Sepa v. Colvin

Filing 36

MEMORANDUM OPINION AND ORDER re: 24 CROSS MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin, 21 MOTION for Judgment on the Pleadings . filed by John Sepa. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above, the plaintiff's motion for judgment on the pleadings is granted, and the defendant's cr oss-motion is denied. The Commissioner's decision is vacated and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. The Clerk is directed to enter judgment and to close this case. The Clerk is also directed to close all open motions. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 12/23/2016) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------ X
JOHN SEPA,
Plaintiff,
- v.-

15-cv-7209 (JGK)
MEMORANDUM OPINION
AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
------------------------------------ X
JOHN G. KOELTL, District Judge:
The plaintiff, John Sepa, brings this action pursuant to
42 U.S.C. § 405(g) seeking review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying the
plaintiff’s claim for disability insurance benefits (“DIB”)
under the Social Security Act (“SSA”). The parties have filed
cross-motions for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). The plaintiff seeks reversal of
the decision of the Commissioner and remand to the
administrative agency for the calculation of benefits or, in the
alternative, remand for a new hearing. The Commissioner seeks to
have this case dismissed.
For the reasons explained below, the plaintiff’s motion for
judgment on the pleadings is granted and the defendant’s crossmotion is denied.

I.
Sepa filed his DIB application on January 20, 2010,
alleging disability beginning June 10, 2009 because of severe
asthma, back pain, sleep apnea, and post-traumatic stress
disorder (“PTSD”). Administrative Record (“R.”) 296-99, 325.
That application was initially denied. R. 185-87. Pursuant to
Sepa’s request, an Administrative Law Judge (“ALJ”) held a
hearing on August 24, 2011 to determine his eligibility for
benefits. R. 61-112, 191. In a January 5, 2012 decision, the ALJ
determined that the plaintiff was not disabled under the SSA.
R. 164-177. Sepa appealed the ALJ’s decision and, on July 7,
2013, the Appeals Council vacated and remanded the decision to
the ALJ. R. 178-82. Among other errors, the Appeals Council
found that the ALJ’s decision did not contain an adequate
evaluation of the medical source opinions of Dr. Lisa Orsini,
who conducted a consultative psychiatric evaluation, and of Dr.
J. Belsky, who completed a psychiatric review technique form.
On remand, after a hearing on January 29, 2014, the ALJ
found that the plaintiff had several severe impairments,
including “asthma/moderate reactive airway disease, sleep apnea,
obesity, post-traumatic stress disorder [PTSD], and degenerative
changes of the lumbar spine.” R. 18. The ALJ concluded that
those impairments did not “meet the criteria of any listed
impairments” in 20 C.F.R. §§ 404.1520(d), 404.1525, and
2

404.1526. R. 19. The ALJ then found that the plaintiff had the
residual functional capacity (“RFC”) to perform “sedentary work”
as defined in 20 C.F.R. § 404.1567(a), including “lifting up to
five pounds occasionally and ten pounds frequently; sitting up
to 6 hours and standing/walking up to 2 hours each in a normal
8-hour workday; and no exposure to concentrated respiratory
irritants, temperature extremes, hazardous duties, or frequent
public interaction.” R. 20. The ALJ determined that the
plaintiff could not perform his past relevant work as a
firefighter, but, after considering the testimony of a
vocational expert, concluded that there were jobs in the
national economy that the plaintiff could perform. R. 25-27.
Accordingly, the ALJ denied the plaintiff’s DIB application
on April 2, 2014. R. 13-31. On July 14, 2015, the Appeals
Council denied the plaintiff’s request for review, making the
ALJ’s decision the Commissioner’s final decision. R. 1-7. This
timely appeal followed.
II.
The administrative record contains the following facts.
The plaintiff was born on August 9, 1962, has a high school
education, attended Lehman College for two years, and graduated
from the firefighting academy. R. 36-37, 65-67. Sepa was last
employed as a firefighter for the Fire Department of the City of
New York (“FDNY”), where he worked until May 2004, when he was
3

forced to retire because of a pulmonary impairment. R. 71, 76.
While employed as a firefighter, Sepa also held intermittent
employment as a painter and softball umpire. R. 42, 44. The
plaintiff lives with his wife and three children, and his daily
activities include bathing, watching television, reading the
newspaper, going to counseling and doctor’s appointments, and
assisting his elderly mother. R. 64, 334. He also does light
cooking, helps fold clothes, and performs light cleaning. R.
336.
Sepa was a first responder to the September 11, 2001
terrorist attacks at the World Trade Center and spent five
months conducting search and rescue operations at ground zero.
R. 104. Sepa reported that thirty or forty firefighters from his
firehouse died on and in the days after September 11, and that
for several months he was “either working or [] going to a
funeral.” R. 104, 139. The plaintiff testified that while
conducting search and rescue operations he found “bits and
pieces” of human corpses. R. 139-40.
In early 2003, the plaintiff pulled his back and groin
while working at a fire and went to the Jacobi Medical Center
emergency room. R. 75. After diagnosing the plaintiff’s groin
and back injuries, the doctor asked if he had any other symptoms
to which he replied that he could not catch his breath. Id. The
doctor prescribed a nebulizer for the plaintiff. Id. The next
4

day the plaintiff went to the FDNY medical office to report the
emergency room visit. Id. Individuals in the medical office
tested Sepa’s breathing using a pulmonary function test, which
the plaintiff failed. Id. The plaintiff was then put on medical
leave as a result of the injuries to his back and groin and
because of his breathing impairment. Id. After taking
medication, Sepa underwent another pulmonary function test,
which he also failed. Id. The plaintiff then failed a
methacholine challenge on March 31, 2003, and as a result, was
told that he had to retire. R. 76-77, 419. When Sepa returned
from medical leave, the FDNY placed him on light-duty work
pending his retirement, which entailed scheduling, filing,
answering phones, and delivering inter-firehouse mail. R. 38-42,
76-77. The plaintiff retired on May 28, 2004. R. 71, 426.
After retiring, Sepa worked briefly as a real estate
broker, but was forced to stop because he was unable to climb
stairs and some properties had animals and smells that
aggravated his breathing difficulties. R. 70.
A.
A review of the plaintiff’s medical records reveals the
following facts.
Beginning in March 2003, the plaintiff reported regularly
to Dr. Michael Weiden for treatment of asthma resulting from
dust exposure and smoke at the World Trade Center. R. 415, 482.
5

Dr. Weiden submitted his findings to the Social Security
Administration in a medical source statement signed April 16,
2009, which concluded that Sepa could never lift or carry any
amount of weight; could sit, stand, or walk for two hours at one
time without interruption for a total of up to three hours each
in an eight-hour work day; could never climb, stoop, or crawl;
could not tolerate exposure to humidity, wetness, dust, odors,
fumes, pulmonary irritants, or extreme cold or heat; and could
only occasionally tolerate unprotected heights, moving
mechanical parts, and operating a motor vehicle. R. 483-87. Dr.
Weiden further opined that Sepa had “significant” asthma that
made him “unemployable due to the need for frequent medical
leave.” R. 487. Dr. Weiden related his assessment back to May
2004. R. 488.
In a November 18, 2009 letter, Dr. Weiden reiterated his
conclusion that Sepa was unable to work because his asthma
required him to take frequent medical leave, and opined that the
plaintiff’s disability was total and permanent. R. 482.
Dr. Weiden submitted another medical source statement in
March 2010 to the State disability agency. R. 415-23. Dr. Weiden
advised that he had been treating the plaintiff every two months
beginning in March 2003. R. 415. The report included a diagnosis
of asthma with symptoms of cough, dyspnea, and irritant
sensitivity, and a “guarded” prognosis. R. 415-16. It also
6

reflected that Dr. Weiden had prescribed Xopenex and Pumicort.
R. 416. The report noted a failed methocholine challenge test,
wheezing in 2003, and episodic asthma attacks. R. 417-18. Dr.
Weiden also noted behavior characterized by PTSD and depression.
R. 416. Dr. Weiden opined that Sepa could lift and carry
“frequently” but did not specify a weight; could stand or walk
for less than two hours in a work day; and could sit for less
than 6 hours in a work day. R. 420.
On April 15, 2010, Dr. Barbara Akresh conducted a
consultative examination of Sepa in connection with his DIB
claim. R. 432. Dr. Akresh noted Sepa’s medical history,
including asthma and abnormal pulmonary function tests, exposure
on September 11, 2001, allergies, PTSD, anxiety, sleep apnea, a
back injury, and hypertension. R. 435-36. Dr. Akresh reported
moderate limitations on the plaintiff’s ability to perform
strenuous activities and mild limitations on his ability to
carry and lift very heavy objects. R. 436.
Sepa began visiting Dr. Paul Schulster for respiratory
issues in April 2008. R. 389-92. After testing the plaintiff’s
pulmonary function, Dr. Schulster diagnosed the plaintiff with
asthma and prescribed him Xopenex. R. 392-93. Dr. Schulster also
diagnosed plaintiff’s various allergies, including to grass,
cats, and dust, and began administering allergy injections to
the plaintiff. R. 397-98, 405.
7

In a letter dated May 17, 2011, Dr. Schulster reported that
Sepa had reactive airway disease and asthma. R. 491. The letter
included test results from pulmonary functions tests performed
throughout 2010 and 2011, which showed some gradual improvement.
R. 492-497. Nevertheless, Dr. Schulster opined that Sepa’s
“severe pulmonary condition precludes the performance of any
work” and that the plaintiff’s condition worsened with any
exertion, temperature or humidity changes, dust, fumes,
chemicals, perfume, animals, stress, or many other precipitating
factors. R. 491. Dr. Schulster reiterated that the plaintiff
“[c]learly . . . would not be capable of performing any job
requiring him to be on his feet for much of the day, lift more
than a few pounds, [or] to work outside or near any dust or
caustic chemicals.” Id.
B.
In March 2009, Sepa began attending a support group for
retired firefighters who were forced to retire after less than
twenty years with the FDNY. R. 481. The social worker who led
the group referred Sepa to psychologist Dr. Paul Greene. R. 89.
Sepa began visiting Dr. Greene in June 2009. See R. 511-76.
Sepa discussed a variety of topics with Dr. Greene, including
his forced retirement, his physical health, his temper and
anxiety, the traumatic experience of responding to the World
Trade Center disaster, and family issues. See id.
8

On February 25, 2010, Dr. Greene submitted a report to the
State disability agency. R. 406-12. Dr. Greene reported a
diagnosis of PTSD and described Sepa’s symptoms as “recurrent,
intrusive, distressing memories triggered by relevant but common
stimuli and [a] tendency to avoid those situations and objects,
and conversations”; “physiological and psychological distress
related to [the World Trade Center disaster]”; and “irritability
with his wife and children.” R. 406. Dr. Greene noted that,
despite continued treatment, the plaintiff’s symptoms continued,
and concluded that Sepa “is not expected to return to his
previous level of functioning.” R. 407. Dr. Greene further
opined that the plaintiff “is not capable of performing
adequately as a firefighter” and “is not able to work.” R. 410.
Finally, Dr. Greene reported that the plaintiff’s ability to
adapt remains limited. R. 411.
On April 15, 2010, Dr. Lisa Orsini conducted a
consultative psychiatric examination of the plaintiff. R. 426.
Dr. Orsini reported that Sepa can follow and understand simple
directions, maintain attention and concentration, and learn new
tasks in a structured environment with encouragement, but has
difficultly performing simple or complex tasks independently,
maintaining a schedule, making decisions, relating to others,
and coping with stress. R. 426, 429-30. Dr. Orsini reported a
diagnosis of major depressive disorder and PTSD, and concluded
9

that the plaintiff’s prognosis was “guarded” in view of the
“acute nature” of the plaintiff’s symptoms. R. 430. Dr. Orsini
concluded that Sepa’s psychiatric problems “may significantly
interfere with [his] ability to function on a daily basis.” Id.
On May 24, 2010, Dr. J. Belsky, a state medical consultant,
conducted a review of the plaintiff’s file. R. 445-58. Dr.
Belsky reported a “medically determinable impairment” of
depression and some symptoms of PTSD. R. 448, 450. Dr. Belsky
concluded that the plaintiff suffered from mild functional
limitations on his ability to perform activities of daily
living, and moderate limitations on maintaining social function,
concentration, persistence, or pace. R. 455.
III.
A court may set aside a Commissioner’s determination only
if it is based on legal error or is not supported by substantial
evidence in the record. See 42 U.S.C. § 405(g); Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)
(citations omitted). Substantial evidence is “more than a mere
scintilla”; it is “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)) (internal quotation marks
omitted); see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.

10

1995); Moreira v. Colvin, No. 13-cv-4850 (JGK), 2014 WL 4634296,
at *3 (S.D.N.Y. Sept. 15, 2014).
A claimant seeking DIB is considered disabled if the
claimant is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A)
(2015); see also Moreira, 2014 WL 4634296, at *4.1
The Commissioner’s regulations define the analytical
framework for evaluating disability claims and set forth a fivestep inquiry. See 20 C.F.R. § 404.1520. The Court of Appeals for
the Second Circuit has described the five-step process as
follows:

1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the
claimant has a “severe impairment” which limits his or
her mental or physical ability to do basic work
activities.

1

The definition of “disability” for purposes of eligibility for
DIB and Supplemental Security Income (“SSI”) benefits is
virtually identical, as is the standard for judicial review.
Therefore, cases discussing relevant issues for determining SSI
benefits are instructive for determining DIB benefits. See
Burton-Mann v. Colvin, No. 15-CV-7392 (JGK), 2016 WL 4367973, at
*3 n.5 (S.D.N.Y. Aug. 13, 2016) (citing Hankerson v. Harris, 636
F.2d 893, 895 n.2 (2d Cir. 1980)).
11

3. If the claimant has a “severe impairment,” the
Commissioner must ask whether, based solely on medical
evidence, claimant has an impairment listed in
Appendix 1 of the regulations. If the claimant has one
of these enumerated impairments, the Commissioner will
automatically
consider
him
disabled,
without
considering vocational factors such as age, education,
and work experience.
4. If the impairment is not “listed” in the
regulations, the Commissioner then asks whether,
despite the claimant’s severe impairment, he or she
has residual functional capacity to perform his or her
past work.
5. If the claimant is unable to perform his or her
past work, the Commissioner then determines whether
there is other work which the claimant could perform.
The Commissioner bears the burden of proof on this
last step, while the claimant has the burden on the
first four steps.

Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000); see also
Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). The claimant
must first establish a disability under the SSA by meeting the
claimant’s burden of proof under the first four steps of the
framework. See Melville, 198 F.3d at 51; Burgess v. Astrue, 537
F.3d 117, 120 (2d Cir. 2008). If the claimant satisfies that
burden, the Commissioner must establish under the fifth step
that, given the claimant’s RFC, the claimant could “perform
alternative substantial gainful work which exists in the
national economy.” See Melville, 198 F.3d at 51 (internal
quotation marks and citation omitted). If the Commissioner does
not satisfy its burden, the claimant is entitled to DIB. See

12

id.; see also Bushansky v. Comm’r of Soc. Sec., No. 13-cv-2574
(JGK), 2014 WL 4746092, at *5 (S.D.N.Y. Sept. 24, 2014).
IV.
The plaintiff claims the ALJ committed legal error by
failing to give proper weight to the opinions of Sepa’s treating
psychologist, Dr. Greene, regarding the plaintiff’s psychiatric
limitations.
The Commissioner’s regulations require that greater weight
be given to the opinion of a treating source than that of a nontreating source. See Schisler v. Sullivan, 3 F.3d 563, 567-68
(2d Cir. 1993). The regulations state, in pertinent part:
Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be
the medical professional most able to provide a
detailed,
longitudinal
picture
of
your
medical
impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of
individual
examinations,
such
as
consultative
examinations . . . . [A] treating source’s opinion on
the . . . nature and severity of [the] impairment(s)
[that] is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and . .
. not inconsistent with the other substantial evidence
. . . will [be given] controlling weight. When we do
not give the treating source’s opinion controlling
weight, we apply [various] factors . . . in
determining the weight to give the opinion. We will
always give good reasons . . . for the weight [given
to the] treating source’s opinion.

13

20 C.F.R. § 404.1527(c)(2). The factors used to determine the
weight accorded to a treating source’s opinion when it is not
given controlling weight include:
(i) the frequency of examination and the length,
nature, and extent of the treatment relationship; (ii)
the evidence in support of the opinion, i.e. “[t]he
more a medical source presents relevant evidence to
support an opinion, particularly medical signs and
laboratory findings, the more weight” that opinion is
given; (iii) the opinion’s consistency with the record
as a whole; (iv) whether the opinion is from a
specialist; if it is, it will be accorded greater
weight; and (v) other relevant but unspecified
factors.
Schisler, 3 F.3d at 567.
Here, the ALJ did not give controlling weight to the
opinions of Sepa’s treating source and failed to give good
reasons for the weight it did assign. The ALJ concluded that Dr.
Greene indicated in his February 25, 2010 report that Sepa had
“no functional limitations due to PTSD, except for some
limitation in adaptation due to hazardous conditions.” R. 24.2
That conclusion ignored Dr. Greene’s assertion in the same
report that Sepa is “not expected to return to his previous
level of functioning,” that treatment had “not removed the
symptoms” of PTSD, that the plaintiff cannot perform a
firefighter’s tasks, and is “not able to work.” R. 407, 410. The
ALJ assigned no weight to these statements because “the issue of

2

The ALJ misspelled Dr. Greene’s name throughout the decision as
“Dr. Green.”
14

disability is an issue reserved to the Commissioner.” R. 24.
That explanation is insufficient. Although it is true that the
ultimate determination of disability is reserved for the
Commissioner, 20 C.F.R. § 404.1527(d)(1), Dr. Greene plainly
conveyed functional limitations by stating that Sepa could not
perform the functions of a firefighter and was otherwise unable
to work.3 If the ALJ considered this language ambiguous, the ALJ
should have contacted Dr. Greene to clarify Dr. Greene’s
opinion, because the ALJ has “an affirmative duty to seek out
more information from the treating physician and to develop the
administrative record accordingly.” Hartnett v. Apfel, 21 F.
Supp. 2d 217, 221 (E.D.N.Y. 1998); see also Scott v. Astrue, No.
09-cv-3999, 2010 WL 2736879, at *15 (E.D.N.Y. July 9, 2010) (“By
foregoing the opportunity to inquire further upon [the treating
physician’s] 2008 wellness report to clarify the admittedly
ambiguous opinion and by rejecting [the treating physician’s]

3

Similarly, the ALJ erred in determining that the opinion of Dr.
Orsini regarding the plaintiff’s functional limitations was
entitled to “little weight” because it was inconsistent with Dr.
Greene’s findings, which the ALJ characterized as having found
“no specific functional limitation.” R. 24. Although the ALJ is
not required to give “good reasons” for discounting the opinion
of a non-treating source, the conclusion that Dr. Orsini’s
opinion was entitled to little weight was based on the erroneous
view that it was in conflict with Dr. Greene’s opinion. See 20
C.F.R. § 404.1527(c)(4) (ALJ will, among other things, consider
whether a medical opinion is consistent with the record as a
whole in determining what weight to assign that opinion).
15

opinion without fully developing the factual record, the ALJ
committed legal error.”).
The ALJ also found that Dr. Greene “indicated that the
[plaintiff] would be unable to perform the full duties of a
firefighter, but didn’t opine that the [plaintiff] was prevented
from engaging in all work activities.” R. 24. This finding is
clearly erroneous. First, Dr. Greene’s conclusion that the
plaintiff is unable to perform as a firefighter does not imply
that he is capable of performing other work. Second, Dr. Greene
did in fact state that “it is [his] professional opinion that
Sepa is not able to work.” R. 410. Furthermore, Dr. Greene
reasserted his position in a subsequent report dated August 9,
2011, stating that the plaintiff’s disability “make[s] it
impossible for him to be employed.” R. 500.4 Dr. Greene based his
conclusion on the finding that the events of September 11 “are
triggered daily and cause anxiety and depression.” Id. By
failing to afford any weight to certain of Dr. Greene’s findings

4

The Commissioner argues that this letter was submitted after
the plaintiff’s date last insured and is therefore irrelevant.
However, the ALJ did consider this report, although the ALJ only
described it as reporting “anger and anxiety for risk.” R. 24.
In any event, subsequent evidence can be considered if it
relates to the plaintiff’s condition during the period at issue.
See Reyes v. Barnhart, 226 F. Supp. 2d 523, 530 (S.D.N.Y. 2002);
Lane v. Apfel, No. 98 civ. 2068, 2000 WL 1118921, at *9
(S.D.N.Y. Aug. 8, 2000). There is no evidence in the record that
the plaintiff’s condition worsened between December 31, 2010,
the date last insured, and the date the letter was written in
August 2011, that would render the information immaterial.
16

and by failing to provide “good reasons” for the weight
assigned, the ALJ committed legal error.
“In deciding whether a remand is the proper remedy, [the
Court of Appeals has] stated that where the administrative
record contained gaps,” or where “further findings would so
plainly help to assure the proper disposition of [the] claim,”
remand is appropriate. Butts v. Barnhart, 388 F.3d 377, 385 (2d
Cir. 2004) (internal quotation marks omitted). Because “a more
complete record might support the Commissioner’s decision,”
remand solely for a calculation of benefits is inappropriate in
this case. Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999). On
remand, it will be important to determine the specific factual
bases for Dr. Greene’s conclusions, and to provide good reasons
if those opinions are not accepted.
CONCLUSION
The Court has considered all of the arguments of the
parties. To the extent not specifically addressed above, the
remaining arguments are either moot or without merit.
For the reasons explained above, the plaintiff’s motion for
judgment on the pleadings is granted, and the defendant’s crossmotion is denied. The Commissioner’s decision is vacated and the
case is remanded to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further administrative proceedings
consistent with this opinion. The Clerk is directed to enter
17

judgment and to close this case. The Clerk is also directed to
close all open motions.
SO ORDERED.
Dated:

New York, New York
December 23, 2016

_____________/s/______________
John G. Koeltl
United States District Judge

18