Cook v. Colvin

Filing 22

OPINION & ORDER re: 21 Report and Recommendation. On August 14, 2015, Magistrate Judge Ellis issued a Report and Recommendation recommending that plaintiff's motion for judgment on the pleadings be granted in part, and that the action be rem anded for further administrative proceedings. Objections to that Report and Recommendation were due 14 days after each party was served with a copy of the Report and Recommendation. Having received no objections and finding Judge Ellis' decisi on to be correct and appropriate, the court hereby adopts the Report and Recommendation. Plaintiff's motion for judgment on the pleadings is granted in part. The action is remanded for further administrative proceedings, consistent with the rationale and recommendation of Judge Ellis. The Clerk of Court is directed to close the case. (Signed by Judge Thomas P. Griesa on 9/2/2015) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------X

l

: ·,

'i
1

. ,~· ··~r· ,. ')NY
U~)l.- '·' vi •

'DOCUMENT

~~- ELECI'RONICALLY FILED
DOC#:
'J!?.~~ FILED: Cf I L

I:-::~

ANTHONY KEITH COOK,
Plaintiff,
against-

13cv1946 (TPG)
OPINION & ORDER

CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

--------------------------------------------X
On August 14, 2015, Magistrate Judge Ellis issued a Report and Recommendation
recommending that plaintiff's motion for judgment on the pleadings be granted in part, and that
the action be remanded for further administrative proceedings. Objections to that Report and
Recommendation were due 14 days after each party was served with a copy of the Report and
Recommendation. Having received no objections and finding Judge Ellis' decision to be correct
and appropriate, the court hereby adopts the Report and Recommendation. Plaintiff's motion for
judgment on the pleadings is granted in part.
The action is remanded for further administrative proceedings, consistent with the
rationale and recommendation of Judge Ellis. The Clerk of Court is directed to close the case.
SO ORDERED.
Dated:

New York, New York
September 1--, 2015

U.S. District Judge

.

·

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 1 of 31 .

\\ usDC SDNY .

\~~,_"'.., . yv
\ .m.EcrRONl~J.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

·, ooc #·.

~I

ANTHONY KEITH COOK,

F"an
~...,

\t .DATE f.rLED'- _3- J Lf- 16 ,.L:..··' .
.
REPORT AND
RECOMMENDATION

Plaintiff,
-against-

13-CV-1946 (TPG) (RLE)
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY :
Defendant.

.

-----------------------------------------41
TO THE HONORABLE THOMAS P. GRIESA, U.S.D.J.
I.

INTRODUCTION

Plaintiff Anthony Cook ("Cook") commenced this action under the Social Security Act
("Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), challenging the final decision ofthe Commissioner
of Social Security ("Commissioner") denying his claim for Social Security Disability ("SSD")
and Supplemental Security Income ("SSI") benefits for the period after August 6, 2009. (Doc.
No. 1.) The Commissioner found that Cook was disabled from August 1, 2008, through August
5, 2009, but that as of August 6, 2009, Cook had medically improved and was no longer
disabled. (Doc. No. 8 at 63.) Cook was found ineligible for SSD and SSI benefits from August
6, 2009, through April28, 2011, the date of the Administrative Law Judge's ("ALJ") decision.

(!d. at 73.) Cook seeks reversal of the part of the Commissioner's decision finding that he had
medically improved as of August 6, 2009, and was therefore ineligible for benefits after that
date. (Doc. No. 12 at 7.)
On April 1, 2014, Cook filed a motion for judgment on the pleadings. (Doc. No. 11) He

seeks a remand solely for calculation of benefits or, in the alternative, a remand for a new
hearing and decision. (Doc. No. 11; Doc. No. 12 at 17.) Cook argues that the ALJ erred by: (1)

.

j

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 2 of 31

finding Cook medically improved; (2) failing to follow the treating physician rule; (3) failing to
properly evaluate Cook's credibility; and (4) relying on the Medical-Vocational Guidelines ("the
Grids"). (ld. at 7, 12, 15.) The Commissioner filed a cross-motion for judgment on the pleadings
on August 6, 2014. (Doc. No. 19.)
For the reasons that follow, I recommend that Cook's motion be GRANTED IN PART
and that the case be REMANDED for further administrative proceedings.
II.
A.

BACKGROUND

Procedural History

Cook applied for SSD and SSI on July 5, and July 8, 2009, respectively, claiming
disability because of Human Immunodeficiency Virus (HIV) since August 1, 2008. (Doc. No. 8
at 124, 131.) On August 20, 2009, the Social Security Administration denied both applications.
(ld at 78.) On August 25, 2009, Cook requested an administrative hearing. (ld. at 86.) On
March 16, 2011, ALJ Robert C. Dorfheld an administrative hearing; Cook attended,
accompanied by a non-attorney representative. (Id. at 11.) The ALJ issued a partially favorable
decision dated April28, 2011, finding Cook disabled from August 1, 2008, the date of the onset
ofHIV, through August 5, 2009, the date ofhis consultative exam with Dr. Hamway. (ld at 63.)
The ALJ found, however, that after August 5, 2009, Cook had medically improved and was no
longer disabled. (!d.) On May 20, 2011, Cook requested review of the unfavorable portion of
the AU's decision. (Jd. at 52.) The Appeals Council denied Cook's request for review on
September 5, 2012, making the ALJ's decision the Commissioner's final decision. (ld at 5.)
Cook filed this action on March 22, 2013. (Doc. No. 1.)

2

case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 3 of 31

B.

ALJ Hearing
1.

Cook's Testimony at the Hearing

Anthony Cook was born on February 26, 1972, and was thirty-nine years old at the time
of the hearing. (Doc. No.8 at 15.) Cook resides in Manhattan, New York, with his girlfriend
and four children aged sixteen, fifteen, thirteen, and twelve. (!d. at 15-16.) After graduating
from high school he worked as a licensed security officer and fireguard for at least three different
organizations. (Id. at 17-19.)
In 2009, Cook was diagnosed with HIV and began taking anti-retroviral medication twice
daily. (Doc. No.8 at 24, 32.) As a side effect ofhis medication, he feels "a lot" of fatigue,
chronic diarrhea, vomiting, and chest pain and needs to sleep for four to six hours after taking
medications. (Id. at 32-33, 35-36.) Other side effects of medication include blurry vision and
inability to concentrate. (ld. at 27-28.) At the time of the hearing, Cook had gained "some
weight" and weighed 137 pounds. (ld. at 15.) His CD4 count 1 was 200 and his viralload 2 was
"under control." (ld. at 15-16.)
Because of his medication-induced fatigue, Cook spends most ofhis time at home but
cannot help his children with their homework assignments. (Doc. No.8 at 16.) Instead, his
children help him do laundry and shopping. (!d. at 32.) Moreover, Cook can walk five blocks if
he moves slowly and can climb only three flights of stairs without chest pains. (Id. at 16, 35.)
Cook's strength is not "where it used to be." (Doc. No.8 at 34.) As a result of his
condition, he can lift under 10 pounds "on a good day," but not on a bad day. (ld. at 23.) When
1

CD4 cells are immune system cells that HIV targets. The CD4 count is a barometer of immune system strength. A
CD4 count below 200 puts a person at risk for opportunistic infections. Johns Hopkins Medicine, Preventing
Opportunistic lrifections in HIVIA!DS, Health Library (Aug. 5, 2015),
http://www. hopkinsmedicine. org/healthlibrary/conditions/adu It/infectious_diseases/preventing_opportunistic_ infecti
ons in hivaids 134,98/.
2
T~ t;rm "vi~! load" refers to the amount ofHIV in a sample of blood. When the viral load is high, there is more
HIV, and the immune system is not fighting HJV as well. AJDS.gov, Viral Load (Aug. 5, 20 15),
http://www .aids.gov!h iv -aids-basics/just-diagnosed-with-hi v-aids/understand-your-test-resu lts/vira!-load!.

3

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 4 of 31

Cook was a security officer, he had to stand most of the time and carry more than ten pounds.
(!d. at 18.) He worked in security for one month in 2010, but "due to [his] ... medical status," he

often felt "sick on the job," had to "run to the bathroom" frequently, would "get nauseous," and
would "throw up." (ld. at 21.) Cook feels that the mixture of medications he takes creates
stomach complications that would make sedentary work difficult if he did not have access to
specific foods. (/d. at 36.) Otherwise, he would have to run "back and forth" between his post
and the bathroom. (!d. at 37.)

2.

Medical Evidence
a.

Dominick Bioh, M.D.: Treating Physician

Dr. Bioh has been Cook's treating physician since 2002. (Doc. No. 8-2 at 31.) Cook
visits Dr. Bioh every six to eight weeks. (Doc. No. 8-3 at 3.) By the hearing date, Dr. Bioh had
compiled treatment notes and had written letters summarizing Cook's health. (Doc. No. 8-2 at
31; Doc. No. 8-3.)
On August 28, 2008, Cook was experiencing gradual weight loss, general malaise and
fatigue, abdominal pain, and variable appetite. (Doc. No. 8-3 at 4.) Dr. Bioh diagnosed Cook
with abnormal weight loss. (!d.) He ordered laboratory tests to identify gastrointestinal diseases.
(!d.)

On September 19, 2008, Cook reported a mild upper respiratory infection, improved
malaise and fatigue symptoms, abdominal and dyspepsia symptoms, watery bowel movements,

4

case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 5 of 31

nausea and vomiting. (Doc. No. 8-3 at 5.) Dr. Bioh diagnosed Cook with GERD (acid reflux).

3

(ld.)
On December 31, 2008, Dr. Bioh observed fever symptoms including a sore throat and
4

cough producing sputum. (Doc. No. 8-3 at 6.) Dr. Bioh diagnosed Cook with pharyngitis and
GERD and prescribed Z-Pak and Nexium. (Jd.)
On February 17, 2009, Cook complained of sudden onset abdominal pain,
lightheadedness, fever, and watery stools. (Doc. No. 8-3 at 7.) Dr. Bioh diagnosed Cook with
GERD and continued prescribing Nexium. (!d.)
On April 21, 2009, Cook complained of a sore throat, difficulty swallowing, and pain
5

while eating. (Doc. No. 8-3 at 8.) Dr. Bioh diagnosed Cook with thrush and leukopenia and he
prescribed Diflucan. (Jd.) He also ordered a second HIV test "for confirmation." (Id.)
On May 15, 2009, Cook complained of poor appetite, variable weight, shortness of
breath, and palpitations. (Doc. No. 8-3 at 9.) He weighed 146 pounds with his clothes on. (ld.)
Dr. Bioh diagnosed Cook with leukopenia and GERD and called for more laboratory tests to
check Cook's T-cell count and viral load. (Jd.)
On May 2 I, 2009, Cook complained of poor appetite, chest pains, and diarrhea and
weighed 140 pounds. (Doc. No. 8-3 at 10.) Dr. Bioh diagnosed Cook with HIV/AIDS for the
first time. (Id.) He prescribed azithromycin. (/d.)
3

Gastroesophageal reflux disease (GERD) is a common condition in which the gastric contents move up into the
esophagus. The reflux becomes a disease when it causes frequent or severe symptoms or injury. Johns Hopkins
Medicine, Gastroesophageal Reflux Disease (GERD), Health Library (Aug. 5, 2015),
http://www. hopkinsmedicine. org/health library/ conditions/adu It/digestive_disorders/gastroesophageal_reflux_ d iseas
e_gerd _22,gastroesophagealrefl uxdi seasegerd/.
4
Pharyngitis is a throat infection causing inflammation. Viruses, including HlV, are the most common cause of
pharyngitis. Johns Hopkins Medicine, Pharyngitis and Tonsillitis, Health Library (Aug. 5, 2015),
http://www. hopkinsmed icine. org/hea lthlibraryI conditions/ad ult/resp iratory_disorders/pharyngitis_and_tons iIlitis_85,
p01320/.
5
A low white blood cell count, or leukopenia, is a decrease in disease-fighting cells (leukocytes) circulating in one's
blood. Mayo Clinic, Low White Blood Cell Count, Symptoms (Aug. 5, 20 15),
http://www. mayoc\ in ic.org/symptoms/low-white-blood-ce 11-count/basics/defin ition/sym-200506 15.

5

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 6 of 31

Cook visited Dr. Bioh on June 1, June 3, and June 10,2009. (Doc. No. 8-3 at 11-13.) At
these visits, Dr. Bioh diagnosed Cook with HIV, thrush (candidiasis), 6 and neutropenia. 7 (ld at
11-13.)
On July 8, 2009, Dr. Bioh completed Form SSA-4814-FS, "Medical Report on Adult
with Allegation of Human Immunodeficiency Virus (HIV) Infection." (Doc. No. 8-2 at 2.) Dr.
Bioh diagnosed Cook with HIV as confirmed by laboratory testing and reported candidiasis and
8

HIV wasting syndrome. (Id. at 3 .) Dr. Bioh also found blood-related abnormalities of anemia9
and granu1ocytopenia.

10

(ld. at 3.)

Cook visited Dr. Bioh on July 16, 2009, complaining of diarrhea for two days, watery
stools, chest pains, and variable appetite. (Doc. No. 8-3 at 14.) Dr. Bioh diagnosed Cook with
diarrhea, irritable bowel syndrome (IBS ), 11 and HIV. (!d.)

6
Thrush, or oral candidiasis, is a fungal infection that causes a thick white layer to form on the tongue or inner
cheeks. Johns Hopkins Medicine, H!VIAIDS and Skin Conditions, Health Library (Aug. 5, 20 15),
http://www.hopkinsmedicine.org/healthlibrary/conditions/adult/infectious_ diseases/hivaids _and_skin_conditions_13
4,100/.
7
Neutropenia is an abnormally low count of neutrophils, a type of white blood cell that helps fight off infections,
particularly those caused by bacteria and fungi. Mayo Clinic, Neutropenia (Low Neutrophil Count) (Aug. 5, 2015),
http://www.mayoclinic.org/symptoms/neutropenia!basics/definition/sym-20050854.
8
HIV wasting syndrome is a disease often marked by weight loss, ongoing fever, diarrhea, and malnutrition. Johns
Hopkins Medicine, Preventing Opportunistic lrifections in HIVIAIDS, Health Library (Aug. 5, 2015),
http://www .hopkinsmed icine .org/health Iibrary /conditions/adult/infectious_diseases/preventing_opportunistic _infecti
ons in hivaids 134,98/.
9
A;)'e~ia is a c-;:;mmon blood disorder that occurs when there are fewer red blood cells than normal, or there is a low
concentration of hemoglobin in the blood. Johns Hopkins Medicine, Overview ofAnemia, Health Library (Aug. 5,
2015),
http://www.hopkinsmedicine.org/health library/conditions/adult/hematology_and_blood_disorders/overview_of_ane
mia_85,p00078/.
10
Granulocytopenia is a marked decrease in the number of granulocytes. Granulocytes are a type of white blood cell
filled with microscopic granules that are little sacs containing enzymes that digest microorganisms.
MedicineNet.com, Definition of Granulocytopenia (Aug. 5, 20 15),
http://www .medicinenet.com/script/mainlart.asp?articlekey=881 7.
11
Irritable bowel syndrome is a common condition characterized by abdominal discomfort associated with altered
bowel movements. Johns Hopkins Medicine, Irritable Bowel Syndrome !BS, Health Library (Aug. 5, 2015),
http://www .hopkinsmedicine.org/healthlibrary/conditions/adu It/digestive_disorders/irritable_bowel_syndrome_ibs _
22,irritablebowelsyndromeibs/.

6

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 7 of 31

On July 21, 2009, Cook reported improved gastrointestinal symptoms, variable activity,
malaise and fatigue, and persistent insomnia. (Doc. No. 8-3 at 15.) Dr. Bioh diagnosed Cook
with HIV, insomnia, and dyspepsia. (ld.)
On August 12,2009, Cook had no new complaints. (Doc. No. 8-3 at 16.) Dr. Bioh
diagnosed edema 12 and synovitis. 13 Dr. Bioh ordered laboratory testing to check Cook's T-cell
count and viral load and noted that he would be monitoring Cook's weight. (Jd.)
In a letter dated September 24, 2009, Dr. Bioh testified that he diagnosed Cook with
HIV/AIDS in May 2009. (Doc. No. 8-2 at 31.) Cook's condition caused him to suffer severe
neutropenia, anemia, HIV wasting syndrome, and thrush. (/d.) He was also receiving treatment
for unrelated conditions: irritable bowel syndrome (IBS) and GERD. 14 (!d.) Dr. Bioh stated:
"Due to the unpredictable nature of his conditions, I believe that it would be difficult for Mr.
Cook to be gainfully employed due to his physical status as well as his imrnunocompromised
state." (/d.) He recommended twelve to eighteen months of uninterrupted care so that Cook
might work after that time, but was unable to project a speedy recovery time. (!d.)
On October 13, 2009, Cook reported intermittent chest pains, dysphagia, 15 and dyspepsia.
(Doc. No. 8-3 at 20.) Dr. Bioh diagnosed Cook with atypical chest pain and HIV. (ld.)

12

Edema is swelling caused by excess fluid trapped in one's body's tissues. Edema can affect any part of your body,
but it most commonly occurs in the hands, arms, feet, ankles and legs. Mayo Clinic, Edema, Diseases and
Conditions (Aug. 5, 20 15), http://www.mayoclinic.org/diseases-conditions/edema/basics/definition/con-20033037.
13
Synovitis refers to inflammation of the synovial membrane, the tissue that lines and protects the joint. Johns
Hopkins Medicine, Glossary- Bone Disorders, Health Library (Aug. 5, 2015),
http://www. ho pkinsmed icine.org/health IibraryI conditions/adult/bone_disorders/glossary_bone disorders 85,p00 I 19/.
14
Gastroesophag~al reflux disease (GERD) is a common condition in which the gastric contents move up into the
esophagus. The reflux becomes a disease when it causes frequent or severe symptoms or injury. Johns Hopkins
Medicine, Gastroesophageal Reflux Disease (GERD), Health Library (Aug. 5, 2015),
http:/ lwww .hopkinsmedici ne.org!healthli braryI conditions/adultld igesti ve _disorders/gastroesophageal _reflux_d iseas
e_gerd_ 22,gastroesophagealrefluxdiseasegerdl.
15
Dysphagia refers to problems with swallowing. Johns Hopkins Medicine, Dysphagia (Swallowing Disorders),
Health Library (Aug. 5, 2015),
http://www. hopkinsmedicine. org!health 1ibrary/cond itionsladu lt/oto laryngologyI dysphagia_ swallowing_disorders_2
2,dysphagia/.

7

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 8 of 31

On November 3, 2009, Cook complained of a persistent rash in his groin. (Doc. No. 8-3
at 22.) Dr. Bioh diagnosed Cook with HIV and dermatitis.

16

(ld)

On November 10, 2009, Cook had reported upper respiratory symptoms, nausea,
vomiting, and diarrhea. (Doc. No. 8-3 at 21.) Dr. Bioh diagnosed Cook with HIV and a viral
upper respiratory infection. (/d.)
On November 20, 2009, Dr. Bioh completed a "Multiple Impairment Questionnaire," a
standardized, non-SSA medical form. (Doc. No. 8-2 at 20.) He diagnosed Cook with HIV/AIDS
and gave a "fair to guarded" prognosis. (ld.) His clinical findings included aT-cell count of
less than ten, a viral load in excess of 200,000, positive HIV antibodies, abnormal weight loss,
and malaise and fatigue. (/d. at 20-21.) Dr. Bioh diagnosed Cook's primary symptoms as
"malaise/fatigue, poor appetite, nausea, abdominal pain," and a "depressed mood." (!d. at 21.)
Dr. Bioh observed low levels of pain and rated Cook's fatigue at nine out of ten: "severe." (Id. at
22.)
Dr. Bioh believed Cook was able to sit for eight hours in a day and stand or walk for one
hour total in an eight-hour workday so long as he could move around every thirty minutes and
not sit again for five minutes. (ld at 22-23.) . (Doc. No. 8-2 at 22.)

In addition, "hourly"

breaks often to fifteen minutes each were necessary. (Id at 25.) Dr. Bioh found that Cook had
minimal problems with handling, reaching, or manipulating. (ld. at 24.) He could frequently lift
five pounds and occasionally ten pounds, but nothing heavier. (!d. at 23.)
Cook's decreased immunity and resulting proneness to infection would last at least
twelve months and increase if he were placed in a competitive work environment. (!d. at 24-25.)
He would have to miss work more than three times a month, and his symptoms would interfere
16
Dermatitis is an inflammation ofthe skin. Johns Hopkins Medicine, Dermatitis, Health Library (Aug. 5, 2015),
http://www .hopkinsmedicine. orglhealthlibraryI conditions/adult/dermatology I dermatitis_8 5, p002 74/.

8

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 9 of 31

with his concentration. (ld. at 25-26.) He would be incapable of handling even low stress work
because of his mood and fatigue. (!d.) In addition, Cook would need a job requiring easy access
to a restroom for his gastrointestinal issues. (Id.)
On December 4, 2009, Cook reported rashes on his genitals and buttocks. (Doc. No. 8-3
at 23.) Dr. Bioh diagnosed Cook with HIV and GERD. (!d.) On January 5, 2010, Cook
complained of atypical chest pain, as well as diarrhea. (Jd. at 24.) Dr. Bioh diagnosed Cook
with dyspepsia and GERD. (/d.) On February 2, 2010, Cook complained of diarrhea and chest
palpitations.
On March 3, 2010, Dr. Bioh diagnosed Cook with HIV and GERD. (Doc. No. 8-3 at 26.)
On April 6, 2010, Dr. Bioh diagnosed Cook with groin furuncles 17 and carbuncles. 18 (!d. at 27.)
On June 8, 2010, Cook complained of swelling in his finger for the last several days. (/d. at 30.)
Dr. Bioh diagnosed paronychia 19 and HIV. (Jd.) He performed "drainage of purulent material"
on Cook's thumb. (/d.) On July 13,2010, Cook reported a rash. (!d. at 32.) Dr. Bioh diagnosed
Cook with dermatitis. (/d.) On September 7, 2010, Cook reported blurry vision and headaches.
(Doc. No. 8-3, at 33.)
In a second letter dated March 8, 2011, Dr. Bioh provided an update on Cook's health.
stating that Cook continued to experience HIV -related malaise, fatigue, and stomach problems.

17

A furuncle, or boil, is an infection affecting groups of hair follicles and nearby skin tissue. Staphylococcus au reus
is the most common bacteria to cause these infections. U.S. National Library of Medicine, Boils, Medical
Encyclopedia (Aug. 5, 20 15), http://www.nlm.nih.gov/medlineplus/ency/article/OO 14 74.htm.
18
Carbuncles are clusters of boils that are usually found on the back of the neck or thigh. Staphylococcus aureus is
the most common bacteria to cause these infections. Johns Hopkins Medicine, Folliculitis, Boils, and Carbuncles,
Health Library (Aug. 5, 20 15),
http://www .hopkinsmedicine.org/healthlibrary/conditions/adult/dermatology/follicul it is_boils_and_carbuncles_ 85,p
00285/.
19
Paronychia is a skin infection around a finger or toenail. Johns Hopkins Medicine, Glossary- Dermatology,
Health Library (Aug. 5, 2015),
http :1/www. hopkinsmedicine.org/healthlibrary/conditions/adult/dermatology/glossary_-_dermatology_ 85,?00288/.

9

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 10 of 31

(Doc. No. 8-3 at 3.) Dr. Bioh's prognosis "remain[ed] guarded;" he found Cook still "disabled"
and "unable to be gainfully employed" because of his persistent symptoms. (!d.)

b.

Brian Hamway, M.D.: SSA Consultative Examiner

Cook met with Dr. Ham way at the request of the Social Security Administration on
August 5, 2009. (Doc. No. 8-2 at 12.) Dr. Hamway noted that Cook was diagnosed "three
months ago" in May, 2009, and that Cook did not know his T-cell count or viral load. (/d.) He
further noted that Cook had no HIV -related hospitalizations. (!d.) Cook told Dr. Ham way that
he had thrush, diarrhea, weakness, and weight loss. (!d.) At the time, he was taking Kaletra,
Truvada, Dapsone, and Zithromax. (Jd.) Dr. Hamway weighed Cook at 133 pounds and wrote
that he was "thin." (!d. at 13.) He found his gait to be "mildly antalgic. " 20 (Id. at 13.) He found
full dexterity and no chest or heart abnormalities. (ld. at 14.) Dr. Hamway noted that Cook's
tongue was white but was unsure if it was thrush. (!d. at 13.) Dr. Hamway diagnosed Cook
HIV-positive by history with "no evidence of this during evaluation." (!d. at 14.) Dr. Hamway
concluded that Cook had no limitations based on the medical evaluation done that day. (ld. at
15.)

3.

ALJ Decision

By decision dated April28, 2011, ALJ Dorffound Cook disabled between August 1,
2008, and August 5, 2009, but medically improved and no longer disabled as of August 6, 2009.
(Doc. No.8 at 63.) At the first step, the ALJ found that Cook had not engaged in substantial
gainful activity since August 1, 2008, the HIV onset date. (!d. at 67.) At the second step, the
ALJ found that "at all times relevant to the decision," Cook had severe impairments ofHIV.
fatigue, and weight loss. (!d.) At the third step, the ALJ held that between August 1, 2008 and

20

Antalgic (painful) gait occurs when the patient attempts to avoid putting weight on one leg due to pain.
FootVitals.com, Anta{gic Gait (Aug. 5, 2015), http://www.footvitals.com/health/antalgic-gait.html.

10

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 11 of 31

August 5, 2009, Cook did not have any impairment that met or equaled the impairments listed in
the Regulations. (/d.) At the fourth step, between August 1, 2008, and August 5, 2009, the ALJ
held that Cook had the residual functional capacity ("RFC") to perform less than a full range of
sedentary work because he was unable to sit for six hours in an eight-hour workday. (/d.) At the
last step, the AU found that Cook could not perform his past work. (!d. at 70.) In addition,
given his residual functional capacity, the ALJ found that there were no other jobs in the
economy Cook could perform. (!d. at 70-71.) As a result, the ALJ concluded that Cook was
disabled between August 1, 2008 and August 5, 2009. (ld. at 71.)
Next, the ALJ found Cook medically improved as of August 6, 2009, the date after
Cook's consultation with Dr. Hamway. (Doc. No.8 at 71.) He found Dr. Hamway's assessment
of"no limitation" consistent with Dr. Bioh's contemporaneous findings. (/d.) The ALJ found
that Cook had the RFC to perform the full range of sedentary work (!d.). Based on this second
RFC, the ALJ found that Mr. Cook could not perform past work but found that he could perform
a significant number of jobs in the national economy. (Id. at 72.) He did not specify which jobs
Cook could do. Based on Cook's age, education, and work experience, the ALJ found Cook "not
disabled" under Medical-Vocational Guidelines Rule 201.27 after August 6, 2009. (/d. at 7273.)
C.

Appeals Council Review
Cook appealed the AU's decision to the Appeals Council on May 20, 2011. (Doc. No. 8

at 52.) On September 25, 2012, the Appeals Council denied Cook's request. (!d. at 5.)

11

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 12 of 31

III.
A.

DISCUSSION

Standard of Review
On judicial review, "[t]he of findings of the Commissioner of Social Security as to any

fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §§ 405(g), 1383(c)(3).
Therefore, a court does not review de novo whether a claimant is disabled. See Brault v. Soc.

Sec. Admin. Comm'r, 683 F .3d 443, 447 (2d Cir. 2012) (per curiam) (citing Pratts v. Chater, 94
F.3d 34, 37 (2d Cir. 1996)); accord Mathews v. Eldridge, 424 U.S. 319, 339 n. 21 (1976) (citing
42 U.S.C. § 405(g)). Rather, the court is limited to "two levels of inquiry." Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the Commissioner
applied the correct legal principles in reaching a decision. 42 U.S.C. § 405(g); Tejada v. Apfel,
167 F.3d 770, 773 (2d Cir. 1999) (citing Johnson, 817 F.2d at 986); accord Brault, 683 F.3d at
447. Second, the court must decide whether substantial evidence in the Record supports the
Commissioner's decision. 42 U.S.C. § 405(g). If the Commissioner's decision meets both of
these requirements, the reviewing court must affirm; if not, the court may modify or reverse the
Commissioner's decision, with or without remand. !d.
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided
that the failure "might have affected the disposition ofthe case." Pollardv. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109,112 (2d Cir. 1984)). This
applies to an ALJ's failure to follow an applicable statutory provision, regulation, or Social
Security Ruling ("SSR"). See, e.g., Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)
(regulation); Schaal v. Callahan, 933 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the
court may remand the matter to the Commissioner under 42 U.S.C. § 405(g), especially if
necessary to allow the ALJ to develop a full and fair record to explain his reasoning. See Crysler

12

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 13 of 31

v. Astrue, 563 F. Supp. 2d 418,428 (N.D.N.Y. 2008) (citing Martone v. Apfel, 70 F. Supp. 2d
145, 148 (N.D.N.Y. 1999)).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the
court must "conduct a plenary review of the administrative record to determine if there is
substantial evidence, considering the record as a whole, to support the Commissioner's decision."

Brault, 683 F.3d at 447 (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). The
Supreme Court has defined substantial evidence as requiring "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389,401 (1971) (quoting Canso/. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)). Even ifthere is substantial evidence for the plaintiffs
position, a court must uphold the ALJ's decision if there is substantial evidence to support the
defendant's position. See Yancy v. Apfel, 145 F.3d 106, Ill (2d Cir. 1998). The substantial
evidence standard means that once an ALJ finds facts, a reviewing court may reject those facts
"only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448.
To be supported by substantial evidence, the ALJ must base his decision on consideration
of"all evidence available in [the claimant's] case record." 42 U.S.C. §§ 423(d)(5)(B),
1382c(a)(3) (H)(i). The Act requires the ALJ to set forth "a discussion ofthe evidence" and the
"reasons upon which it is based." 42 U.S.C. §§ 405(b)(l). While the ALJ's decision need not
"mention[] every item of testimony presented" or "reconcile explicitly every conflicting shred of
medical testimony," the ALJ may not ignore or mischaracterize evidence of a person's alleged
disability. MonKeur v. Heckler, 722 F.2d I 033, I 040 (2d Cir. 1983) (per curiam); Zabala v.

Astrue, 595 F.3d 402,410 (2d Cir. 2010); see Ericksson v. Comm'r ofSoc. Sec., 557 F.3d 79,8284 (2d Cir. 2009) (mischaracterizing evidence); Kohler v. Astrue, 546 F.3d 260, 269 (2d

13

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 14 of 31

Cir.2008) (overlooking and mischaracterizing evidence). The AU must avoid rote analysis and
conclusory explanations; he must discuss "the crucial factors in any determination ... with
sufficient specificity to enable the reviewing court to decide whether the determination is
supported by substantial evidence." Calzada v. Astrue, 753 F. Supp. 2d 250, 269 (S.D.N.Y.
2010).
When parties submit "new and material evidence," the Appeals Council may consider the
additional evidence "only where it relates to the period on or before the date of the administrative
law judge hearing decision." 20 C.F.R. § 404.970(b). "New evidence" refers to "any evidence
that has not been considered previously during the administrative process." Shrack v. Astrue,
608 F. Supp. 2d 297, 302 (D. Conn. 2009).
B.

Legal Standards for Determining Disability

Under the Act, every individual considered to have a "disability" is entitled to disability
insurance benefits. 42 U.S.C. § 423(a)(l). The Act defines "disability" as an "inability 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. §§ 416(i)(1)(A),
423(d)(l)(A), 1382c(a)(3)(A); see also 20 C.P.R.§§ 404.1505,416.905. A claimant's
impairments must be "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." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); see also 20 C.P.R.§§ 404.1505,416.905.
To determine whether an individual is entitled to receive disability benefits, the
Commissioner is required to conduct the following five-step inquiry: ( 1) determine whether the

14

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 15 of 31

claimant is currently engaged in any substantial gainful activity; (2) if not, determine whether the
claimant has a "severe impairment" that significantly limits his or her ability to do basic work
activities; (3) if so, determine whether the impairment is one of those listed in Appendix 1 of the
Regulations-if it is, the Commissioner will presume the claimant to be disabled; (4) if not,
determine whether the claimant possesses the residual functional capacity ("RFC") to perform
his past work despite the disability; and (5) if not, determine whether the claimant is capable of
performing other work. 20 C.F.R. § 404.1520, 416.920; Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999). While the claimant bears the burden of proving disability at the first four steps, the
burden shifts to the Commissioner at step five to prove that the claimant is not disabled. See

Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Cage v. Comm'r ofSoc. Sec., 692 F.3d 118,
123 (2d Cir. 20 12).
The ALJ may find a claimant to be disabled at either step three or step five of the
evaluation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step three, the ALJ will find that a
disability exists if the claimant proves that his or her severe impairment meets or medically
equals one of the impairments listed in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant fails to prove this, however, then the ALJ will complete the remaining steps ofthe
evaluation. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(5), 416.920(e), 416.945(a)(5). A claimant's
RFC is "the most [he] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a),
416.945(a); see also SSR 96-9p, 1996 WL 374185 (July 2, 1996) (clarifying that a claimant's
RFC is his maximum ability to perform full-time work on a regular and continuing basis). The
ALl's assessment of a claimant's RFC must be based on "all relevant medical and other
evidence," including objective medical evidence; the opinions of treating and consultative
physicians; and statements by the claimant and others concerning the claimant's impairments,

15

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 16 of 31

symptoms, physical limitations, and difficulty performing daily activities. Genier v. Astrue, 606
F.3d 46,49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1545(a)(3)); see also 20 C.F.R. §§
404.1512(b), 404.1528, 404.1529(a), 404.1545(b).
In evaluating the claimant's alleged symptoms and functional limitations for the purposes
of steps two, three, and four, the ALJ must follow a two-step process, first determining whether
the claimant has a "medically determinable impairment that could reasonably be expected to
produce [his alleged] symptoms." 20 C.F.R. §§ 404.1529(b), 416.929(b); Genier, 606 F.3d at
49. If so, then the ALJ "evaluate[s] the intensity and persistence of[the claimant's] symptoms so
that (the ALJ] can determine how [those] symptoms limit [the claimant's] capacity for work." 20
C.F.R. § 404.1529(c); see also 20 C.F.R. § 416.929(c). The ALJ has "discretion in weighing the
credibility of the claimant's testimony in light of the other evidence of record." Genier, 606 F.3d
at 49; see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (requiring that a claimant's allegations be
"consistent" with medical and other evidence). In determining whether there is any other work
the claimant can perform, the Commissioner has the burden of showing that "there is other
gainful work in the national economy which the claimant could perform." Balsamo v. Chater,
142 F.3d 75, 80 (2d Cir. 1998) (citation omitted).

C.

Medical Improvement Standard
The Social Security Act states:
A recipient of benefits ... may be determined not to be entitled to such benefits on
the basis of a finding that the physical or mental impairment on the basis of which
such benefits are provided has ceased, does not exist, or is not disabling only if
such finding is supported by( I) substantial evidence which demonstrates that(A) there has been any medical improvement in the individual's impairment
or combination of impairments (other than medical improvement which is
not related to the individual's ability to work), and
(B) the individual is now able to engage in substantial gainful activity ...

16

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 17 of 31

42

u.s.c. § 423(£).
Once a claimant establishes the existence of a disabling condition, the medical

improvement standard shifts the burden of proof to the Commissioner; a claimant is entitled to a
presumption that the classification will not change unless the condition, governing statutes, or
regulations change. De Leon v. Sec'y ofHealth and Human Servs., 734 F.2d 930, 937 (2d Cir.
1984); see also Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002) ("[U]nder the medical
improvement standard, the government must, in all relevant respects, prove that the person is no
longer disabled."). Where a claimant has already demonstrated a past disabling condition, the
ALJ must determine whether the condition has improved, and if so, whether that improvement is
relevant to the claimant's work capacity. 20 C.F.R. § 404.1594(a). Even where such
improvement is related to the claimant's ability to work, the Commissioner must also show that
the claimant is able to engage in substantial gainful activity. 20 C.F.R. § 404.1594(b)(3). The
regulations define medical improvement as any decrease in the medical severity of a claimant's
impairment which was present at the time of the most recent favorable medical decision that he
or she was disabled or continues to be disabled. 20 C.F.R. § 404.1594(b)(I). The ALJ must base
his determination that there has been a decrease in medical severity on improvement in the
symptoms, signs, or laboratory findings associated with a claimant's impairments. Id
Generally, the medical improvement standard under 20 C.F.R. § 404.1594 applies to
continuing disability reviews regarding a prior adjudication. See, e.g., Veino v. Barnhart, 312
F.3d 578 (2d Cir. 2002). While the Second Circuit has not yet addressed whether the medical
improvement standard also applies to closed period cases, other circuits have held that the
standard also applies in those cases. See, e.g., Waters, 276 F.3d at 719; Shepherdv. Apfel, 184
F.3d 1196, 1200 (lOth Cir. 1999); Jones v. Shalala, 10 F.3d 522 (7th Cir. 1993); Chrupcala v.

17

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 18 of 31

Heckler, 829 F.2d 1269, 1274 (3d Cir. 1987); Pickett v. Bowen, 833 F.2d 288,292-93 (11th Cir.
1987). Moreover, neither party contests that the standard governs this case. The Court finds that
this approach is correct.
The ALJ must assess medical improvement in relation to the "most recent favorable
medical decision[,]" defined as "the latest decision involving a consideration of the medical
evidence and the issue of whether [a claimant was] disabled or continued to be disabled which
became final." 20 C.F.R. § 404.1594(b)(7). Some courts have used the onset date of the
disability as the appropriate point of comparison in closed period disability cases. See, e.g.,

Pickett v. Bowen, 833 F.2d 288, 291-92 (11th Cir. 1987) (finding that the 1984 Amendments to
42 U.S.C. § 423 direct the ALJ to use the onset of disability as benchmark for medical
improvement). Other courts have used the end date of the closed period as the point of
comparison. See, e.g., Jones v. Shalala, 10 F.3d 522 (7th Cir. 1993) (applying the medical
improvement standard to a closed period of disability).
Although neither precedent is binding in this District, the Court finds that the reasoning
in Pickett-grounded in the amending statute-is the most persuasive. There, the court rejected
the Secretary's argument that medical improvement actions under§ 2(d)(6) of the 1984
Disability Reform Act required: ( 1) an earlier and a later decision; and (2) that the action raises
the issue of the propriety of the second decision terminating benefits. See Pickett v. Bowen, 833
F.2d 288, 291 (11th Cir. 1987). Congress intended a broad remedial policy when it enacted the
1984 amendment. See id. at 292. Specifically,
The overall purpose of the bill is, first, to clarify statutory guidelines for the
determination process to insure that no beneficiary loses eligibility for benefits as
a result of careless or arbitrary decision-making by the Federal government.
Second, the bill is intended to provide a more humane and understandable
application and appeal process for disability applicants and beneficiaries
appealing termination of their benefits.

18

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 19 of 31

!d. (citing H.R. Rep. 98-618, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3038, 3039). "A more
humane" application of the appeals process required rejection of the Secretary's narrow statutory
reading. !d. at 291. The ALJ in Pickett thus examined the claimant's disability at its onset when
he determined his disability to have ceased due to medical improvement. See id. at 291-92.

D.

The Eight-Step Sequential Evaluation
The medical improvement standard comprises eight steps set forth in 20 C.F.R. §

404.1594 for SSD and seven steps in 20 C.F.R. § 416.994 for SSI. These steps are completed
"[t]o assure that disability reviews are carried out in a uniform manner ... and that any decisions
to stop disability benefits are made objectively, neutrally and are fully documented." 20 C.F.R.

§§ 404.1594(f), 416.994(b)(5).
In an SSD medical improvement review, the SSA begins at Step One and asks whether
the claimant is "engaging in substantial gainful activity." 20 C.F .R. § 404.1594(f)( 1). If the
claimant is so engaged, the ALJ must find disability "to have ended." !d. If not, the analysis
proceeds to Step Two. In an SSI review, the process begins with Step Two. 20 C.F.R. §
416. 994(b )(5).
Step Two asks whether the claimant has "an impairment or combination of impairments"
that "meets or equals the severity of an impairment" listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1594(£)(2), 416.994(b)(5)(i). lfthe claimant's impairment(s)
meets the listed impairment(s), the claimant's disability is "found to continue" and the analysis
ends. 20 C.F.R. §§ 404.1594(f)(2), 416.994(b)(S)(i).
If, however, the claimant does not have such listed impairment, Step Three asks if there
has been medical improvement as defined in the regulations. 20 C.F.R. §§ 404.1594(£)(3),
416.994(b)(S)(ii).

19

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 20 of 31

If the claimant has medically improved, at Step Four, the ALJ must determine whether
the improvement is related to his or her ability to work under the regulations. 20 C.F.R. §§
404.1594(f)( 4 ), 416. 994(b )(5)(iii).
If there is no medical improvement in Step Three or the medical improvement is not
related to work ability in Step Four, at Step Five, the ALJ must consider whether any of the
medical improvement exceptions apply. 20 C.F.R. §§ 404.1594(£)(5), 416.994(b)(5)(iv).
At Step Six, the ALl determines whether all the claimant's impairments in combination
are severe. 20 C.F.R. §§ 404.1594(£)(6), 416.994(b)(5)(v). Ifthe combined impairments do not
significantly limit the claimant's ability to work, the claimant will no longer be disabled. 20
C.F.R. §§ 404.1594(£)(6), 416.994(b)(5)(v).
At Step Seven, the ALl assesses the claimant's RFC based on all current impairments.
20 C.F.R. §§ 404.1594(£)(7), 416.994(b)(5)(vi). He then considers whether the claimant can do
past work. 20 C.F.R. §§ 404.1594(£)(2), 416.994(b)(5)(i). Ifso, the ALl finds the disability
period to have ended.
Finally, at Step Eight, if the claimant cannot do past work, the ALJ considers whether
claimant can do other work given the claimant's RFC, age, education, and past work experience.
20 C.F.R. §§ 404.1594(£)(8), 416.994(b)(5)(vii). If so, the period of disability ends. Ifnot, the
disability period continues. 20 C.F.R. §§ 404.1594(f)(8), 416.994(b)(5)(vii).
The Court finds that it was appropriate for ALJ Dorfto use the eight-step process in
applying the medical improvement standard but that, for the reasons below, he erred in finding
Cook able to do other work based on the opinion of Dr. Hamway.

20

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 21 of 31

E.

The Treating Physician Rule
The opinion of a claimant's treating physician is generally given more weight than the

opinion of a consultative physician because the treating physician is likely "most able to provide
a detailed, longitudinal picture of [the claimant's] medical impairment(s)." 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(discussing the "treating physician rule of deference"). A treating physician's opinion deserves
"controlling weight" if it is "well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in [the] case
record." 20 C.F.R. § 404.1527(c)(2).
The ALJ must explicitly consider various factors to determine how much weight to give
to the opinion of a treating physician. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(citing 20 C.F.R. § 404.1527(c)(2)). These factors include: (1) the length, nature, and extent of
the treatment relationship; (2) the evidence in support of the treating physician's opinion; (3) the
consistency of the opinion with the entirety of the record; (4) whether the treating physician is a
specialist; and (5) other factors brought to the attention of the ALJ that support or contradict the
opinion. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (c)(3-6).
The ALJ is required to explain the weight given to the treating physician's opinion. See
20 C.F.R. § 404.1527(c)(2) ("We will always give good reasons in our notice of determination or
decision for the weight we give your treating source's opinion."). Failure to provide "good
reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand.
Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); see also Halloran, 362 F.3d at 32 ("[W]e will

continue remanding when we encounter opinions from ALJs that do not comprehensively set
forth reasons for the weight assigned to a treating physician's opinion."). Reasons that are

21

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 22 of 31

conclusory fail the "good reasons" requirement. Gunter v. Comm'r o.fSoc. Sec., 361 Fed. Appx.
197, 199 (2d Cir. 201 0) (finding reversible error where

an ALJ failed to explain his

determination not to credit the treating physician's opinion). The ALJ is not permitted to
arbitrarily substitute his own judgment of the medical proof for the treating physician's opinion.
Balsamo, 142 F.3d at 81.
F.

The ALJ erred in his decision by failing to apply the Treating Physician Rule.
l.

The ALJ failed to give the treating physician's findings controlling weight.

The ALJ failed to show why Dr. Bioh's findings were not given controlling weight.
Although the ALJ detailed Dr. Bioh's history with Cook, he did not explain the weight given to
Dr. Bioh's opinion. (Doc. No.8 at 67-71.) As stated above, there are five factors the ALJ must
explicitly consider when weighing the treating physician's evidence. See Halloran v. Barnhart,
362 F.3d at 32. Buried within the opinion, the ALJ wrote: "The undersigned has also considered
opinion evidence in accordance with the requirements" of the regulations. (Doc. No.8 at 71-72.)
This sentence alone, without more, does not clarify what legal standard the ALJ applied and
gives cause for remand. See Schaal, 134 F.3d at 503; 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2) ("We will always give good reasons in our notice of determination or decision for
the weight we give your treating source's opinion.").
The AU's statement fails to say what weight, if any, he gave to Dr. Bioh's opinion. It
does not acknowledge that Dr. Bioh had seen Cook on at least twenty-five occasions since
August 2008 or that clinical and laboratory testing supported Dr. Bioh's findings. (Doc. No. 8-3
at 4-33; Doc. No. 8-2 at 2.) In addition, the AU's statement says nothing about Dr. Bioh's
findings in his letters dated two years apart. The first letter states that Cook would need twelve
to eighteen months of medical care. (Doc. No. 8-2 at 31.) The most recent letter, dated March 8,

22

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 23 of 31

2011, finds that Cook's symptoms have persisted and that his prognosis is "guarded." (Doc. No.
8-3 at 3.) Moreover, the ALJ's sentence says nothing about the consistency

of Dr. Bioh's

opinion with the rest of the record, nothing about Dr. Bioh's training as an internist, and nothing
about any other factors the ALJ considered. For failing to explain why the ALJ did not credit Dr.
Bioh, the Court finds cause for remand. Schaal v. Apfel, 134 F.3d at 505.

2.

The ALJ gave more than limited weight to an SSA consultative examiner.

The ALJ gave great weight to Dr. Hamway, a one-time consultative examiner. While the
ALJ did not state explicitly the weight he gave to Dr. Hamway's opinion, he did find medical
improvement after August 6, 2009, the day after Cook's visit to Dr. Hamway. (Doc. No. 8 at
71.) The ALJ does not provide "good reasons" for conferring great weight to this consultative
physician's opinion. Schaal v. Apfel, 134 FJd 496, 505 (2d Cir. 1998).
In determining whether a claimant has a disability, "a consulting physician's opinions or
report should be given limited weight." Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990). As the
treating physician, Dr. Bioh is "most able to provide a detailed, longitudinal picture of [the
claimant's] medical impairment(s)." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). In contrast,
"consultative exams are often brief, are generally performed without benefit or review of
claimant's medical history and, at best, only give a glimpse of the claimant on a single day."

Cruz, 912 F.2d at 13. Dr. Hamway did not have Cook's medical history available on August 5,
2009. (Doc. No. 8-2 at 12, 14.) He did not even know Cook's T-cell count and viral load,
barometers of a patient's HIV severity. (/d. at 12.) Such a dearth of information cannot provide
the longitudinal picture of a claimant's impairments the regulations require. Especially
compared to Dr. Bioh's treatment record, Dr. Hamway's report should not have received

23

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 24 of 31

controlling weight. Given the lack of information, the ALJ erred in using Dr. Hamway's report
as proof that Cook had medically improved.

3.

The ALJ overlooked and mischaracterized opinion evidence.

The record does not contain substantial evidence supporting the ALl's finding that Cook
had improved medically after August 6, 2009. In an attempt to reconcile Dr. Bioh's findings
with Dr. Hamway's statements, the ALJ: (I) overlooked Dr. Bioh's March 2011 report finding
Cook's prognosis to be guarded, and (2) mischaracterized Dr. Bioh's treatment notes to find
Cook not disabled. The ALJ may not ignore or mischaracterize evidence of a person's alleged
disability. See Ericksson v. Comm'r ofSoc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009).
First, the ALJ overlooked Dr. Bioh's letter dated March 8, 2011. Twice during the
hearing, the AU asked for, and received confirmation of, an "additional" "medical record."
(Doc. No.8 at 32, 37.) The findings in the additional letter appear nowhere in the AU's
decision. This factual oversight casts doubt on the substance of the AU's finding because the
evidence in the letter is more favorable to Cook than the evidence the ALJ used in the decision.
The letter states that Cook "has continued to experience bouts of malaise/fatigue, weakness, poor
appetite, depressed mood, and intermittent abdominal symptoms." (Doc. No. 8-3 at 3.) This
contrasts with Dr. Hamway's August 5, 2009 report finding normal bowel movements, full
muscle strength, and no abdominal irregularities. (Doc. No. 8-2 at 14.) More importantly, the
letter states that Cook is disabled, that his HIV prognosis is "guarded," and that he requires
regular monitoring. (Doc. No. 8-3 at 3.) A treating physician's own determination of disability
is not dispositive of the issue, see Gilbert v. Apfel, 70 F. Supp. 2d 285, 291 (W.D.N.Y. 1999). but
Dr. Bioh' s letter expands on the trajectory of Cook's ailments, reveals continuing sickness, and
predicts further inability to work. Placed alongside Dr. Hamway's report, there are clear

24

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 25 of 31

discrepancies that the ALJ was required to consider and discuss before finding Cook medically
improved.
Second, the ALJ mischaracterized Dr. Bioh's treatment notes. The ALJ referred to
several of Dr. Bioh's notes stating "no new complaints," implying that Cook had no

impairments? 1 (Doc. No. 8 at 68-69) (citing Doc. No. 8-3 at 16, 18, 19, 20.) For example, on
August 12, 2009, although Cook had "no new complaints," Dr. Bioh noted that Cook suffered
from edema and synovitis. (Doc. No. 8-3 at 16.) In fact, on the dates that the ALJ referenced no
new complaints, Cook always had edema (swelling of the limbs) and synovitis (joint
inflammation). (Jd. at 18, 19, 20.) That Cook did not affirmatively complain about these
symptoms does not mean he had no impairments at the time.
Third, after August 12, 2009, there were in fact new complaints. For example, on
November 10, 2009, Cook complained of upper respiratory infections, similar to those in
September 2008. (Jd. at 21.) In September 2010, Cook complained of blurry vision and
intermittent headaches for the first time. (ld. at 33.) The AU's finding that Dr. Hamway's
assessment was consistent with Dr. Bioh's findings mischaracterizes Dr. Bioh's evidence
because there were new complaints and diagnoses. Furthermore, these new complaints and
diagnoses undercut the ALJ's determination that there was "marked" medical improvement.
(Doc. No. 8 at 71.) To "mischaracterize relevant medical evidence" in this way, interpreting
Cook's condition to be good, "when the term ['no new evidence'] could only mean that [Cook's]
condition has not changed," has been a sufficient ground for remand. Kohler v. Astrue, 546 F.3d
260, 268-69 (2d Cir. 2008). Such error requires a remand for consideration of the improperly

21
The cited medical evidence at pages 16, 18, 19, and 20 refer to Cook's visits on August 12, 2009, September 2,
2009, September \7,2009, and October 13,2009, respectively.

25

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 26 of 31

excluded evidence, at least where "the unconsidered evidence is significantly more favorable to
the claimant than the evidence considered." Zabala v.

4.

Astrue, 595 FJd 402,409 (2d Cir. 2010).

The ALJ improperly applied the Medical-Vocational Guidelines.

Finally, the ALJ erred in applying the Medical-Vocational Guidelines ("the Grids").
Cook has significant nonexertional impairments that limit the range of work he can perform. In
addition, the ALJ did not introduce a vocational expert who could testify on the range of jobs
Cook could perform. When a claimant's nonexertional impairments are significantly limiting,
the ALJ cannot automatically apply the Grids without consulting a vocational expert. Rosa v.
Callahan, 168 F.3d 72, 78 (2d Cir. 1999). Failure to consult in that situation warrants remand
for introduction of expert vocational testimony.

a.

Applicable Law

The ALl must conduct a five-step inquiry to determine whether a claimant has a
disability. 20 C.F.R. § 404.1520. The claimant bears the burden of proof as to the first four
steps of the analysis, while the Commissioner has the burden of proving the fifth step. Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). In most circumstances, the Commissioner is able
to meet his burden at step five by relying on the Grids in 20 C.F.R. Part 404, Subpart P,
Appendix 2 to show that the claimant can perform alternate substantial gainful work.
Nevertheless, if a claimant's nonexertional impairments "'significantly limit the range of work
permitted by his exertionallimitations' ... the application of the grids is inappropriate" and a
vocational expert is required. Bapp v. Bowen, 802 F.2d 605, 606 (2d Cir. 1986). A
nonexertional impairment "significantly diminish[es]" a claimant's range of employment if it is
non-negligible. Bapp, 802 F.2d at 605--D6. A nonexertional impairment is non-negligible when
it "so narrows a claimant's possible range of work as to deprive him of a meaningful employment

26

-------------------------------------------~~-~-

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 27 of 31

opportunity." Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (quoting Zabala v. Astrue, 595
F.3d at 411 (2d Cir. 2010)).

b.

The ALJ improperly assessed Cook's credibility based on his new
RFC.
(I)

The ALJ erred in his credibility analysis.

An ALJ must consider subjective evidence of disability, but he "may exercise discretion
in weighing the credibility of the claimant's testimony in light of the other evidence in the
record." Genier v. Astrue, 606 F.3d 46,49 (2d Cir. 2010) (per curiam) (citations omitted). A
"finding that the witness is not credible must. .. be set forth with sufficient specificity to permit
intelligible plenary review ofthe record." Williams ex rei. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citing Carroll v. Sec 'y ofHealth and Human Servs., 705 F .2d 638, 643
(2d Cir. 1983)). Most importantly, the regulations require ALJs to compare the claimant's
statements with the medical evidence on record and then determine whether the symptoms
"affect [one's] capacity to perform basic work activities." 20 C.F.R. § 404.1529(c)(4).
The ALJ in this case concluded, without more, that: "[Cook's] statements concerning the
intensity, persistence, and limiting effects of these symptoms are not credible beginning on
August 6, 2009, to the extent they are inconsistent with the residual functional capacity
assessment for the reasons explained below." (Doc. No. 8 at 71.) The ALJ offered no reasons
for finding Cook not credible. As a result, this Court cannot intelligibly review the record to see
whether substantial evidence supports the AU's finding. See Williams, 859 F.2d at 260-61 (2d
Cir. 1988).

27

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 28 of 31

(2)

The ALJ used a predetermined RFC to evaluate Cook's
credibility as to his own symptoms instead of evaluating
Cook's credibility first.

An ALJ must consider a claimant's "statements about the intensity, persistence, and
limiting effects of [his] symptoms ... in relation to the objective medical evidence." 20 C.F.R. §
404.1529(d) (emphasis added). Here, the ALJ compared Cook's statements to his RFC as
determined by the ALJ. This is not what the regulations say and is logically backwards. The ALJ
should first consider the claimant's statements and the objective medical evidence to determine
the RFC. Thus, the credibility evaluation should be made to help the ALJ identify the RFC. See,

e.g., Bjornson v. Astrue, 671 F.3d 640,645-46 (7th Cir. 2012) (finding it improper to determine
ability to work first and use that to determine claimant's credibility). 22 See also Correale-

Englehart v. Astrue, 687 F. Supp. 2d 396,435 (S.D.N.Y. 2010); Gonzalez v. Colvin, No. 14-CV6206 (SN), 2015 WL 1514972, at *20 (S.D.N.Y. Apr. 1, 2015); Singleton v. Colvin, No. 13-CV4185 (PGG)(FM), 2015 WL 1514612, at *16 (S.D.N.Y. Mar. 31, 2015); Cahillv. Colvin, No.
12-CV-9445 (PAE)(MHD), 2014 WL 7392895, at *23 (S.D.N.Y. Dec. 29, 2014); Emerson v.

Comm'r ofSoc. Sec., No. 12-CV-6451 (PAC)(SN), 2014 WL 1265918, at* 17 (S.D.N.Y. Mar.
27, 2014). Moreover, the use ofthe RFC as a benchmark does not provide the Court the same

22

Compare Bjornson v. Astrue, 671 F.3d 640, 644 (7th Cir. 2012) with (Doc. No.8, Dec. at 72.) The Bjornson
ALJ's decision reads:
After careful consideration of the evidence, the undersigned (administrative law judge] finds that
the claimant's medically determinable impairments would reasonably be expected to cause the
alleged symptoms; however, the claimant's statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment. Bjornson v. Astrue, 6 71 F.3d 640, 644 (7th Cir.
2012)
Compare with the ALJ's language in this case:
After considering the evidence of record, the undersigned finds that the claimant's medically determinable
impairments would reasonably be expected to cause the alleged symptoms; however, the claimant's
statements concerning the intensity, persistence and limiting effects of these symptoms are not credible
beginning on August 6, 2009, to the extent they are inconsistent with the residual functional capacity
assessment for the reasons explained below.

28

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 29 of 31

opportunity for meaningful review as does the "objective medical evidence." See SSR 96-7p,
1996 WL 374186, at *6 (July 2, 1996).

c.

The ALJ failed to introduce a vocational expert.

The ALJ concluded that after August 6, 2009, Cook was able to "perform a significant
number of jobs in the national economy" without consulting a vocational expert. (Doc. No. 8 at
71.) He found that Cook was unable to perform past relevant work. (!d.) Although consultation
with a vocational expert is not required in every case, the Grids do not control if there are
significantly limiting nonexertional impairments. See Bapp v. Bowen, 802 F.2d at 604-06, citing
20 C.F.R., Pt. 404, Subpt. P, App. 2 § 200.00(e)(2).
The opinion and testimony evidence revealed a mix of exertionae 3 and nonexertional
limitations.

24

As to exertionallimitations, Cook needed to rest every hour for 10-15 minutes

each workday, (Doc. No. 8-2 at 22, 25), experienced weakness and fatigue, (Doc. No. 8 at 17,
25), and had problems sitting because of his gastrointestinal issues. (ld. at 36.) Cook's
nonexertionallimitations included reduced attention and concentration. (!d. at 28.) He was also
unable to handle low work stress due to his mood and fatigue level. (Doc. No. 8-2 at 25.)
This combination of exertional and nonexertional impairments precludes sole reliance on
the Grids. 20 C.F.R. § 404.1569a(d) ("The rules provide a framework to guide our decision.").
See Selian, 708 F.3d at 421. In cases like these, the Second Circuit requires introduction of a

vocational expert. See Bapp v. Bowen, 802 F.2d 601,603 (2d Cir. 1986). Remand is therefore

23

The regulations define exertionallimitations as "limitations and restrictions imposed by (one's] impairment(s)"
that "affect only [one's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying,
pushing, and pulling)." 20 C.F.R. § 404.l569a(b).
24
The regulations define nonexertionallimitations as "limitations and restrictions imposed by [one's]
impairment(s)" that "affect only [one's] ability to meet the demands of jobs other than the strength demands." 20
C.F.R. § 404.1 569a(c). A non-exhaustive list ofnonexertional impairments include: (I) anxiety, depression; (2)
attention and concentration issues; (3) difficulty with detailed instructions; and (4) difficulty seeing or hearing. 20
C.F.R. § 404.1569a(c)(J)(i)-(iv).

29

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 30 of 31

appropriate here to fill any administrative gaps. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.
I 999).

5.

The District Court should remand the case for further proceedings. ·

Cook requests a remand solely for calculation of benefits, or in the alternative, for the
Court to remand the case for reconsideration of the evidence. (Doc. No. 11 at 1; Doc. No. 12 at
17.) A court should order a remand to calculate benefits only where the record contains
"persuasive proof of disability" and remand for further evidentiary proceedings would serve no
further purpose. Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (citing Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987)). Remand for further administrative proceedings is appropriate
[w]here there are gaps in the administrative record or the ALJ has applied an improper legal
standard." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
Here, the ALJ failed to show why Dr. Bioh's findings were not given controlling weight.
He also did not state the weight he gave to Dr. Hamway. Next, he overlooked and
mischaracterized opinion evidence. Also, the ALJ did not consult a vocational expert in his
discussion of the available jobs in the national economy Cook can perform. Last, the ALJ
improperly used a predetermined RFC to evaluate Cook's credibility. These errors warrant a
remand for further proceedings.

IV.

CONCLUSION

For the reasons set forth above, I recommend that the Court GRANT IN PART Cook's
Motion for a Judgment on the Pleadings and REMAND for further administrative proceedings.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the Parties shall have
fourteen (14) days after being served with a copy of the recommended disposition to file written
objections to this Report and Recommendation. Such objections shall be filed with the Clerk of

30

Case 1:13-cv-01946-TPG-RLE Document 21 Filed 08/14/15 Page 31 of 31

the Court and served on all adversaries, with extra copies delivered to the chambers of the
Honorable Thomas P. Griesa, 500 Pearl Street, Room 1630, New York, N.Y. 10007 and to the
chambers of the undersigned, 500 Pearl Strseet, Room 1970, New York, N.Y. 10007. Failure to
file timely objections shall constitute a waiver of those objections in both the District Court and
on later appeal to the United States Court of Appeals. See 28 U.S.C. § 636(b)(l) (West Supp.
1995); Fed. R. Civ. P. 72, 6(a), 6(e); Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of

Health and Human Servs., 892 F .2d 15, 16 (2d Cir. 1989) (per curiam).
DATED: August 14,2015
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

31