Crowley Jr. v. Colvin

Filing 21

MEMORANDUM & ORDER: re: 16 Report and Recommendations. For the foregoing reasons, the R & R is adopted in part and rejected in part, and the matter is remanded to the commissioner for further administrative proceedings consistent with this memorandum and order. The Clerk of Court is directed to enter judgment. This resolves Dkt. Nos. 8, 12. (Signed by Judge Alison J. Nathan on 9/15/2014) (djc)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC#:

·--...,.--.---

DATE FILED; SEP

1 5 2fil4

William Edward Crowley Jr.,
Plaintiff,
13-cv-1723 (AJN) (RLE)

-vMEMORANDUM &
ORDER

Carolyn W. Colvin,
Acting Commissioner of Social Security,
Defendant.

ALISON J. NATHAN, District Judge:
Plaintiff William Crowley has commenced this action under the Social Security Act,
challenging the final decision of the Commissioner of Social Security ("Commissioner") denying
his claim for social security disability benefits. On July 15, 2013, the Commissioner moved for
judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure,
requesting that the Court affirm the decision of the Commissioner and dismiss the complaint.
Dkt. No. 8. On August 14, 2013, Plaintiff cross-moved for judgment on the pleadings,
requesting that the Court reverse the Commissioner's denial of his claim for benefits, or, in the
alternative, remand for a new hearing. Dkt. No. 12.
On March 24, 2014, the Honorable Ronald E. Ellis, United States Magistrate Judge,
issued a report and recommendation ("R & R") recommending that the Court grant the motion of
the Commissioner and deny the motion of the Plaintiff. Dkt. No.16. Plaintiff timely objected to
the R & R, raising many of the same arguments as he did in his original motion. Dkt. No. 17.

1

This order assumes familiarity with the facts of the case, which are laid on in detail in the
R & R. Unless otherwise noted, they are incorporated by reference herein. Having reviewed de
nova the Administrative Record, the R & R, and the briefing on Plaintiff's Objections, the Court

adopts in part and rejects in part the R & R, 1 and remands the case for further administrative
proceedings.
I.

Standard of Review

A district court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(C). When a party
properly objects to the magistrate's proposed findings and recommendations, a district court
must "make a de novo determination of those portions of the report or specified proposed
findings or recommendations." Id.
In order to merit de novo review, a party's objections must be specific rather than
conclusory or general. See Watson v. Geithner, No. 11-cv-9527 (AJN) (HBP), 2013 WL
5441748, at *2 (S.D.N.Y. Sept. 27, 2013) ("[A] district judge may review for clear error any
portions of a magistrate's recommendations to which only 'conclusory or general' objections are
made.") (citing Dixon v. McGinnis, No. 06-cv-39 (RJS), 2012 WL 6621728, at *3 (S.D.N.Y.
Dec. 19, 2012)). The objections must, furthermore, have been raised before the magistrate judge,
for "a party waives any arguments not presented to the magistrate judge." Id. (citing Tarafa v.
Artus, No. 10-cv-3879 (AJN) (HBP), 2013 WL 3789089, at *2 (S.D.N.Y. July 18, 2013)). While

courts in this district sometimes state that objections that "simply reiterate[] the original

1

The Court has found no clear error in the portions of the R & R to which no objections have been made.

2

arguments" merit only clear error review, see, e.g., Jones v. Astrue, No. 09-cv-5577 (DAB),
2012 WL 4473258, at *1 (S.D.N.Y. Sept. 8, 2012), this rule lacks support in either 28 U.S.C.
§ 636(b)(l)(C) and Rule 72(b)(2), and is, moreover, at odds with the rule regarding waiver, see

Watson, 2013 WL 5441748, at *2.
In this case, Plaintiff timely makes four specific objections to the R & R, all of which
were presented to the magistrate judge in his motion for judgment on the pleadings.
Accordingly, the Court will review the portions of the R & R to which Plaintiff objects de novo.

II.

Discussion
A. LegalStandard

When reviewing a decision of the Commissioner, a court may "enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision ... , with
or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The reviewing court "is
limited to determining whether the [Commissioner's] conclusions were supported by substantial
evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)). "When
there are gaps in the administrative record or the ALJ has applied an improper legal standard,"
remand to the Commissioner for further development of the evidence may be appropriate. Pratts

v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

B. The ALJ Failed to Properly Evaluate Medical Opinion Evidence
Plaintiff objects that, contrary to the conclusion reached by the R & R, "Administrative
Law Judge Mark Hecht (the "ALJ'') clearly failed to follow the treating physician rule." Pl.
Mem. 2. The Court agrees.

3

Under the treating physician rule, "[t]he opinion of a treating physician on the nature or
severity of a claimant's impairments is binding if it is supported by medical evidence and not
contradicted by substantial evidence in the record." Selian, 708 F .3d at 418 (citing Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008); Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2d
Cir. 2003); 20 C.F.R. § 404.1527(c)(2)). The rule imposes upon the ALJ "a higher duty of
explanation when determining the weight that must be given to a treating source's opinion," and
"[f]ailure to properly apply [the rule] ... constitutes legal error." Rolon v. Commissioner of

Social Sec., 994 F. Supp. 2d 496, 506 (S.D.N.Y. 2014). In order to disregard or override the
opinion of a treating physician, "the ALJ must explicitly consider, inter alia: (1) the frequency,
length, nature, and extent of the treatment; (2) the amount of medical evidence supporting the
opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether
the physician is a specialist." Rolon, 994 F. Supp. 2d at 507 (quoting Selian, 708 F .3d at 418).
The ALJ failed to apply correctly the treating physician rule when he chose to "give little
weight to Dr. Benezra's opinions regarding Plaintiff's abilities "to maintain concentration for
extended periods and complete a normal workweek without interruption," as well as Plaintiff's
adaptation and social interaction skills. See R. 31. 2 Most significantly, the ALJ failed to

2

Dr. Benezra has repeatedly expressed the opinion that Plaintiff is unable to work due to his panic attacks and
depression. See R. 206 (stating that Plaintiff is "not able to work at all"); R. 368 (stating that Plaintiff"has had
[panic disorder and depressive disorder] since September 2006, and hasn't been able to work since that date"); R.
375 (indicating that Plaintiff is "[i]ncapable of even 'low stress'" work). As a result of these conditions, Dr.
Benezra indicated that Plaintiff is markedly limited in his ability to "maintain attention and concentration for
extended periods," "complete a normal workweek without interruptions from psychologically based symptoms and
perform at a consistent pace without an unreasonable number and length of rest periods." R. 373-74; see also R. 372
(indicating that Plaintiff experienced "panic attacks - on a daily basis"); R. 204 (stating that Plaintiff "has a long
history of panic disorder" and "was out on disability on several occasions for an extended period of time" when he
worked); R. 207 (stating that Plaintiffs "anxiety attacks interfere with concentration"). Dr. Benezra has also opined
that Plaintiff was markedly limited in his "ability to respond appropriately to changes in work setting," and that he
was moderately limited across a range of social interaction skills, including the "ability to interact appropriately with

4

expressly consider that Dr. Benezra has been treating Plaintiff for over a decade-including
weekly or biweekly therapy sessions-and that, as a board-certified psychiatrist, he is a specialist
in his field. See R. 51-52, 56. Both these factors are among those that the ALJ must give express
consideration in order to justify overriding the opinion of a treating physician. See Selian, 708
F.3d at 418 (enumerating these as factors "that the ALJ must explicitly consider" to justify
overriding the opinion of the treating physician) (citing Burgess, 537 F.3d at 129). Furthermore,
both weigh strongly against overriding Dr. Benezra's opinion in this case. See 20 C.F.R.
§ 404.1527(c)(2)(i) ("Generally, the longer a treating source has treated you and the more times
you have been seen by a treating source, the more weight we will give to the source's medical
opinion.");§ 404.1527(c)(5) ("We generally give more weight to the opinion of a specialist
about medical issues related to his or her area of specialty than to the opinion of a source who is
not a specialist."). This failure to "consider the required factors [] constitutes legal error" and
requires remand. Rolon, 994 F. Supp. 2d at 506.
The Court further finds that the ALJ failed to provide an adequate reason for rejecting Dr.
Benezra's opinions regarding the severity of Plaintiff's impairments. The ALJ misconstrued the
record when he asserted that Dr. Benezra's opinions were unsupported by "clinical records, by
Dr. Benezra, or any other psychiatrist." R. 31. To the contrary, Dr. Benezra's opinions
regarding Plaintiff's limited ability to concentrate or complete a normal workweek are supported
by Dr. Benezra' s observations that Plaintiff "stays home most of the day," has "anxiety attacks
[which] interfere with concentration," and was "was out on disability on several occasions for an

the general public," the "ability to ask simple questions or request assistance," and "[t]he ability to accept
instructions and respond appropriately to criticism from supervisors." R. 374.

5

extended period of time" when he did work, R. 206-07; as well as consulting physician Haruyo
Fujiwaki's statement that Plaintiff reported "panic attacks on a daily basis" that could be
triggered by "[a]nything," and that Plaintiffs ability to maintain attention and concentration and
follow a regular schedule were somewhat limited by his anxiety, see R. 211-13. Cf Selian, 708
F .3 d at 418-19 (finding that ALJ erred by misconstruing record in order to override treating
physician's opinion and relying too heavily on the opinion of another physician who had
"performed only one consultative examination").
Nor is the ALJ' s disregard of Dr. Benezra' s opinions justified by the alleged
inconsistencies in his reports. The ALJ appears to discount Dr. Benezra's opinions regarding the
severity of Plaintiffs panic disorder and their impact on his ability to work because Plaintiffs
"mental status examination findings ... were normal" in many respects, including understanding
and memory, social interaction, and adaptation. See R. 31; see also R & R 26 (asserting that Dr.
Benezra's assessment of the severity of Plaintiffs impairment was inconsistent with fact that an
early reported stated that Plaintiff was not suicidal had no "limitations with understanding,
memory, social interaction, or responding appropriately to changes in the work setting.").
However, these findings are not inconsistent with Dr. Benezra's opinion that Plaintiff is unable
to work due to his panic disorder and depression-an individual may, for instance,
simultaneously exhibit normal intelligence and suffer from debilitating panic attacks. Cf

Morales v. Barnhart, 218 F. Supp. 2d 450, 462 (S.D.N.Y. 2002) ("[A]bove average intelligence
and appropriate social performance ... do not negate-or even materially detract from-the
doctors' diagnoses of psychiatric impairment."). Accordingly, they do not justify the ALJ's
failure to assign controlling weight to that opinion in this case.

6

Moreover, when "a physician's report is believed to insufficiently explained, lacking in
support, or inconsistent with physician's other reports, the ALJ must seek clarification and
additional information from the physician, as needed, to fill any clear gaps before rejecting the
doctor's opinion." Jimenez v. Astrue, No. 12-cv-3477 (GWG), 2013 WL 4400533, at *11
(S.D.N.Y. Aug. 14, 2013) (citing Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 428
(S.D.N.Y. 2010); Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)). Thus, to the extent that
there were gaps or inconsistencies in the evidence underlying Dr. Benezra's opinions, such as the
difference between in Plaintiff's reported adaptation skills in Dr. Benezra' s December 2011 and
April 2012 reports, compare R. 207 with R. 374, the ALJ had an affirmative obligation to reach
out to Dr. Benezra in order to attempt to fill those gaps or reconcile those inconsistencies. See

id (citing Rogers v. Astrue, 895 F. Supp. 2d 541, 549 (S.D.N.Y. 2012)). That did not happen
here.
In summary, the ALJ overrode the opinions of Plaintiff's treating physician without
expressly considering mandatory factors such as the duration of the treatment relationship and
specialty of the physician. Furthermore, the ALJ's asserted reasons for discounting the treating
physician's relationship were inadequate, and the ALJ further failed in his duty to affirmatively
develop the evidence. For these reasons, the Court concludes that the ALJ failed to apply the
correct legal standard in determining the weight to assign Dr. Benezra's opinion as to the nature
and severity of Plaintiff's psychiatric impairments. On remand, the ALJ must properly apply the
treating physician rule.

7

C. New Evidence Must Be Considered on Remand
Plaintiff further objects that the magistrate judge erred in finding that new evidence
submitted by Plaintiff to the Appeals Council, i.e. a psychological evaluation conducted by Dr.
Ronald A. Sherman, Ph.D, and an October 22, 2012, report completed by Dr. Benezra, did not
warrant remand. See R & R 31. For the reasons set forth below, the Court agrees.
"A court may order that a case be remanded to the Commissioner to consider new
evidence '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."'
Patterson v. Colvin, -- F. Supp. 2d --, No. 13-cv-4386 (GWG), 2014 WL 2566071, at *15
(S.D.N.Y. June 6, 2014) (quoting 42 U.S.C. § 405(g)); accord. Lisa v. Sec'y of Health & Human
Servs., 940 F.2d 40, 43 (2d Cir. 1991). Because the evidence in question did not exist at the time
of the ALJ hearing, there is "no question that the evidence is 'new' and that 'good cause' existed
for [Plaintiffs] failure to submit this evidence to the ALJ." Pollard v. Halter, 377 F.3d 183, 193
(2d Cir. 2004). Thus, the only remaining question is whether the evidence is "material."
"New evidence is 'material' if it is both (1) 'relevant to the claimant's condition during
the time period for which benefits were denied' and (2) 'probative."' Pollard, 377 F.3d at 193
(quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)). There must further be "a
reasonable possibility that the new evidence would have influenced the [Commissioner] to
decide the claimant's application differently." Id. (alteration in original). Despite its subsequent
creation, the evidence at issue was relevant to the time period for which benefits were denied:
Dr. Sherman's report states that "[t]he onset of' Plaintiffs psychiatric system was January 2007,
R. 522; and Dr. Benezra's October 22, 2012, report likewise relates his assessment of Plaintiffs

8

condition during the relevant time period, see R. 537 ("He has been unable to work since at least
September 2006 when his symptoms first presented."). See Pollard, 377 F.3d at 193 (finding
that documents generated subsequent to relevant time period can nonetheless bear on a plaintiffs
claims). The evidence is also probative of Plaintiffs claims, as it relates to and provides support
for his alleged psychiatric impairments.
The Court further finds that the new evidence is sufficiently likely to make a difference in
the Commissioner's evaluation of the Plaintiffs claim to require remand. Most significantly, Dr.
Sherman's report provides substantial support for Plaintiffs claim and therefore has the potential
to alter the Commissioner's assessment of the weight of the evidence. See, e.g., R. 524 ("Mr.
Crowley, Jr. was totally disabled emotionally and unable to function in any job in any
capacity."). This is particularly true in light of the fact that Dr. Sherman's report corroborates
Dr. Benezra's opinions regarding the severity of Plaintiffs psychiatric impairments, which may
in turn affect the Commissioner's analysis under the treating physician rule. Dr. Benezra's
additional report is material for similar reasons. See, e.g., R. 538 ("[I]it is my medical opinion
that Mr. Crowley has been unable to perform any kind of competitive work on a sustained basis
since at least September 2006. His prognosis remains poor."). Accordingly, the Court agrees
with Plaintiff that this new evidence warrants remand and must be considered by the
Commissioner.

D. Medical-Vocational Guidelines and Credibility Determination
The Court does not reach Plaintiffs objections to the magistrate judge's rejection of
Plaintiffs arguments regarding the ALJ's use of the medical-vocational guidelines and the ALJ's
assessment of Plaintiffs credibility. See Pl. Mem. 10, 13. These objections do not concern the

9

legal standards used by the ALJ or the scope of the evidence considered, but rather the ALJ's
evaluation of the evidence in the record-which will necessarily be altered on remand by correct
application of the treating physician rule and the consideration of new evidence from Dr.
Sherman and Dr. Benezra. On remand, the ALJ should consider Plaintiff's arguments in light of
the newly developed record as a whole.
III.

Conclusion

For the foregoing reasons, the R & R is adopted in part and rejected in part, and the
matter is remanded to the commissioner for further administrative proceedings consistent with
this memorandum and order. The Clerk of Court is directed to enter judgment.
SO ORDERED.
This resolves Dkt. Nos. 8, 12.

~

Dated: September \
, 2014
New York, New York

United States District Judge

10