Briska v. Colvin
Filing
18
ORDER denying 10 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. For the reasons set forth herein, plaintiff's motion for judgment on the pleadings is denied; the Commissioner's cross-motion for judgment on the pleadings is denied; and the case is remanded to the Administrative Law Judge for further proceedings consistent with this Memorandum and Order. Ordered by Judge Joseph F. Bianco on 5/10/2018. (Karamigios, Anna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-5601 (JFB)
_____________________
BRIAN E. BRISKA,
Plaintiff,
VERSUS
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
May 10, 2018
______________
JOSEPH F. BIANCO, District Judge:
Plaintiff Brian E. Briska 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 (the “Commissioner”)
denying his application for disability
benefits. 1
Administrative Law Judge
Jacqueline Haber Lamkay (“the ALJ”)
determined that plaintiff had the residual
functional capacity (“RFC”) to perform
sedentary work, with certain limitations; that
there were jobs in the national economy that
plaintiff could perform; and that, therefore,
1
Plaintiff brought this action against Carolyn W.
Colvin, who was then the Acting Commissioner of
Social Security. Nancy A. Berryhill now occupies
that position.
plaintiff was not disabled. The Appeals
Council denied plaintiff’s request for review
of the ALJ’s determination. Accordingly,
the ALJ’s determination became the
Commissioner’s final determination.
Plaintiff now moves for judgment on the
pleadings under Federal Rule of Civil
Procedure 12(c). Plaintiff argues that (1) the
ALJ did not accord adequate weight to the
medical opinions of plaintiff’s treating
physician; (2) the ALJ’s RFC assessment
was not supported by substantial evidence;
and (3) the ALJ failed to properly evaluate
plaintiff’s credibility. Plaintiff requests that
the Commissioner’s decision be reversed
and that the Court remand the case with
instructions
to
award
benefits.
resulted in cervical herniated discs in his
spine. (AR at 217.) Plaintiff suffered
further cervical spine injuries in another onduty motor vehicle accident in 2001. (Id.)
In 2008, plaintiff was hit by a truck and
sustained severe injuries to both hips. (AR
at 231.) In 2010, plaintiff was in another
motor vehicle accident. (AR at 217.) Also
in 2010, plaintiff slipped and fell while on
duty, injuring his right knee. (Id.)
Alternatively, plaintiff requests that the
Commissioner’s decision be reversed and
that the Court remand the case for a new
hearing.
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
cross-motion for judgment on the pleadings,
and remands the case to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
Plaintiff allegedly became disabled on
June 19, 2012. On September 17, 2014,
plaintiff attempted to go back to work on
light duty, but was sent home the same day
“after about seven hours because [he] was in
too much pain.” (AR at 33.) According to
plaintiff, he was unable to get out of bed the
next day, and opted to take a sick day rather
than “go to reoccurrence” on his injuries.
(AR at 34.) The following day, plaintiff
went to work, but “halfway through the day
[he] couldn’t deal with it and [he] went to
reoccurrence.” (Id.) Plaintiff retired on
October 31, 2014. (Id.)
I. FACTUAL BACKGROUND
The following summary of the relevant
facts is based on the Administrative Record.
(ECF No. 8.)
A. Personal and Work History
Plaintiff was born on July 2, 1967. (AR
at 28-29.) He is a high school graduate,
with some college education. (AR at 31.)
Plaintiff is approximately six feet tall and
weighs 235 pounds. (AR at 28-29.) He is
married, and has one daughter and one son.
(AR at 29.)
B. Relevant Medical History
1. Medical Evidence before June 19,
2012
Before the onset of his alleged disability
on June 19, 2012, plaintiff worked for the
Suffolk
County
Police
Department
(“SCPD”) for approximately 18 years. (AR
at 32, 37.) From 1994 until 2005, plaintiff
was an SCPD patrol officer, and his duties
involved
answering
phones,
taking
complaints, making arrests, and responding
to car accidents. (AR at 38.) From 2005
until 2012, plaintiff was assigned to the
Selective Alcohol Fatality Enforcement
Team, tasked with, among other things,
apprehending intoxicated drivers. (Id.)
On March 1, 2010, a magnetic resonance
imaging scan (“MRI”) of plaintiff’s right
knee showed: a “[m]ild linear signal
abnormality through the outer third of the
body of medial meniscus contacting the
inferior articular surface consistent with the
presence of a small horizontal tear”; “joint
effusion”; a “delaminating tear through the
median patellar cartilage”; and a “[p]opliteal
cyst with adjacent fluid indicating
leakage/rupture”. (AR at 247.)
Following surgery on his right knee, an
October 9, 2010 MRI showed the patellar
chondral fissure was of stable appearance;
the lateral meniscus was intact; there was
abnormal signal in the body remnant; and
there was a small joint effusion. (AR at
Plaintiff suffered numerous serious
injuries during his 18 years working for the
SCPD. In 1998, plaintiff was in a motor
vehicle accident while on duty, which
2
plaintiff visited a physiatrist, Barry Rubin,
M.D., for lower back pain radiating down
his leg and pain in his left hip. (AR at 21723.) The examination report reflects that
plaintiff was experiencing acute lower back
pain. (AR at 217.) Dr. Rubin noted that
plaintiff walked with an antalgic gait
favoring the left leg; plaintiff’s lumbar spine
had a limited range of motion, with pain;
plaintiff’s straight leg raises were positive;
plaintiff’s left hip had a limited range of
motion, with pain; sensation was reduced in
plaintiff’s left leg; and plaintiff could walk
on his heels and toes. (AR at 218-19.) Dr.
Rubin further noted that “[o]n palpation,
there was tenderness involving the L4/L5
and L5/S1 interspaces, tenderness involving
the bilateral sacroiliac joints, trigger points
involving the bilateral gluteal musculature
with greater involvement on the left, and
spasm involving the bilateral lower lumbar
paraspinal musculature.” (AR at 218.) Dr.
Rubin diagnosed plaintiff with acute
lumbosacral spine strain with sacroiliac joint
derangement; lumbar radiculitis; lumbar and
gluteal muscle spasm; left ilioinguinal
ligament sprain; and left hip sprain with
possible internal derangement. (Id.) Dr.
Rubin recommended physical therapy,
ordered lumbar spine and hip x-rays, and
prescribed Mobic, Flexeril, and Ultram.
(AR at 219.)
244-45.) There was no evidence of an
additional tear. (AR at 244.)
On February 9, 2011, plaintiff saw
Andrea Coladner, D.O., for tingling in his
left wrist.
(AR at 320-21.)
In her
examination report, Dr. Coladner noted that
plaintiff exhibited a somewhat reduced
range of motion, with pain in his left elbow
and wrist, as well as muscle weakness in his
left tricep and hand. (AR at 320.) Dr.
Coladner concluded that plaintiff had a 10 to
12.5 percent reduction in left wrist motion
and a 7.5 to 10 percent reduction in left
elbow movement.
(AR at 321.) Dr.
Coladner diagnosed left ulnar tendonitis and
left tricep laceration. (Id.) Dr. Coladner
noted that plaintiff was performing his usual
work activities.
(Id.)
For Workers’
Compensation, Dr. Coladner assessed a 30
percent loss of use of the left wrist. (AR at
322.)
On February 16, 2011, Stephen O’Brien,
M.D. performed an arthroscopy and partial
menisectomy on plaintiff’s right knee. (AR
at 241-42.) Dr. O’Brien’s post-operative
diagnoses included plica syndrome, a tear in
plaintiff’s medial meniscus, and a
degenerative tear in plaintiff’s lateral
meniscus. (AR at 241.)
2. Medical Evidence after June 19, 2012
On June 20, 2012, plaintiff went to the
emergency room at St. Charles Hospital in
Port Jefferson, New York for lower back
pain radiating down his leg. (AR at 190-91.)
The hospital records reflect that plaintiff
rated the pain at an eight out of ten. (AR at
190.)
The records further reflect that
plaintiff’s straight leg raise was negative and
that his reflexes, motor, and sensation were
normal. (Id.) Plaintiff was diagnosed with
low back pain strain and was prescribed
Flexeril, Naproxyn, and warm compresses.
(AR at 191.)
Plaintiff visited Dr. Rubin’s office for
physical therapy on June 28, July 2, July 3,
July 6, July 9, and July 11, 2012. (AR at
259-60.)
A July 11, 2012 MRI of plaintiff’s left
hip showed “bilateral hip avascular
necrosis”; “sclerosis on the superior aspect
of the left femoral head consistent with
injury to the subchondral trabecula”;
“minimal flattening of the left femoral
head”; “bone marrow edema in the left
femoral neck”; and “left hip joint effusion”.
(AR at 248.)
Shortly thereafter, on June 27, 2012,
3
an impaired range of movement. (Id.)
A July 13, 2012 MRI of plaintiff’s
lumbar spine revealed “minimal noncompressive disc bulges at the L4-L5 and
L5-S1 levels.” (AR at 250.) The MRI also
showed that the disc bulges were not
“contributing to central spinal canal stenosis,
lateral recess stenosis, or direct nerve root
compression” and that “[t]here [wa]s no
significant facet arthropathy.” (Id.)
On December 4, 2012, plaintiff visited
Douglas Padgett, M.D. of the Hospital for
Special Surgery for “severe increasing pain”
in his left hip. (AR at 192-93.) Dr.
Padgett’s examination report notes that
plaintiff walked with a stiff antalgic left hip
gait; that his cervical spine, upper
extremities, and lumbar spine were largely
unremarkable; that straight leg raises caused
pain in his left hip; and that plaintiff’s range
of motion was limited and caused pain. (AR
at 192.) Dr. Padgett further noted that an xray showed “osteonecrosis and collapse
involving the left femoral head with
secondary degenerative changes” and that
plaintiff “might
have some early
osteonecrosis of the right hip, but at th[at]
point there [wa]s no evidence of collapse.”
(Id.) Dr. Padgett noted that plaintiff’s right
hip was not causing him pain at that point in
time.
(Id.)
Accordingly, Dr. Padgett
recommended a total left hip replacement.
(AR at 193.)
Plaintiff continued physical therapy at
Dr. Rubin’s offices on July 13, July 16, July
17, July 18, August 1, August 3, August 13,
August 15, August 20, August 22, and
August 23, 2012. (AR at 260-62.)
On November 14, 2012, plaintiff visited
Brett Silverman, D.O. for continued right
knee pain. (AR at 254-55.) Dr. Silverman’s
examination report reflects that, despite two
surgeries to his right knee and several
cortisone injections, plaintiff still had pain
and swelling in his right knee. (AR at 254.)
Dr. Silverman reported that plaintiff’s right
knee exhibited mild diffuse swelling, a
somewhat limited range of motion, and
“significant crepitus with passive and active
range of motion.” (AR at 255.) However,
Dr. Silverman also concluded that there was
“no increased warmth, erythema, bruising,
or echymosis” and “no gross instability with
varus/vulgus stress; and no acute distress.”
(Id.) On examination, plaintiff walked with
a “mild antalgic gait,” but could transfer on
and off the examination table independently.
(Id.) An x-ray of plaintiff’s right knee
showed no fracture or dislocation. (Id.) Dr.
Silverman recommended home exercises
and prescribed Lidoderm patches. (Id.) He
opined that plaintiff’s right knee would not
prevent plaintiff from working. (Id.)
Plaintiff visited Dr. Rubin’s offices for
physical therapy on December 5, December
6, December 7, and December 12, 2012.
(AR at 262-63.)
On December 12, 2012, plaintiff
returned to Dr. Silverman for a follow-up
appointment regarding his right knee. (AR
at 252-53.)
Dr. Silverman noted that
plaintiff was still experiencing chronic
swelling and pain in his right knee, but that
Lidoderm patches helped to alleviate the
pain.
(AR at 252.)
Dr. Silverman
concluded that plaintiff had a 30 percent loss
of use of the right leg; that plaintiff’s right
knee had reached maximum medical
improvement; and that plaintiff might
eventually require an arthroplasty. (AR at
253.) Dr. Silverman reported to Workers’
Compensation that he had diagnosed
plaintiff with internal knee derangement and
rated his impairment to his right leg at 30
On November 28, 2012, Dr. Rubin
examined plaintiff. (AR at 280.) Dr. Rubin
noted that plaintiff continued to complain
about increasing and persistent lumbar pain,
which was causing difficulty sleeping. (Id.)
Dr. Rubin observed lumbosacral spasm and
4
percent. (AR at 323-24.)
are also difficult to decipher, but appear to
indicate that the spasm in plaintiff’s left
gluteal muscle was improving. (Id.)
Plaintiff returned to Dr. Rubin’s offices
for physical therapy on December 13,
December 14, December 17, December 19,
December 26, and December 27, 2012. (AR
at 263-64.)
Plaintiff visited Dr. Rubin’s office for
physical therapy on May 28, May 30, June
4, June 6, June 11, June 13, and June 20,
2013. (AR at 268-69.)
On January 2, 2013, after examining
plaintiff, Dr. Rubin noted impaired range of
motion in the lumbar spine, lumbar spasms,
and paresthesia. (AR at 281.)
On June 24, 2013, plaintiff had an
appointment with Dr. Rubin. (AR at 283.)
Dr. Rubin noted improvement in plaintiff’s
left hip, but also that plaintiff continued to
have pain in his lower back. (Id.) In
examining plaintiff, Dr. Rubin noted that
plaintiff’s straight leg raises were positive at
40 degrees on the right and 50 degrees on
the left, with spasms in the bilateral
paraspinals and impaired range of motion in
the lumbar spine. (Id.)
On February 6, 2013, Dr. Padgett
performed a total left hip replacement
surgery on plaintiff. (AR at 204-05.)
On February 28, 2013, plaintiff had
another appointment with Dr. Rubin. (AR at
281.) Dr. Rubin’s notes reflect that plaintiff
had pain in his lower back and left hip, and
that plaintiff was using a cane to walk. (Id.)
Plaintiff returned to Dr. Rubin’s office
for physical therapy on June 26 and June 27,
2013. (AR at 269.)
Plaintiff returned to Dr. Rubin’s office
for physical therapy on March 5, March 8,
March 12, March 18, March 21, April 2,
April 9, April 11, April 16, April 18, 2013.
(AR at 265-66.)
Dr. Rubin next examined plaintiff on
August 20, 2013. (AR at 283.) Dr. Rubin
noted improvement in plaintiff’s left hip, but
that plaintiff continued to suffer from lower
back pain. (Id.) He observed spasms in
plaintiff’s lower back and impaired range of
motion in plaintiff’s lumbar spine, with
flexion limited to 52 degrees, extension to
18 degrees, and lateral bending to 30
degrees on the right and 25 degrees on the
left. (Id.)
On April 22, 2013, Dr. Rubin examined
plaintiff.
(AR at 282.)
Dr. Rubin’s
examination notes from plaintiff’s April 22
visit are difficult to decipher. 2 Those notes
that are legible indicate that plaintiff’s gait
was improving and that Dr. Rubin observed
a spasm in plaintiff’s left gluteal muscle.
(Id.) The notes also appear to indicate that
plaintiff was taking oxycodone. (Id.)
Plaintiff returned to Dr. Rubin’s offices
for physical therapy on September 4,
September 5, September 10, and September
12, 2013. (AR at 269-70.)
Plaintiff went to Dr. Rubin’s offices for
physical therapy on May 7, May 9, May 14,
May 16, and May 21, 2013. (AR at 266-67.)
On September 18, 2013, after examining
plaintiff,
Dr.
Rubin
again
noted
improvement in plaintiff’s hip, but also
noted lumbar spasms, impaired range of
motion in the lumbar spine, and continued
lower back pain. (AR at 284.)
On May 22, 2013, Dr. Rubin examined
plaintiff again. (AR at 282.) These notes
2
The Court notes that significant portions of Dr.
Rubin’s examination notes are difficult to read, and
reminds the ALJ that she may request clarification
and/or supplementation from Dr. Rubin on remand.
5
muscle spasms.
(AR at 285.)
The
examination notes appear to indicate that Dr.
Rubin prescribed Percocet for plaintiff’s
pain. (Id.)
On September 19, 2013, plaintiff visited
Dr. Padgett for a six-month post-operative
examination of his left hip. (AR at 313.)
Dr. Padgett found that plaintiff’s left hip
replacement was healing well, but that
plaintiff had osteonecrosis in his right hip.
(Id.) An x-ray taken the same day showed
“mild joint space narrowing in the right hip
with, of greater note, increased density in
the femoral head consistent with avascular
necrosis.” (AR at 317.)
Plaintiff received physical therapy at Dr.
Rubin’s offices on December 5, December
12, December 19, December 24, December
30, and December 31, 2013. (AR at 27273.)
Dr. Rubin examined plaintiff on January
15, 2014. (AR at 285.) His examination
notes indicate that plaintiff continued to
experience pain, spasms, and limited range
of motion in his lumbar spine, with flexion
limited to 58 degrees, extension to 15
degrees, and lateral bending to 34 degrees
on the right and 30 degrees on the left. (Id.)
Dr. Rubin also noted increasing pain in
plaintiff’s right hip. (Id.)
Plaintiff continued physical therapy at
Dr. Rubin’s offices on September 19,
September 24, October 1, October 3,
October 8, October 10, October 14, and
October 16, 2013. (AR at 271-72.)
On October 23, 2013, after examining
plaintiff, Dr. Rubin observed positive
straight leg raises on the right at 50 degrees
and on the left at 40 degrees. (AR at 284.)
Dr. Rubin also found significantly impaired
range of motion in the lumbar spine. (Id.)
On February 6, 2014, plaintiff visited
Dr. Padgett for a one-year post-operative
examination of his left hip. (AR at 312.)
Dr. Padgett noted that plaintiff was “[d]oing
well, minimal pain”; that plaintiff was
“walking with a nice gait”; that plaintiff had
“[n]o pain with leg raising”; and that
plaintiff had “excellent mobility involving
his left hip.” (Id.) Dr. Padgett also noted,
however, that plaintiff “does have
osteonecrosis on the right,” but “not to the
point where he needs to consider getting the
[right] hip replaced.” (Id.) Dr. Padgett
additionally noted that plaintiff was
experiencing increasing pain in his lower
back. (Id.) An x-ray taken the same day
showed osteonecrosis in plaintiff’s right hip,
“without subchondral fracture or collapse.”
(AR at 316.)
On November 5, 2013, an MRI of
plaintiff’s lumbar spine revealed a “stable
small left foraminal disc protrusion without
nerve root compression” at L4-5; a “stable
mild disc bulge eccentric to the left
minimally narrowing the left neural formen
without nerve root compression” at L3-4;
and a “stable small right central disc
protrusion without spinal canal stenosis or
nerve root compression” at T12-L1. (AR at
251.) Dr. Rubin’s impression from the MRI
was “[s]table mild degenerative changes
without significant spinal canal stenosis or
nerve root compression.” (Id.)
Plaintiff continued physical therapy at
Dr. Rubin’s offices on November 19,
November 21, and November 25, 2013.
(AR at 272.)
Plaintiff visited Dr. Rubin again on
February 18, 2014. (AR at 286.) Dr. Rubin
again noted right hip and lower back pain,
with lumbar spasms and significantly
impaired range of motion, with flexion
limited to 55 degrees, extension to 15
On December 3, 2013, after examining
plaintiff, Dr. Rubin noted ongoing lumbar
pain, right hip pain, impaired range of
motion in the lumbar spine, and lumbar
6
to 58 degrees, extension to 15 degrees, and
lateral bending to 30 degrees on the right
and 33 degrees on the left. (Id.)
degrees, and lateral bending to 33 degrees
on the right and 30 degrees on the left. (Id.)
The notes also appear to indicate that Dr.
Rubin prescribed Percocet for plaintiff’s
pain. (Id.)
On August 7, 2014, plaintiff visited Dr.
Padgett for an 18-month post-operative
examination of his left hip. (AR at 311.)
Dr. Padgett noted that plaintiff was “doing
well,” but that plaintiff’s recovery was
“somewhat slow” because of “how disabled
he was preoperatively coupled with some
back-related issues.” (Id.) Dr. Padgett’s
report indicates that plaintiff’s back was
“making some improvement.” (Id.) Dr.
Padgett also noted that plaintiff had necrosis
in his right hip and that plaintiff rated the
pain at a five out of ten. (Id.) Dr. Padgett’s
treatment plan notes state that “[t]he right
hip, at this point, is obviously affected with
the osteonecrosis,” but given that plaintiff
was still “extremely functional,” Dr. Padgett
was “somewhat reluctant to recommend
going forward with a hip replacement until it
has reached the point where it is quite
disabling.” (Id.) An x-ray taken the same
day did not reveal any significant changes to
plaintiff’s right hip since the February 6,
2014 x-ray. (Id.)
Dr. Rubin noted similar findings after
examining plaintiff on March 18, 2014.
(Id.) Specifically, he noted “persistent,
worsening low back pain,” spasms, and a
significantly limited range of motion, with
flexion at 50 degrees, extension at 12
degrees and lateral bending at 28 degrees on
the right and 25 degrees on the left. (Id.)
Dr. Rubin again included Percocet in his
treatment plan. (Id.)
On April 23, 2014, after examining
plaintiff, Dr. Rubin again noted hip pain and
“persistent low back pain,” lower back
spasms, and a significantly limited range of
motion in the lumbar spine. (AR at 287.)
Plaintiff received physical therapy at Dr.
Rubin’s offices on May 28, May 30, June 3,
and June 5, 2014. (AR at 274.)
On June 10, 2014, after examining
plaintiff, Dr. Rubin noted that physical
therapy had been beneficial, but that
plaintiff continued to experience right hip
pain, low back pain, muscle spasms, and a
significantly impaired range of motion with
flexion at 55 degrees, extension at 12
degrees and lateral bending at 27 degrees on
the right and 24 degrees on the left. (AR at
287.) Dr. Rubin’s treatment plan again
included Percocet. (Id.)
On August 26, 2014, Dr. Rubin
completed a doctor’s progress report for the
Workers’ Compensation Board. (AR at
338-39.)
Dr. Rubin diagnosed hip
sprain/strain, lumbar sprain/strain, and
lumbar radiculopathy. (Id.)
Dr. Rubin
noted that he had observed lower back pain,
intermittent left hip pain, and increased right
hip pain in plaintiff. (AR at 338.) Dr.
Rubin opined that plaintiff’s level of
temporary impairment was 100 percent.
(AR at 339.)
Plaintiff received physical therapy at Dr.
Rubin’s offices on June 10, June 12, June
13, June 17, June 19, June 24, and July 1,
2014. (AR at 274-75.)
In late October 2014, Dr. Rubin
completed a Medical Source Statement.
(AR at 340-45.) Dr. Rubin’s statement
indicated that plaintiff could occasionally
lift five to twenty pounds, but that plaintiff
could never life more than twenty pounds.
On July 22, 2014, Dr. Rubin reported
continuing pain in plaintiff’s right hip and
lower back. (AR at 288.) He also noted
lumbar muscle spasms and impaired range
of motion in the lumbar spine, with flexion
7
when he sustained an injury to his hip. Both
hips were pushed from the side impact and
the MRI was done of the hip showing
avascular necrosis of both hips.” (Id.) Dr.
Dutta noted that plaintiff had undergone a
left hip replacement surgery, but “now
complains of pain mostly on the right hip
with early avascular necrosis stated by MRI
and he is waiting for future replacement.”
(Id.) Dr. Dutta’s report continues that
plaintiff’s “pain on the right [side] is sharp
and gets aggravated with standing, walking,
and doing activities”; “pain in the left hip is
sharp also, steady, and radiates down to his
left leg and knee area”; “pain over the lower
back since 2012 is sharp and steady and
stabbing type”; and “pain over the right knee
is sharp and sometimes sporadic”. (Id.) Dr.
Dutta’s report also notes that MRIs of
plaintiff’s back showed bulging and
herniated discs and that plaintiff’s
“condition is aggravated with prolonged
sitting, standing, and walking.” (Id.) The
report further indicates that plaintiff was
taking Percocet. (AR at 232.)
(AR at 340.) Dr. Rubin found that plaintiff
could occasionally carry five to ten pounds,
but could never carry more than ten pounds.
(Id.) Dr. Rubin noted that plaintiff could sit,
stand, and walk for less than one hour at a
time; that he could sit for a total of three
hours during an eight hour work day; that he
could stand for a total of three hours out of
an eight hour work day; and that he could
walk for a total of two hours out of an eight
hour work day. (AR at 341.) Dr. Rubin
indicated that plaintiff would need to change
positions and take intermittent rest periods
during the day. (Id.) Dr. Rubin reported
that plaintiff could occasionally climb stairs
and ramps; never climb ladders or scaffolds;
and never balance, stoop, kneel, crouch, or
crawl. (AR at 342.) Dr. Rubin found that
plaintiff could never tolerate exposure to
unprotected heights, moving mechanical
parts, extreme heat or cold, or vibrations;
and that he could occasionally tolerate
operating a motor vehicle and humidity and
wetness. (AR at 343.) With respect to daily
activities, Dr. Rubin noted that plaintiff
could shop; travel without a companion;
walk without the assistance of a device; use
public transportation; climb steps with the
use of a single handrail; prepare simple
meals; and care for his personal hygiene.
(AR at 344.) Dr. Rubin concluded that
plaintiff could not walk a block at a
reasonable pace on rough or uneven
surfaces. (Id.)
With respect to daily activities, Dr.
Dutta’s report indicates that plaintiff “avoids
cooking, cleaning, and laundry because of
pain. He does shopping. He showers and
dresses himself. He watches TV, listens to
the radio, and reads.” (Id.)
Dr. Dutta examined plaintiff and found
that plaintiff “appeared to be in no acute
distress”; that he walked with a “[s]light
limp on [the] left side”; that he had
“difficulty walking on [his] heels and toes
on left”; and that he could “squat halfway”.
(AR at 232.) Dr. Dutta further noted that
plaintiff’s station was normal; he did not use
an assistive device; he did not need help
changing for the examination or getting on
and off the examination table; and he was
able to rise from a chair without difficulty.
(Id.)
C. Consultative Examiner
On July 22, 2013, after being referred by
the SSA’s
Division of Disability
Determination, plaintiff underwent an
orthopedic consultative examination by
Samir Dutta, M.D. (AR at 231-34.) Dr.
Dutta’s report states that plaintiff’s “chief
complaint” was that his “back and groin and
hips hurt.” (AR at 231.) The report further
states that plaintiff explained to Dr. Dutta
that “he was run over by a truck in 2008
8
knife in both sides of my back.” (AR at 40.)
He further testified that the pain radiated
down through his leg. (Id.) Plaintiff
testified that his lower back and right hip
caused him pain “constantly,” and he rated
his pain “somewhere between seven and
nine” depending on the day. (AR at 44-45.)
Plaintiff testified that he took oxycodone, “a
lot of Advil liquigel caps,” “Advil PM
sometimes at night, and sometimes Aleve.”
(AR at 42.) Plaintiff testified that he did not
sleep well at night due to his pain, and
accordingly napped for about an hour, five
days a week. (Id.) He also testified that he
used heating pads daily. (AR at 46.)
In examining plaintiff’s cervical spine,
Dr. Dutta noted flexion at 30 degrees
bilaterally; extension at 30 degrees; lateral
flexion 30 degrees bilaterally; and rotation
50 degrees bilaterally. (Id.) Dr. Dutta also
noted a “slight spasm” but “[n]o cervical or
paracervical pain.” (Id.) With respect to
plaintiff’s lumbar and thoracic spines, Dr.
Dutta noted “spinal flexion 70 degrees;
extension 20 degrees; lateral flexion 20
degrees bilaterally; and rotation 20 degrees
bilaterally.” (AR at 233.) Dr. Dutta further
noted “slight tenderness,” but no spasm,
scoliosis, or kyphosis. (Id.) Dr. Dutta
additionally noted that plaintiff’s straight leg
raise test was negative bilaterally. (Id.)
As for treatment, plaintiff testified that
Dr. Rubin was his regular doctor. (AR at
40.) He further testified that he saw Dr.
Rubin every five or six weeks (AR at 4041), and that physical therapy was one of the
things that made his back feel better (AR at
46). Plaintiff testified that Dr. Padgett was
his hip surgeon, and that he saw Dr. Padgett
“at different intervals . . . it depends . . . my
next appointment is in January, so I think
that was three months from the last time.”
(AR at 41.) Plaintiff testified that Dr.
Padgett typically took x-rays of plaintiff’s
hips, checked how plaintiff’s left hip was
healing, and examined the right hip to
“judge where we’re at.” (Id.)
Dr. Dutta diagnosed a “[h]istory of
bulging and herniated disc of lumbosacral
spine, post motor vehicle accident, and
trauma to both hips with avascular necrosis
of left hip and underwent left hip
replacement.” (AR at 233.) Dr. Dutta
further wrote that “[p]ost three arthroscopies
done to the right knee for torn meniscus with
osteoarthritis changes and small ganglion
cyst on the left wrist on radial side,
reducible, with soft tissue repair over
extensor surface for left arm.”
(Id.)
Finally, Dr. Dutta opined that plaintiff has a
“[m]ild limitation for sitting” and a
“[m]oderate limitation for walking, lifting,
and carrying heavy weight on a continuous
basis.” (AR at 234.)
Regarding daily activities, plaintiff
testified that he drove short distances about
twice a day (AR at 30), but that he could not
drive long distances (AR at 40). Plaintiff
testified that he could bathe himself, grocery
shop, prepare simple meals, and use public
transportation. (AR at 42-44.) Plaintiff
testified that he used to run and go to the
gym, but had ceased those activities due to
his injuries. (AR at 44.) When asked by the
ALJ whether he had been on vacation in the
last two years, plaintiff responded that he
had spent a weekend at Foxwoods Resort
and Casino and spent a week at a rental
D. Relevant Testimonial Evidence
1. Plaintiff’s Testimony
During an October 2014 hearing before
the ALJ, plaintiff testified that the “biggest
thing” that was “keeping [him] from
working” was pain in his back and right hip.
(AR at 39.) With respect to his back,
plaintiff testified that “from the mid-back
down it’s really painful particularly if you
break the back down the middle, on both
sides of my lower back it feels like there’s a
9
house in Maryland. (AR at 31.) Plaintiff
testified that he could sit for forty-five
minutes at a time; stand for “maybe” fifteen
minutes; and walk for fifteen minutes. (AR
at 46.) Plaintiff stated that he used a cane to
walk if he was having a particularly bad day,
but, for the most part, he did not use a cane.
(AR at 40.) When asked by the ALJ
whether he thought he could lift twenty-five
pounds using both arms, plaintiff responded
that he believed he could. (AR at 46-47.)
could perform work as a telephone solicitor,
which carries an SVP rating of 3 and a
sedentary exertional level (approximately
250,000 jobs in the national economy); as an
information clerk, which carries an SVP
rating of 4 and a sedentary exertional level
(approximately 575,000 jobs in the national
economy); or as an addresser, which carries
an SVP rating of 2 and a sedentary
exertional level (approximately 13,000 jobs
in the national economy). (Id.)
2. The Vocational Expert’s Testimony
When asked by the ALJ what the
“tolerances for off task and absenteeism” is
for these jobs, VE Pasculli responded that “a
person would need to be on task at least 90
percent of the workday, and in terms of
absences only one absence per month would
be allowable.” (Id.) VE Pasculli clarified
that the 90 percent was exclusive of breaks
and lunch. (Id.) VE Pasculli testified that
these jobs would accordingly not be
available to someone who required an hourlong nap each day. (AR at 51.)
Vocational Expert Dale Pasculli (“VE
Pasculli”) also testified at the October 2014
hearing. (AR at 47-51.) VE Pasculli
testified that plaintiff had worked as a police
officer, which carries a specific vocational
preparation (“SVP”) rating of six. (AR at
48-49.) The ALJ asked VE Pasculli to
consider a hypothetical individual of the
same age, education, and background as
plaintiff, who is: capable of sedentary
exertional work; can never climb ladders,
ropes, or scaffolds; can occasionally climb
ramps or stairs, balance, stoop, kneel,
crouch, and crawl; and should avoid
concentrated exposure to wetness or
humidity, hazards such as dangerous moving
machinery, and unprotected heights. (AR at
49-50.)
The ALJ continued that the
hypothetical person is limited to occupations
that can be performed while occasionally
using a cane, if necessary, and that he should
also be afforded the opportunity for a brief
one to two minute change of position every
half hour. (AR at 50.) The ALJ then asked
VE Pasculli whether that hypothetical
individual could perform plaintiff’s past
work. (Id.) VE Pasculli responded that the
hypothetical individual could not perform
plaintiff’s past work. (Id.)
Counsel for plaintiff then asked VE
Pasculli whether the same hypothetical
individual could perform those jobs if he
could sit for a total of three hours in an
eight-hour day and stand for a total of three
hours in an eight-hour day. (Id.) VE
Pasculli responded that the individual would
not be able to do any of the three jobs she
had described. (Id.) The ALJ then asked
whether there would be any jobs that the
individual could do, and VE Pasculli
responded that there would not. (Id.)
II. PROCEDURAL BACKGROUND
A. Administrative History
Plaintiff filed an application for
disability insurance benefits under Title II of
the SSA on May 28, 2013, alleging
disability as of June 19, 2012. (AR at 151,
161-62.) Plaintiff’s application for disability
insurance benefits was denied on August 13,
2012. (AR at 65-68.) On August 21, 2013,
The ALJ then asked whether there were
other occupations that the hypothetical
individual could perform. (Id.) VE Pasculli
responded that the hypothetical individual
10
plaintiff requested an administrative hearing,
(AR at 69), which was held on October 30,
2014 (AR at 24-52). The ALJ denied
plaintiff’s claim on January 9, 2015. (AR at
9-23.)
On March 10, 2015, plaintiff
requested a review of the ALJ’s decision by
the Appeals Council (AR at 7-8), which was
denied on August 10, 2016 (AR at 1-6).
Accordingly, the ALJ’s determination
became the final decision of the
Commissioner.
Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Furthermore, “it is up to
the agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (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.”).
B. The Instant Case
Plaintiff commenced this lawsuit on
October 7, 2016. (ECF No. 1.) On April 7,
2017, plaintiff moved for judgment on the
pleadings.
(ECF No. 10.)
The
Commissioner submitted a cross-motion for
judgment on the pleadings on October 3,
2017. (ECF No. 14.) On October 31, 2017,
plaintiff submitted his reply in further
support of his motion for judgment on the
pleadings and in opposition to the
Commissioner’s cross-motion for judgment
on the pleadings. (ECF No. 15.) On
November 21, 2017, the Commissioner
submitted her reply in further support of her
cross-motion for judgment on the pleadings.
(ECF No. 17.)
The Court has fully
considered the parties’ submissions.
IV. 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 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).
III. 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) (quoting
The Social Security Regulations
establish
a five-step procedure for
determining whether a claimant is entitled to
social security benefits. See 20 C.F.R.
§§ 404.1520, 416.920. The Second Circuit
has summarized this procedure as follows:
11
B. The ALJ’s Ruling
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 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 function 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.
At the first step in the five-step process,
the ALJ determined that plaintiff had not
engaged in substantial gainful activity since
June 19, 2012, the alleged onset date of
disability. (AR at 14.) The ALJ concluded
that, although plaintiff had attempted to
return to work in a lighter duty position in
September 2014, “that work attempt was an
unsuccessful work attempt.” (Id.)
At the second step, the ALJ determined
that plaintiff suffered from “severe
impairments,” including: degenerative disc
disease of the lumbar spine, status post left
total hip replacement, necrosis of the right
hip, and status post right knee surgery. (Id.)
The ALJ explained that these impairments
are severe because “they impose more than a
minimal limitation on the claimant’s ability
to perform work-related activities.” (Id.)
At step three, the ALJ concluded 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 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526).
(AR at 15.)
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.
At the fourth step, the ALJ found that
plaintiff had the RFC to perform sedentary
work as defined in 20 CFR § 404.1567(a),
with the following limitations: plaintiff can
never climb ropes, ladders, or scaffolds; can
occasionally climb ramps or stairs, balance,
stoop, kneel, crouch, and crawl; and must
avoid concentrated exposure to wetness or
humidity and hazards such as dangerous
moving machinery and unprotected heights.
(Id.) Additionally, the ALJ found that
plaintiff is “limited to occupations that
permit the occasional use of a cane, when
needed, and those that afford the opportunity
for a brief 1-2 minute change of position
every half hour.” (Id.)
In making these determinations, the
Commissioner “must consider four factors:
‘(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; (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)).
12
(AR at 16.)
In considering plaintiff’s symptoms, the
ALJ followed a two-step process, in which
an ALJ first determines whether there is an
underlying medically determinable physical
or mental impairment that could reasonably
be expected to produce a claimant’s pain.
(Id.) Second, if such an underlying physical
or mental impairment has been shown, the
ALJ is required to evaluate the intensity,
persistence, and limiting effects of plaintiff’s
symptoms to determine the extent to which
they limit plaintiff’s functioning. (Id.) If
statements about the intensity, persistence,
or functionally limiting effects of pain or
other symptoms are not substantiated by
objective medical evidence, the ALJ must
make a finding on the credibility of the
statements based on the ALJ’s consideration
of the entire case record. (Id.)
To support these conclusions, the ALJ
summarized diagnoses and findings from
Dr. Rubin, Dr. Padgett, Dr. Silverman, and
Dr. Dutta. (AR at 16-17.) First, the ALJ
briefly described Dr. Rubin’s history
treating plaintiff, and his functional
assessment of plaintiff in which Dr. Rubin
opined that plaintiff could sit or stand for
less than an hour at a time without
interruption; could sit for a total of three
hours in an eight hour workday; and could
stand for a total of three hours in an eight
hour workday. (AR at 16.) The ALJ gave
“some weight” to Dr. Rubin’s opinions
because they were “based on a long
treatment history,” but “d[id] not give
[them] great weight as the limitations
attributed to the claimant’s low back and
right hip disorders [we]re not consistent with
the objective diagnostic evidence or the
reports of other treating and examining
doctors or his own progress notes.” (Id.)
The ALJ continued that “the record does not
establish that claimant has a limitation in his
ability to sit other than needing to change
position on occasion” and plaintiff’s
“activities of daily living and physical
examination show that he can climb stairs
and ramps, balance, stoop, kneel, crouch and
crawl, and as he testified, he has no problem
reaching.” (Id.)
At the first step, the ALJ found that
plaintiff’s
“medically
determinable
impairments could reasonably be expected
to cause the alleged symptoms.” (Id.) At
the second step, the ALJ concluded that
plaintiff’s “statements concerning the
intensity, persistence, and limiting effects of
th[o]se symptoms [were] not entirely
credible.” (Id.) The ALJ concluded that:
[T]he record shows that plaintiff can
do most routine activities of daily
living. He can use a computer and
use public transportation.
He
recently took a vacation where he
rented a house in Maryland with his
wife and friends. Furthermore, the
medical evidence discussed below
shows the claimant’s main problem
was his left hip.
This was
successfully treated with a total hip
replacement and since that time, he
has been doing well per his
testimony. The medical evidence
does not support the claimant’s
allegations as to the severity of his
right hip and back disorders.
As for Dr. Padgett, the ALJ noted that
Dr. Padgett reported on December 4, 2012
that plaintiff “ha[d] no symptoms on the
right hip” and that plaintiff’s “cervical spine,
upper extremities and lumbar spine were
largely unremarkable.” (AR at 17.) The
ALJ also noted Dr. Padgett’s observation
after plaintiff’s left hip surgery that plaintiff
was “doing well”; that “his left hip is good”;
and that plaintiff was “extremely
functional.” (Id.) The ALJ gave “great
weight” to Dr. Padgett’s opinion as it “[wa]s
based on personal treatment of the claimant
13
sedentary work.” (AR at 17-18.)
and [wa]s consistent with the clinical and
objective diagnostic evidence.” (Id.)
After finding that plaintiff could perform
sedentary work with the above-described
limitations, the ALJ determined that plaintiff
was unable to perform his past relevant
work because his job as a police officer was
“heavy-skilled work as the claimant
performed it and medium skilled work as
generally performed.” (AR at 18.)
The ALJ discussed Dr. Dutta’s
consultative examination as well. (Id.)
After summarizing Dr. Dutta’s findings,
including that plaintiff has a “mild limitation
for sitting, [and a] moderate limitation for
walking, lifting and carrying heavy weight
on a continuous basis,” the ALJ stated that
she gave “great weight to the opinion of Dr.
Dutta as it is based on a thorough physical
examination of the claimant and is
consistent with the record.” (Id.)
Moving to the final step of the five-step
process, the ALJ determined that,
considering plaintiff’s age, education, work
experience, and residual functional capacity,
there were jobs that existed in significant
numbers in the national economy that
plaintiff could perform.
(Id.)
In
determining whether a successful adjustment
to other work could be made, the ALJ
considered plaintiff’s residual functional
capacity, age, education, and work
experience in conjunction with the MedicalVocational Guidelines, 20 CFR Part 404,
Subpart P, Appendix 2. (Id.) The ALJ
explained that, if plaintiff had the residual
functional capacity to perform the full range
of sedentary work, the Medical-Vocational
Guidelines would direct a finding of “not
disabled.” (Id.) The ALJ had found,
however, that plaintiff’s ability to perform
all or substantially all of the requirements of
sedentary work was impeded by additional
limitations. (Id.) To determine the extent to
which plaintiff’s aforementioned limitations
eroded the unskilled sedentary occupational
base, the ALJ had asked the vocational
expert whether jobs existed in the national
economy for an individual with plaintiff’s
age, education, work experience, and
residual functional capacity. (AR at 18-19.)
After noting VE Pasculli’s testimony that,
given all of these factors, the individual
could perform work as a telephone solicitor,
which carries an SVP rating of 3 and a
sedentary exertional level (approximately
250,000 jobs in the national economy); as an
The ALJ also briefly discussed
plaintiff’s December 12, 2012 visit to Dr.
Silverman. (AR at 17.) The ALJ noted that
Dr. Silverman found crepitus in plaintiff’s
right knee, but no ecchymosis or bruising
and that Dr. Silverman’s report indicated
that plaintiff could perform a straight leg
raise. (Id.) Lastly, the ALJ acknowledged
that Dr. Silverman assessed plaintiff as
having a 30 percent loss of use of the right
leg. (Id.) The ALJ did not indicate how
much weight, if any, she gave to Dr.
Silverman’s opinions.
In concluding, the ALJ found that
plaintiff “had significant left hip pain that
was successfully treated and resolved within
less than twelve months of [plaintiff’s]
alleged onset date.
[Plaintiff’s] other
orthopedic disorders while somewhat
symptomatic do cause limitations that
preclude certain work but not all work.”
(Id.) The ALJ stated that plaintiff’s “low
back, right knee and hip impairments are
given credence in the undersigned’s finding
that he can only stand and walk two hours in
an eight hour work day and needs to
occasionally use a cane and change position,
and can lift and carry ten pounds
occasionally,” but concluded that “the
medical evidence and [plaintiff’s] activities
of daily living establish that the claimant
retains the residual functional capacity for
14
information clerk, which carries an SVP
rating of 4 and a sedentary exertional level
(approximately 575,000 jobs in the national
economy); or as an addresser, which carries
an SVP rating of 2 and sedentary exertional
level (approximately 13,000 jobs in the
national economy), the ALJ concluded
plaintiff was capable of making a successful
adjustment to other work that exists in
significant numbers in the national
economy. (AR at 19.) Consequently, the
ALJ determined that plaintiff did not qualify
for disability benefits.
If an ALJ does not give controlling
weight to a treating physician’s opinions,
“the regulations require the ALJ to consider
several factors in determining how much
weight [the opinions] should receive.”
Burgess, 537 F.3d at 129. The ALJ must
consider, among other things:
‘[T]he length of the treatment
relationship and the frequency of the
examination’; the ‘nature and extent
of the treatment relationship’; the
‘relevant evidence . . . , particularly
medical signs and laboratory
findings,’ supporting the opinion; the
consistency of the opinion with the
record as a whole; and whether the
physician is a specialist in the area
covering the particular medical
issues.
C. Analysis
Plaintiff challenges the Commissioner’s
decision that he is not disabled on several
grounds. Specifically, plaintiff asserts that:
(1) the ALJ failed to comply with the
treating physician rule by declining to give
controlling weight to Dr. Rubin’s opinions;
(2) the ALJ’s RFC assessment was not
supported by substantial evidence; and
(3) the ALJ improperly evaluated plaintiff’s
credibility. As set forth below, the Court
concludes that the ALJ did not adequately
support her decision to give only “some
weight” to Dr. Rubin’s opinions and, thus,
failed to satisfy the treating physician rule.
Accordingly, the Court remands this case to
the ALJ for further proceedings.
Id. (quoting 20 C.F.R. § 404.1527(d)).
Additionally, the longer a treating source
has treated a claimant and the more times a
claimant has been seen by a treating source,
the more weight will be given to the
source’s medical opinion. Id. (quoting 20
C.F.R. § 404.1527(d)(2)(i)). An ALJ’s
decision must make clear that he or she
“considered the factors articulated in the
Social Security Regulations for determining
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
impairments(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.
The treating physician rule “mandates
that the medical opinion of the claimant’s
treating physician [be] given controlling
weight if it is well supported by the 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, 79 (2d Cir. 1999). 3
3
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
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
15
specialization. For example, the ALJ did
not consider that, at the time of her decision,
Dr. Rubin had been treating plaintiff for
over two and a half years and had personally
examined plaintiff over twenty times, or that
plaintiff had received physical therapy under
Dr. Rubin’s supervision over 100 times.
Nor did the ALJ analyze the evidence
supporting Dr. Rubin’s opinions—for
example, that MRIs of plaintiff’s lumbar
spine showed bulging and herniated discs;
that Dr. Rubin’s notes over more than two
years reflect ongoing muscle spasms and
limited range of motion; or that plaintiff’s
pain was sufficiently severe that he was
prescribed Percocet and oxycodone. 4
Finally, the ALJ failed to indicate how the
fact that Dr. Rubin is a physiatrist influenced
the weight given to Dr. Rubin’s opinions.
These omissions warrant remand. E.g.,
Ramos v. Comm’r of Soc. Sec., No. 13-CV3421 (KBF), 2015 WL 7288658, at *7
(S.D.N.Y. Nov. 16, 2015) (remanding where
“[n]owhere did the ALJ consider the length,
nature, and extent of plaintiff and
[physician’s] treatment relationship, or the
evidence [the physician] identified as
supporting his opinion, or whether [the
what weight to assign to a treating
physician’s opinion.” Vlado v. Berryhill,
No. 16-CV-794 (MKB), 2017 WL 1194348,
at *9 (E.D.N.Y. Mar. 29, 2017).
After considering these factors, the ALJ
must “comprehensively set forth reasons for
the weight given to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d
28, 33 (2d Cir. 2004); see also Clark, 143
F.3d at 118 (requiring ALJs to provide good
reasons in their determinations for the
weight given to a treating physician’s
opinion); Perez v. Astrue, No. 07-cv-958
(DLI), 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.”). A “[f]ailure to provide
‘good reasons’ for not crediting the opinion
of a claimant’s treating physician is a
ground for remand.” Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999); see also
Halloran, 362 F.3d at 33 (“[W]e 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.”).
4
The Court notes that the ALJ’s decision restates
various portions of plaintiff’s medical and treatment
history, including some evidence that supports Dr.
Rubin’s opinions. However, simply noting such
evidence, without acknowledging that the evidence
supports Dr. Rubin’s opinions and explaining why
the evidence does not warrant giving controlling
weight to those opinions, is insufficient to satisfy the
treating physician rule. See, e.g., Arias v. Astrue, No.
11 Civ. 1614, 2012 WL 6705873, at *2 (S.D.N.Y.
Dec. 21, 2012) (“When the record contains testimony
tending to contradict the ALJ’s conclusion, the ALJ
must acknowledge the contradiction and explain why
the conflicting testimony is being disregarded.”); see
also Correale-Englehart v. Astrue, 687 F. Supp. 2d
396, 431 (S.D.N.Y. 2010) (remanding where ALJ
“cited selected portions of plaintiff’s treating sources’
opinions and did not meaningfully assess those
reports as a whole [because] [i]n doing so, the ALJ
failed to comply with a number of requirements
embodied in the treating-physician rule”).
Here, the Court concludes that the ALJ’s
analysis is insufficient to satisfy the above
requirements, and that remand is therefore
warranted.
First, remand is warranted
because the ALJ failed to consider each of
the factors established by SSA regulations
for determining the weight to give a treating
physician’s opinions.
See 20 C.F.R.
§ 404.1527(d)(2). In particular, the ALJ’s
decision does not consider the frequency of
Dr. Rubin’s examinations; the length,
nature, and extent of the treatment
relationship; the evidence in support of Dr.
Rubin’s opinions; or Dr. Rubin’s medical
16
physician] was a specialist”); Moss v.
Colvin, No. 1:13-CV-731-GHW-MHD,
2014 WL 4631884, at *28 (S.D.N.Y. Sept.
16, 2014) (remanding where ALJ “did not
address the fact that [treating physician was]
a physiatrist and pain specialist, which
should have affected his determination of
the degree of deference to afford the
doctor’s assessment of plaintiff’s symptoms
of chronic pain”); Clark v. Astrue, No. 08
CIV. 10389 (LBS), 2010 WL 3036489, at *4
(S.D.N.Y. Aug. 4, 2010) (“[T]he ALJ did
not consider ‘the frequency of examination
and the length, nature, and extent of the
treatment relationship,’ or whether the
opinion was from ‘a specialist.’ 20 C.F.R.
§ 404.1527(d)(2).
This legal error
constitutes grounds for remand.”).
the objective diagnostic evidence” or “the
reports of other treating and examining
doctors or his own progress notes”—without
more—are insufficient to satisfy the
requirement that the ALJ consider a treating
physician’s opinion’s consistency with the
record as a whole. See, e.g., Rugless v.
Comm’r of Soc. Sec., 548 F. App’x 698, 700
(2d Cir. 2013) (remanding where “[t]he ALJ
gave only a conclusory explanation of why
[the treating physician’s] opinion regarding
appellant’s ability to lift 10 lbs. is
inconsistent with the record”); Craig v.
Comm’r of Soc. Sec., 218 F. Supp. 3d 249,
267 (S.D.N.Y. 2016) (remanding where ALJ
“did not explain what was contradictory
between” opinions); Agins-McClaren v.
Colvin, No. 14-CV-8648 (AJP), 2015 WL
7460020, at *8 (S.D.N.Y. Nov. 24, 2015)
(“Conclusory statements such as the treating
physician’s opinion being . . . ‘not consistent
with the evidence on record’ are insufficient
reasons for assigning less weight to the
opinion of treating physicians.”).
Second, remand is warranted because the
ALJ’s stated reasons for giving only “some
weight” to Dr. Rubin’s opinions are
inadequate under the treating physician rule.
The ALJ addressed Dr. Rubin’s opinions,
and the weight given to those opinions, in
only a few sentences. Specifically, to
support her decision to give only “some
weight” to Dr. Rubin’s opinions, the ALJ
stated that the limitations Dr. Rubin
attributed to plaintiff’s low back and right
hip were “not consistent with the objective
diagnostic evidence or the reports of other
treating and examining doctors or his own
progress notes”; that the “record does not
establish” that plaintiff is limited in his
ability to sit, “other than needing to change
position on occasion”; and that plaintiff’s
“activities of daily living and physical
examination show that he can climb stairs
and ramps, balance, stoop, kneel, crouch and
crawl, and as he testified, he has no problem
reaching”. (AR at 16.) These reasons for
discounting Dr. Rubin’s opinions are
inadequate under the treating physician rule.
The ALJ’s second stated reason for
giving less weight to Dr. Rubin’s opinions
was that “[t]he record does not establish the
claimant has a limitation in his ability to sit
other than needing to change position on
occasion.” (AR at 16.) As explained above,
Dr. Rubin and Dr. Dutta were the only
physicians to opine on plaintiff’s ability to
sit. Dr. Rubin opined that plaintiff could sit
for less than an hour at a time and for no
more than three hours in an eight hour
workday. (AR at 341.) Dr. Dutta opined
that plaintiff had a “[m]ild limitation” for
sitting. (AR at 234.) It thus appears that the
ALJ found that Dr. Dutta’s opinion justified
giving less weight to Dr. Rubin’s opinion on
plaintiff’s limitations for sitting. However,
“[a] consultative examiner’s report which
concludes that a plaintiff’s condition is
‘mild’ or ‘moderate,’ without additional
information, does not allow an ALJ to infer
that a plaintiff is capable of performing the
The ALJ’s conclusory assertions that Dr.
Rubin’s opinions are “not consistent with
17
exertional requirements of work.” Curry v.
Apfel, 209 F.3d 117, 123 (2d Cir. 2000)
(superseded by statute on other grounds);
see also Garretto v. Colvin, 15 Civ. 8734
(HBP), 2017 WL 1131906, at *21 (S.D.N.Y.
Mar. 27, 2017) (“[The consulting
physician’s] use of the word ‘moderate’ is
vague and provides no support for the ALJ’s
conclusion that plaintiff [can] engage in
these activities for six hours out of an eight
hour day.”); Young v. Comm’r of Soc. Sec.,
No. 7:13-CV-734, 2014 WL 3107960, at *9
(N.D.N.Y. July 8, 2014) (consulting
physician opinion that claimant had
“moderate” limitations in sitting not
substantial evidence for finding that
claimant could perform sedentary work).
Thus, Dr. Dutta’s opinion that plaintiff had a
“[m]ild limitation for sitting” was not a
sufficient ground for according less weight
to Dr. Rubin’s opinions. See, e.g., Burgess,
537 F.3d at 128-29 (noting that medical
expert opinion is not “sufficiently
substantial to undermine the opinion of the
treating physician,” when the opinion
vaguely describes an impairment with words
like “mild” or “moderate”); see also Perozzi
v. Berryhill, 287 F. Supp. 3d 471, 487
(S.D.N.Y.
2018)
(collecting
cases
concluding that consultative examiner
opinions using adjectives like “mild” or
“moderate” are not substantial evidence). 5
an invalid to be found disabled.” E.g.,
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.
1998). Indeed, “it is well-settled that the
performance of basic daily activities does
not necessarily contradict allegations of
disability, as people should not be penalized
for enduring the pain of their disability in
order to care for themselves.” Giambrone v.
Colvin, No. 15-CV-05882 (PKC), 2017 WL
1194650, at *16 (E.D.N.Y. Apr. 3, 2017)
(quoting Nusraty v. Colvin, 15-CV-2018,
2016 WL 5477588, at *12 (E.D.N.Y. Sept.
29, 2016)); Cabibi v. Colvin, 50 F. Supp. 3d
213, 238-39 (E.D.N.Y. 2014) (quoting Valet
v. Astrue, 10–CV–3282 KAM, 2012 WL
194970, at *19 (E.D.N.Y. Jan. 23, 2012)).
Here, the evidence that plaintiff “can use a
computer and use public transportation” and
that he “recently took a vacation in
Maryland with his wife and friends” was not
a sufficient reason to discount Dr. Rubin’s
opinions. See, e.g., Doyle v. Apfel, 105 F.
Supp. 2d 115, 120 (E.D.N.Y. 2000) (“The
activities of daily living that [the ALJ] relied
upon, such as reading, watching TV, doing
light household work, going out to dinner
periodically, and taking occasional trips, are
not indicative of an ability to satisfactorily
perform a job.”).
The ALJ’s failure to consider each of the
above statutory factors and to provide good
reasons for discounting Dr. Rubin’s opinions
is particularly significant in light of her
decisions to accord “great weight” to Dr.
Padgett’s and Dr. Dutta’s opinions. Dr.
Padgett was plaintiff’s hip doctor: he
performed plaintiff’s left hip replacement
and monitored the degeneration in plaintiff’s
right hip. Thus, Dr. Padgett’s notes that
plaintiff was “doing well” do not provide a
good reason to give less weight to Dr.
Rubin’s opinions about plaintiff’s lower
back. Moreover, Dr. Padgett had seen
plaintiff on only five occasions at the time of
the ALJ’s decision, two of which were for a
consult and surgery on plaintiff’s left hip
Finally, plaintiff’s daily activities were
not a sufficient reason to give less weight to
Dr. Rubin’s opinions. The Second Circuit
has emphasized that “a claimant need not be
5
To the extent the ALJ determined Dr. Rubin’s
medical findings were inadequate to support his
opinions on plaintiff’s limitations for sitting, it was
the ALJ’s “affirmative duty to develop the
administrative record” and request additional
information from Dr. Rubin. See, e.g., Monroe v.
Astrue, No. 12-CV-1456 WFK, 2014 WL 3756351,
at *8 (E.D.N.Y. July 30, 2014) (quoting Burgess, 537
F.3d at 129); see also Fontanez v. Colvin, No. 16CV-01300 (PKC), 2017 WL 4334127, at *23
(E.D.N.Y. Sept. 28, 2017).
18
(about which plaintiff does not currently
complain). With respect to Dr. Dutta, the
consultative examiner, the ALJ also
accorded his opinions "great weight."
Generally,
however,
a
consultative
examiner's opinion "should not be accorded
the same weight as the opinion of a
plaintiffs treating physician." Giambrone,
2017 WL 1194650, at *15. To the contrary,
"in evaluating a claimant's disability, a
consulting physician's opinions or report
should be given little weight." Giddings v.
Astrue, 333 F. App'x 649, 652 (2d Cir.
2009) (quoting Cruz v. Sullivan, 912 F.2d 8,
13 (2d Cir. 1990)).
"This is because
'consultative exams are often brief, are
generally performed without the benefit or
review of claimant's medical history and, at
best, only give a glimpse of the claimant on
a single day."' Cabibi, 50 F. Supp. 3d at
234 (quoting Harris v. Astrue, No. 07CV4554(NGG), 2009 WL 2386039, at *14
(E.D.N.Y. July 31, 2009)); see also Cruz,
912 F.2d at 15. In short, the ALJ was
required to give a significantly more detailed
explanation as to why she gave "great
weight" to Dr. Padgett's and Dr. Dutta's
opinions while giving only "some weight" to
Dr. Rubin's opinions. See, e.g., Giambrone,
2017 WL 1194650, at *18.
advantages' or afforded the benefits of 'the
substance of the treating physician rule,'"
Clark, 2010 WL 3036489, at *4 (quoting
Halloran, 362 F.3d at 32), and because
plaintiff is "entitled to a comprehensive
statement as to what weight is given and of
good reasons for the ALJ's decision,"
Burgess, 537 F.3d at 132, remand is
warranted under the particular circumstances
of this case. 6
V. CONCLUSION
For the reasons set forth above,
plaintiffs motion for judgment on the
pleadings is denied. The Commissioner's
cross-motion for judgment on the pleadings
is also denied. The case is remanded to the
ALJ for further proceedings consistent with
this Memorandum and Order.
(
SO ORDERED.
I
Dated: May 10, 2018
Central Islip, New York
The Court additionally notes that the
ALJ's decision not to credit Dr. Rubin's
opinions was critical to the disability
determination in this case. As explained
above, plaintiffs counsel asked VE Pasculli
whether jobs existed in the national
economy for a hypothetical individual with
the limitations that Dr. Rubin found plaintiff
has. VE Pasculli responded that no such
jobs existed. Thus, if Dr. Rubin's opinions
were given controlling weight, plaintiff
would be entitled to disability benefits.
***
Plaintiff is represented by John W. DeHaan
of The DeHaan Law Firm P.C., 300 Rabro
Drive East, Suite 101, Happauge, New York
6
In light of this Court's conclusion that the ALJ
failed to satisfy the treating physician rule, the Court
need not address plaintiffs other arguments.
However, after a proper application of the treating
physician rule, the ALJ shall reassess the credibility
determination of plaintiff, as well as the
determination as to whether plaintiff had the RFC to
perform sedentary work and whether there is other
work in the national economy that plaintiff can
perform.
Accordingly, because the ALJ's decision
"does not reveal that the ALJ actually
provided
the
required
'procedural
19
11788. The Commissioner is represented by
Assistant United States Attorney Layaliza K.
Soloveichik of the United States Attorney’s
Office, Eastern District of New York, 271
Cadman Plaza East, 7th Floor, Brooklyn,
New York 11201.
20
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?