Reda v. Colvin
Filing
25
ORDER denying 15 Motion for Summary Judgment; denying 18 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's motion for judgment on the pleadings is denied. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/18/2017. (Zbrozek, Alex)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-2827 (JFB)
_____________________
ERIC F. REDA,
Plaintiff,
VERSUS
NANCY A. BERRYHILL, ACTING COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant.
___________________
MEMORANDUM AND ORDER
September 18, 2017
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Eric F. Reda (“plaintiff”)
commenced 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 (the
“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 medium
work, into which category his previous
employment fell. The ALJ concluded,
therefore, that plaintiff was not disabled. The
Appeals Council denied plaintiff’s request
for review.
Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c). The Commissioner opposes
plaintiff’s motion and cross-moves for
judgment on the pleadings.
For the reasons set forth below, the Court
denies plaintiff’s motion for judgment on the
pleadings, denies the Commissioner’s motion
for judgment on the pleadings, and remands
the case to the ALJ for further proceedings
consistent with this Memorandum and Order.
I. BACKGROUND
A. Facts
The following summary of the relevant
facts is based on the Administrative Record
(“AR,” ECF No. 12) developed by the ALJ.
1. Personal and Work History
Plaintiff was born in 1958 (AR at 88), and
has a college degree in business management
(id. at 46, 102). From January 1991 to May
2008, he managed a Dollar Thrifty rental car
company. (Id. at 29-30, 102.) Plaintiff
reported that the job required: two hours of
walking; four hours of standing; one hour of
Plaintiff testified at the October l, 2013
hearing. (Id. at 26-47.) He said that his last day
of work at the car rental company was May
18, 2008, the day he had a heart attack. (Id. at
31-32, 36.) Plaintiff went home feeling sick,
and later that night drove himself to the
hospital. (Id. at 33.) After an angiogram,
doctors informed him they would not install a
stent because of the amount of time that had
elapsed since the heart attack. (Id. at 34.)
with his older brother. (Id. at 38.) Plaintiff
walked two blocks to the store and shopped
for food every day. (Id. at 38-39.) He
shopped for heavier items with assistance
from his brother. (Id. at 39.) He did laundry
and cleaning around the house, but tried to
limit it to six or seven minutes at a time. (Id.
at 44.) Plaintiff testified that he was afraid of
dying if he went back to work. (Id. at 40.) He
did not think he could deal with the stress or
work the twelve and thirteen-hour days that
he used to work without having another heart
attack. (Id.)
Plaintiff testified that he had managed the
day-today operations of the car rental
company, including renting cars at the
counter, cleaning cars, driving and parking
cars and buses, and transporting passengers
when needed. (Id. at 30.) He said he cleaned,
parked, refueled, and washed cars daily. (Id. at
31.) He testified that he did whatever had to
be done, including lifting five gallons of water
or boxes of papers weighing from 30 to 40
pounds. (Id. at 40-41.)
Plaintiff further testified that he now
monitored himself and what he did. (Id. at
35.) Sometimes he got up too quickly and
became lightheaded. (Id.) When he got
stressed, his chest felt tight. (Id. at 43.) If he
overextended himself, he got tired and had to
take a nap. (Id. at 44-45.) Plaintiff said he
could stand up to 30 minutes at a time and
walk for 20 to 30 minutes or one-half to three
quarters of a mile at a time. (Id. at 41.) He
could lift 15 to 20 pounds. (Id. at 42.)
sitting; and frequent lifting of ten pounds and
no more than twenty pounds. (Id. at 103.)
2. Medical History
According to plaintiff, after his 2008 heart
attack, he had stopped smoking, was eating
healthy foods, and began exercising. (Id. at
32-33.) Plaintiff said he was 5 feet and eleven
and three quarters inches in height, and
weighed 194 pounds. (Id. at 32.) The ALJ
noted that the record mistakenly had his height
as five feet and seven inches. (Id.) Plaintiff
testified that he currently had an aneurysm in
his heart and an injection fraction of 43. (Id. at
37.) He had last seen his cardiologist seven
months earlier, in August 2013. (Id. at 38.) He
was taking: Plavix and aspirin to thin his
blood; Fenofibrate and Avastatin to lower his
cholesterol and triglycerides; and Flomax for
an enlarged prostate. (Id. at 35.) Due to the
Plavix and aspirin, he bruised more easily. (Id.
at 37, 45-46.)
a. Prior to Onset Date of December
15, 2010
Plaintiff had a heart attack on or about
May 19, 2008. (Id. at 203.) An exercise stress
test and echocardiogram performed on June
19 were consistent with an anterior aneurysm.
(Id. at 209.) Myocardial perfusion imaging
revealed: a moderately dilated left ventricle
and a large, severe anterior and apical wall
defect. (Id. at 210.)
In a letter dated June 25, 2008, David
Hess, M.D., a cardiologist, said plaintiff had
waited to go the emergency room on May 19,
2008, 18 to 24 hours after the onset of chest
pain. (Id. at 203-04, 221-22.) An examination
on June 25 revealed: normal blood pressure;
Plaintiff stated that he lived in a house
2
On August 7, 2008, Dr. Hess reported that
plaintiff had no chest pain, dyspnea, jugular
venous distention, or edema. (Id. at 153.)
Sinus rhythm was normal. (Id.) On September
4, 2008, Dr. Hess reported that plaintiff was
tolerating medication. (Id. at 152.) He had no
bruits or edema, and sinus rhythm was normal.
(Id.) Plaintiff’s lungs were clear. (Id.) Ejection
fraction was 40 to 45%. (Id.)
no jugular venous distension or carotid bruits;
clear lungs; regular heart rhythm with no
murmurs, gallops, or rubs; and no edema. (Id.)
An electrocardiogram (“ECG”) revealed
normal sinus rhythm. (Id.) A 2-D and Doppler
ECG revealed normal valvular structures,
mild mitral insufficiency, and a non-dilated
left ventricle. (Id.) There was mild left
ventricular hypertrophy with mild to
moderately depressed overall systolic
function. (Id.)
Plaintiff attended the Cardiac Fitness &
Rehabilitation Center from October 1 to
December 31, 2008. (Id. at 198-200; see also
id. at 214-20.) He was asked to exercise for 60
minutes three times per week to reach a heart
rate of 114 to 138 beats per minute. (Id. at
200.)
There was a moderate-sized area of
akinesis involving the mild to distal septum
extending around the apex, and an estimated
ejection fraction of 45%. (Id.) Dr. Hess
assessed that plaintiff had had a relatively
uncomplicated anteroapical infarction on May
19, 2008, with no intervention due to the late
presentation after the infarction. (Id.) This had
caused mild to moderately depressed overall
systolic function and a mild to moderate-sized
apical aneurysm with no evidence of
ischemia, arrhythmia, or heart failure. (Id.)
On November 5, 2008, Dr. Hess noted that
plaintiff had begun cardiac rehabilitation. (Id.
at 152.) His lungs were clear, and he had a
normal sinus rhythm. (Id.) Ejection fraction
was 40 to 45%. (Id.) On December 18,
plaintiff stated he felt well overall and had
completed cardiac rehabilitation. (Id. at 158.)
Plaintiff’s chest and lungs were clear with no
dyspnea, bruits, or edema. (Id.) Dr. Hess
advised him to increase his aerobic activity.
(Id.)
An ECG performed on June 25, 2008
indicated: normal valvular structures; mild
mitral insufficiency; a non-dilated left
ventricle with mild left ventricular
hypertrophy and mild to moderately depressed
overall systolic function with focal asynergy;
and borderline dilatation of the aortic root. (Id.
at 205-06.)
Plaintiff reported to Dr. Hess on March 19,
2009 that he felt well. (Id. at 158.) His cardiac
examination was unchanged from December
2008. (Id.) On June 18, Dr. Hess reported
plaintiff was tolerating his medications and
had no chest pain, dyspnea, palpitations,
bruits, or edema. (Id. at 159.) His lungs were
clear, and he had a normal sinus rhythm. (Id.)
An echocardiogram (id. at 188-89) showed:
normal valvular structures; a non-dilated left
ventricle with moderately depressed overall
systolic function and focal asynergy;
borderline dilatation of the left atrium; and
borderline dilation of the proximal aortic root
(id. at 189). Ejection fraction was 43%. (Id. at
188.)
On July 23, 2008, Dr. Hess reported that
plaintiff had no chest pain, shortness of breath
on exertion, palpitations, bruits, or edema. (Id.
at 153.) An ECG showed a normal sinus
rhythm. (Id.)
A carotid duplex report revealed minor
luminal irregularities in both carotid artery
systems, and no hemodynamically significant
stenosis in either carotid artery system. (Id. at
207.)
3
aortic valve disease without stenosis or
insufficiency; mild mitral insufficiency; nondilated left ventricle with mild to moderately
depressed overall systolic function with local
asynergy; and mildly dilated left atrium. (Id.
at 170-71.)
A September 24, 2009 cardiac
examination was unchanged from June. (Id. at
159.) Plaintiff told Dr. Hess he was exercising
more. (Id.) On December 22, 2009, plaintiff
had no complaints and said he was going to
the gym. (Id. at 187.) He had no chest pain,
dyspnea, bruits, or edema and had a normal
sinus rhythm. (Id.)
Ejection fraction was 45%. (Id. at 170.)
On November 18, Dr. Hess stated that plaintiff
was tolerating medications. (Id. at 154.) He
had no chest pain, dyspnea, palpitations,
jugular venous distention, bruits, or edema.
(Id.) Plaintiff’s blood pressure and cholesterol
were much improved. (Id.)
On March 16, 2010, plaintiff told Dr. Hess
that he was exercising regularly. (Id. at 187.)
Cardiac examination was essentially identical
to that in December 2009. (Id.)
In a letter dated June 2, 2010, Dr. Hess
stated that plaintiff had not improved since his
May 19, 2008 heart attack. (Id. at 190.) He had
a large apical aneurysm with an estimated
ejection fraction of 40 to 45%. (Id.) Dr. Hess
opined that plaintiff was completely disabled
from a cardiovascular standpoint. (Id.)
b. After Onset Date of December 15,
2010
On February 17, 2011, plaintiff told Dr.
Hess that he felt well. (Id. at 155.) He had no
chest pain, shortness of breath, jugular
venous distention, bruits, or edema. (Id.)
Plaintiff’s lungs were clear, and he had a
normal sinus rhythm. (Id.) A May 24
examination revealed the same results. (Id.)
While performing an exercise stress test
on June 16, 2010, plaintiff achieved a
maximal heart rate that was 82% of the agepredicted maximal heart rate. (Id. at 173.) The
test was terminated after one minute and 30
seconds because plaintiff complained of
general fatigue, but not cardiac symptoms.
(Id.) The findings were: abnormal exercise
test with evidence of myocardial ischemia and
a ventricular aneurysm. (Id.) A myocardial
perfusion imaging report showed a
moderately dilated left ventricle and a severe
anterior, septal, and apical wall defect. (Id. at
174-75; see also id. at 246.) Plaintiff’s resting
ejection fraction was 42%. (Id. at 174.) There
was no evidence of inducible ischemia, and
the perfusion study did not correlate with the
exercise stress test. (Id. at 175.)
In a letter dated May 24, 2011, Dr. Hess
reported that plaintiff was quite stable from a
cardiovascular standpoint, and he approved
plaintiff for surgery to remove a right groin
abscess. (Id. at 168.) There was no evidence
of myocardial ischemia, congestive heart
failure, or arrhythmias. (Id.) Plaintiff was in
an optimal medical and cardiac condition for
the upcoming procedure. (Id.) Dr. Hess noted
that plaintiff had had a heart attack in May
2008. (Id.) Plaintiff had a known apical
aneurysm, and his ejection fraction was 45%.
(Id.) Plaintiff did not report having chest
pain, dyspnea, or palpitations. (Id.) Dr.
Hess’s examination that day yielded normal
findings. (Id.; see also id. at 155.)
On October 7, 2010, plaintiff told Dr. Hess
that he was feeling well with no chest pain,
dyspnea, bruits, or edema. (Id. at 154.) His
sinus rhythm was normal. (Id.) An ECG
performed that day showed: mild degenerative
On August 23, 2011, plaintiff told Dr.
Hess that he was feeling well and had no
chest pain, shortness of breath, palpitations,
4
Follow-up examinations with Dr. Stem
on December 21, 2011; March 21, 2012; and
June 13, 2012 were essentially unchanged
from September 2011. (Id. at 132-36, 231-32,
229-30.)
distention, or edema. (Id. at 156.) Sinus
rhythm was normal. (Id.)
Plaintiff saw Mark Stern, M.D., a
cardiologist, on September 21, 2011. (Id. at
138-40.) He reported not having symptoms of
fatigue, shortness of breath, chest pain, chest
discomfort, dizziness, palpitations, fainting,
lower extremity swelling, leg cramps,
coughing, wheezing, chest congestion,
mucous production, headache, stiff neck,
weakness, unsteadiness, tingling in feet,
being easily bruised, or pallor. (Id. at 138.)
On March 6, 2012, plaintiff reported to
Dr. Hess that he had just returned from a
cruise. (Id. at 157.) Examination revealed no
chest pain, dyspnea, palpitations, distention,
bruits, or edema. (Id.) Plaintiff’s lungs were
clear, and he had a normal sinus rhythm. (Id.)
Ejection fraction was around 45%. (Id.) A
June 12 examination revealed similar results.
(Id.)
On examination, plaintiff’s blood
pressure was 118/80, with 98% oxygen
saturation. (Id. at 139.) He was welldeveloped, well-nourished, and in no acute
distress. (Id.) Plaintiff’s pulse amplitude was
normal (carotid arteries showed 2+
bilaterally) with no bruits. (Id.) His lungs
were clear with no rales. (Id.) A heart
examination was normal with no murmurs,
rubs, gallops, heaves, or thrills. (Id.)
Examinations of the neck, abdomen, and
extremities were normal. (Id.) An ECG
showed a normal sinus rhythm and anterior
wall myocardial infarction. (Id.)
On September 12, 2012, plaintiff told Dr.
Stern that he was not experiencing shortness
of breath, chest pain, or palpitations. (Id. at
226-28.) He reported, however, that he had
easy bruising and slow healing of his legs.
(Id.) On examination, plaintiff weighed 205
pounds and his blood pressure was 118/78.
(Id. at 227.)
Dr. Stern described plaintiff’s physical
examination as “unremarkable.” (Id.) There
was no pedal edema, and his lungs were clear
to auscultation. (Id.) Heart rate and rhythm
were normal. (Id.) There were no murmurs.
(Id.) The ECG showed normal sinus rhythm
and an old anterior wall and inferoapical wall
myocardial infarction with no acute changes.
(Id.) Musculoskeletal and extremities
examinations were normal. (Id.) Dr. Stern
advised plaintiff to watch his salt intake and
avoid lifting anything over 20 to 25 pounds.
(Id.) He opined that plaintiff was
permanently disabled from his work-related
myocardial infarction. (Id. at 227-28.)
Dr. Stern and Dr. Hess diagnosed: mixed
hyperlipidemia,
apical
aneurysm,
arteriosclerotic heart disease, degenerative
aortic valve disease without stenosis or
insufficiency; trace mitral insufficiency; and
a non-dilated left ventricle with mild left
ventricular hypertrophy and moderately
depressed overall systolic function with focal
asynergy. (Id. at 139, 165-66.) Ejection
fraction was 43%. (Id. at 165.) A carotid
duplex ultrasound on November 29, 2011
revealed: mild athermanous plaque in the
bulbs of both the right and left common
carotid arteries and no hemodynamically
significant stenosis in either carotid artery
system. (Id. at 167.)
On September 25, 2012, Dr. Hess
reported that plaintiff had no shortness of
breath on exertion, heart palpitations, jugular
venous distention, bruits, or edema. (Id. at
151, 244.) Sinus rhythm was normal. (Id.)
Ejection fraction was 40 to 45%. (Id.)
5
up to five pounds frequently, five to ten
pounds occasionally, and never more than ten
pounds. (Id.) He could stand and/or walk for
two hours total in an eight-hour workday.
(Id.)
State agency medical consultant Dr. Y.
Sagapuram reviewed the evidence and, on
November 13, 2012, assessed plaintiff’s
physical capacity. (Id. at 224-25.) Dr.
Sagapuram opined that plaintiff could stand
and walk for six hours in an eight-hour
workday, lift 20 pounds occasionally, and
occasionally stoop and crouch. (Id. at 224.)
In addition, Dr. Hess opined that
plaintiff’s ability to sit was not impacted by
his impairment; he could sit for up to five
hours in an eight-hour workday. (Id.)
Plaintiff could constantly climb and crawl.
(Id. at 263.) He could frequently bend,
balance, stoop, crouch, and kneel. (Id.) He
could constantly push and pull and
occasionally reach. (Id.) Dr. Hess said that
plaintiff should avoid exposure to moving
machinery, humidity, and temperature
extremes. (Id.)
On December 18, 2012, plaintiff told Dr.
Hess that he had no complaints of chest pain,
shortness of breath, or palpitations. (Id. at
244.) Examination revealed essentially the
same findings as on September 25. (Id.) An
ECG revealed: degenerative aortic valve
disease without stenosis or insufficiency;
trace mitral insufficiency; a non-dilated left
ventricle with moderately depressed overall
systolic function with focal asynergy; and a
mildly dilated left atrium. (Id. at 240-41.) A
carotid duplex revealed: small atheromatous
plaque in the bulb of the right common
carotid artery; a normal left carotid artery
system; and no hemodynamically significant
stenosis in either carotid artery system. (Id. at
242.)
Jerome Caiati, M.D., consultatively
examined plaintiff on February 19, 2014. (Id.
at 264-67.) Plaintiff reported having a heart
attack in 2008 and a history of apical
aneurysm with an ejection fraction of 40%.
(Id. at 264.) He stopped smoking in 2008 and
still drank alcohol socially. (Id.) Plaintiff
stated he was able to cook, clean, do laundry,
shop, and dress himself. (Id.) He watched
television, listened to the radio, read, and
socialized with friends. (Id.)
Plaintiff told Dr. Hess in April 2013 that
he was fairly active. (Id. at 235.) That month,
and again in August, the doctor noted that
plaintiff had no chest pain, shortness of
breath, palpitations, carotid bruits, or edema.
(Id.) He had a normal sinus rhythm, and his
lungs were clear. (Id.) Plaintiff said he felt
well during his August examination. (Id.) His
blood pressure was 150/80 in April and
130/70 in August. (Id.)
On examination, plaintiff weighed 205
pounds, and his blood pressure was 120/70.
(Id. at 265.) He was in no acute distress. (Id.)
He had a normal gait and used no assistive
devices. (Id.) He was able to: walk on his
heels and toes without difficulty; fully squat
without holding onto anything; and get on
and off the examination table and rise from a
chair without assistance or difficulty. (Id.) A
cardiovascular examination revealed regular
rhythm and no murmur, gallop, or rub. (Id.)
Dr. Hess drafted a medical source
statement, dated October 2, 2013. (Id. at 26263.) He said that plaintiff’s diagnosis was
coronary artery disease status postmyocardial infarction on May 19, 2008. (Id.
at 262.) He said that, per an ECG performed
on December 18, 2012, plaintiff had an apical
aneurysm with an ejection fraction of 43%.
(Id.) Dr. Hess opined that plaintiff could lift
Examinations of the neck, lungs,
musculoskeletal system, fine motor activity,
and neurological system were all normal. (Id.
at 265-66.) There was no edema in the
6
II. STANDARD OF REVIEW
extremities. (Id. at 266.) A pulmonary
function test was normal. (Id. at 268-71.) Dr.
Caiati diagnosed: history of hypertension;
history of myocardial infarction; apical
aneurysm with ejection fraction of 40%; and
history of benign prostatic hypertrophy. (Id.
at 266.) He opined that plaintiff had no
restrictions in sitting, standing, walking,
reaching, pushing, pulling, lifting, climbing,
or bending. (Id.; see also id. at 272-77.)
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 omitted); see Selian
v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
Further, “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).
B. Procedural History
Plaintiff applied for disability insurance
benefits on June 30, 2012, alleging disability
since December 15, 2010 due to a cardiac
condition. (Id. at 88-89, 101.) The claim was
denied, and plaintiff requested a hearing
before an ALJ. (Id. at 48, 51-54, 59-60.)
Plaintiff appeared with his attorney before
the ALJ on October 1, 2013. (Id. at 26-47.) In
a decision dated March 4, 2014, the ALJ
found that Plaintiff was not disabled through
December 31, 2013, the date he was last
insured for benefits. (Id. at 7-20.) The
Appeals Council denied plaintiff’s request
for review on April 6, 2016, rendering the
ALJ’s decision the final decision of the
Commissioner. (Id. at 1-6.)
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 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.”).
Plaintiff filed this action seeking reversal
of the ALJ’s decision on June 2, 2016. (ECF
No. 1.) The Court received the
Administrative Record on August 31, 2016.
(ECF No. 12.) Plaintiff filed a motion for
judgment on the pleadings on January 16,
2017. (ECF No. 15.) The Commissioner filed
a cross-motion for judgment on March 6,
2017. (ECF No. 18.) Plaintiff replied on
March 31, 2017, and the Commissioner
replied on April 18, 2017. (ECF Nos. 21, 23.)
The Court has fully considered the parties’
submissions, as well as the Administrative
Record.
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
7
the claimant is capable of performing
any other work.
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).
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.
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).
Moreover, 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)).
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
B. The ALJ’s Decision
As to the first criterion, the ALJ
determined that the plaintiff was not
gainfully employed and had not been since
the onset of the condition, December 15,
2010. (AR at 12.)
For the second step of the analysis, the
ALJ found the plaintiff had numerous severe
impairments: residuals of a myocardial
infarction, a heart wall aneurysm,
arteriosclerotic cardiovascular disease, and
coronary arterial sclerosis. (Id.)
At the third step, the ALJ determined that
none of these impairments fell within the list
of conditions that constitute per se
impairment under 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id.)
Because he did not find that the plaintiff’s
condition constituted per se impairment, the
ALJ proceeded to the fourth question in this
inquiry, that is, what residual functional
8
walk[s] 20 to 30 min., and can lift/carry up to
20 pounds,” the ALJ concluded that
“[a]ctivities at this level [were] not consistent
with an inability to perform any substantial
gainful activity.” (Id.)
capacity the plaintiff possessed and whether
it would be sufficient to continue his past
work. At step four, the ALJ determined that
plaintiff “had the residual functional capacity
to perform the full range of medium work as
defined in 20 CFR 404.1567(c).” (Id. at 13.)
He found that plaintiff’s “medicinally
determinable impairments could reasonably
be expected to cause the alleged symptoms”
but concluded that plaintiff’s “statements
concerning the intensity, persistence and
limiting effects of these symptoms [were] not
entirely credible . . . .” (Id.)
The ALJ did not address the fifth and
final question, i.e., whether there was any
other work available for the plaintiff, because
the ALJ found that the plaintiff was able to
do his past relevant work as a rental car agent
notwithstanding his functional limitations.
(Id.) Consequently, the ALJ determined that
plaintiff did not qualify for disability
benefits. (Id.)
The ALJ accorded “little weight” to the
medical opinion of Dr. Sagapuram because
he “never had the opportunity to personally
examine [plaintiff] or to review the medical
evidence submitted after he rendered his
opinion.” (Id. at 15.) In addition, the ALJ
gave “little weight” to Dr. Stern’s opinion
because he “could not give [plaintiff] any
specific limitations except to advise
[plaintiff] to avoid lifting more than 20 to 25
pounds.” (Id.) Likewise, the ALJ accorded
“little weight” to Dr. Hess’s opinion because
it “was not fully supported by the objective
medical evidence and was contradicted by his
own examination findings that support a less
severe degree of limitation.” (Id. at 15-16.)
The ALJ highlighted that “Dr. Hess
consistently found that [plaintiff] felt well
and had no complaints of chest pain, dyspnea
on exertion, or heart palpitations.” (Id. at 16.)
Finally, the ALJ determined that Dr. Caiati
deserved “some weight, but not great weight”
because “Dr. Caiati personally examined
[plaintiff], but his opinion was not fully
supported by the objective medical evidence
that supports the conclusion that [plaintiff]
has some exertional limitations.” (Id.)
C. Analysis
Plaintiff challenges the ALJ’s decision on
the following grounds: (1) the ALJ failed to
give adequate weight to the treating
physician’s testimony; (2) the ALJ failed to
perform a function-by-function assessment
of plaintiff’s residual functional capacity at
step four of the analysis; and (3) the ALJ
failed to give adequate weight to the
plaintiff’s own testimony regarding his
condition. As set forth below, the ALJ failed
to provide good reasons for not crediting
plaintiff’s treating physicians, and, thus,
remand is warranted. 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 failing to
conduct a function-by-function assessment of
plaintiff’s residual functional capacity and in
assessing plaintiff’s credibility.
1. Opinion of the Treating Physicians
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
Based on these findings, as well as
plaintiff’s testimony that “he walks two
blocks to the supermarket, picks up items and
returns,” and that plaintiff “cleans his own
home, can stand for a half-hour at a time, and
9
When an ALJ 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 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)). Those factors include:
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:
Generally, we give more weight to
opinions from your treating sources,
since these sources are likely to be the
medical professionals most able to
provide a detailed, longitudinal
picture
of
your
medical
impairment(s) and may bring a
unique perspective to the medical
evidence that cannot be obtained from
the objective medical findings alone
or from reports of individual
examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating
source’s opinion on the issue(s) of the
nature and severity of your
impairment(s) is well supported by
medically acceptable clinical and
laboratory diagnostic techniques and
is not inconsistent with the other
substantial evidence in your case
record, we will give it controlling
weight.
(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
[ALJ’s] attention that tend to support
or contradict the opinion.
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.”).
Id. (citing 20 C.F.R. § 404.1527(d)(2)). If an
ALJ fails “to provide ‘good reasons’ for not
crediting the opinion of a claimant’s treating
10
physician,” remand is appropriate. Snell, 177
F.3d at 133.
who only examined the plaintiff once. (Id. at
15-16.)
In this case, the ALJ did not provide
sufficient reasons for affording “little
weight” to the treating physicians. Dr. Hess,
who had consistently treated plaintiff since
June 2008, 1 stated unequivocally that
plaintiff should be considered completely
disabled from a cardiovascular standpoint.
(AR at 190.) In a letter dated June 2, 2010,
Dr. Hess further stated that plaintiff had not
improved since his May 19, 2008 heart attack
and had a large apical aneurysm with an
estimated ejection fraction of 40 to 45%. (Id.)
Likewise, plaintiff’s other treating physician,
Dr. Stern—who plaintiff began seeing in
2011—advised plaintiff to watch his salt
intake and avoid lifting anything over 20 to
25 pounds, and he opined that plaintiff was
permanently disabled from his work-related
myocardial infarction. (Id. at 227-28.) Both
Dr. Stern and Dr. Hess diagnosed plaintiff
with:
mixed
hyperlipidemia;
apical
aneurysm; arteriosclerotic heart disease;
degenerative aortic valve disease without
stenosis or insufficiency; trace mitral
insufficiency; and a non-dilated left ventricle
with mild left ventricular hypertrophy and
moderately depressed overall systolic
function with focal asynergy. (Id. at 139,
165-66.) Further, a carotid duplex ultrasound
on November 29, 2011 revealed: mild
athermanous plaque in the bulbs of both the
right and left common carotid arteries and no
hemodynamically significant stenosis in
either carotid artery system. (Id. at 167.)
Nevertheless, the ALJ gave “little weight” to
the opinions of Drs. Hess and Stern and
instead accorded “some weight, but not great
weight” to consulting physician Dr. Caiti,
However, the Second Circuit has made
clear that “ALJs should not rely heavily on
the findings of consultative physicians after a
single examination.” Selian, 708 F.3d at 419.
In Selian, the ALJ rejected the treating
physician’s diagnosis based in part on the
opinion of another physician who “performed
only one consultative examination.” Id. The
Court held that, in doing so, the ALJ failed
“to provide ‘good reasons’ for not crediting
[the treating physician’s] diagnosis,” and that
failure “by itself warrant[ed] remand.” Id.;
see also Cruz v. Sullivan, 912 F.2d 8, 13 (2d
Cir. 1990) (“[A] consulting physician’s
opinions or report should be given limited
weight . . . because consultative exams are
often brief, are generally performed without
benefit or review of claimant’s medical
history and, at best, only give a glimpse of the
claimant on a single day.”); Santiago, 441 F.
Supp. 2d at 628 (holding that ALJ erred in
giving consulting physicians’ opinions
controlling weight over those of the treating
physicians). By crediting the opinions of the
consulting physician over those of the
treating physicians, without providing
sufficient reasons for doing so, the ALJ here
committed the same error as the ALJ in
Selian. 708 F.3d at 419; see also Cruz, 912
F.2d at 13; Santiago, 441 F. Supp. 2d at 628.
1
impairment(s) and [brought] a unique perspective to
the medical evidence . . . .”
20 C.F.R.
§ 404.1527(c)(2).
The Court concludes that the ALJ failed
to provide “good reasons” for rejecting the
opinions of the treating physicians. Snell,
177 F.3d at 133. The only ground the ALJ
articulated in refusing to credit the opinion of
Dr. Stern was that “Dr. Stern could not give
[plaintiff] any specific limitations except to
advise him to avoid lifting more than 20 to 25
pounds.” (AR. at 15.) Likewise, the ALJ
Accordingly, Dr. Hess was the “medical
professional[ ] most able to provide a detailed,
longitudinal picture of [plaintiff's] medical
11
2. Function-by-Function Analysis
cited two reasons for giving “little weight” to
Dr. Hess’s opinion—that it “was not fully
supported by the objective medical evidence
and was contradicted by [Dr. Hess’s] own
examination findings that support a less
severe degree of limitation.” (Id. at 15-16.)
Plaintiff argues that the ALJ also erred by
failing to conduct a “function-by-function”
analysis of plaintiff’s residual functional
capacity. However, the Second Circuit has
explicitly “decline[d] to adopt a per se rule”
requiring such a procedure. Cichocki v.
Astrue, 729 F.3d 172, 177 (2d Cir. 2013). In
Cichocki, the Court said that the
However, these brief explanations were
inadequate because they did not address
several of the factors described above.
Specifically, the ALJ did not discuss the
frequency of the treating physicians’
interactions with plaintiff and the overall
length of their relationship, nor did he
address their medical specialties in
cardiology. Further, with respect to Dr.
Stern, the ALJ did not discuss any of the
evidence that supported that opinion or
whether his opinion was consistent with the
record as a whole. The ALJ also did not find
that the treating physicians had failed to
provide adequate evidence or documentation
supporting their claims, and he did not
address the fact that they both independently
drew substantially the same conclusions
about plaintiff’s health. Finally, to the extent
that the ALJ found that Dr. Hess’s opinion
was not supported by the record or
contradicted by Dr. Hess’s findings, the ALJ
did not indicate which evidence undermined
Dr. Hess’s conclusion that plaintiff was
disabled. 2
relevant inquiry is whether the ALJ
applied the correct legal standards
and whether the ALJ’s determination
is supported by substantial evidence.
Where an ALJ’s analysis at Step Four
regarding a claimant’s functional
limitations and restrictions affords an
adequate basis for meaningful
judicial review, applies the proper
legal standards, and is supported by
substantial evidence such that
additional analysis would be
unnecessary or superfluous, we agree
with our sister Circuits that remand is
not necessary merely because an
explicit function-by-function analysis
was not performed.
Id.
Here, the Court has already determined
that remand is warranted based on the ALJ’s
failure to follow the treating physician rule,
and the Court need not decide at this time
whether the ALJ erred in failing to conduct a
function-by-function assessment. However,
to the extent that the ALJ, on remand, reevaluates the evidence in addressing the
treating physician rule, in accordance with
this Memorandum and Order, the ALJ should
In short, the ALJ failed to provide “good
reasons” for rejecting the treating physicians’
opinions. Snell, 177 F.3d at 133. That failure
“by itself warrants remand.” Selian, 708 F.3d
at 419.
2
While “the ultimate finding of whether a claimant is
disabled and cannot work . . . [is] ‘reserved to the
Commissioner,’” that simply “means that the Social
Security Administration considers the data that
physicians provide but draws its own conclusions as to
whether those data indicate disability.” Snell, 177
F.3d at 133 (quoting 42 C.F.R. § 404.1527(e)(1)).
Accordingly, rather than merely rejecting that
characterization, the ALJ was required to review the
entire record to independently determine whether the
disability findings by Drs. Hess and Stern were
accurate.
12
Plaintiff is represented by Christopher D.
Latham of Pasternack, Tilker, Ziegler,
Walsh, Stanton & Romano, LLP, 1325
Franklin Avenue, Suite 250, Garden City,
New York 11530.
also consider whether that re-evaluation
alters his assessment of plaintiff’s “capacity
to perform relevant functions . . . .” 3 Id.; see
also 20 C.F.R. §§ 404.1545, 416.945; Social
Security Ruling 96-8p, 1996 WL 374184, at
*4 (July 2, 1996) (cautioning that “a failure
to first make a function-by-function
assessment of the individual’s limitations or
restrictions could result in the adjudicator
overlooking some of an individual's
limitations or restrictions,” which “could
lead to an incorrect use of an exertional
category to find that the individual is able to
do past relevant work” and “an erroneous
finding that the individual is not disabled”).
The Commissioner is represented by
Assistant United States Attorney Candace
Scott Appleton of the United States
Attorney’s Office for the Eastern District of
New York, 271 Cadman Plaza East, 7th
Floor, Brooklyn, New York 11201.
IV. CONCLUSION
For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s motion for
judgment on the pleadings is denied. 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 18, 2017
Central Islip, NY
***
3
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 plaintiff’s testimony
regarding “the intensity, persistence and limiting
effects of [his] symptoms [were] not entirely credible
. . . .” (AR at 13.) 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 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.
13
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?