Riddick v. Commissioner of Social Security

Filing 30

ORDER AND OPINION re: 18 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security, 26 MOTION for Judgment on the Pleadings filed by Marc J. Riddick. The Commissioner's motion is DENIED, Riddick's mot ion is GRANTED, and the case is REMANDED to the Commissioner for further development of the record. For the reasons set forth above, the Court GRANTS Riddick's motion for judgment on the pleadings and REMANDS this case to the Commissioner for reconsideration in accordance with this Order and Opinion. On remand, the ALJ must develop the record of medical evidence of Riddick's hip impairment by obtaining treatment notes from Dr. Leali and opinions from treating and/or consulting physic ians that interpret Riddick's diagnostic testing. Furthermore, the ALJ must consider and evaluate the credibility of Riddick's testimony regarding his subjective symptoms of pain and the effectiveness of his medication. (As further set forth in this Order.) (Signed by Magistrate Judge Ronald L. Ellis on 2/29/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

~I

MARC J. RIDDICK,
Plaintiff,

ORDER AND OPINION
- against 14-CV-8453 (RLE)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

.

___________________91
RONALD L. ELLIS, United States Magistrate Judge:

Plaintiff Marc Riddick ("Riddick") commenced this action under the Social Security Act
(the "Act"), 42 U.S.C. § 406(g) and/or 42 U.S.C. § 1383(c)(3), challenging a final decision of the
Commissioner of Social Security (the "Commissioner") denying his claim for Social Security
Disability ("SSD") and Supplemental Security Income ("SSI"). Riddick argues that the decision
of the Administrative Law Judge ("ALJ") was erroneous and not based on substantial evidence.
On January 1, 2015, the Parties consented to the jurisdiction of the undersigned for all
proceedings pursuant 28 U.S.C. § 636(c). On May 18, 2015, the Commissioner moved for a
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, asking
the Court to affirm the Commissioner's decision and dismiss the Complaint. (Mem. of Law in
Supp. ofDef.'s Mot. for J. on the Pleadings ("Def.'s Mem.").) On August 18, 2015, Riddick
cross-moved for judgment on the pleadings, seeking remand of this action to the Commissioner
for additional proceedings. (Mem. of Law in Supp. of Pl.'s Cross-Mot. for J. on the Pleadings
("Pl. 's Mem.").) For the reasons set forth below, the Commissioner's motion is DENIED,
Riddick's motion is GRANTED, and the case is REMANDED to the Commissioner for further
development of the record.

I.
A.

BACKGROUND

Procedural History
On March 3, 2013, Riddick applied for SSD and SSL (Tr. of Admin. Proceedings ("Tr.")

at 70-82.) He claimed a disability onset date of March 23, 2011. (Id at 96.) His application was
denied on May 3, 2013. (Id. at 58.) Riddick appeared before ALJ Michael Dominic Cofresi
("ALJ Cofresi" or "the ALJ") on December 11, 2013, without representation. (Id at 23, 25.) The
ALJ issued a decision on January 21, 2014, finding that Riddick was not disabled within the
meaning of the Act and was not entitled to disability benefits. (Id at 6.) Review by the Appeals
Counsel was automatically requested on January 22, 2014. (Id at 5.) On September 14, 2014, the
Appeals Counsel denied Riddick's request for review and ALJ Cofresi's decision became the
Commissioner's final decision. (Id. at 1.) Riddick, now represented by counsel, filed this action
on October 21, 2014. (Doc. No. 1.)
B.

ALJ Hearing and Decision
1.

Administrative Hearing Testimony and Other Sworn Statements

ALJ Cofresi conducted a fourteen-minute hearing on December 11, 2013. (Tr. at 25, 39.)
On the date of the hearing, Riddick was 49 years old and had a high school diploma. (Id at 35.)
He resided at Phoenix House, where he had been living and participating in a residential drug
treatment program for the previous fifteen months. (Id. at 26.) Riddick explained that he had
previously used drugs and was addicted to alcohol but that he had not used drugs in the previous
three years. (Id. at 27.) He had also stopped drinking since he had been living in Phoenix House,
although he had used alcohol once, three months earlier. (Id. at 27-28.) Until 2009, he had
worked as a garbage collector for a private sanitation company, where he would routinely lift
objects weighing more than one hundred pounds. (Id. at 31, 98.) He lost that job when his
employer "lost the contract" under which he was employed. (Id. at 31.) Riddick collected
2

unemployment benefits until around April 27, 2013, when he began working part time as a cook
at Key Food Supermarket. (Id. at 28.), Riddick explained. however, that he has a "hip ailment"
and has become "immune" to his pain medication, and as a result is in constant pain whether he
is sitting, standing, or sleeping. (Id. at 36.)
On his disability application, completed in March 2013, Riddick listed "right hip
replacement" as a condition that limited his ability to work. (Id. at 96.) At the hearing, he
testified that he had been to the Hospital for Special Surgery on November 20, 2013, and had
asked a doctor about "a hip replacement." (Id. at 31-32.) Citing Riddick's age and condition, the
doctor advised against hip replacement. (Id. at 32) Riddick testified that he was in constant pain
when sitting, standing, and lying down, and that he would experience a sharp pain in his hip
when bending. (Id. at 36.) He indicated that "[e]very day [he is] in pain." (Id. at 38.) His doctor
proscribed Mobic to manage the pain but Riddick testified that he had become "immune" to the
medication "as time progress[ed]." (Id. at 33.) He acknowledged nevertheless that he had done
"some damage to [his] body" with "work, drugs, and stuff." (Id.)
In addition to the problems with his hip, Riddick claimed that his ability to work was
limited by high blood pressure, Hepatitis C, asthma, acid reflux, bronchitis, and tuberculosis. (Id.
at 96.) He also alleged that he had "fractured wrists," which made it difficult to lift. (Id. at 110.)
In addition to Mobic to manage the pain in his hip, he takes medication to control his high blood
pressure. (Id. at 33.) As of the date of the hearing, Riddick was not taking the medication that his
doctor had proscribed to manage his Hepatitis C because of the side effects, explaining that it
"[made him] drowsy, as if he was back on drugs." (Id.) He had approximately one asthma attack
a month, and carried his "pump" with him. (Id. at 37.) He said that he was supposed to use it
twice per day, but tried to use it only once. (Id.) Riddick also had a nebulizer that he had used

3

around three times in the past fifteen months. (Id.) He testified that the conditions in the kitchen
at Key Food did not trigger his asthma because it was well ventilated and he worked near the
walk-in refrigerator which "brings in the air." (Id.)
Riddick testified that on an average day he was able to cook; clean; shop for groceries; do
laundry; and bathe, dress, and feed himself. (Id. at 35.) At the time of the hearing, he worked at
Key Food five hours a day, six days a week. (Id. at 34.) While he was there, he was on his feet
for most of his shift, standing and walking. (Id.) He infrequently had to lift. (Id.) At most, he
said, he would lift a rack of chickens weighing around ten pounds. (Id.) To get to work, he took
two busses and a train and said that he only had trouble in "cold weather." (Id. at 35.) He
testified that he could walk about half a mile or for about an hour. (Id. at 36.) In a function
report, completed in March 2013 as part of his initial application for disability benefits, he wrote
that he needed a cane for walking long distances, that he could walk about eight blocks before he
needed to stop and rest, and that he could only walk for twenty to thirty minutes. (Id. at 112.) He
also wrote that he could not sit still for long periods of time; would get winded climbing stairs;
and was unable to kneel, squat, or fully bend. (Id. at 111.) He testified that he did not engage in
many social activities and that he preferred to read. (Id. at 35.) In his function report, he wrote
that he would meet daily in groups, and helped cook and prepare meals at the treatment center.
(Id. at 110.) He tried to go to church twice a week. (Id.)

2.

Medical Evidence
a.

Sandra Brown-Truter, N.P.

The record contains notes from Phoenix House for two physical examinations by Nurse
Practitioner Sandra Brown-Truter ("NP Brown-Truter"). (Id. at 146-47, 168-69.) The first
examination notes, dated August 20, 2012, indicated that Riddick' s current complaints were hip

4

pain and insomnia. (Id. at 146.) NP Brown-Truter listed three current medications: 25mg daily of
hydrochlorothiazide, for high blood pressure; l 50mg of Zantac twice a day, for acid reflux; and
15mg daily ofMobic daily, an NSAID (non-narcotic) pain reliever. 1 (Id. at 147.) She indicated
that Riddick's last PPD test, for tuberculosis, was negative. (Id.) After a review of his systems,
she wrote that he had occasional chest pain and right hip pain. (Id.) NP Brown-Truter placed a
mark next to each of the following activities, although it is unclear2 whether she intended to
indicate that Riddick had limitations in them: walking, stooping, reaching, standing, pulling,
lifting, pushing, kneeling; working inside and outside; working in either humid, dry, or dusty
conditions; or working in sudden temperature changes. (Id. at 149.) At the end of the physical,
she recommended that Riddick continue his course of medications, add 81 mg of aspirin daily for
his hypertension, take Benadryl for his insomnia, and consider stop smoking. (Id.)
The second examination notes were taken just three weeks later, on September 4, 2013.
(Id. at 171.) NP Brown-Truter wrote that Riddick was "awaiting ortho appointment." (Id. at 168.)

His current complaint was "hip pain." (Id.) She wrote "see med sheet" for a list of current
medications, but the "med sheet" is not included in the record. (Id.) She again indicated that
Riddick was experiencing right hip pain. (Id. at 169.) NP Brown-Truter recommended that
Riddick continue his current medication for hypertension, cease smoking, and see an orthopedic
specialist for his hip pain. (Id. at 171.)
b.

Jamaica Hospital Medical Center

The record contains the results of five radiology examinations performed between
November 2010 and March 2011: MRI's in December 2010 and March 2011, an upper GI series

1 The

generic name for Mobic is meloxicam. 2 Attorneys Medical Deskbook § 26:27.10.
The form directed the provider to place a check mark to indicate "no limitation," an "x" to indicate some
limitation, or an "o" to indicate that the activity is "to be avoided." (Id. at 149.) Rather than any of these symbols,
NP Brown-Truder placed a line next to each item. (Id.)

2

5

in December 2010, and chest x-rays in November 2010 and March 2011. (Id at 140-44, 182-87.)
The x-rays and GI series were normal. (Id. at 144, 184, 187.) The MRI on December 6, 2010
indicated an abnormality on Riddick's left femoral head which raised the possibility avascular
necrosis-bone tissue death caused by a lack of blood supply, which can lead to tiny breaks in
the bone and the bone's eventual collapse 3-although the "femoral head contour [was]
maintained." (Id at 185) The MRI also revealed "moderate degenerative changes of the hips,"
the formation of osteophytes, joint space narrowing, and bone cysts, all characteristics of
osteoarthritis. 4 The test also showed that there was fluid buildup in the bone marrow of the right
hip socket, and that the hip socket was extending into the pelvic bone. (Id) The fluid, plus
irregularity on the surface of the pelvic bone, raised the "suspicion of fracture." (Id.) The doctor
noted "bilateral hip degenerative changes," and recommended that Riddick have another MRI
done in the future for comparison. (Id.)
A second MRI, on March 23, 2011, noted that there was no fracture or dislocation. (Id. at
142.) There was, however, hardening of the bone in the hip socket, as well as an irregular
contour of the femoral neck, which suggested femoroacetabular impingement, a condition that
causes the hip bones to rub against each other and cause damage to the joint. 5 (Id.) The doctor
found "moderate osteoarthrosis, grossly unchanged." (Id. at 143.)
c.

Hospital for Special Surgery

The record contains a November 20, 2013 imaging study of Riddick's hip, dictated by
Carolyn Sofka, M.D., of the Hospital for Special Surgery Department of Radiology and Imaging,

3

See A vascular necrosis, MA YO CLINIC (Mar. 21, 2015), http://www.mayoclinic.org/diseases-conditions/avascularnecrosis/basics/ definition/con-20025 517.
4 See Thomas J. Schnitzer, Osteoarthritis (Degenerative Joint Disease), in CECIL TEXTBOOK OF MEDICINE 1550,
1550-52 (Lee Goldman, M.D., and J. Claude Bennet, M.D., eds. 2003).
5 Femoroacetabular Impingement (FA/), ORTHOINFO (Sept. 2010),
http://orthoinfo.aaos.org/topic.cfm?topic=A0057 l.

6

which indicated bilateral hip osteoarthritis greater in the right hip than the left, with moderate
shifting of the right femoral head. (Id. at 190, 193.) The imaging study was ordered by Physician
Alejandro Leali. (Id. at 190.)

d.

Iqbal Teli, M.D. - Consultative Examination

Iqbal Teli, M.D., examined Riddick on April 22, 2013, as a consulting physician for the
Commissioner. (Id at 163-4.) Dr. Teli wrote that Riddick's "chief complaint" was a history of
hepatitis C. (Id at 162.) He also wrote that Riddick had a history of both asthma and
hypertension "since 2010." (Id) Dr. Teli listed Riddick's current medications as: ProAir Inhaler
as needed; Hydrochlorothiazide 25mg daily; and Pegasys ProClick injection 180 mcg once a
week. (Id.) Dr. Teli described Riddick's social history of smoking since the age of thirteen,
heavy drinking, and heroin abuse. (Id) He noted that Riddick continued to smoke ten cigarettes a
day, but stopped drinking in 2012 and using heroin in 2010. (Id) Riddick reported cooking and
cleaning three times a week; showering six times a week; and dressing seven times a week. (Id.)
Dr. Teli completed a physical examination of Riddick and noted that Riddick "appeared
to be in no acute distress." (Id at 163.) Dr. Teli also noted that Riddick's gait and stance were
normal, that he could "walk on heels and toes without difficulty," and that he could squat at
"75%." (Id) He further noted that Riddick used no assistive devices, "needed no help changing
for exam or getting on and off [the] exam table," and was "able to rise from [the] chair without
difficulty." (Id.) An examination of Riddick's musculoskeletal system showed full flexion,
extension, range of motion, in the spine, shoulders, elbows, forearms, wrists, hips, knees, and
ankles. (Id.) In addition, Riddick'sjoints were "stable and nontender." (Id. at 164.) The only
abnormality Dr. Teli noted was "bony swelling of both wrists." (Id) Examination of all other
systems showed normal results. (Id. at 163-64.)

7

Dr. Teli diagnosed Riddick with history of hepatitis C, bronchial asthma and
hypertension, with a "stable" prognosis." (Id at 164.) He concluded that Ridd1ck should "avoid
dust and other asthma irritants due to history of asthma." (Id)
3.

The ALJ's Findings

On January 21, 2014, ALJ Cofresi issued a decision, finding that Riddick was not
disabled within the meaning of sections 216(i), 223(d), and 1614(a)(3)(A) of the Act, and had not
been disabled since March 23, 2011, the date he alleged the onset of his disability, through the
date of the decision. (Id. at 11.) ALJ Cofresi found that although Riddick was employed at Key
Food, his monthly earnings of approximately $960 did not reach the substantial gainful activity
threshold of $1,040 per month, and therefore Riddick had not engaged in substantial gainful
activity during the period at issue. (Id. at 13, citing POMS DI 10505.015.) He then found that
Riddick suffered from two severe impairments, bilateral hip osteoarthritis and asthma, but did
not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the
listings"). (Id. at 13-14.) ALJ Cofresi found that Riddick retained the residual functional capacity
("RFC") to perform the full range of sedentary work. (Id. at 15.) Although he was unable to
perform his past work as a garbage collector (Id. at 17.), considering Riddick's age, education,
and RFC, there were jobs in significant numbers in the national economy that he could perform.
(Id. at 18.) ALJ Cofresi, therefore, denied Riddick's claim. (Id. at 19.)

ALJ Cofresi explained that the record did not document "a musculoskeletal impairment
severe enough to meet the requirements" of the listings. (Id. at 14.) He found that there was "no
evidence of the inability to ambulate effectively" or to "perform fine and gross movements
effectively." (Id.) Furthermore, the record did not contain required medical findings such as

8

"nerve root compression," "motor loss," "sensory or reflex loss, "or positive straight leg raise
testing," and "also no evidence of spinal arachnoiditis." (Id.) He similarly found that the record
did "not document a respiratory system disorder severe enough to meet the requirements" of the
listings. (Id.) The record did not contain any pulmonary tests or evidence of regular "asthma
attacks, in spite of prescribed treatment and requiring physician intervention." (Id. at 14-15.)
Next, the ALJ considered Riddick's symptoms, and determined that he retained the RFC
for the full range of sedentary work. (Id. at 15.) In considering the symptoms, the ALJ described
a "two-step process," in which he first determined "whether there is an underlying medically
determinable physical or mental impairment(s)" that could "reasonably be expected to produce
[Riddick's] pain or other symptoms[.]" Second, the ALJ stated that he considered the "intensity,
persistence, and limiting effects of [Riddick's] symptoms" and "the extent to which they limit"
his functioning. (Id.) ALJ Cofresi determined that, although Riddick's medically determinable
impairments could reasonably be expected to cause the "alleged symptoms," his "statements
concerning the intensity, persistence, and limiting effect of these symptoms [were] not entirely
credible." (Id.)
Specifically, the ALJ found that Riddick has "intact activities of daily living," noting that
he testified that he works in the kitchen at both at Key Food and Phoenix House as part of his
rehabilitation program, attends groups, and prepares meals, sweeps, mops, and does laundry.
(Id.) Riddick spends five hours of his workday standing or walking, carries trays of chickens

weighing up to ten pounds, and earns $240 per week. (Id.) He further noted that Riddick is able
to get to work by traveling on two buses and the train. (Id.) Although in his function report,
Riddick noted difficulty bending and dressing, he testified that he has "no difficulty dressing and
bathing," and "the record contains no ongoing complaints of difficulty with personal care." (Id.

9

at 16.)The ALJ further found that the consultative physical examination was "entirely normal"
and "treating examinations were

also normal." (Id.) He noted that "physical examinations were

generally normal with full strength, sensation, and reflexes in all aspects of the musculoskeletal
system." (Id.) He specifically found "no imaging or ongoing complaints of wrist/hand pain."
(Id.)

Addressing Riddick' s need for a "right hip replacement," ALJ Cofresi wrote that Riddick
"ha[d] not received the type of treatment one would expect for a disabled individual," and had
been to the Hospital for Special Surgery 6 only once, two weeks before the hearing, and "was
advised that hip replacement surgery was not needed." (Id.) He also noted that Riddick "testified
to no further treatment with this provider" and that the record contained "no other
recommendations for hip surgery." (Id.) He noted that Riddick's medications "are not unusual in
type or dosage and they appear effective," commenting that Riddick "only takes Mobic for hip
pain with no side effects." (Id.) Additionally, the ALJ found that Riddick's asthma only caused
problems "every now and then" and that his work environment did not affect his condition. (Id.)
He also explained that Riddick's history of hepatitis C, hypertension, acid reflux, drug and
alcohol addiction, and positive PPD tests did not cause more than minimal limitations to his
work activity. (Id. at 14.)
ALJ Cofresi next considered the opinions of consultative physician Dr. Teli and treating
provider NP Brown-Truter. (Id. at 17.) The ALJ gave Dr. Teli's opinion that Riddick "should
avoid dust and other irritants" "limited weight because the record reflect[ ed] no significant
difficulty due to asthma irritants." (Id.) He also noted that Dr. Teli performed a physical
examination that revealed that Riddick was "entirely normal," except for the limitation of "squat

6

The ALJ incorrectly identified the hospital as the Hospital for Joint Diseases. (Tr. at 31.)

10

75 percent." (Id) He noted that NP Brown-Truter "opined that claimant ha[d] no limitation in
walking, stooping, reaching, standing, pulling, lifting, pushing or kneeling," and no limitations in
his working conditions. (Id) He gave her opinion "some weight because it [was] supported by
the normal examination findings" and was consistent with the overall record. (Id)
In making his determination that Riddick retained an RFC for sedentary work, the ALJ
noted that "the record reflect[ed] no opinions from treating or examining physicians indicating
that the claimant is disabled or even has exertional limitations greater than those determined in
the decision." (Id) In fact, he noted that Riddick was "currently working at a greater exertional
level than as found in this decision." (Id) "Nevertheless, based on the totality of the evidence,"
the ALJ found that Riddick was "limited to at least sedentary work due to bilateral hip
osteoarthritis causing pain and shortness of breath on exertion related to asthma." (Id)
Considering that Riddick was a "younger individual" with at least a high school
education, the ALJ used the Medical-Vocational Guidelines to determine that Riddick was not
disabled. (Id. at 18-19 citing 20 C.F.R., Part 404, Subpart P, App'x. 2.)
C.

Appeals Counsel Review

Riddick requested review by the Appeals Counsel on January 22, 2014. 7 (Id. at 5.) He
submitted additional evidence, most of which related to the period after the ALJ's January 2014
decision. 8 (See id at 4, 194-199.) The only evidence that Riddick submitted that was within the
period at issue was a duplicative copy of the imaging study from the Hospital for Special Surgery
dated November 20, 2013. (Id. at 193.) The Appeals Counsel denied review on September 14,

ALJ Cofresi is one of several administrative law judges whose decisions were challenged in the class-action
lawsuit Padro, et al. v. Colvin. (Id. at 6.) Under the terms of the settlement of that case, all of ALJ Cofresi's opinions
are subject to special review procedures, including automatically deeming review "requested" by claimants. (Id.)
8 The post-decision records include notes from a fluoroscopic guided injection in his right hip at the Hospital for
Special Surgery on July 28, 2014 (Id. at 194-95.), and treatment notes from Nurse Practitioner Edith Ogbenna at the
Damien Family Health Center on June 12, 2014. (Id. at 199.)

7

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2014, and the ALJ's decision became the final decision of the Commissioner. (Id at I.)

III. DISCUSSION
A. Standard of Review
Upon 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 reviewing court does not determine de novo whether a claimant is disabled. 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 the Commissioner's decision is
supported by substantial evidence in the record. 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. Id.
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided
that the failure "might have affected the disposition of the case." Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)); accord

Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an
applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., Kohler,
546 F.3d at 265 (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 sentence four of 42

12

U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair
record to explain his reasoning. Crysler 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 ifthere 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 Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); accord Brault, 683 F.3d at 447-48. The substantial evidence

standard means 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 (quoting
Warren v. Shala/a, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).

To be supported by substantial evidence, the ALJ's decision must be based 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 of the

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," Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir. 1983) (per curiam), or "reconcile explicitly every conflicting shred of
medical testimony," Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v_
Heckler, 725 F .2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence

of a person's alleged disability. See Ericksson v. Comm 'r of Soc. Sec., 557 F.3d 79, 82-84 (2d

13

Cir. 2009) (mischaracterizing evidence); Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008)
(overlooking and mischaracterizing evidence);

Ruiz v. Barnhart, No. 01 Civ_ 1120 (DC), 2002

WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence); see also Zabala, 595 F.3d at 409
(reconsideration of improperly excluded evidence typically requires remand). Eschewing rote
analysis and conclusory explanations, the ALJ must discuss the "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) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
When "new and material evidence" is submitted, 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. Determination of Disability
1. Evaluation of Disability Claims

Under the Social Security 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." Id. at
§§ 416(i)(l)(A), 423(d)(l)(A), 1382c(a)(3)(A); see also 20 C.F.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

14

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.F.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
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 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; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F.
Supp. 2d 24, 29 (S.D.N.Y. 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. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Cage v. Comm 'r ofSoc. Sec.,
692 F.3d 118, 123 (2d Cir. 2012).
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 of the

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 [she] can still do despite [her] limitations." 20 C.F.R.
§§404.1545(a), 416.945(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also S.S.R. 96-

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9P (clarifying that a claimant's RFC is her maximum ability to perform full-time work on a
regular and continuing basis). The ALJ' s assessment of a claimant's RFC

must be based on "all

relevant medical and other evidence," including objective medical evidence, such as x-rays and
MRis; the opinions of treating and consultative physicians; and statements by the claimant and
others concerning the claimant's impairments, symptoms, physical limitations, and difficulty
performing daily activities. Genier, 606 F.3d at 49 (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 [her 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); Genier, 606 F.3d at 49. The ALJ has
"discretion in weighing the credibility of the claimant's testimony in light of the other evidence
ofrecord." Genier, 606 F.3d at 49 (citing Marcus v. California, 615 F.2d 23, 27 (2d Cir. 1979));

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); Briscoe v. Astrue, No. 11 Civ. 3509 (GWG),
2012 WL 4356732, at *16-19 (S.D.N.Y. Sept. 25, 2012) (reviewing an ALJ's credibility
determination). In making the determination of 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).

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2. The Commissioner's Duty to Develop the Record
The ALJ generally has an affirmative obligation to develop the administrative record. 20
C.F.R. § 404.1512(d); Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ("Social Security proceedings
are inquisitorial rather than adversarial. It is the ALJ' s duty to investigate the facts and develop
the arguments both for and against granting benefits[.]"). Under the Act, the ALJ must "make
every reasonable effort to obtain from the individual's treating physician ... all medical
evidence, including diagnostic tests, necessary in order to properly make" a determination of
disability. 42 U.S.C. § 423(d)(5)(B). Furthermore, when the claimant is unrepresented by
counsel; the ALJ "has a duty to probe scrupulously and conscientiously into and explore all
relevant facts ... and to ensure that the record is adequate to support his decision." Melville v.

Apfel, 198 F.3d 45, 51 (2d Cir. 1999), citing Dechirico v. Callahan, 134 F .3d 1177, 1183 (2d Cir.
1998); Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 37-38
(2d Cir. 1996). Remand to the Commissioner is appropriate when there are "obvious gaps" in the
record and the ALJ has failed to seek out additional information to fill those gaps. See Lopez v.

Comm'r ofSoc. Sec., 622 Fed. Appx. 59 (2d Cir. N.Y. 2015), citing Rosa v. Callahan, 168 F.3d
72, 79 n.5 (2d Cir. 1999).

C.

Issues on Appeal
In the current action, Riddick argues that the case should be remanded to the

Commissioner because ( 1) the ALJ failed his affirmative obligation to develop the administrative
record; and (2) a May 14, 2015 letter from Dr. Leali, of the Hospital for Special Surgery,
constitutes new and material evidence that warrants remand for additional consideration. The
Commissioner contends that the ALJ' s decision is supported by substantial evidence at each step.

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Having considered the Parties' arguments and the record as a whole, the Court finds that remand
is necessary for further development of the administrative record.
1. The ALJ Failed to Adequately Develop the Record of Riddick's Hip Impairment
In his application for disability benefits, completed in March 2013, Riddick indicated that
he required a "right hip replacement" (Tr. at 95.) and, when the ALJ asked at the hearing in
December 2013 why Riddick applied for benefits, he testified that it was because of his "hip
ailment." (Tr. at 31.) ALJ Cofresi, however, failed to adequately develop the record of objective
medical findings with respect to Riddick's hip impairment, leaving significant gaps in the record
that warrant remand.
At the hearing, Riddick told the ALJ that he had only recently been examined by a doctor
at the Hospital for Special Surgery, and had inquired about hip replacement surgery. (Tr. at 32.)
Riddick said of that conversation, "[the doctor] said due to my age and the condition, he doesn't
advise it." (Id.) At the hearing, ALJ Cofresi did not develop Riddick's testimony to clarify what
"the condition" meant, or why the doctor did not advise hip replacement surgery. In his decision,
however, the ALJ characterized the testimony as establishing that Riddick "was advised that hip
surgery was not needed" and noted that "the record reflects no other recommendations for hip
surgery," before rejecting Riddick's allegations that he needed a right hip replacement. (Id. at
16.)
With respect to Riddick's hip impairment, the record contains the results of two MRI/CT
scans, from December 2010 and March 2011, which suggest moderate arthritic degeneration in
his right hip socket. (Id. at 140-44, 182-87.) Then, in August and September of2012, Riddick
reported to the nurse practitioner at Phoenix House that he was experiencing hip pain and
insomnia, and he was referred to an orthopedic specialist. (Id. at 146, 168.) Next there is the

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November 2013 imaging report from the Department of Radiology and Imaging at the Hospital
for Special Surgery, finding bilateral hip osteoarthritis. (Id. at 190.)
The record does not, however, contain any treatment notes from Dr. Leali, the physician
at the Hospital for Special Surgery who ordered the imaging report. (Id.) Nor are there any
records or notes related to the visit that Riddick testified occurred in November 2013, at which
he was apparently told that hip replacement surgery was not recommended. (Id. at 32.) The
record reflects no efforts by the ALJ to obtain these records. (See Id. at 145, 166 (request and
subpoena for Records from Phoenix House); 179 (subpoena for records from Weill Cornell
Medical Center); 181 (subpoena for records from Jamaica Hospital).) Nor does the record show
that he advised Riddick, who at that time was proceeding prose, that it was important that he
provide such records. See Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980) (remand was
appropriate where an ALJ failed to help a pro se litigant develop her case).
The ALJ was obligated to fill these gaps in the record. See Lopez v. Comm 'r ofSoc. Sec.,
622 Fed. Appx. 59 (2d Cir. N.Y. 2015), citing Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999). Riddick's testimony was that the doctor at the Hospital for Special Surgery "did not
advise" hip surgery because of Riddick's age and "the condition." (Tr. at 31.) Rather than being
the final word, Riddick's imprecise non-medical testimony should have suggested lines of
mqmry.
Riddick argues that in addition to requesting records from Dr. Leali, the ALJ was also
required to secure medical source statements from Riddick's treating providers to further develop
the record regarding Riddick's hip impairment. (Pl.'s Mem. at 9.) He argues that
... when the claimant appears prose, the combined force of the treating
physician rule and of the duty to conduct a searching review requires that
the ALJ make every reasonable effort to obtain not merely the medical
records of the treating physician but also a report that sets forth the

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opinion of that treating physician as to the existence, the nature, and the
severity of the claimed disability.
Rosado v. Barnhart, 290 F. Supp. 2d 431, 438 (S.D.N.Y. 2003), quoting Peed v. Sullivan, 778 F.

Supp. 1241, 1246 (E.D .N. Y. 1991 ). Riddick notes that here the ALJ found that "[t]he record
reflects no opinions from treating or examining physicians indicating that claimant is disabled,"
(Id. at 17.), but made no effort to obtain such opinions. (Pl. 's Mem. at 9.) To the extent that there

are no medical statements in the record that interpret Riddick's 2010 and 2011 MRis, or the 2013
imaging study, and opine on the limitations that such impairment may impose, the Court agrees
that remand is warranted for further development. This, too, constitutes an obvious gap in the
record that the ALJ was obligated to attempt to fill before rendering a decision on Riddick' s
claim.
Riddick points to one more area where he alleges the Commissioner and ALJ Cofresi
failed in their duty to develop the record. (Pl.' s Mem. at 11.) On April 22, 2013, consulting
physician Dr. Teli examined Riddick at the request of the Commissioner. (Tr. at 162.) Riddick
contends that the notes from this examination do not reflect that Dr. Teli was provided with
copies of Riddick' s two MRis to that date, which revealed osteoarthritis of the hip and,
accordingly, did not diagnose Riddick with osteoarthritis. (See Tr. at 164 (Dr. Teli listing
Riddick's diagnoses as "history of hepatitis C[,]" "history of bronchial asthma[,]" and "history of
hypertension").) Without this evidence available to the doctor, Riddick argues, Dr. Teli's opinion
has "no probative value with respect to his exertional capacity for sitting, standing, and
walking." (Pl.'s Mem. at 11, citing Burgess v. Asture, 537 F.3d 117, 132 (2d Cir. 2008)
(remanding where ALJ used opinion of a consulting physician who had not reviewed claimant's
MRI Report to discount the opinion of the treating physician).) The Commissioner, who
concedes that Dr. Teli did not have Riddick's hip-related imagery when drafting his report,

20

argues that the probative force of Dr. Teli's findings are not diminished by his failure to review
Riddick's MRI Reports because Dr. Teli performed his own complete physical examination of
Riddick that revealed no impairments. (Def.'s Reply Mem. of Law at 3.) The Commissioner also
infers that because Dr. Teli's report does not mention any such complaints, Riddick "did not
complain of hip- or sitting-related problems to [him]."9 (Id.)
ALJ Cofresi's decision does expressly assign weight to Dr. Teli's assessment of
Riddick's limitations with respect to sitting, standing, and walking, although he did recite that
the examination "showed squat 75 percent but was otherwise entirely normal[,]" later opining
that "[t]he record reflects no opinions from treating or examining physicians indicating that the
claimant is disabled or even has exertional limitations greater than those determined in this
decision." (Tr. at 17.) Nevertheless the Court finds that here, where there is otherwise a lack of
medical opinions interpreting the results from Riddick's MRis and imaging report, the
Commissioner's failure to provide Dr. Teli with Riddick's MRis and imaging report is another
obvious gap in the record that necessitates remand.
2. The Decision is Not Based on Substantial Evidence because the ALJ Ignored
Riddick's Testimony of Hip Pain and Ineffective Medication
During the brief hearing before ALJ Cofresi, Riddick testified about his "constant" hip
pain and the decreased effectiveness of his medication. (Tr. at 36, 38.) However, in his decision,
the ALJ referred only generically to the fact that Riddick's osteoarthritis "caused pain." (Id. at
17.) The ALJ did not mention Riddick's statements that his medications were not effective, yet
found that Riddick's medications "appear effective." (Id. at 16.) Thus, the Court further finds
that remand is warranted for the ALJ to consider this testimony. See Ruiz, No. 01 Civ. 1120

The Court does not adopt the Commissioner's supposition that the absence of complaints in a consulting
physician's report is probative of the level of the claimant's impairment, as such an assumption is overly
speculative.

9

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(DC), 2002 WL 826812, at *6 (finding that the ALJ committed legal error when he ignored
evidence in support of plaintiffs claim of disability).
Specifically, Riddick twice mentioned experiencing pain that was no longer lessened by
medication, which the ALJ seemed to ignore. First, after asking Riddick a series of questions
about his functional capacity, the ALJ asked:
ALJ: Any problem with sitting?
RIDDICK: Well, my medication, I'm immune to it so yeah, I have a
problem sitting and standing. Sleeping properly.
ALJ: I'm sorry, I didn't hear you.
RIDDICK: I have a problem with sitting, standing and sleeping properly.
ALJ: What do you mean you have a problem with sitting?
RIDDICK: Well, I'm in pain constantly because I'm immune to my
medication now. So I'm in pain.
ALJ: The record says you had a history of asthma?
(Tr. at 36.) At the end of the hearing, the ALJ asked Riddick ifthere was anything else that
Riddick wanted to tell him.
RIDDICK: As far as my condition?
ALJ: Anything you want to tell me. This is your opportunity to tell me
anything you would like me to know and then I will review the file before I
can get a decision out to you.
RIDDICK: Oh, like, I mean, what I notice for myself, you know, as time
progress [sic], I'm immune to the medication. He just want [sic] to give me
stronger medication. I'm in pain every day. Every day I'm in pain. But I
have no choice but to deal with it, you know. And the medication, it seems
like I have to take it for the rest of my life or until I get a hip replacement
or get older because, you know but I've been working half my life. I've
been employed half my life. I know I did some damage to my body. Work,
drugs and stuff. But, well ALJ: All right.

22

RIDDICK: Plus I know I can't go back to doing what I used to do. That's
what I found out.
ALJ: You can't go back to sanitation.
RIDDICK: No.
ALJ: You must have been lifting some very heavy containers in those days.
(Id. at 38-39.) The ALJ then concluding the hearing. (Id. at 39.)

ALJ Cofresi's decision does not discuss this testimony. While the ALJ is not required to
accept a claimant's statements about his subjective level of pain or effectiveness of medication
alone as conclusive evidence of disability, 20 C.F.R. § 404.l 529(a), the Social Security
Administration's regulations at minimum require the ALJ to analyze the claimant's credibility
with respect to such claims. 42 U.S.C. § 423(d)(5)(A); see also 20 C.F.R. §§ 404.1529, 416.929.
Where, as here, the decision contains no discussion of the testimony, "it is impossible to evaluate
the soundness of [the ALJ's] decision." Ruiz, No. 01 Civ. 1120 (DC), 2002 WL 826812, at *6.
Accordingly, the Court finds that remand is appropriate for the ALJ to consider Riddick's
testimony that he suffers from severe pain and that medication is ineffective, and to provide an
analysis of the credibility of this testimony.
3. New and Material Evidence

Riddick further argues that a May 14, 2015 letter written by Dr. Leali is new and material
evidence that justifies remand to the Commissioner for further proceedings. (Pl. Mem. at 12.)
Because the Court has already articulated several reasons why remand for further proceedings is
appropriate, I decline to address this argument.
VI. CONCLUSION

For the reasons set forth above, the Court GRANTS Riddick's motion for judgment on

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the pleadings and REMANDS this case to the Commissioner for reconsideration in accordance
with this Order and Opinion. On remand, the ALJ must develop the record of medical evidence
of Riddick's hip impairment by obtaining treatment notes from Dr. Leali and opinions from
treating and/or consulting physicians that interpret Riddick's diagnostic testing. Furthermore, the
ALJ must consider and evaluate the credibility of Riddick's testimony regarding his subjective
symptoms of pain and the effectiveness of his medication.

SO ORDERED this 29th day of February 2016
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

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