s credibility. As this is a
question of credibility, the ALJ had an affirmative
duty to develop the record. Vincent v. Astrue, No. 08CV-0956 (VEB), 2010 WL 10827101, at *6
(N.D.N.Y. Mar. 30, 2010) (“[T]he duty to develop the
record applies with full force in the context of the
ALJ’s credibility determination.” (citing SSR 96-7P,
1996 WL 374186, at *3)). Here, the ALJ erred by
failing to adequately develop the record, specifically
with regard to plaintiff’s inability to afford treatment
due to lack of insurance coverage. See id. at *6, *8
(finding the “ALJ’s credibility assessment was fatally
undermined by his failure to adequately develop the
record” where “he did not make any meaningful
attempt to address [the plaintiff’s] reasons for noncompliance”). The Court notes that plaintiff’s inability
to afford the directed treatment was touched on at the
November 8, 2013 hearing (AR at 49, 51), and
mentioned briefly in the ALJ’s decision. (AR at 27.)
3
Regarding plaintiff’s non-compliance with
physical therapy, “a claimant’s decision not to
undergo a corrective process is not sufficient grounds
to deny disability when there is a good reason for the
19
Additionally, the ALJ found that Dr.
Checo’s opinions were inconsistent with
plaintiff’s own testimony regarding his daily
functioning. However, it is unclear what
testimony the ALJ found to be inconsistent.
Plaintiff testified that he only showers twice
a week, despite leakage and incontinence,
due to back pain and inability to get in and
out of the shower. (AR at 47.) Plaintiff further
testified that his days are spent watching
television and playing guitar in his home, and
reported that he does not go out much and has
become a “hermit” due to his condition. (AR
at 47, 49-50.) None of plaintiff’s daily
activities contradict Dr. Checo’s findings or
demonstrate the capacity to perform full-time
work. See, e.g., Murdaugh v. Sec’y of Dep’t
of Health & Human Servs. of U.S., 837 F.2d
99, 102 (2d Cir. 1988) (noting the facts that
claimant “waters his landlady’s garden,
occasionally visits friends and is able to get
on and off an examination table can scarcely
be said to controvert the medical evidence. In
short, a claimant need not be an invalid to be
found disabled under Title XVI of the Social
Security Act, 42 U.S.C. § 1382c(a)(3)(A)”);
Brown v. Comm’r of Soc. Sec., No. 06-CV3174 (ENV) (MDG), 2011 WL 1004696, at
*5 (E.D.N.Y. Mar. 18, 2011) (“[E]ven to the
extent that [the plaintiff’s] daily activities
were properly considered, the ALJ failed to
place the burden on the Commissioner to
show that those activities were evidence of
residual functional capacity to perform fulltime sedentary work.”)
However, though mentioned briefly elsewhere,
plaintiff’s inability to afford treatment does not appear
to have factored into the ALJ’s determination
regarding plaintiff’s credibility.
decision was in error. Further inquiry is needed to
determine whether the plaintiff’s fear of surgery is a
justifiable reason for refusing treatment”); Gordon v.
Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) (noting
that Social Security Ruling 82-59 “provides that,
before a person is denied benefits for failure to follow
prescribed treatment, he will be afforded an
opportunity to undergo the prescribed treatment or to
show justifiable cause for failing to do so. The record
discloses no provision of such an opportunity. This
case, accordingly, should be remanded to the Secretary
with instructions that [the plaintiff] be given the
opportunity to show good cause for his failure to
obtain treatment.”).
The Commissioner points to other
evidence in the record that might have
supported the ALJ’s rejection of Dr. Checo’s
opinion. (See Def.’s Reply at 20.)
Specifically, the Commissioner argues that
“the opinion of the State agency medical
consultant [Dr. Rees] contradicts Dr. Checo’s
findings and supports the ALJ’s RFC.” (Id.)
Dr. Rees reviewed the evidence of record on
February 5, 2013, and stated that she agreed
with the RFC assessment for light work with
appropriate postural and environmental
restrictions. (AR at 626-27.) As an initial
matter, Dr. Rees does not appear to be an
orthopedic specialist. Further, there is no
indication that the ALJ considered Dr. Rees’
findings when making her determination. Dr.
Rees’ findings were not discussed by the
ALJ; rather, the Commissioner is assuming
that it was a factor the ALJ had in mind when
deciding to give Dr. Checo’s opinion little
weight. Such assumptions are insufficient as
a matter of law to bolster the ALJ’s decision.
See Newbury v. Astrue, 321 F. App’x 16, 18
(2d Cir. 2009) (“A reviewing court ‘may not
accept appellate counsel’s post hoc
rationalizations for agency action.’” (quoting
Snell, 177 F.3d at 134)).
Thus, because the record does not indicate that
plaintiff was given the opportunity to show good cause
for his failure to comply with his prescribed treatment
regime, on remand, the ALJ should consider whether
such refusal was justifiable, based on inter alia,
plaintiff’s inability to afford the treatment, plaintiff’s
insurance coverage, and plaintiff’s exploration of free
resources. See, e.g., Pimenta, 2006 WL 2356145, at
*5-6 (“To the extent that the ALJ relied on [the
plaintiff’s] refusal to have surgery without
determining whether his refusal was justifiable, the
20
In sum, having carefully reviewed the
record, the Court concludes that the ALJ
failed to adequately explain the reasons for
determining that the opinion of the treating
physician, Dr. Checo, should not be afforded
controlling weight.4 Given the failure to
properly apply the treating physician rule, a
remand is appropriate.5,6
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
IV. CONCLUSION
August 22, 2016
Central Islip, NY
***
Plaintiff is represented by Charles E. Binder
of the Law Offices of Harry J. Binder and
Charles E. Binder, P.C., 60 East 42nd Street,
Suite 520, New York, NY 10165. The
Commissioner is represented by Robert L.
Capers, United States Attorney, Eastern
District of New York, by James R. Cho, 271
For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is denied, but
plaintiff’s motion to remand is granted. The
case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
4
Plaintiff also contends that the ALJ failed to properly
apply the treating physician rule with respect to Dr.
LaMonica. Because the Court concludes remand is
appropriate because the ALJ erred in applying the
treating physician rule with respect to Dr. Checo, the
Court need not decide at this time whether the ALJ
erred in assessing Dr. LaMonica’s opinion. However,
when re-considering the opinion of Dr. Checo on
remand, the ALJ should consider whether that reassessment alters her conclusion regarding Dr.
LaMonica’s opinion.
remand is appropriate, the Court need not decide at this
time whether the Appeals Council erred by not
considering Dr. Varriale’s Narrative Report and Spinal
Impairment Questionnaire.
6
Plaintiff also contends that the ALJ failed to properly
evaluate plaintiff’s credibility. Because the Court
concludes that the ALJ erred in applying the treating
physician rule, and that a remand is appropriate, the
Court need not decide at this time whether the ALJ
erred in assessing plaintiff’s credibility. The Court
notes that the ALJ concluded that “the claimant’s
statements concerning the intensity, persistence, and
limiting effects of these symptoms [were] not entirely
credible….” (AR at 25.) The Court recognizes that
“[i]t is the function of the Secretary, not the reviewing
courts, to resolve evidentiary conflicts and to appraise
the credibility of witnesses, including the claimant.”
Aponte v. Sec’y Dep’t of Health & Human Servs., 728
F.2d 588, 591 (2d Cir. 1984) (internal citations,
quotations, and alteration omitted). However, to the
extent that the ALJ, on remand, re-evaluates the
evidence in addressing the treating physician rule, in
accordance with this Memorandum and Order, the
ALJ should also consider whether that re-evaluation
alters his assessment of plaintiff’s credibility in light
of the evidence as a whole. The ALJ should also
consider plaintiff’s refusal to comply with prescribed
treatment in the context of his credibility
determination as described supra.
5
Plaintiff also argues that the Appeals Council failed
to consider new and material evidence (namely the
June 2, 2014 Narrative Report and June 4, 2014 Spinal
Impairment Questionnaire submitted from examining
orthopedist Dr. Varriale). In the Appeals Council’s
denial of plaintiff’s request for review, the Appeals
Council stated that it also looked at Dr. Varriale’s
Narrative
Report
and
Spinal
Impairment
Questionnaire, but found that “[t]he Administrative
Law Judge decided your case through December 20,
2013” and “[t]his new information is about a later
time.” (AR at 2.) Thus, the Appeals Council found that
the new evidence “does not affect the decision about
whether you were disabled on or before December 20,
2013” and that plaintiff would need to apply for DIB
again if he wanted the Appeals Council to consider
whether he was disabled after December 20, 2013.
(Id.) Because the Court concludes that the ALJ erred
in applying the treating physician rule, and that a
21
Cadman Plaza East, 7th Floor, Brooklyn, NY
11201.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?