Rodriguez v. Colvin
Filing
37
OPINION AND ORDER re: 29 MOTION to Remand to Social Security Administration filed by Carolyn W. Colvin; 25 MOTION for Judgment on the Pleadings filed by Rafael Rodriguez. For the foregoing reasons, the Court GRANTS Rod riguez's and the Commissioner's requests to REMAND for further administrative proceedings, and DENIES Rodriguez's requests for an instruction for calculation of benefits, assignment to a different ALJ, and imposition of a time limit in remand proceedings, pursuant to 42 U.S.C. § 405(g) and consistent with this Opinion and Order. (Signed by Magistrate Judge Ronald L. Ellis on 3/31/2017) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAFAEL RODRIGUEZ,
OPINION AND ORDER
Plaintiff,
- against -
15-CV-2570 (RLE)
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
.
___________________91
RONALD L. ELLIS, United States Magistrate Judge:
I.
INTRODUCTION
Plaintiff Rafael Rodriguez commenced this action under the Social Security Act (the
"Act"), 42 U.S.C. § 405(g), challenging a final decision of the Commissioner of Social Security
(the "Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). On November 30, 2015, Rodriguez moved for judgment
on the pleadings, asking the Court to reverse the Commissioner's denial, and remand for a
calculation of benefits. In the alternative, Rodriguez asks for a remand for further administrative
proceedings with assignment to a different ALJ and with time limits imposed on the remand
proceedings. Pl.'s Mem. in Support of his Mot. for J. on the Pleadings at 1. The Commissioner
filed a cross-motion for remand, asking the Court to remand the case for further administrative
proceedings. Def.'s Mem. of Law in Support of the Commissioner's Cross Motion for Remand
and in Opp' n to Pl.' s Mot. for J. on the Pleadings at 1. For the reasons set forth below, the case
is REMANDED for further administrative proceedings. Rodriguez's request for an instruction
for calculation of benefits, and his request for remand to a different ALJ with a time limit on
nrnceectin11s are hoth DENIED.
II.
A.
BACKGROUND
Procedural History
Rafael Rodriguez applied for DIB on June 11, 2010, and for SSI on September 22, 2010,
alleging disability that began on February 1, 2009. (Tr. at 282-89). Both claims were denied by
the Social Security Administration ("SSA") on January 26, 2011. (Id. at 184). Rodriguez
submitted a request for a hearing by an Administrative Law Judge ("ALJ") on February 11,
2011. (Id. at 196). ALJ Seth Grossman held hearings on December 15, 2011, April 23, 2012, and
May 13, 2013. Rodriguez attended the December 2011 hearing with counsel, Karen Tobin. (Id.
at 136). He attended the April 2012 hearing with a different attorney, Aaron Vega, a vocational
expert, Merriam Greene, and a medical expert, Dr. Donald Goldman. (Id. at 55). Vega also
represented Rodriguez at the May 2013 hearing, attended by a different vocational expert, Jakob
Tikes, and a different medical expert, Dr. Malcolm Brahms. (Id. at 29). On August 8, 2013, ALJ
Grossman issued a decision denying Rodriguez either benefit. (Id. at 21 ). Rodriguez filed a
request with the Appeals Council for a review of ALJ Grossman's decision on August 8, 2013.
(Id. at 7). The request was denied on March 9, 2015. (Id. at 1). Rodriguez filed this action on
April 3, 2015, and both parties consented on May 7, 2015, to the jurisdiction of the undersigned
pursuant to 28 U.S.C. § 636(c). (Doc. No. 1, 6).
B.
Medical Evidence
Rodriguez claims his disability is caused by a number of psychological and physical
impairments: anxiety, depression, schizophrenia, right leg and knee pain, left shoulder pain, and
complications from past surgeries. (Id. at 188, 314 ). The medical evidence presented to ALJ
2
Grossman covers the period from August 8, 2006, to April 25, 2013, and individual pieces of
evidence often concern multiule imm1irments. (&e, e.~.1 Tr. ut 670-76) (trc~ting physician's
report opining on disc herniation, lower back pain, and osteoarthritis in the right knee). ALJ
Grossman was thus required to analyze a lengthy and complex record to assess the effects that a
number of impairments - both independently and in combination-had on Rodriguez's ability to
work. This Opinion and Order presents the medical evidence grouped by impairment.
1.
Right Knee Impairment
In 2006, Rodriguez was allegedly assaulted by a co-worker and suffered a contusion to
his right knee. (Id at 149, 381). Stephen Kette, a physician's assistant at the Center for Bone
and Joint Disease, diagnosed Rodriguez with a ligament sprain and meniscal tear in his right
knee. (Id. at 403). Rodriguez made subsequent visits to Dr. Richard Katz at the Center,
complaining of pain in his knee. Dr. Katz ordered an arthroscopy, and concluded that the
meniscal tear might have aggravated some pre-existing problems. He noted that Rodriguez
would have to be disciplined about physical therapy to improve his knee condition. (Id. at 398402).
On November 19, 2010, Dr. Dipti Joshi examined Rodriguez for the SSA. Dr. Joshi
found some soft tissue swelling around Rodriguez's right knee and extension out to 75 degrees.
(Id. at 569). Dr. Joshi concluded that Rodriguez had "moderate limitation to walking, climbing,
and standing" and "[m]arked limitation to squatting." (Id. at 570). On November 30, 2011, Dr.
Daniel Sotelo-Garza, one of Rodriguez's treating physicians at All Med Clinic, diagnosed
Rodriguez with severe osteoarthritis in his right knee. (Id. at 671).
Rodriguez had another orthopedic evaluation on February 2, 2012. Dr. Jose Corvalan
noted mild swelling of the right knee and 40 degrees of flexion. He concluded that Rodriguez
3
was moderately limited in walking long distances, bending, climbing, and standing and sitting
for lon12 ner1ods of time because of right knee and back pain. (Id. at 759-60).
Rodriguez was also examined by Dr. Henry Sardar, 1a pain management specialist, on
April 11, June 6, and August 8of2012. (Id. at 967-74). Dr. Sardar noted during each of those
visits that Rodriguez had mild effusion, osteoarthritic hypertrophy, and patellar grinding in his
right knee. (Id.). He ordered an x-ray on February 29, 2012, which documented degenerative
change, and an MRI on August 22, 2012, which found a degenerative meniscus tear, mild
effusion, and osteoarthritic changes. (Id. at 940-41). On September 14, 2012, however,
Rodriguez was examined by Dr. Ashok Dubey at All Med Clinic. (Id. at 893). Dr. Dubey noted
mild swelling in Rodriguez's right knee, but found no misalignment, defects, or muscle atrophy.
(Id.). Rodriguez was examined again by Dr. Sardar on January 9, 2013. Dr. Sardar's findings
were the same as the three prior visits. (Id. at 961 ).
2.
Left Shoulder Impairment
During his consultative examination on November 19, 2010, Dr. Joshi noted that
Rodriguez had rotator cuff surgery performed on his left shoulder and that he suffered "moderate
limitation to reaching" with his left arm. (Id. at 570). Forward elevation of the left arm was
limited to 100 degrees, abduction to 120 degrees, and external rotation to about 75 degrees. (Id.
at 569). Dr. Corvalan also found "moderate limitation" on using the left shoulder at his February
2, 2012 consultative examination. (Id. at 759). He concluded, however, that Rodriguez should
never lift or carry objects even under ten pounds because of his left shoulder pain. (Id. at 761).
1
Dr. Sardar was indicted for healthcare fraud on October l, 2012. His case is still pending. See Ex. C, Def.'s Mem.
of Law in Support of the Comm'r Cross Motion for Remand and in Opp'n to Pl.'s Mot. for J. on the Pleadings. Two
other medical sources in the record, Dr. Herbert Meadow and West 5th Medical Supply, have also been indicted for,
or pied guilty to healthcare fraud. See id., Ex. A. These sources are still included as part of the medical record here,
as they formed part of the record the ALJ considered, and, in the case of Dr. Meadow, provided evidence the ALJ
expressly relied on to make his decision. A discussion of the need to discount this evidence on remand is provided
below in Section III. The Commissioner raised this as grounds for remand, however, Rodriguez did not mention it
in his brief.
4
Similarly, Dr. Sardar noted decreased range of motion in forward flexion and abduction in the
left2 shoulder during his examinations on April 1L2012, June 61 2012, August 8, 2012,
November 7, 2012, December 12, 2012, and January 9, 2013. (Id. at 961-72).
3.
Disc Herniation and Lower Back Pain
Following Rodriguez's 2006 injury, an MRI revealed he had a moderately herniated disc
at L4-5. (Id. at 404). In September and October 2006, Dr. Craig Bennett recommended physical
therapy to treat the pain from the herniation and an apparent lumbar sprain. (Id. at 400-05).
Rodriguez later received an MRI sometime in 2010 and another on February 7, 2011, both of
which showed disc herniation at L4-5. (Id. at 530, 946).
On October 22, 2010, Rodriguez visited the Clay Avenue Health Center and was
examined by Lucy Palomino, a nurse practitioner, who found "no abnormalities" in his back or
spine. (Id. at 559). On November 2, 2010, Anthony Mandese, a physician's assistant at All Med
Clinic, ordered a disc herniation evaluation for Rodriguez. (Id. at 587). On December 29, 2010,
Mandese assessed Rodriguez with "lumbar chronic pain syndrome." (Id. at 581).
On October 19, 2011, Dr. Danilo Sotelo-Garza evaluated Rodriguez at All Med and
found disc herniation and tenderness at L4-5. Dr. Sotelo-Garza also performed a positive
straight leg test and determined specific reductions in range of motion. He found that Rodriguez
suffered a 10 degree decrease in flexion, a 5 degree decrease in extension, a 25 degree decrease
in lateral bending, and a 20 degree decrease in lateral rotation, as measured against the normal
range for each of those motions. (Id. at 895).
On November 30, 2011, Dr. Sotelo-Garza filled out a "Multiple Impairments
Questionnaire" for the SSA and diagnosed Rodriguez with lumbar spine disc herniation, finding
On February 1, 2012, Dr. Sardar noted the same limitations in the right shoulder. Given Dr. Sardar's near-identical
notes, and his indictment, his notes may not be reliable. (Tr. at 974).
2
5
a decreased range of motion with pain and noting that Rodriguez had previously been prescribed
~ h~r.k
hrnr.e. Ud at fi71 l. Dr. Sotelo-Garza found that the back pain affected Rodri~ucz's lower
extremities. (Id. at 672). Rodriguez could sit and stand for only one to two hours a day, and
only occasionally lift and carry objects weighing five to ten pounds. (Id. at 673-74). Dr. SoteloGarza opined that Rodriguez could not sit, stand, or walk continuously in a work setting. (Id.).
Rodriguez also had "significant limitations in doing repetitive reaching, handling, fingering, or
lifting" according to Dr. Sotelo-Garza. (Id.). Finally, Dr. Sotelo-Garza noted in the
questionnaire that Rodriguez could not push, pull, kneel, bend, or stoop on a sustained basis in a
work setting. (Id. at 679).
Dr. Sardar noted a decreased range of motion in the lumbar spine with pain at the end
range during examinations on February 1, 2012; April 11, 2012; June 6, 2012; August 8, 2012;
November 7, 2012; December 12, 2012; and January 9, 2013. (Id. at 961-74).
4.
Ambulatory Impairments
There is some evidence in the record that suggests Rodriguez may suffer from significant
ambulatory impairments. On November 19, 2010, Dr. Shelia Aspinal performed a psychiatric
evaluation of Rodriguez for the SSA. In her report, she noted that Rodriguez "walked with a
cane" and "had a shuffling gait." (Id. at 563).
A physical residual functional capacity assessment, completed on January 24, 2011, by
"E. Sousa" noted that during the physical examination, Rodriguez "limped when he walked with
his cane which he always uses for weightbearing [sic]." (Id. at 591 ). Rodriguez told Sousa that
his doctor prescribed the cane, but Sousa noted "actually the cane was ordered by an RN NP,
who reported that [Rodriguez] was ambulating without any difficulty." (Id.). Despite the
ambiguity about the cane, Sousa reported that Rodriguez "could not walk on his toes, had
6
difficulty walking on heels, [and] only squatted 25%." (Id.). On February 3, 2011, Anthony
Mancte1;1e of Al\ Med C:lln1c nrescribed a cane for Rodriguez. (Id. at 643). On December 6,
2011, a "rollator" - a kind of walker- was delivered to Rodriguez from West 5th Medical
Supply. 3 (Id. at 663).
When Rodriguez appeared at his first hearing before ALJ Grossman, on December 15,
2011, Grossman asked about a device Rodriguez had next to him. "This is called my cart [ ... ]
[I]t helps me with my disc, so every time I walk, every 15 - every let's say it's two blocks. I'll
sit down and I'll relax." (Id. at 165). Rodriguez had his cart again at the second ALJ hearing on
April 23, 2012. (Id. at 61-62).
On February 3, 2012, Dr. Corvalan reported in a medical source statement to the SSA
that Rodriguez required a walker to ambulate, and that a cane was "medically necessary" to
ambulate. (Id. at 762). On February 1, 2012, and on April 11, 2012, Dr. Sardar noted that
Rodriguez "has slow gait, difficulties in standing and walking without [an] assistive device."
(Id. at 972, 974). In contrast, Dr. Ashok Dubey reported that Rodriguez's gait was "coordinated
and smooth" in his June 28, 2012 examination. (Id. at 893).
Finally, in his July 12, 2012 written interrogatory to ALJ Grossman, Dr. Donald
Goldman, a consultative medical expert, indicated some uncertainty whether Rodriguez could
ambulate without a cane. In his source statement questionnaire, Dr. Goldman left blank the
question "Does the individual require the use of a cane to ambulate? Yes/No," writing beside it
"Cane? Brace?" (Id. at 779). Dr. Goldman also questioned Rodriguez several times about his
use of a back brace, (Id. at 85), and his need for a walker, (Id. at 96), at the April 2012 hearing,
but appeared skeptical that the record firmly showed a walker was medically necessary. (Id. at
115-19).
3
West 5th Medical Supply was indicted for healthcare fraud on October 1, 2012. See supra Note I.
7
5.
Bipolar Disorder and Depression
On Sentemher R_ 201 O_ Rodrhmez was examined by a FEGS social worker.
He reported
a history of depression, anxiety, and suicidal ideation. (Id. at 526). At the time, he was taking
Zoloft, Xanax, Navane, Trazadone, and Dioxeine. (Id. at 527). On October 22, 2010, Esther
Aguirre at the Clay Avenue Health Center diagnosed Rodriguez as having major depression. (Id.
at 553-56). She decided to continue his medication regime. (Id.)
On November 19, 2010, Dr. Shelia Aspinal evaluated Rodriquez psychiatrically and
concluded that, although he had some attention and concentration limitations because of pain,
and although his ability to handle stress appeared "compromised," his impairments did "not
appear to be significant enough to interfere with [his] ability to function on a daily basis." (Id. at
564-65). Rodriguez appeared capable of (1) understanding and following simple instructions, (2)
performing simple tasks independently (although he needed assistance because of physical
limitations), (3) regularly attending to a routine, and (4) maintaining a schedule. (Id. at 564).
In contrast to Dr. Aspinal's assessment, non-examining psychologist Dr. E. Kamin
concluded in a residual functional capacity assessment dated January 1, 2011, that Rodriguez had
(1) marked limitations in his ability to understand, remember, and carry out detailed instructions,
and (2) moderate limitations in his ability to interact appropriately with the general public, accept
instruction and criticism from supervisors, and get along with co-workers. (Id. at 611 ). None of
his abilities, however, were significantly limited. (Id. at 610).
On February 2, 2012, Dr. Herb Meadow completed a psychiatric evaluation of
Rodriguez. He found that Rodriguez suffered from depression and a panic disorder, but could
perform complex tasks independently, learn new tasks, maintain a schedule, make appropriate
decisions, and relate adequately to others. (Id. at 750). Rodriguez would, however, have trouble
8
dealing with stress, and his attention and concentration appeared impaired "due to limited
\nte1\ectual functionin£." Ud. at 749-50),
Between November 12, 2010, and September 24, 2013, Rodriguez was treated by Dr.
Edward Fruitman and psychiatric staff at All Med Clinic. On July 6, 2011, Dr. Fruitman
completed a psychiatric impairment questionnaire. He noted that Rodriguez had chronic
depression and anxiety. (Id. at 682). Rodriguez had marked limitations in his ability to
remember and carry out detailed instructions, work around others without being distracted, and
accept instructions and respond to criticism from supervisors. (Id. at 687-89). He had moderate
limitations in his ability to (1) remember locations and procedures, (2) maintain attention and
concentration for extended periods, (3) follow a schedule, (4) sustain a routine without
supervision, (5) get along appropriately with the general public and co-workers, and (6) respond
appropriately to changes in the workplace. (Id.). Dr. Fruitman reported that Rodriguez
experienced episodes of deterioration or decomposition in work settings. (Id. at 689). Dr.
Fruitman also noted that Rodriguez was taking Zoloft, Seroquel, Xanax, and Alprazolam. (Id.).
In an August 27, 2012 assessment, Dr. Fruitman noted that Rodriguez had depression and
bipolar disorder. (Id. at 795). In a September 24, 2013 medical report to the SSA, Dr. Fruitman
wrote that Rodriguez suffered from clinical depression, anxiety, and bipolar disorder. (Id. at
857-58). He also reported that Rodriguez was unable to perform activities of daily living, and
that his pain conditions and COPD exacerbated his depression. (Id. at 870-71 ). In contrast to his
2011 psychiatric questionnaire, Dr. Fruitman concluded in his September 2013 report that
Rodriguez suffered marked limitations in his ability to understand, remember, and carry out
simple instructions, make judgments on simple work-related decisions, and act appropriately
with the general public and co-workers. (Id. at 872-73). Rodriguez had extreme limitations in
9
his ability to understand, remember, and carry out complex instructions, interact appropriately
w\th snnerv\sors_ and resnond anmomiately to changes in aroutine work 5cttin~. (let.). Dr.
Fruitman based his assessment on "patient appointments, statements, and mental status
evaluations documenting conditions by others since November 2009." (Id. at 873).
6.
Manipulative Limitations
In his November 19, 2010 internal medicine examination, Dr. Joshi found that Rodriguez
had a full range of motion in his elbows, forearms, and wrists, bilaterally. (Id. at 569).
However, in a February 3, 2012 medical source statement, Dr. Corvalan stated that Rodriguez
could never perform reaching, pushing, or pulling with either his right or left hand, but could
only occasionally reach overhead, handle, finger, or feel with either hand. (Id. at 763).
Dr. Goldman found that Rodriguez could only occasionally reach and push and pull with
his right hand, but that all other manipulative functioning was fully unlimited. (Id. at 780). Dr.
Brahms found that Rodriguez could occasionally finger and push and pull with his right hand,
and that he could frequently handle and feel with it. (Id. at 104 7). All other functioning,
including that of his left hand, was determined to be unimpaired. (Id.).
C.
Hearings before ALJ Grossman
1.
December 15, 2011 Hearing
The first ALJ hearing was held roughly ten months after Rodriguez applied for a hearing.
ALJ Grossman, Rodriguez, and his attorney, Karen Tobin, were present. (Id. at 138). Rodriguez
testified that he was injured in 2006 when he was attacked by a co-worker, and was injured again
in 2009 when he suffered a motorcycle accident. According to his attorney, the 2009 incident
was the disabling event. (Id. at 145). Rodriguez also testified that he was scheduled to have
knee replacement surgery in two months to treat an injury caused by the 2006 accident. (Id. at
10
146). Tobin conceded that there was no evidence of the knee replacement surgery in the record.
Udt ALT Grossman noted that sur£erv "certainly would be 5trong evidence if that'G truc 1" and
advised Rodriguez and his attorney that he would need to see evidence of this surgery (Id. at
146-47).
Rodriguez testified that he had been hit in 2009 while riding a motorcycle in Puerto Rico
and had been hospitalized there for three months with injuries to his elbow, back, and head, and
had rotator cuff surgery performed. (Id. at 158-60). Rodriguez also testified that he has suffered
from anxiety, depression, and auditory hallucinations since the 2006 attack by his co-worker.
(Id. at 150). He testified that he suffers from back pain, and has been advised by some of his
doctors to undergo some surgical procedure to remedy this. (Id. at 168-71 ). Additionally,
Rodriguez testified that he has emphysema and COPD, which also prevents him from working.
(Id. at 174-76).
After hearing this testimony, ALJ Grossman decided to send Rodriguez for consultative
psychiatric and orthopedic examinations. (Id. at 176-77). Attorney Karen Tobin asked that any
subsequent medical advice the ALJ might need be done at a supplemental hearing. (Id. at 178).
2.
April 23, 2012 Hearing
On April 23, 2012, ALJ Grossman; Rodriguez; his attorney, Aaron Vega; and vocational
expert Merriam Greene met in person for a second administrative hearing. (Id. at 55).
Orthopedic surgeon and medical expert Dr. Donald Goldman joined by telephone. (Id. at 58).
Rodriguez summarized his impairments to ALJ Grossman, and testified that he had been
using a walker for three months, and before that, a cane. (Id. at 60-63). Vega stated that there
was no evidence in the record showing Rodriguez required a cane, but that an MRI and several
11
straight leg tests in the record supported Rodriguez's claim that his pain was severe enough to
reauire him to use awalker. (Jd. at BO).
In response to queries from ALJ Grossman, Dr. Goldman asked Rodriguez about several
items in the medical record. (Id. at 82). For example, he wanted to know whether there was any
record of surgical consultations regarding Rodriguez's upcoming knee surgery. (Id. at 89).
Vega replied that there were no surgical consultations in the record, but that Rodriguez had had
one a week prior to the hearing. (Id.). ALJ Grossman responded that he was "a little frustrated"
that Rodriguez and Vega had not submitted all relevant evidence before the hearing. (Id. at 90).
Dr. Goldman questioned Rodriguez about his disc herniation. He noted that while an
MRI showed disc herniation, he did not see evidence confirming lower back pain that this
herniation could have caused. Dr. Goldman asked if Rodriguez had an electromyography test
done to assess his pain. (Id. at 92). Vega indicated that he had no record of that test. (Id.). Dr.
Goldman also noted that he could not interpret with confidence the straight leg tests and other
measurements of range of motion in Rodriguez's lower back which appeared in the record. (Id.
at 93-95). For example, the record did not document the actual decrease in range of motion in
degrees. Dr. Goldman therefore could not determine whether Rodriguez's loss ofrange impaired
any functions. (Id. at 95-96).
Dr. Goldman also questioned Rodriguez about his need for a walker or cane. Rodriguez
testified that he needed to use a walker because of pain in his back and legs. (Id. at 96-97). Dr.
Goldman later opined that Rodriguez's testimony about requiring a cane to walk was
inconsistent with his testimony that he sometimes walks several blocks to visit friends. (Id. at
114). The ALJ appeared to concur with Dr. Goldman's observation, and noted that his
grandmother could walk long distances with her walker. (Id. at 114-15).
12
Dr. Goldman testified to ALJ Grossman that the record contained "too many
incomistencie~" to
conclude that Rodriguez had adi~ability. (Id. at 117). lie noted that there
was little information "other than a lot of subjective complaints" about Rodriguez's knee
impairments. (Id. at 100). He did not find any specific evidence to support a treating physician's
conclusion that Rodriguez would have trouble fingering. (Id. at 111 ). And he did not find
enough specific evidence to corroborate a treating physician's conclusion that Rodriguez could
not sit or bend for periods of time. (Id. at 104-105). When Vega asked Dr. Goldman whether he
was claiming the treating physicians were inaccurate in their assessments, Dr. Goldman replied
that he was merely questioning how the physicians arrived at their conclusions. (Id. at 105). Dr.
Goldman noted that, although the treating physician's evaluation and consultative examinations
were consistent in diagnosis, the record did not provide the basis of that diagnosis and so
Goldman could not assess its integrity. (Id. at 104-109).
ALJ Grossman concluded the hearing stating that he would have to determine if
Rodriguez could perform sedentary work, or if a combination of physical and psychological
impairments would prevent him from doing so. He asked Vega to provide a list of all the
medications Rodriguez was taking. (Id. at 134 ).
3.
May 13, 2013 Hearing
ALJ Grossman, Rodriguez, Aaron Vega, and vocational expert Jakob Tikes met for a
final hearing on May 13, 2013. Medical expert Dr. Malcolm Brahms joined by telephone. (Id. at
29). The ALJ opened the hearing by remarking that Rodriguez appeared to be in significant
pain. (Id. at 30-31 ). Rodriguez testified that he had had surgery to his right leg two days earlier,
(Id. at 31), in preparation for another surgery scheduled for June 15, 2013. (Id. at 37).
13
Despite Rodriguez's apparent distress, he and Vega wanted to proceed with the hearing.
Veo-a noted that th1s hear1n2- was hein2: held more than ayear after the ld~t. and that the ALJ heid
not provided them with a reason for the delay. (Id. at 31-3 3). The ALJ replied that the record,
including a written interrogatory to Dr. Goldman after the last hearing, were inconsistent and did
not allow him to make a conclusion. (Id. at 32). Vega informed the ALJ that he and his client
found the delay unreasonable and they would not be returning for any subsequent hearings. (Id.).
ALJ Grossman said that he could understand the frustration with the delay, and hoped to resolve
the case in a timely manner. (Id. at 33).
ALJ Grossman then questioned the medical expert, Dr. Malcolm Brahms, as to whether
Rodriguez met a listed impairment according to the medical evidence in the record. Dr. Brahms
testified that he did not. (Id. at 40). Dr. Brahms found no evidence of any injuries to
Rodriguez's wrist or shoulder. (Id. at 41). He found no evidence of a compromised nerve root
in Rodriguez's back (Id. at 44). And he found no evidence that Rodriguez had a joint
dysfunction in his knee. (Id.).
Vega noted that the medical expert from the previous hearing, Dr. Goldman, had found
that Rodriguez met the criteria for the listed impairments that Dr. Brahms rejected. (Id. at 45).
Vega began to question Dr. Brahms, but stopped when he realized he was relying on a number of
exhibits placed in the record a week prior, but which had not been sent to Brahms. (Id. at 47).
ALJ Grossman responded that he would send Dr. Brahms the recent exhibits and a written
interrogatory. (Id. at 50). This concluded the third hearing.
D.
ALJ's Analysis and Decision
ALJ Grossman denied Rodriguez's application for Disability Insurance Benefits ("DIB")
and SSI on August 8, 2013. (Id. at 12). He followed the required five-step sequential analysis to
\4
make a determination about Rodriguez's disability. 20 C.F.R. § 416.920(a)(4). First, ALJ
Grossman determined that Rodriguez met the insured status rcQuircmcnt~ of the 5oci~l 5ccurity
Act and had not been engaged in substantial gainful activity since February 1, 2009, the alleged
onset of disability. (Tr. at 14). Second, he found that Rodriguez suffered from several severe
impairments: right knee derangement, left shoulder derangement, disc herniation of the lumbar
spine, and bipolar disorder. (Id.). Third, although Rodriguez suffered from several severe
impairments, ALJ Grossman determined that they did not meet or equal the severity of any
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, and Rodriguez was therefore
not presumptively disabled. (Id. at 15-16). Fourth, ALJ Grossman determined that Rodriguez
could perform the full range of sedentary work, as defined in 20 C.F.R. §§ 404.1567(a),
416.967(a), despite his impairments. (Id. at 16-19). Finally, ALJ Grossman concluded that
Medical-Vocational Rule 201.28 directed a finding of"non-disabled" given Rodriguez's age,
education, work experience, and a residual functional capacity to perform the full range of
sedentary work. (Id. at 21 ).
1.
ALJ Grossman's Analysis of the Medical Evidence
a.
ALJ Grossman Relied Primarily on Non-treating Expert Opinions to
Determine That Rodriguez Did Not Meet or Equal a Listed
Impairment
In determining that Rodriguez's physical impairments did not meet or equal a listed
impairment, ALJ Grossman appears to have only considered the written opinions of two nonexamining medical experts, Drs. Malcolm Brahms and Donald Goldman. (Id. at 15). ALJ
Grossman adopted Dr. Brahms's opinion that Rodriguez's impairments did not meet or equal a
listed impairment, (Id.), which Dr. Brahms provided in a written interrogatory (see id. at 1052).
ALJ Grossman, however, dismissed the contrary opinion of the other medical expert consulted,
Dr. Goldman. (Id. at 15). ALJ Grossman found that although Dr. Goldman concluded that
15
Rodriguez's impairments could be severe enough to render him presumptively disabled, he also
concluded that Rodri~uez could oerform some sedentary work. 4 The ALJ reasoned that Dr.
Goldman's opinion was "equivocal" and therefore due little weight. (Id.).
ALJ Grossman next determined that the medical evidence did not show that Rodriguez
suffered from bipolar disorder to the degree required in listing 12.04 in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (2015). Listing 12.04 is divided into three subsections, and is met when
there is medical evidence that a claimant meets the elements of 12.04(A) and 12.04(B), or the
elements of 12.04(C). 12.04(A) lists the medical criteria which define depressive and bipolar
disorders. 12.04(B) requires "marked limitation of two" of several enumerated mental functions.
And 12.04(C) requires medical documentation of some chronic affective disorder of at least two
years' duration that has caused more than minimal limitations in a claimant's ability to do basic
work activities, plus evidence of either (1) repeated, extended episodes of decomposition, (2) a
residual disease process that would cause even a minimal increase in mental demands or
environment change to trigger decomposition, or (3) inabiltiy to function outside of a highly
supportive living arrangement for at least a year.
ALJ Grossman concluded, without citing any evidence in the record, that Rodriguez does
not have a sufficient number of symptoms to meet the medical definition of either depressive
disorder or bipolar disorder as listed in 12.04(A). (Tr. at 15). He then concluded that there was
no evidence in the record that Rodriguez suffers from marked limitations in the activities of daily
living, social functioning, or maintaining concentration as required by 12.04(B). (Id. at 16).
4
Dr. Goldman had other findings which could be better reconciled. For example, he found that Rodriguez could
only stand and walk for a combined total of one hour at most. On the other hand, Dr. Goldman noted that Rodriguez
could sit continuously for up to four hours, continuously handle, finger, and feel with his right hand, and could
continuously lift and carry up to 20 pounds. (Tr. at 778-80).
16
Further, ALJ Grossman found that there was "no indication in the medical record" that
Rodriguez's mental imoairment is serious or oersistent. as defined in 12.04(C). (Id.).
b.
ALJ Grossman Adopted the Opinion of Two Consultative Experts
and Weighed Some Medical Evidence to Determine Rodriguez's
Residual Functional Capacity
Finding that Rodriguez was not presumptively disabled, ALJ Grossman next determined
that Rodriguez could perform the full range of sedentary work, as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a), despite his impairments. ALJ Grossman evaluated the opinions of
six physicians, two treating and four consultative; and two medical experts. He also analyzed the
lengthy medical record to determine an overall pattern of non-disabling impairments. (Tr. at 1719).
(1)
Weighing Physician Opinions
ALJ Grossman adopted the opinions of two consultative medical experts who reviewed
the medical record, but did not perform any examination or render any treatment to Rodriguez.
According to ALJ Grossman, Drs. Brahms and Goldman both concluded that Rodriguez was not
disabled. (Id. at 17). ALJ Grossman also accorded significant weight to the assessments of three
consultative physicians, Drs. Joshi, Meadow, and Aspinal. These three physicians also found
that Rodriguez's impairments were not disabling. (Id. at 18-19). ALJ Grossman accorded little
weight to the opinions of the only two treating physicians in the record, Drs. Sotelo-Garza and
Fruitman. (Id.). Both treating physicians found that Rodriguez's impairments were disabling.
ALJ Grossman, however, discounted the opinions of the treating physicians because they were
inconsistent with those of the consultative physicians, and because he found the treating
physician opinions either unsupported or contradicted by treatment notes. (Id.). ALJ Grossman
also assigned little weight to the opinion of Dr. Corvalan, a consultative physician who found
17
Rodriguez's functioning significantly limited by his impairments, because of internal
inconsistencies in his examination notes. Ud. at 19). The followim! table summarizes ALJ
Grossman's assessment of the various physician opinions:
Physician
Malcolm
Brahms
Donald
Goldman
Relationship to
Claimant
Medical expert
Medical expert
Weight
Opinion
adopted
Opinion
adopted
Diagnosis
Impairments not disabling
Impairments not disabling
Dipti Joshi
Consultative
Significant
Impairments not disabling
Danilo SoteloGarza
Treating
Little
Functioning is limited by impairments
Jose Corvalan
Consultative
Little
Functioning is limited by impairments
Herb Meadow
Consultative
Significant
Sheila Aspinal
Consultative
Significant
Edward
Fruitman
Treating
Little
(2)
Functioning not limited by bipolar
disorder
Functioning somewhat compromised
but not significantly limited
Markedly limited by bipolar disorder
Analyzing the Medical Evidence in the Record
ALJ Grossman also evaluated the medical evidence presented in the record. He
discerned an "overall pattern" that Rodriguez's orthopedic impairments were not disabling. (Id.
at 18). ALJ Grossman cited to examinations from January 20, 2011, August 25, 2011, October
19, 2011, and September 14, 2012, that show Rodriguez "consistently exhibited intact sensation
and motor function." ALJ Grossman did not cite particular exhibits or pages in the record, but
appears to be referring to follow-up orthopedic evaluations by Dr. Sotelo-Garza (whose final
opinion he accorded little weight), (Tr. at 694, 895), by Dr. McCulloch, (Id. at 698), and by Dr.
Dubey, (Id. at 888). ALJ Grossman also refers to an August 16, 2012 examination which found
18
no joint swelling or gait disturbance, and a July 5, 2012 examination which found Rodriguez's
chronic back uain fairlv controlled bv mtin medication. The Aueu~t 161 ZOlZ vi~it appear~ to be
an office visit to All Med Clinic which Rodriguez scheduled to fill out paperwork. (Id. at 922).
The July 5, 2012 examination appears to be another office visit, this one to refill medication. (Id.
at 930). ALJ Grossman does not provide other specific examples, aside from these six
examinations, of the overall pattern of impairment, but not disabilty, which he discerns in the
nearly 700 pages of medical evidence.
III.
A.
DISCUSSION
Standard of Review
Upon judicial review, "[t]he 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 nova 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.
19
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided
that the failure "mi2.ht have affected the disoosition of the case." follard v. ffalter. 377 f Jd
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
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 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 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. §§
20
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 unon which it is based." 42 U.B.C. ~~ 405(b)(1 ). While the L\LJ'~
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
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)).
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
21
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 ttnY 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.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 of Soc. 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).
22
A claimant's RFC is "the most [she] can still do despite [her] limitations." 20 C.F.R.
66404.1545(a). 416.945(a): Genier v. Astrue. 606 f Jd 46. 49 (Zd Cir. ZOl 0); see also 5.5.R. 969P (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, 892 F. Supp. 2d
567, 584-87 (S.D.N.Y. 2012) (reviewing an ALJ's credibility determination). In determining
whether there is any other work the claimant can perform, the Commissioner has the burden of
23
showing that "there is other gainful work in the national economy which the claimant could
uerform." Balsamo v. Charer. l 4Z f Jd 75. 80 (Zd Cir. 1998) (citation omitted).
2.
The Treating Physician Rule
The SSA regulations require the Commissioner to evaluate every medical opinion
received. See 20 C.F.R. § 404.1527(c); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.
1993 ). The opinion of a claimant's treating physician is generally given more weight than the
opinion of a consultative or non-examining 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
is entitled to "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); see also Greekv. Colvin, 802 F.3d 370, 376 (2d Cir.
2015) ("SSA regulations provide a very specific process for evaluating a treating physician's
opinion and instruct ALJs to give such opinions 'controlling weight' in all but a limited range of
circumstances.").
If the treating physician's opinion is not given controlling weight, the Commissioner must
nevertheless determine what weight to give it by considering: (1) the length, nature, and
frequency of the relationship; (2) the evidence in support of the physician's opinion; (3) the
consistency of the opinion with the record as a whole; (4) the specialization of the physician; and
(5) any other relevant factors brought to the attention of the ALJ that support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(2)(i)-(ii); Schisler, 3 F.3d at 567-69. The Commissioner may
24
rely on the opinions of other physicians, even non-examining ones, but the same factors must be
weig:hed. 20 C.f.R. G l6.927(c).
4
The ALJ is required to explain the weight ultimately given to the opinion of a treating
physician. 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. Greek, 802 F.3d at 375 (citing Burgess, 537 F.3d at 129); see also Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) ("We do not hesitate to remand when the
Commissioner has not provided 'good reasons' for the weight given to a treating physician's
opinion and we will continue remanding when we encounter opinions from ALJ s that do not
comprehensively set forth reasons for the weight assigned to a treating physician's opinion.").
Reasons that are conclusory fail the "good reasons" requirement. Gunter v. Comm 'r ofSoc. Sec.,
361 Fed. Appx. 197, 199-200 (2d Cir. 2012) (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.
Furthermore, an ALJ "cannot reject a treating physician's diagnosis without first
attempting to fill any clear gaps in the administrative record," especially where the claimant's
hearing testimony suggests that the ALJ is missing records from a treating physician. Burgess,
537 F.3d at 129 (quoting Rosa, 168 F.3d at 79); Rosado v. Barnhart, 290 F. Supp. 2d 431, 438
(S.D.N.Y. 2003) ("[A] proper application of the treating physician rule mandates that the ALJ
assure that the claimant's medical record is comprehensive and complete."). Similarly, "if an
ALJ perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty
25
to seek out more information from the treating physician and to develop the administrative
record accordin!?.lv." flarrnet v. Aofel. Zl f. BUDD. Zd Zl 7. ZZl fE.D.N.Y. 1996). accord ft..osa.
168 F.3d at 79.
Finally, the ALJ must give advance notice to a prose claimant of adverse findings.
Snyder v. Barnhart, 323 F. Supp. 2d 542, 545 (S.D.N.Y. 2004) (citing Infante v. Apfel, No. 97
Civ. 7689 (LMM), 2001WL536930, at *6 (S.D.N.Y. May 21, 2001)). This allows the prose
claimant to "produce additional medical evidence or call [her] treating physician as a witness."
Brown v. Barnhard, 02 Civ. 4523 (SHS), 2003 WL 1888727, at *7 (S.D.N.Y. April 15, 2003)
(citing Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1981)).
C.
The Parties' Claims
Rodriguez asks that the Commissioner's decision to deny him SSI and DIB benefits be
reversed and remanded solely for calculation of benefits. Alternatively, he asks that the Court
vacate the ALJ's decision and remand to another ALJ with a time-limit imposed on the remand
proceedings. Pl.'s Mem. in Support of His Mot. for J. on the Pleadings, 1. Rodriguez claims
that the ALJ erred in failing to appreciate that Rodriguez could not ambulate without a walker or
cane. According to Rodriguez, the regulations require a finding of disability if the claimant
needs an assistive device to ambulate. He argues that the evidence therefore supports a judgment
that he is disabled under the Social Security Act, and should have his case remanded for a
calculation of benefits only. Id. at 19-20. Rodriguez also claims that the ALJ failed to
appropriately weigh his manipulative limitations in determining his RFC. Id. at 21-22. He also
challenges ALJ Grossman's ability to be fair, and claims that remanding his case for further
proceedings before Grossman would be "punitive." Id. at 24. He bases this claim on two
assertions. First, Rodriguez maintains that ALJ Grossman is responsible for the delay in
26
concluding the administrative hearings (they commenced on December 2011 and the ALJ
hcmded down his decision in August Z013). Becond. he nsserts thnt ALJ Gros~man immoucrlv
dismissed the importance of Rodriguez's need for a walker or cane. Pl.'s Reply Mem., 5; Pl.'s
Mem. in Support of His Mot. for J. on the Pleadings, 20.
The Commissioner argues that the case should be remanded, but argues that remand only
for calculation of benefits is not supported by the record. The Commissioner concedes that ALJ
Grossman erred by not considering Rodriguez's manipulative limitations in his RFC analysis.
Mem. of Law in Support of the Commissioner's Cross-Motion for Remand and in Opp'n to Pl.'s
Mot. for J. on the Pleadings, 4. The Commissioner also concedes that remand is warranted here
because ALJ Grossman relied on medical evidence from two physicians who have been indicted
for healthcare fraud. Id at 8-11. The Commissioner maintains, however, that ALJ Grossman
was not responsible for any delays in Rodriguez's hearings and that there is no evidence in the
record to counter the presumption of ALJ Grossman's honesty and integrity. Id. at 12-13. She
concludes that there is therefore no need to remand to a different ALJ or to impose a time limit
for a decision on remand.
D.
ALJ Grossman Relied on Testimony from a Physician who has since Pied Guilty to
Healthcare Fraud
In arriving at his conclusion that Rodriguez's mental impairments did not rise to the level
of disability, ALJ Grossman gave significant weight to the evaluations of Dr. Herbert Meadow.
(Tr. at 19). Dr. Meadow pled guilty to healthcare fraud and attempted enterprise corruption in
Kings County Supreme Court on November 5, 2015. The indictment alleged that Dr. Meadow
had participated in a conspiracy to defraud Medicaid and Medicare by recruiting insured
individuals and ordering medically unnecessary procedures. Ex. A, Def.'s Mem. of Law in
Support of the Commissioner's Cross Motion for Remand and in Opp'n to Pl.'s Mot. for J. on
27
the Pleadings at 4. Dr. Meadow allegedly upcoded billings to inflate fees, and also referred
Medicaid-insured patients to other physicians within the alleged enterprise. Id. at 11-12. Thi~
conspiracy allegedly existed from about October 1, 2012, to about September 30, 2014. Id. at 1.
Although Dr. Meadow's evaluation of Rodriguez occurred on February 2, 2012, eight
months before the estimated start of Dr. Meadow's fraudulent conduct, the Commissioner argues
that ALJ Grossman's reliance on that evaluation is a sufficient basis for remand. Id. at 8-11. 20
C.F.R. §§ 404.1503(b) and 416.903(b) state that the Commissioner will not consider evidence
from a medical source convicted of healthcare fraud unless the Commissioner finds good cause
to do so. Good cause may be found, for example, when the evidence in question is from a period
before the provider was convicted of fraud, 20 C.F.R. §§ 404.1503b(b)(2), 416.903b(b)(2).
Since fraud is grounds for reopening a DIB or SSI claim at any time, 20 C.F.R. §§ 404.988(c)(l),
416.1488(c), it is reasonable to remand at this point for reconsideration in light of Dr. Meadow's
conviction. See Ferone v. Colvin, No. 14-CV-5140 (CM) (HBP), slip op. at 3 (S.D.N.Y. Sept.
16, 2015) (remanding case in light of Dr. Meadow's indictment even though medical opinion
was prior to the alleged fraud).
E.
ALJ Grossman's Determination that Rodriguez's Impairments Did Not Meet or
Equal the Severity of a Listed Impairment is Not Supported by Substantial
Evidence
In finding that Rodriguez's impairments did not meet or equal the severity of a listed
impairment, ALJ Grossman adopted the opinion of a single, non-treating medical expert, Dr.
Malcolm Brahms. (Tr. at 15). He did not provide any specific reasons for doing so or any
discussion of how he weighed Dr. Brahms' s opinion against other evidence in the record.
Although he recited the conclusions of the doctor's opinion, ALJ Grossman did not cite any
medical evidence to corroborate those conclusions or otherwise support his own decision. ALJ
Grossman's determination about the severity of Rodriguez's impairments thus appears
28
conclusory, and does not contain specific reasons or factors that would enable a reviewing court
to rlrtrrminP if his ctecision was sunnmted bv substantial evidence.
Ud. at 13-16). "[Tlhc
propriety of agency action must be evaluated on the basis of stated reasons," Ferraris, 728 F.2d
at 587 (quoting Treadwell v. Schweiker, 698 F.2d 137 (2d Cir. 1983)). The decision here does
not state any specific reasons from the medical record to justify the conclusions drawn.
ALJ Grossman does, however, discuss his reasons for disregarding the conclusions of the
second non-treating medical expert, Dr. Donald Goldman. (Tr. at 15). Dr. Goldman concluded
that Rodriguez's impairments could equal the severity of a listed impairment, but the record was
not adequately developed to allow him to firmly conclude that they did. (See id. at 117, 786).
ALJ Grossman chose not to pursue Dr. Goldman's conclusion that Rodriguez could meet or
equal the severity of a listed impairment because he found the conclusion inconsistent with Dr.
Goldman's other conclusion that Rodriguez could perform sedentary work. (Id. at 15). This was
not an appropriate response. When there is a conflict or ambiguity in a medical source
statement, the ALJ must "seek additional evidence or clarification from the medical source."
Calzada, 753 F. Supp. 2d at 274. Dr. Goldman's express statement to the ALJ that the record
was insufficient for him to determine if Rodriguez's impairments met or equaled a listed
impairment should have been a clear signal to develop the record further. Id. at 269.
Specifically, Dr. Goldman's written interrogatory lists several pieces of missing information that,
if provided, would allow him to decide whether Rodriguez's impairments were severe enough to
render him presumptively disabled. (Tr. at 786).
Additionally, ALJ Grossman's exclusive reliance on Dr. Brahms's and Dr. Goldman's
opinions about Rodriguez's capacity for sedentary work, rather than on any medical assessment
about the symptoms and nature of his impairments falls short of the substantial evidence
29
standard. See, e.g., Suarez v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y. 2015) ("[A]n ALJ may
criw arr~trr wr\ oht to a c.omn ltat\ve examiner's oninion than atrEatin£ uhvsiciun's ouinion if the
consultative examiner's conclusions are more consistent with the underlying medical evidence");
Conlin ex rel. NTC.B. v. Colvin, 111 F. Supp. 3d 376, 387 (W.D.N.Y. 2015) (finding that
medical source opinions are supported by substantial evidence "where such opinions are
supported by substantially similar findings in treatment notes and other opinions in the record").
SSR 96-5p instructs that whether a claimant's impairments meet the requirements of a listed
impairment "is usually more a question of medical fact than a question of medical opinion."
To meet the substantial evidence standard, the ALJ's determination should point to
specific elements of the record, such as consultative physician's reports, that weigh evidence of
loss of motion, musculoskeletal degeneration, and arthrograms, Williams v. Bowen, 660 F. Supp.
192, 196 (S.D.N.Y. 1987), or medical source opinions which cite substantial and specific
medical evidence, Puente v. Comm 'r of Soc. Sec., 130 F. Supp. 3d 881, 887-89 (S.D.N.Y. 2015)
(citing x-rays, knee and lumbar range-of-motion tests, MRls, multiple consultations with
consistent opinions, and a specific opinion that claimant's cane was not medically necessary as
evidence to support the AJ's decision). Without a comparable basis in the medical
documentation of Rodriguez's impairments, the Court cannot conclude that ALJ Grossman's
determination is supported by substantial evidence.
F.
ALJ Grossman's Residual Functional Capacity Determination is Not Supported by
Substantial Evidence
ALJ Grossman's assessment of Rodriguez's residual functional capacity found Rodriguez
capable of"the full range of unskilled sedentary work." (Tr. at 16). In making this
determination, ALJ Grossman accorded significant weight to the conclusions of three
consultative physicians who found Rodriguez's impairments not disabling. One of these
30
physicians was Dr. Herbert Meadow, whose opinion should be re-evaluated in light of his
conviction for healthcare fraud. See suora. 5cction D. ALJ Grossm
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