Cook v. Commissioner of Social Security
Filing
11
MEMORANDUM AND ORDER: We recognize that Cook's multiple sclerosis is a progressive disorder which may (or may already have) become a disability entitling her to benefits, as of some yet-to-be-determined date subsequent to June 22, 2007. However, the ALJ's conclusion that Cook was not under a disability, as defined in the Social security Act, from June 22, 2007 through September 8, 2009 was supported by substantial evidence in the record. For this reason, the final decision of the Commissioner to deny her application is affirmed. (Signed by Judge Naomi Reice Buchwald on 7/22/11) (laq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
THERESA A. COOK,
Plaintiff,
- against -
MEMORANDUM
AND
ORDER
COMMISSIONER OF SOCIAL SECURITY,
10 Civ. 3019 (NRB)
Defendant.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Theresa Cook brings this action pursuant to 42
U.S.C. § 405(g) challenging the final decision of defendant, the
Commissioner of Social Security, to deny her application for
disability insurance benefits. Plaintiff and defendant have both
moved for judgment on the pleadings, including the administrative
record,
pursuant
to
Fed.
R.
Civ.
P.
12(c).
For
the
reasons
discussed below, defendant’s motion is granted.
PROCEDURAL HISTORY
On August 28, 2008, Cook filed an application for disability
insurance
(Transcript
benefits
of
with
the
Administrative
Social
Record
Security
(“Tr.”)
Administration.
124.)
In
the
application, Cook stated that she had been unable to work due to
her disability since June 22, 2007. (Id.) On February 19, 2009,
defendant sent a “Notice of Disapproved Claim” to Cook, denying her
claim for benefits. (Tr. 62.) On April 15, 2009, Cook requested a
hearing before an Administrative Law Judge (“ALJ”) to review the
determination. (Tr. 66.) On August 19, 2009, Cook appeared with
counsel at a hearing before ALJ Michael A. Rodriguez. (Tr. 20.) On
September 8, 2009, Judge Rodriguez issued a decision finding that
Cook was not “under a disability, as defined in the Social Security
Act, from June 22, 2007 through the date of this decision.” (Tr.
17.) On September 23, 2009, Cook sought review of the ALJ’s
decision from the Appeals Council of the Office of Disability
Adjudication and Review. (Tr. 4.) The Appeals Council denied her
request for review on March 23, 2010. (Tr. 1.) Represented by
counsel, Cook filed her complaint in this Court on April 8, 2010.
BACKGROUND
Cook was born on June 12, 1977. (Tr. 61.) She has a Master’s
Degree in Social Work from Fordham University. (Tr. 25.) Beginning
in 2002, she worked at Manufacturers & Traders Bank (“M&T Bank”) as
a business associate and teller. (Tr. 27.) In June of 2007, she
began experiencing problems using her hands which made it difficult
to do her job. (Tr. 28.) On June 22, 2007, she took a medical leave
of absence and her employment was subsequently terminated. (Tr.
29.) Prior to working at the bank, Cook had worked as a camp
counselor during the summers from 1997 to 2000, and as a babysitter
from
2000
to
2001.
(Tr.
48-50.)
She
had
also
worked
as
a
receptionist for a school in 1999, and as a receptionist for a
docking company in 1996. (Tr. 144.)
Cook has multiple sclerosis. (Tr. 228.) At the time of her
application for benefits, her treating physician was Dr. Brian
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Apatoff at the Judith Jaffe Multiple Sclerosis Clinical Care &
Research Center, located at Weill Cornell Medical College. (Tr.
196.) A letter from Dr. Apatoff dated January 10, 2008 states:
Theresa Cook is a patient under my care for treatment of
multiple sclerosis, a neurologic disorder. Ms. Cook has
been on long term disability. (Indefinitely) I have
advised Ms. Cook, that it is important for her to avoid
physical overexertion and emotional distress, as these
factors can exacerbate her condition. If you have any
medical questions regarding this patient, please call me
at the above listed number. (Tr. 228.)
Dr.
Apatoff
was
never
contacted
by
the
Social
Security
Administration, and thus never completed a residual functional
capacity assessment of Cook. He appears to have been contacted by
plaintiff’s counsel only after the hearing before the ALJ took
place.
(Pl.’s
Ex.
A.)
An
administrator
named
I.
Davis
unsuccessfully attempted on three occasions to contact Dr. Apatoff
at the Jaffe Center in September and October of 2008. (Tr. 215.) On
October 15, 2008, Cook informed Davis that Dr. Apatoff no longer
worked at the Jaffe Center. (Tr. 166.) While Davis made no further
attempts to contact Dr. Apatoff, the Jaffe center provided Davis
with its records of Cook’s previous treatment at the center by Dr.
Apatoff. (Tr. 196-214.)
On February 11, 2009, Cook was examined by a consulting
neurologist, Dr. Kautilya Puri of North Disability Services in
Hartsdale, NY. The report prepared by Dr. Puri found Cook to be
normal and without limitation in every respect, except for “[m]ild
difficulty tandem walking.” (Tr. 225-227.)
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Judge Rodriguez reviewed both the Jaffe Center records and the
Puri report prior to the hearing and heard testimony from Cook and
from Victor Alberigi, a vocational expert. (Tr. 20-60.) Cook
testified that she had good days and bad days (Tr. 45-46.), that
she was unable to stand for long periods (Tr. 30.), that she had
trouble with her memory and focus (Tr. 31.), that she had hand
tremors and numbness throughout her body (Tr. 35-36.), that she had
difficulty writing legibly or performing fine manipulation (Tr.
40.), and that she tended to drag her right leg when walking (Tr.
43.). Cook also testified that she took a prescribed medication
called Rebif by injection every other day, and that she experienced
side effects including flu-like symptoms, tremors, fatigue, and
dizziness.
(Tr.
41.)
Alberigi
testified
that,
assuming
a
hypothetical employee could sit for up to six hours a day, stand or
walk for up to two hours total with the option to sit or stand at
will, lift or carry no more than ten pounds, perform occasional
fine manipulation, and could not climb stairs or ladders or crawl,
that person could perform a job similar to Cook’s prior position as
a receptionist. (Tr. 54.)
In his decision, Judge Rodriguez found that “the objective
documentary medical evidence demonstrates that the claimant has the
residual functional capacity to perform sedentary work.” (Tr. 14.)
Specifically, Rodriguez cited Dr. Puri’s examination report finding
that Cook’s gait and station were normal, that she needed no help
-4-
getting on and off the examining table, that her hand and finger
dexterity were intact, that her grip strength was 5/5 bilaterally,
that strength in her upper and lower extremities was normal, and
that only mild limitations to gait were observed. (Tr. 15.)
Rodriguez also noted that the Jaffe records showed the following:
in December 2006, Cook was doing well, tolerating her prescription
well, and reported no new symptoms (Id.); in April 2007, she
reported her right hand shaking and right foot dragging, and was
found to have right lower extremity strength of 4+/5 and trace
distal weakness involving the upper extremity, decreased vibration
in the left upper and lower extremity, and some difficulty with
heel and toe walking (Id.); in June 2007, Cook reported increased
hand tremors and difficulties tolerating heat and humidity (Id.);
in October 2007, Cook reported episodic fatigue and faintness when
exposed to heat and humidity (Id.); and in June 2008, Cook reported
continued sensitivity to heat and episodic fatigue, left upper
eyelid jumping and right hand shaking when performing fine motor
activities,
and
examination
revealed
a
right
upper
extremity
strength of 4+/5 and decreased vibration in the left upper and
lower extremity. (Tr. 16.)
Judge Rodriguez concluded that “the record fails to document
the claimant having any significant exacerbation of her symptoms
since
her
alleged
onset
date.”
(Id.)
He
also
considered
a
functional capacity questionnaire prepared by I. Davis, which found
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that “the claimant retains the residual functional capacity to
perform light work activity and that she possesses some occasional
postural limitations and that she must avoid exposure to extreme
heat.” (Id.) The ALJ found Davis’s assessment to be inconsistent
with both the objective medical evidence and Cook’s testimony,
“both of which show that the claimant possesses slightly greater
exertional
and
non-exertional
limitations,
yet
are
[sic]
not
disabling to the extent so as [sic] to preclude her from performing
her past relevant work.” (Id.) However, the ALJ also found that
Cook’s statements about “the intensity, persistence, and limiting
effects of [her] symptoms are not credible, to the extent they are
inconsistent
with
the
above
residual
functional
capacity
assessment.” (Id.) He accepted Alberigi’s testimiony as credible,
concluding that Cook met the description in the hypothetical he had
offered Alberigi, and thus that she could perform her past relevant
work as a receptionist. (Tr. 17.)
On June 14, 2010, more than nine months after the hearing, Dr.
Apatoff wrote an “Attending Physician Statement of Disability”
stating his opinion that Cook’s “condition has left her completely
and
permanently
disabled,
and
unable
to
perform
activities, as of July 1, 2007.” (Pl.’s Ex. A.)
DISCUSSION
I. Standard of Review
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any
work
The Social Security Act provides that a person is entitled to
disability benefits when he or she is unable to “engage in any
substantial
gainful
activity
by
reason
of
any
medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The scope of judicial review under the Act is limited
to determining whether the Commissioner's final decision is based
upon the correct legal standard and is supported by substantial
evidence. Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.
1998). Substantial evidence means “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971); Lamay v. Comm’r Of Soc. Sec., 562 F.3d 503, 507 (2d Cir.
2009). Because “it is up to the agency, and not th[e] court, to
weigh the conflicting evidence in the record,” Clark, 143 F.3d at
118, the Commissioner's decision must be upheld if there is
substantial evidence supporting it, even if substantial evidence
also supports the contrary result. Alston v. Sullivan, 904 F.2d
122, 126 (2d Cir. 1990); see also 42 U.S.C. § 405(g) (“The findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.”). A court may
affirm, modify or reverse the Commissioner's decision with or
without remanding the cause for a hearing. 42 U.S.C. § 405(g).
-7-
II. Five-Step Analysis
Social Security regulations establish a five-step analysis for
determining whether a claimant is eligible for disability benefits.
See 20 C.F.R. § 404.1520(a)(4). The first step is to determine
whether the claimant is engaged in substantial gainful activity. If
so,
then
she
will
404.1520(a)(4)(i).
she
has
a
be
found
“not
disabled.”
20
C.F.R.
§
If not, the second step is to determine whether
“severe
impairment”
that
significantly
limits
her
physical or mental ability to perform basic work activities and is
expected
to
last
404.1520(a)(4)(ii),
at
least
404.1509.
twelve
If
the
months.
claimant
20
has
C.F.R.
a
§§
severe
impairment, the third step is to determine, based solely on the
medical evidence, whether the impairment meets or equals any of
those listed in 20 C.F.R. § 404, Subpt. P. App. 1 (“Appendix 1”).
If so, disability is presumed. 20 C.F.R. § 404.1520(a)(4)(iii). If
not, the fourth step is to determine whether the claimant is
capable
of
performing
her
past
relevant
work.
20
C.F.R.
§
404.1520(a)(4)(iv).
The
step
four
determination
is
made
by
assessing
the
claimant's residual functional capacity (“RFC”), which is defined
as the most an individual can still do, taking into account the
effects of her physical and mental limitations on her ability to
perform work-related tasks. 20 C.F.R. § 404.1545. If, given her
RFC, the claimant is unable to perform her previous work, the fifth
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and final step is to determine whether there is other work in the
national economy that the claimant is able to perform. 20 C.F.R. §
404.1520(a)(5)(v). For each of the first four steps, the claimant
bears the burden of proof. DeChirico v. Callahan, 134 F.3d 1177,
1180 (2d Cir. 1998). The Commissioner bears the burden on the fifth
step. Id.
III. The ALJ’s Findings
At steps one and two, the ALJ found that Cook had not engaged
in substantial gainful activity since June 22, 2007 and that she
had multiple sclerosis. (Tr. 13.) At step three, the ALJ found that
Cook’s condition did not meet or equal an impairment listed in
Appendix I. (Id.) At step four, the ALJ considered Dr. Puri’s
examination report, the Jaffe Center records containing treatment
notes by Dr. Apatoff, and Cook’s testimony to find that Cook
remained able to sit for up to six hours a day, stand and walk for
up to two hours a day, lift and carry objects weighing up to ten
pounds, perform frequent reaching and occasional fine manipulation,
but that she could not climb ropes, ladders, scaffolds, stairs, or
ramps,
and
could
not
crawl.
(Tr.
16-17.)
The
ALJ
posed
a
hypothetical with these conditions to Mr. Alberigi, and accepted
the testimony as credible that Cook’s past work as a receptionist
fell within these limitations. (Tr. 17.)
Cook’s complaint presents what are essentially two separate
challenges
to
the
ALJ’s
findings.
-9-
We
consider
Cook’s
second
challenge first, because it arises first under the five-step
analysis. The challenge is that, at step three, the ALJ erred in
finding that Cook’s impairment did not meet or equal the criteria
for multiple sclerosis found in listing 11.09A of Appendix I.
Listing 11.09A refers to criteria found in 11.04B, requiring a
claimant
in
Cook’s
circumstances
to
show
“significant
and
persistent disorganization of motor function in two extremities,
resulting
in
sustained
disturbance
of
gross
and
dexterous
movements, or gait and station” in order to be deemed disabled.
Cook argues that the tremors in her right hand and the dragging of
her right foot meet this standard.
We
do
not
agree.
Although
both
of
these
symptoms
were
described in Dr. Apatoff’s treatment notes from the Jaffe center,
neither symptom was described as persistent nor were their effects
sustained. To the contrary, Dr. Apatoff described Cook’s right
upper extremity tremor and paresis as minor (Tr. 196.), and both
Dr. Puri and Dr. Apatoff observed that Cook’s gait and station were
normal (Id. at 196, 226.) Furthermore, Cook’s own testimony about
dragging her foot suggests that it was not a significant or
persistent disorganization of motor function, but only that it
required her to put forth more effort in concentrating when walking
or using stairs. (Tr. 43.) Thus, we find that the record contained
substantial evidence for the ALJ’s conclusion that Cook’s condition
did not meet the criteria of listing 11.09A in Appendix I.
-10-
Cook’s remaining challenge concerns the absence from the
record of an RFC assessment by her treating physician, Dr. Apatoff.
Cook argues that the ALJ erred in failing to develop the record by
procuring
an
RFC
assessment
from
Dr.
Apatoff,
and
that
the
“treating physician rule” requires that Dr. Apatoff’s opinion,
expressed in a letter over nine months later, that Cook was
“completely and permanently disabled, as of July 1, 2007,” should
now be given controlling weight. (Pl.’s Ex. A.)
First, we note that there was no objection by Cook’s counsel
at the hearing to the ALJ’s use of Dr. Apatoff’s treatment notes
from the Jaffe center in lieu of a full RFC assessment. (Tr. 21.)
Nor is there any reasonable excuse for counsel’s failure to procure
such an assessment himself from Dr. Apatoff prior to the hearing.
However, "[i]t is the rule in our circuit that the ALJ, unlike a
judge in a trial, must . . . affirmatively develop the record in
light of the essentially non-adversarial nature of a benefits
proceeding . . . even when, as here, the claimant is represented by
counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal
citation
and
quotations
omitted).
This
rule
stems
from
the
Commissioner’s regulatory obligation to develop the claimant’s
complete medical history for at least the 12 months preceding the
month in which the claimant files for benefits. Id.; see 20 C.F.R.
§ 404.1512(d). The Commissioner must make “every reasonable effort”
-11-
to obtain medical reports from the claimant’s medical sources,
meaning that the Commissioner must:
make an initial request for evidence from your medical
source and, at any time between 10 and 20 calendar days
after the initial request, if the evidence has not been
received, we will make one followup request to obtain the
medical evidence necessary to make a determination. The
medical source will have a minimum of 10 calendar days
from the date of our followup request to reply, unless
our experience with that source indicates that a longer
period is advisable in a particular case. 20 C.F.R. §
404.1523(d)(1).
The regulations also expressly state that the absence of an RFC
assessment
from
a
treating
source
does
not
make
the
record
incomplete. See 20 C.F.R. 404.1513(b)(6).
In the instant case, the record reveals that in September and
October of 2008, an administrator requested records from Dr.
Apatoff on three occasions, using information supplied by Cook
indicating that the doctor worked at the Jaffe Center, and that the
clinic responded by turning over Dr. Apatoff’s treatment notes.
(Tr. 194, 215-16.) We find that these efforts satisfied the
Commissioner’s
obligations
under
20
C.F.R.
§
404.1512(d).
Furthermore, there was nothing improper about the ALJ’s careful and
detailed use of Dr. Apatoff’s treatment notes. To the contrary, the
ALJ used these records properly to discredit an RFC assessment by
I. Davis which found Cook to be capable of a higher level of work
activity than her condition would in fact allow. (Tr. 16.)
Second, the “treating physician rule” requires only that the
treating physician’s opinion be given controlling weight if it is
-12-
well-supported
by
medically
acceptable
techniques
and
not
inconsistent with other substantial evidence in the record. See 20
C.F.R. § 404.1527(d)(2). The general statement that Cook was
“completely and permanently disabled, as of July 1, 2007,” made in
a letter written nine months after the hearing, and inconsistent
with his contemporaneous notes as well as the opinion of another
doctor who examined Cook, does not fall within this rule. See 20
C.F.R. § 404.1527(3)(1) (“A statement by a medical source that you
are ‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.”). Thus, there was no violation of
the treating physician rule.
There is the separate question of whether Dr. Apatoff’s
belated letter supports a remand at this stage. 42 U.S.C. § 405(g)
provides, in pertinent part, that a court “may at any time order
additional evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence which
is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.”
We find that the letter does not meet this standard for two
reasons. First, as discussed, the letter does not inform in a
meaningful
way
an
assessment
of
Cook’s
condition
during
the
relevant time frame. Although the letter also described serious
symptoms Cook has subsequently developed, as of June 14, 2010 when
the letter was written, these are not relevant to the determination
-13-
f's June 14, 2010 letter is not new
we conclude that Dr.
a remand, and that no good cause
or material evidence warrant
in
been shown for the failure to offer the opinion
& Human Servs.,
't of
. See Lisa v. See'y of
letter in the earlier
940 F.2d 40, 45-46 (2d Cir. 1991)
(finding
physician stating cl
"was
unable to workf/ not material and no good cause shown for
to
ng letter from treat
of
same opinion earlier) .
CONCLUSION
We recognize that Cook's multiple sclerosis is a progress
disorder
entitli
which
may
(or
may
her to benefits,
subsequent to June 22,
al
have)
2007. However,
disabili
the ALJ's conclusion
fined in the Social security
Act, from June 22, 2007 through
8, 2009 was supported by
evidence in the record.
decision of
a
as of some yet-to-be-determined
Cook was not under a disability, as
substanti
become
For this reason,
Commissioner to deny her
the
f
ication is affirmed.
SO ORDERED.
Dated:
LQ,~
New
, New York
July 22, 2011
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
-14
Copies
the foregoing Order have been mail
to the following:
Plaintiff's Counsel
Barry I. We ss
Freedman, Wagner, Tabakman & Weiss
130 North Ma
Street, Suite 202
New
ty, NY 10956
Defendant's Counsel
E. Gura Jr.
Assistant
ted States Attorney
86 Chambers Street
New York, NY 10007
15
on this date
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