Kelsey v. Colvin

Filing 16

MEMORANDUM OPINION. For reasons stated herein, the Commissioner's decision will be REVERSED and REMANDED, pursuant to 42 U.S.C. 405 (g), sentence four, for further proceedings. Signed by Magistrate Judge Earl S. Hines on 1/23/2015. (dpk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
NIKKIA J. KELSEY,
Plaintiff,
versus
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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CIVIL ACTION NO. 5:13-1128

MEMORANDUM OPINION
Nikkia J. Kelsey (“Kelsey”) seeks review of an adverse decision on her
applications for disability-based social security benefits.
I. Judicial Review
A reviewing court’s limited role under 42 U.S.C. § 405(g) is to determine
whether (a) the Commissioner applied proper legal standards and (b) the
decision is supported by substantial evidence. See Lamay v. Commissioner of
Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010);
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 42 U.S.C. § 405(g).
Reviewing courts also must take “due account” of “the rule of prejudicial error.”
5 U.S.C. § 706; see also 28 U.S.C. § 2111 (directing that judgments given upon
examination of records be “without regard to errors or defects which do not affect
the substantial rights of the parties”); see also FED. R. CIV. P. 61 (stating that
“the court must disregard all errors and defects that do not affect any party’s
substantial rights”).

II. Background
Kelsey obtained an educational GED certificate.1 Thereafter, she worked
as a cashier, nurse’s aide, and door-to-door salesperson. (T. 46, 210). In April
2009, at age 33, when leaving a residence after a sales call, she slipped
backwards on stairs and grabbed a railing with her right arm. (T. 327). She did
not fall, but her body twisted, immediately causing left shoulder, neck, upper
and lumbar back pain. (Id.).
Kelsey pursued a state worker’s compensation claim for on-the-job
injuries. In September, 2009, she also applied for social security disability
insurance benefits and supplemental security income,2 alleging that she became
unable to work as of April 6, 2009, due to “depression, stomach tumor, herniated
disc in neck, nerve damage left arm & torn left rotator cuff, carpal tunnel right
wrist, and extreme anemia.” (T. 194).
Kelsey’s claim was assigned to administrative law judge, Bruce S. Fein
(“ALJ Fein”), who conducted an evidentiary hearing.

(T. 37-90).

Kelsey,

represented by legal counsel, attended and testified. (Id.). ALJ Fein denied
Kelsey’s applications in a written decision dated February 2, 2012. (T. 20-31).

1

General Educational Development (“GED”) tests are a group of subject
tests which, when passed, certify that the test taker has high school-level
academic skills. Generally, States award a Certificate of High School Equivalency
or similarly titled credential to persons who meet the passing score
requirements.
2

Disability Insurance, authorized by Title II of the Social Security
Act and funded by social security taxes, provides income to insured individuals
forced into involuntary, premature retirement by reason of disability.
Supplemental Security Income, authorized by Title XVI of the Social Security Act
and funded by general tax revenues, provides an additional resource to assure
that disabled individuals’ incomes do not fall below the poverty line.

Page 2 of 24

The Appeals Council denied Kelsey’s request for review. (T. 2-7). Kelsey
then instituted this proceeding.
III. Decision3
ALJ Fein first found that Kelsey met the insured-status requirements of
the disability insurance benefits program at all relevant times.4 (T. 22). Next,
he found that Kelsey has severe physical and mental impairments. Her severe
physical impairments included borderline left carpal tunnel syndrome, mild left
cubital tunnel syndrome, left shoulder adhesive capsulitis post decompression
and distal clavicle excision.

(T. 23).

Her severe mental impairment was

depression. (Id.).
ALJ Fein found that Kelsey’s physical impairments reduce her work
capacity such that she can now perform work only at the sedentary exertional
level. (T. 25). That capacity is further reduced by a nonexertional postural
impediment consisting of limited ability to push and/or pull with the left upper
extremity. Her nonexertional mental impairment allows her to tolerate only low
stress and perform only simple tasks and instructions. (T. 25).
With this reduced residual functional capacity, ALJ Fein found that
Kelsey can no longer perform her past relevant work as a salesperson (light
3

ALJ Fein utilized a five-step sequential evaluation procedure
prescribed by regulation and approved by courts as a fair and just way to
determine disability applications in conformity with the Social Security Act.
The procedure is “sequential” in the sense that when a decision can be reached
at an early step, remaining steps are not considered. See 20 C.F.R. §§ 404.1520,
416.920; Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (citing Heckler v. Campbell,
461 U.S. 458, 461 (1983)). A full discussion of the Commissioner’s five-step
process is contained in Christiana v. Commissioner of Soc. Sec. Admin., No.
1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).
4

Disability Insurance benefits typically are more generous than
Supplemental Security Income. Once ALJ Fein determined that Kelsey was fully
insured, her claim for Supplemental Security Income effectively became moot.

Page 3 of 24

exertional) or nursing assistant (medium exertional). (T. 29). ALJ Fein further
found, however, that Kelsey can perform alternative, available work despite her
impairments. ALJ Fein relied on Medical-Vocational Guidelines, Section 201.285
and Social Security Ruling 96-9p6 to make this finding (T. 29-30). Thus,
Kelsey’s application was denied. (T. 31).
IV. Points of Alleged Error
Kelsey’s brief presents three points of error (with subparts), as follows:
1.

The ALJ’s RFC determination is not supported by substantial
evidence:
A.

The ALJ improperly discounted the opinion from treating
surgeon, Dr. Cooke;

B.

The ALJ improperly discounted
consultative examiner, Dr. Ross;

C.

The ALJ’s RFC determination is not consistent with his
evaluation of the opinions from Drs. Carr, Wolf, and Setter;

the

opinion

from

5
The Medical Vocational Guidelines (“grids”) are a matrix of general
findings established by rule as to whether work exists in the national economy
that a person can perform. When properly applied, they ultimately yield a
decision of “disabled” or “not disabled.” Zorilla v. Chater, 915 F. Supp. 662,
667 & n. 2 (S.D.N.Y. 1996); see also Bombard-Senecal v. Commissioner of Soc.
Sec., No. 8:13–cv–649 (GLS), 2014 WL 3778568, at *4 (N.D.N.Y. July 31,
2014)(citing 20 C.F.R. pt. 404, subpt. P, app. 2, § 202.21 (directing a finding
of “not disabled” for younger individuals capable of performing light work that
have at least a high school education and can speak English).
6

This ruling states that “[l]imitations or restrictions on the ability
to push or pull will generally have little effect on the unskilled sedentary
occupational base.” See SSR 96-9p, TITLES II AND XVI: DETERMINING CAPABILITY TO DO OTHER
WORK –IMPLICATIONS OF A RESIDUAL FUNCTIONAL CAPACITY FOR LESS THAN SEDENTARY WORK, 1996 WL
374185, at *6 (SSA July 2, 1996). Additionally, the ruling lists the mental
activities that are generally required by competitive, remunerative, unskilled
work as:
understanding, remembering, and carrying out simple instructions;
making judgments that are commensurate with the functions of unskilled
work--i.e., simple work-related decisions; responding appropriately to
supervision, co-workers and usual work situations; and dealing with changes in
a routine work setting. (Id., at *9). The ruling provides that a less than
substantial loss of the ability to perform any of the basic work activities may
or may not significantly erode the unskilled sedentary occupational base. (Id.).

Page 4 of 24

D.

The ALJ’s RFC determination is not consistent with his
evaluation of the opinion provided by Dr. Croyle;

2.

The ALJ erred in failing to make a proper credibility finding; and

3.

The ALJ’s Step 5 finding is not supported by substantial evidence.

(Dkt. No. 10, p. 1).
After considering Kelsey’s arguments and the Commissioner’s responses
thereto on all points, the court concludes, for reasons that follow, that Kelsey’s
points of error I.A and I.C must be sustained.
V. Residual Functional Capacity
Points of error I.A and I.C both implicate ALJ Fein’s finding of Kelsey’s
“residual functional capacity.” As a threshold matter, therefore, it is appropriate
to define “residual functional capacity” and delineate how it is determined.
A.

Residual Functional Capacity
Administrative law judges assess and articulate claimants’ “residual

functional capacity” before considering whether severely impaired persons can
perform their prior relevant work or alternative available work. This term of art
refers to what claimants can still do in work settings despite physical and/or
mental limitations caused by their impairments and any related symptoms, such
as pain. See 20 C.F.R. §§ 404.1545, 416.945. Administrative law judges thus
decide whether applicants, notwithstanding their severe impairments, have
physical and mental abilities to perform activities generally required by
competitive, remunerative work on a regular and continuing basis. See SSR
96–8p, TITLE II AND XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL
CLAIMS, 61 Fed. Reg. 34474, 1996 WL 374184, at *4 (SSA July 2, 1996).

Page 5 of 24

When assessing residual functional capacity, an administrative law judge
must consider “all of the relevant medical and other evidence.” See 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3).

All impairments, i.e., both severe and

nonsevere, must be factored into residual functional capacity determinations.
See 20 C.F.R. §§ 404.1520(e), 404.1545, 416.920(e), 416.945; SSR 96–8P, 1996
WL 374184, at *5. Then, when articulating a claimant’s residual functional
capacity, administrative law judges must identify and evaluate a claimant’s
limitations relating to specific physical and mental functions that correspond
with ordinary work activities. See 20 C.F.R. §§ 404.1545, 416.945; see also SSR
96–8p, 1996 WL 374184, at *1. These functions include physical abilities such
as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical
functions, mental abilities such as understanding, remembering, carrying out
instructions, and responding appropriately to supervision, and other abilities
that may be affected by impairments, such as seeing, hearing, and the ability to
tolerate environmental factors. See 20 C.F.R. §§ 404.1545, 416.945; see also SSR
96–8p, 1996 WL 374184, at *5–6.7
B.

Treating Physician Rule
Residual functional capacity assessments usually are based largely on

medical opinion. The Commissioner categorizes medical opinion evidence by
“sources” described as “treating,” “acceptable” and “other,” and prescribes

7

When mental impairments are present, determinations of functional
limitations stemming therefrom are accomplished in the aftermath of application
of a “special technique” set out in 20 C.F.R. §§ 404.1520a(b)-(e), 416.920a(b)(e); see also Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008) (describing
analysis). This evaluative technique is not discussed further because points of
error addressed in this opinion relate only to ALJ Fein’s assessment of Kelsey’s
physical residual functional capacity.

Page 6 of 24

hierarchical rules for weighing such evidence.8 Under a popularly-denominated
“treating physician rule,” administrative law judges are required to give
controlling weight to opinions of treating sources9 regarding the nature and
severity of impairments provided they are well-supported by medically
acceptable clinical and laboratory diagnostic techniques and are not inconsistent
with other substantial evidence in the case record.

The Commissioner’s

regulation states:
[W]e 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.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (emphasis added).
For good cause, administrative law judges may decline to afford treating
physician opinions controlling weight, but in such instances they must then
determine how much weight such opinions are due by applying certain relevant
factors prescribed by regulation: (1) length of treatment relationship and
frequency of examination; (2) nature and extent of treatment relationship;
(3) evidence supporting the opinion; (4) how consistent opinion is with record as
a whole; (5) specialization in contrast to condition being treated; and (6) other

8

20 C.F.R. §§ 404.1502,404.1513(a), 416.913(a), 416.902

9

See 20 C.F.R. §§ 404.1502, 416.902 (“Treating source means your own
physician, psychologist, or other acceptable medical source who provides you, or
has provided you, with medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with you.”).

Page 7 of 24

significant factors.10 Further, they must “comprehensively set forth . . . reasons
for the weight assigned to a treating physician’s opinion.” Burgess v. Astrue, 537
F.3d 117, 129 (2d Cir. 2008) (internal alteration and citation omitted). They
must “always give good reasons” for the weight given to a treating source’s
opinion, 20 C.F.R. § 416.927(c)(2), and “cannot arbitrarily substitute . . . [their].
. . own judgment for competent medical opinion.”

McBrayer v. Secretary of

Health & Human Servs., 712 F.2d 795, 799 (2d Cir. 1983).11
C.

Adequacy of Record
Claimants possess rights to administrative records adequately developed

to the point that fair and informed decisions can be reached thereon. Residual
functional capacity findings, like all critical findings, cannot stand when based
on an incomplete or otherwise deficient evidentiary record. Failure to develop
the record adequately is an independent ground for vacating the Commissioner’s
decision. See Moran v. Astrue, 569 F.3d 108, 114–15 (2d Cir. 2009), (“We vacate
not because the ALJ’s decision was not supported by substantial evidence but
because the ALJ should have developed a more comprehensive record before
making his decision.”); see also Daviau v. Astrue, No. 09–CV–0870 (MAD), 2012
WL 13543, at *6 (N.D.N.Y. Jan. 4, 2012).

10
See 20 C.F.R. §§ 404.1527(c), 416.927(c) (“Unless we give a treating
source’s opinion controlling weight under paragraph (c)(2) of this section, we
consider all of the following factors in deciding the weight we give to any
medical opinion.”).
11
See also Schaal v. Apfel, 134 F.3d 496, 503–04 (2d Cir. 1998)
(stating that the Commissioner must provide a claimant with “good reasons” for
the lack of weight attributed to a treating physician’s opinion); Halloran v.
Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004) (“This requirement greatly assists
our review of the Commissioner’s decision and ‘let[s] claimants understand the
disposition of their cases.’ ”) (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d
Cir. 1999)).

Page 8 of 24

“Social

Security

disability

determinations

are

investigatory,

or

inquisitorial, rather than adversarial.” See Moran, 569 F.3d at 112–13. It is the
ALJ’s duty to investigate and develop facts and develop arguments both for and
against granting of benefits.

“This duty arises from the Commissioner’s

regulatory obligations to develop a complete medical record before making a
disability determination, 20 C.F.R. § 404.1512(d)-(f) (1995), and exists even
when, as here, the claimant is represented by counsel.” See Pratts v. Chater, 94
F.3d 34, 37 (2d Cir. 1996) (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
Correlative to this duty, administrative law judges must recontact
treating physicians or other medical sources, and request additional information
when evidence in hand is inadequate to determine whether claimants are
disabled. 20 C.F.R. §§ 404.1512(e), 404.1520b(c); see also Schaal v. Apfel, 134
F.3d 496, 505 (2d Cir. 1998) (when there is an inadequate medical record, an
administrative law judge must sua sponte seek additional information). This
affirmative obligation does not extend to infinity, however, and is not without
limit. Administrative law judges are not required to seek additional information
absent “obvious gaps” that preclude an informed decision. Rosa v. Callahan, 168
F.3d 72, 79 n.5 (2d Cir. 1999); see also Hart v. Commissioner of Soc. Sec., No.
5:07–CV–1270 (DNH), 2010 WL 2817479, at *5 (N.D.N.Y. July 10, 2012).
VI. Medical Evidence
A tedious recapitulation of voluminous medical evidence is a painful
exercise for the reader and scrivener alike.

In this instance, however, a

chronological summary of the course of Kelsey’s medical treatment is important.
It portrays a protracted, worsening condition never fully explained by objective
medical findings or remedied by repeated surgical intervention.

This

Page 9 of 24

circumstance inevitably complicated AlJ Fein’s assessment of residual functional
capacity.
Following her reported mishap at work, Kelsey immediately sought
medical attention, and continued to do so for over three years. During a brief
period beginning April 7, 2009, and continuing through June 4, 2009, she
initially was seen by physician assistants and a supervising doctor (Ivan Wolf,
M.D.) associated with a clinic named “Industrial Medical Associates.”

In

addition, she underwent magnetic resonance imaging (MRI) testing of her left
shoulder.

These early treatment records recorded Kelsey’s subjective

complaints, and assessed her as having shoulder and cervical strains. After each
visit, Kelsey was released to return to work with left-arm lifting, carrying,
pushing and pulling restrictions (sometimes 10 pounds; sometimes 15 pounds)
and no reaching above shoulder level.
Kelsey’s June 1, 2009, MRI was interpreted as revealing some
abnormalities consistent with a partial tear of the supraspinatus.12 Three days
later, Kelsey was “discharged to the care of the orthopedist.” (T. 314). During
the next nine months, Kelsey was evaluated by at least seven specialists
associated with different medical facilities. She was first seen by Daniel L. Carr,
M.D., an orthopedist practicing in a group named “CNY Orthopedic Sports
Medicine.” Dr. Carr’s clinical notes suggested that Kelsey might be exaggerating

12

The supraspinatus muscle runs horizontally from the top of the
scapula to the top of the humerus. Dorland’s Illustrated Medical Dictionary,
1211 (32d ed. 2012). The supraspinatus tendon is the tendon that connects the
supraspinatus muscle to the top of the humerus and to the clavicle.
See
Dorland’s, 1193, 1201.

Page 10 of 24

or imagining her symptoms,13 but he, like Dr. Wolf, restricted Kelsey to no
greater lifting than 10 pounds and no reaching, pulling or lifting overhead with
her left arm. (T. 351).
Next, Kelsey was evaluated by Rina C. Davis, M.D., a pain management
consultant affiliated with “New York Spine & Wellness Center.” Dr. Davis’s
“initial impression” was “supraspinatus tendinosis and myofascial pain
syndrome of the left upper quarter.” (T. 363). Dr. Davis ordered a cervical MRI
and EMG14 conduction study, changed Kelsey’s pain medications, recommended
a TENS15 unit, and directed Kelsey to continue with physical therapy.16
Kelsey was seen once on September 24, 2009 by a shoulder and elbow
specialist, Kevin Setter. M.D. Dr. Setter, affiliated with “Upstate Medical
Center,” noted Kelsey’s subjective complaints and conducted a physical
examination. He observed positive Neer and Hawkins signs,17 as well as limited

13
Dr. Carr stated, “Her pain seems out of proportion to clinical and
MRI findings.... As she admits that she grabbed the railing with her right arm,
I would expect her to have most of her symptoms on the right.... [S]urgically I
do not see anything for us to do at this point.” (T. 350-51).
14

Electromyography (“EMG”) is a diagnostic procedure to assess the
health of muscles and the nerve cells that control them (motor neurons).
15
Transcutaneous electrical nerve stimulation (“TENS”): electrical
stimulation of the skin to relieve pain by interfering with the neural
transmission of signals from underlying pain receptors.
16

The cervical spine MRI revealed a small disc herniation posterior in
the midline at the C6-7 disc level. (T. 364)
The EMG was reported as an “ABNORMAL BILATERAL ARM STUDY.” (T. 367).
While there was borderline-to-mild evidence of right carpal tunnel syndrome and
left cubital tunnel syndrome, there was no evidence of a radial nerve
abnormality, pronator teres of anterior interosseus syndrome, radiculopathy or
myopathy. (Id.).
17
The Neer and Hawkins tests are common assessments of shoulder joint
impingement. Pain with either of these maneuvers suggests subacromial impingement
and/or rotator cuff tendonitis.

Page 11 of 24

range of motion. Regarding the latter, he opined that it was “likely due to pain”
because he found no evidence of adhesive capsulitis. His diagnosis was:
Partial thickness rotator cuff tear with impingement-like symptoms. She
also has myofascial pain associated with this.

(T. 369). Dr. Setter recommended continued physical therapy and a subacromial
injection. And, in a follow-up workers’ compensation initial report, he stated:
I do not believe she can return to normal activities. No lifting, pushing,
or pulling with the left upper extremity. . . . I would describe her
impairment at 25% secondary to the pain in the shoulder that she is
having.

(T. 370).
Kelsey underwent an “independent medical examination” in her workers’
compensation proceeding on October 12, 2009. Jalel Sadrieh, M.D., diagnosed
Kelsey as having myofascial pain involving primarily the left shoulder, cervical
spine and left arm, and rated her prognosis as “guarded.” (T. 382). Dr. Sadrieh
also made the following comments:
I feel that her clinical complaints considerably outweigh the objective
findings. . . .[B]ased on objective clinical findings, degree of disability is
mild; however there is subjective overlay. . . . I feel that she can return to
work light duty. . . There is no need for any further diagnostic testing or
any surgical procedures. . . .

(T. 382-83).
Commencing in November, 2009, and continuing through March, 2010,
Kelsey was evaluated by three physicians affiliated with Temple University’s
department of orthopaedic surgery and sports medicine.

She first saw

E. Balasubramanian, M.D., who, on November 10, 2009, found that Kelsey
exhibited “positive impingement sign, positive supraspinatus weakness and
positive cross-arm adduction test.” (T. 401). Dr. Balasubramanian assessed

Page 12 of 24

Kelsey as having “cuff tendinitis with impingement syndrome with the
possibility of a tear and the MRI proven cervical disk herniation.” (T. 402). Dr.
Balasubramanian prescribed Vicodin for pain relief and referred Kelsey to other
Temple doctors for cervical spine and shoulder evaluations. (T. 399).
Pursuant to Dr. Balasubramanian’s reference, Kelsey was seen on January
19, 2010, by Milo Sewards, M.D. (T. 397-98). Dr. Sewards assessed Kelsey as
suffering from neck and left upper extremity pain with MRI evidence of partial
thickness supraspinatus tear. (T. 397). He commented, however, that Kelsey’s
articular-sided partial-thickness tear did not explain the extent of her pain.
(T. 398).
The third Temple physician to evaluate Kelsey was F. Todd Wetzel, M.D.
He saw Kelsey once in February, 2010, and twice in March, 2010. On March 16,
2009, Dr. Wetzel diagnosed Kelsey as suffering from neck pain with left upper
extremity hypesthesia and left shoulder rotator cuff tendinosis. (T. 393). He did
not think her symptoms were related to her MRIs but were more likely related
to “some type of complex regional pain disorder or other nerve hypersensitivity
type of issue.” (Id.). On March 22, 2010, Dr. Wetzel suggested a “selective nerve
block on the left,” which Kelsey declined. (T. 391). Dr. Wetzel denoted Kelsey’s
workers’ compensation disability as “moderate to marked 66b%.” (T. 493).
On May 26, 2010, (more than 20 months prior to ALJ Fein’s decision),
Kelsey submitted to a forensic medical examination by Harris A. Ross, D.O., a
state agency consultative examiner for the Commonwealth of PA/Bureau of
Disability Determination. (T. 443-45). Dr. Ross evaluated all of Kelsey’s
physical and mental complaints, and based thereon, he completed a “Medical
Source Statement of Claimant’s Ability to Perform Work-Related Physical

Page 13 of 24

Activities.” (T. 447-48). Therein, he opined that Kelsey could lift and carry 10
pounds only occasionally, stand and walk only 1-2 hours, and sit less than 6
hours in an eight-hour work day. (T. 447). Further, she was limited in her
upper and lower extremity in her ability to push and pull.

(T. 447).

Additionally, Dr. Ross found her limited in her ability to reach. (T. 448). He also
found postural limitations, including only occasional bending, kneeling, and
stooping and never crouching, balancing, and climbing. (Id.).

Dr. Ross also

stated that she had environmental limitations that precluded work in poor
ventilation, heights, vibration, wetness, noise and humidity. (Id.).
Over a year later, Kelsey began a patient/treatment relationship with
C. Perry Cooke, M.D., an orthopedic surgeon affiliated with a practice named
“Syracuse Orthopedic Specialists.” Between January 31, 2011, and September
23, 2011, (four days before ALJ Fein’s evidentiary hearing), Dr. Cooke saw
Kelsey on ten occasions, performed two left shoulder surgical procedures,
referred Kelsey back to Dr. Davis for pain management, and to another entity
for two months of physical therapy.
Early in that treatment relationship, Dr. Cooke’s impression was similar
to that of prior treating physicians. A treatment note on March 29, 2011, stated:
Patient has diffuse weakness throughout the left upper extremity in all
motor groups which is 4 out of 5. She seems to be giving poor effort
throughout the exam and there is cogwheeling. . . . At this point, going
with information I have available, no surgery or injections would be
beneficial to this patient as she has degenerative discs and small disc
herniations which are not causing any neurologic deficit. Her physical
exam findings are certainly out of proportion to her MRI findings and I do
not think any further treatment would benefit her for her neck. . . .

(T. 543).

For workers’ compensation purposes, Dr. Cooke assessed the

percentage of her temporary impairment at only 25%. (Id.).
Page 14 of 24

Approximately one month later, Kelsey presented continuing complaints
regarding her left shoulder to Dr. Cooke. At that visit, Dr. Cooke observed that
Neer impingement, Hawkins impingement and Crossover18 impingement signs
were all positive with global loss of range of motion in her left shoulder and arm
(mild). Dr. Cooke scheduled arthoscopic surgery for April 27, 2011, and made
this entry in the clinical treatment record:
TOTAL DISABILITY – Beginning on date of surgery and then continuing
until further notice.

(T. 535).
Surgery proceeded as scheduled. Thereafter, Dr. Cooke modified his
diagnosis to “adhesive capsulitis; SLAP tear, type 1, Buford variant,
impingement and chronic sprain at the AC joint.” (T. 498). In a six-week followup visit, Dr. Cooke recorded Kelsey’s continued complaints of pain, noted
moderate limitation in her range of motion, and rated her “temporary
impairment” at 100%. (T. 524-27). He recommended aggressive range of motion
exercises for physical therapy. (T. 526-27).19
In a second follow-up appointment on July 11, 2011, Kelsey reported
continued pain. She stated she was still going to physical therapy, but could not
discern improvement. The pain experienced during physical therapy made her
physically sick, and she had difficulty sleeping due to pain. She requested a
referral to a pain clinic. (T. 520-22).

18

The Crossover impingement test puts stress on the acromioclavicular
joint. Sharp pain can indicate a sprained or torn ligament or arthritis.
19

The record reflects that Kelsey underwent two months of physical
therapy at Crouse Hospital/Liverpool Physical Therapy. (T. 500-15).

Page 15 of 24

In a third follow-up appointment two weeks later on July 28, 2011. Kelsey
reported continuing pain, stiffness and weakness. Dr. Cooke observed that her
range of motion limitation was unchanged, and he again assessed her temporary
impairment at 100%. (T. 517-19).20
In a fourth follow-up appointment on September 19, 2011, Dr. Cooke
recorded Kelsey’s continuing complaints of “dysfunction and/or pain in the LEFT
shoulder/arm.” (T. 550). Under “history of present illness,” Dr. Cooke recorded
the pain as being sharp in quality and moderate in severity. (Id.). Dr. Cooke
noted that “[i]n general, the progression of the problem seems to be getting
worse. Patient has limited and painful ROM.” (Id.). Upon physical examination,
he found that Kelsey had painful and limited range of motion, and the Neer,
Hawkins and Crossover impingement signs remained positive. He assessed
Kelsey as having “Adhesive Capsulitis Of Shoulder, 726.0; Pain Shoulder Joint,
719.41; Slap Lesion, 840.7; Surgical Aftercare Following Surgery of
Musculoskeletal System, V58.78; Syndrome H Impingement, Shoulder, 726.2.”
(T. 552). He recommended a second surgical procedure: manipulation of left
shoulder. (T. 553).
On September 23, 2011, Dr. Cooke performed a second surgical procedure,
a “manipulation,” under general anesthesia. Dr. Cooke recorded the following:

20
Upon referral from Dr. Cooke, Dr. Rina C. Davis with New York Spine
& Wellness saw Kelsey twice in September, 2011. At the first visit on September
2, Dr. Davis prescribed medication, sought authorization for nerve conduction
studies and “a variance for TENS unit.” (T. 565). At the second visit, she
added Voltaren gel to Kelsey’s medications and recommended “selected cervical
transforaminal nerve root blocks targeting the left C5 and C6 level with IV
conscious sedation and fluorscopy.” (T. 562). Dr. Davis also assessed Kelsey’s
temporary impairment at 100%. (T. 563).

As recommended by Dr. Davis, Kelsey underwent EMG testing at New York Spine
& Wellness on September 20, 2011. The report of that procedure indicated a
“normal study” of EMG and NCV findings. (T. 556)

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Procedure details: . . . EUA revealed a deficiency of 30 degrees of
abduction external rotation. This did respond to a general but firm
manipulation with palpable and at times audible lysis of adhesions,
leading eventually to full range of motion.

(T. 554). Based on that result, Dr. Cooke found “no instability prior to or
following the manipulation,” and his postoperative diagnosis was: “left shoulder
adhesive capsulitis status post decompression and distal clavicle excision.”
(T. 554).21
VII. Point I.A (Weighting of Treating Source Evidence)
With respect to Dr. Cooke, ALJ Fein stated:
Dr. Cooke opined that the claimant is totally disabled beginning on April
27, 2011 until further notice. I accord no weight to Dr. Cooke.

(T. 27).
A.

Contentions
Kelsey argues that ALJ Fein erred when affording no weight to evidence

from Dr. Cooke.

Kelsey argues that ALJ Fein misconstrued Dr. Cooke’s

preoperative treatment note referring to temporary disability attributable to
surgery itself as an opinion of permanent impairment-caused disability.
Invoking the “treating physician rule,” Kelsey then compares Dr. Kelsey’s
expertise, treatment relationship, post-surgery treatment notes and objective
clinical findings to regulatory factors prescribed for weighing treating source
opinion, and concludes that “it was improper for the ALJ to entirely discount the
opinion from Dr. Cooke, a man who was well-familiar with Plaintiff’s left

21

The record before ALJ Fein did not contain a medical source statement
from Dr. Cooke assessing Kelsey’s ability to perform work-related physical
activities following the second surgical procedure performed only 4 days before
the evidentiary hearing.

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shoulder impairment.” (Dkt. No. 10, pp. 12-14). She further contends that ALJ
Fein should have recontacted Dr. Cooke to have him render an opinion on how
Kelsey’s two surgeries affected her work-related abilities, and whether or not she
recovered from the second. (Id.).
The Commissioner’s brief responds that the “treating physician rule” does
not extend to ultimate-issue opinions of disability. The Commissioner next
argues that ALJ Fein’s decision explained the consideration he gave to Dr.
Cooke’s opinion, and provided good reasons for rejecting it. The Commissioner
further argues that the record lacks objective medical evidence to support a
finding of total disability. Finally, the Commissioner argues that ALJ Fein had
no duty to recontact Dr. Cooke for clarification because evidence in hand was
adequate to determine whether Kelsey was disabled.
B.

Discussion
The court concludes that these litigants inadvertently have debated a “red

herring,” i.e., a mostly irrelevant topic tending to divert attention from the
central issue and induce false forensic conclusions. Viewed in proper context,
Dr. Cooke’s “total disability” opinion clearly was situational, relating solely to
foreseeable and temporary effects of imminent surgery. It was not intended as
an expression of permanent and total impairment-caused disability as
understood in the social security arena, but rather as a restriction from physical
activities during recuperation and until the degree of success of invasive surgery
could be ascertained. For present judicial-review purposes, therefore, it is
pointless to weigh the competing arguments summarized above with respect to
Dr. Cooke’s narrowly-centered statement that Kelsey was totally disabled “until
further notice.” A much more relevant and pressing issue, which both parties

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recognize but treat almost summarily, is whether the record was adequately
developed for ALJ Fein to make a fully-informed residual functional capacity
finding.
Neither Dr. Cooke nor any other medical source expressed an opinion
regarding Kelsey’s capacity for engaging in ordinary physical functions typically
associated with work activity following her two shoulder surgeries. The only
medical source statement assessing Kelsey’s ability to perform work-related
activities in the social security context (as opposed to workers’ compensation)
was provided by a state agency consultative examiner, Harris A. Ross, D.O., well
before Kelsey even began a patient relationship with the treating orthopedic
surgeon, Dr. Cooke, and almost a year prior to her first surgery. Given the
protracted course of Kelsey’s treatment and her persistent complaints after
conventional medications, conservative trials and two surgical procedures, Dr.
Ross’s opinion was stale.

And, to further complicate matters, ALJ Fein

concluded in any event that Dr. Ross’s opinions merited little weight.22
None of the treating specialists who saw Kelsey prior to Dr. Ross’s
consultative examination provided medical source statements assessing Kelsey’s
ability to perform work-related activities in the social security context. Some
(Dr. Wolf, Dr. Carr and Dr. Setter) released Kelsey to return to light duty with
22

ALJ Fein rejected Dr. Ross’s opinions regarding Kelsey’s capacities
for lifting, carrying, standing, walking, postural and environmental limitations,
etc. on the basis that Dr. Ross did not perform a physical examination. ALJ Fein
also discounted Dr. Ross’s opinions because the limitations opined did not
correlate to Kelsey’s alleged impairments, and because he viewed the opinions as
“not supported by the objective medical evidence and are more restrictive than
the residual functional capacity contained herein.” (T. 28).
Kelsey argues, and the Commissioner concedes, that ALJ Fein’s impression
that Dr. Ross “did not perform a physical examination on the claimant” was
erroneous. Kelsey further argues that ALJ Fein erroneously was “playing doctor”
when opining that limitations opined by Dr. Ross “do not correlate to the
impairments alleged by the claimant.”

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restrictions for workers’ compensation purposes. None provided a function-byfunction assessment of the type required for assessing residual functional
capacity. And, for reasons articulated above, that slim evidence was even more
distant in time than Dr. Ross’s stale consultative examination findings.
The mere fact that a new surgery intervenes between a consultative
examiner’s report and an evidentiary hearing does not automatically necessitate
further record development in every case. Here, however, ALJ Fein was bereft
of any medical source opinion that reasonably might be viewed as a competent
assessment of the extent of Kelsey’s current physical capabilities at the time of
the evidentiary hearing. Reliance on early findings was patently unreasonable
because those findings were temporally stale and substantively superseded by
later objective findings by Dr. Cooke. The court concludes, therefore, that ALJ
Fein erred in not developing a more comprehensive record before making a
residual functional capacity finding.
Facially, this was a classic example of a case for recontacting a treating
medical source for a current social security function-by-function assessment.
Since Dr. Cooke treated Kelsey most recently and for the longest period, he
logically would be most able to provide a detailed, longitudinal picture of
Kelsey’s medical impairments, and best positioned to bring a unique perspective
to the medical evidence unobtainable from objective medical findings alone or
reports of individual examinations by consultative examiners.
possessed orthopedic expertise and personal knowledge.

Dr. Cooke

In addition to

performing two surgeries on Kelsey’s left shoulder (T. 489-99, 554), he treated
Kelsey ten times (including 2 surgical procedures) from January 2011 through
September 2011. (T. 516-39, 550-53). He was most familiar with her shoulder
impairments and how they affected her on a regular basis. His treatment notes
Page 20 of 24

reflect that, after the first surgery, she still had signs of positive Neer, Hawkins
and Crossover impingement, as well as tenderness to palpitation and decreased
range of motion with her left shoulder and arm, which is what ultimately led Dr.
Cooke recommended additional shoulder surgery. He was uniquely positioned
to assess Kelsey’s physical capacities and limitations following the second
surgical procedure, but was not asked to do so.
If ALJ Fein was uncomfortable about recontacting Dr. Cooke, he had other
options for developing an adequate record. He could have referred Kelsey back
to Dr. Ross or an entirely different physician for a fresh consultative
examination and updated medical source statement. He could have tendered
Kelsey’s entire medical records to a state agency nonexamining medical
consultant for a current assessment of Kelsey’s abilities to perform work-related
physical activities based on the longitudinal medical record.
ALJ Fein elected to pursue none of these options. His residual functional
capacity assessment, therefore, was essentially based on lay impressions of
Kelsey’s current capacity for work.

In so doing, ALJ Fein erroneously

substituted his own judgment for competent medical opinion.23 The court,
therefore, must reverse and remand for further development of the record.

23

Absent professional medical opinion, Dr. Cooke’s findings following
the second surgical procedure and the “normal study” EMG and NCV findings at New
York Spine & Surgery on September 20, 2011, do not necessarily support ALJ Fein’s
assessment of current residual functional capacity.
The fact that Dr. Cooke could, “with general but firm manipulation”
eventually achieve a full range of motion while Kelsey was under general
anesthesia in a hospital surgical suite, but, even then, only “with palpable and
. . . audible lysis” does not provide evidence sufficient for a reasonable mind
to accept of what a fully-conscious Kelsey could manage in the workplace without
experiencing debilitating pain.
Similarly, normal EMG and NCV findings may rule out certain sources of
debilitating pain, but professional medical opinion is necessary to inform an
administrative adjudicator or reviewing court as to whether other sources may yet
persist, e.g., what Dr. Wetzel cautiously described as “some type of complex
regional pain disorder or other nerve hypersensitivity type of issue.” (T. 393).

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VIII. Point 1.C (Inconsistent Residual Functional Capacity Finding)
Irrespective of an inadequately developed record, another deficiency in
ALJ Fein’s residual functional capacity assessment would warrant remand. ALJ
Fein purportedly accorded “great weight” to very early findings by Ivan Wolf,
M.D., Daniel Carr, M.D., and Kevin Setter, M.D., of no objective evidence of
serious shoulder injury. In each instance, ALJ Fein stated that their “opinions”
were consistent with the substantial weight of the medical evidence.24 (T. 26).
As reported earlier, all three doctors evaluated Kelsey early-on, and
released her to return to light work. They all imposed restrictions, however,
prohibiting her from lifting overhead with her left arm. Dr. Carr and Dr. Setter
imposed additional restrictions precluding Kelsey from performing any pushing
or pulling with her left arm. ALJ Fein, however, included no overhead lifting
limitation in his articulation of Kelsey’s residual functional capacity, and he
further found that Kelsey retained limited ability to push and/or pull with her
left upper extremity. (T. 25).
Kelsey’s brief cites the court to the Commissioner’s regulation, 20 C.F.R.
§ 405.370, that requires administrative law judges to prepare written decisions
explaining in clear and understandable language specific reasons for their
decisions. Kelsey also cites an interpretive ruling, SSR 96-8p, stating that when
a residual functional capacity assessment conflicts with an opinion from a
medical source, an administrative adjudicator must explain why the opinion was
not adopted. Kelsey then argues that ALJ Fein erred when deciding to give
“great weight” to “opinions” of Drs. Wolf, Carr and Setter, yet not adopting all
their limitations or explaining why they were not.

24

ALJ Fein improperly conflated these physicians’ lack of objective
findings as their opinions of Kelsey's physical capacities for ordinary work
activities.

Page 22 of 24

The Commissioner’s brief responds that omission of these limitations is
of no consequence because they were not inconsistent with ability to perform
sedentary work. The Commissioner cites another ruling, SSR 96-9p wherein the
Commissioner has taken administrative notice of the fact that limitations or
restrictions on one’s ability to push or pull generally have little effect on the
occupational base for unskilled sedentary work. The Commissioner further
argues that inability to reach overhead with a non-dominant arm also would not
significantly affect that occupational base since Kelsey still retains full use of her
right, dominant arm up to the sedentary lifting restriction.
The court accepts the Commissioner’s argument that SSR 96-9p
constitutes substantial evidence supporting a finding that the occupational base
for sedentary unskilled work is not significantly eroded by limitations on
physical capacity to push or pull. Consequently, ALJ Fein’s omission of such
limitations in articulating Kelsey’s residual functional capacity was, at best,
harmless error.
The court further finds intrinsic appeal to the Commissioner’s argument
that a limitation against overhead reaching would not significantly erode the
unskilled sedentary occupational base for persons who retain full use of their
dominant extremities. The problem, however, is that the argument is ipse dixit.
The Commissioner’s brief cites no authority or evidentiary source for this
assertion. Thus, the court has no way to know whether, absent the omission,
ALJ Fein could still have relied upon the Medical-Vocational Guidelines to find
that Kelsey could perform alternative jobs that exist in significant numbers in
the national economy, or whether, instead, vocational expert testimony was
necessary to determine how this additional limitation would have eroded
Kelsey’s potential occupational base. Under this circumstance, the court cannot
conclude that ALJ Fein’s failure to include an overhead lifting limitation – as

Page 23 of 24

opined by all three medical sources to whom ALJ Fein afforded great weight –
without articulating a good reason for the omission was harmless error.
IX. Disposition
For reasons stated herein, the Commissioner’s decision will be
REVERSED and REMANDED, pursuant to 42 U.S.C. § 405(g), sentence four, for
further proceedings.
Hello This is a Test

Signed on the

23

day of

January

2015.

Earl S. Hines
United States Magistrate Judge

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