Scott v. Commissioner of Social Security

Filing 19

ORDER adopting 16 Report and Recommendations, 10 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. For the reasons set forth above, the Report is adopted and Defendant's motion is denied. The case is remanded to the SSA for further development of the administrative record. The Clerk of Court is respectfully directed to terminate the motion at docket entry 10, close the case, mail a copy of this order to Plaintiff, and note the mailing on the docket. (As further set forth in this Order.) (Signed by Judge Valerie E. Caproni on 4/24/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBIN NANETTE SCOTT,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: _4/24/2017____

Plaintiff,
-against-

16 Civ. 3261 (VEC)(SN)

COMMISSIONER OF SOCIAL SECURITY,

ORDER

Defendant.

VALERIE CAPRONI, District Judge:
Plaintiff Robin Nanette Scott, appearing pro se, brings this action appealing the denial of
her application for disability insurance benefits (“DIB”) and Supplemental Security Income
(“SSI”) by the Social Security Administration (“SSA”). The Commissioner of Social Security
(the “Commissioner”) has moved for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). (Dkt. 10). On March 16, 2017, the Honorable Sarah Netburn, U.S. Magistrate
Judge, issued a Report and Recommendation (the “Report”) recommending that the
Commissioner’s motion be denied and the case be remanded to the SSA for further proceedings.
Report (Dkt. 16). On March 30, 2017, the Commissioner objected to the portion of the Report
that found that the determination by the administrative law judge (“ALJ”) of Scott’s residual
functional capacity (“RFC”) was not based on substantial evidence. Comm’r Obj. (Dkt. 17). On
due consideration, after review of the record, the Report is adopted.1
BACKGROUND
Scott filed applications for DIB and SSI in March 2013, alleging disability as of
December 24, 2012. Administrative R. 12 (Dkt. 9). On October 8, 2014, the SSA denied Scott’s

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The case was transferred to the undersigned on April 5, 2017.

claims. Id. at 9. The ALJ found that Scott had four severe impairments, including degenerative
disc disease and herniations of the lumbar and cervical spines, but that she had the RFC to
perform sedentary work without excessive pulmonary irritants and that Scott could perform jobs
that existed in the national economy. Id. at 14, 16, 19-20. In reaching that conclusion, the ALJ
relied in large part on the report of Dr. Ted Woods, a consulting physician who examined Scott
in May 2013 at the request of the Commissioner. Id. at 17, 18. Dr. Woods was not provided
with a February 2013 CT scan of Scott’s spine that showed spinal and bilateral foraminal
stenoses and disc herniation. Id. at 213-14, 377-80. His report related that Scott had an MRI,
not a CT scan, of her lower back and Scott “is unsure of the results.” Id. at 213. He diagnosed
Scott with, inter alia, low back and neck pain, and found her prognosis to be “[f]air.” Id. at 216.
The ALJ’s decision became final when the Appeals Council denied Scott’s request to review the
ALJ’s decision. Id. at 1-3. Scott filed this appeal on May 2, 2016. (Dkt. 2).
STANDARD OF REVIEW
In reviewing final decisions of the SSA, courts “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 and if the correct legal standards have been
applied.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (quoting Kohler v. Astrue, 546
F.3d 260, 265 (2d Cir. 2008)). Substantial evidence is “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
“A district court reviewing a magistrate judge’s report and recommendation ‘may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

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judge.’” Bradley v. Comm’r of Soc. Sec., No. 12 Civ. 7300, 2015 WL 1069307, at *1 (S.D.N.Y.
Mar. 11, 2015) (quoting 28 U.S.C. § 636(b)(1)); see also Fed. R. Civ. P. 72(b)(3). Courts review
“those parts of the Report to which objections are made de novo, and the remaining parts for
‘clear error on the face of the record.’” Cruz v. Colvin, No. 13 Civ. 1267, 2014 WL 5089580, at
*1 (S.D.N.Y. Sept. 25, 2014) (quoting 28 U.S.C. § 636(b)(1)); see also Fed. R. Civ. P. 72(b)(3).
DISCUSSION
The Report recommends that the case be remanded to the SSA because the ALJ’s
determination of Scott’s RFC was not based on substantial evidence. Report at 22-23. Judge
Netburn concluded that the ALJ did not err in according significant weight to Dr. Woods’s
opinion, given that Scott had no consistent treating physicians. Id. at 21. Because, however, Dr.
Woods was not provided with Scott’s CT scan that showed marked spinal and foraminal stenoses
and disc herniation, the Report found that Dr. Woods’s opinion was based on “an obviously
incomplete evidentiary record missing test results crucial to a proper diagnosis.” Id. at 23.
Judge Netburn reasoned that, because Dr. Woods’s opinion was the only one in the record to
assess Scott’s limitations, the ALJ either should have ordered an additional consultative
examination that took into consideration Scott’s spinal imaging or sought additional information
from a treating physician about the extent of Scott’s limitations. Id. In the objection, the
Commissioner argues that the relevant regulations do not mandate that a consulting physician be
furnished with particular evidence and that, when the administrative record contains no gaps, the
ALJ is not required to seek additional information. Comm’r Obj. at 4-6.
When an ALJ assesses a claimant’s alleged disability, he must “affirmatively develop the
record in light of the essentially non-adversarial nature of a benefits proceeding.” Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503,

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508-09 (2d Cir. 2009)). With respect to consultative examinations, the relevant regulations
require the SSA to “give the examiner any necessary background information about [a
claimant’s] condition.” 20 C.F.R. § 404.1517. Although Dr. Woods was not required to view all
of the medical evidence, Scott’s abnormal CT scan was “necessary background information” that
Dr. Woods should have considered. See Mills v. Berryhill, No. 15 Civ. 5502, 2017 WL 1155782,
at *10 (E.D.N.Y. Mar. 27, 2017) (“[T]he Commissioner should have provided [the consulting
physician] with Plaintiff’s records [including his MRIs, EMG, or surgical reports] that
documented the history of his chief complaints. Without any of this information, [the consulting
physician’s] opinion alone cannot support the ALJ’s RFC determination.”).
The Second Circuit’s opinion in Burgess v. Astrue, on which the Commissioner relies, is
not to the contrary. 537 F.3d 117 (2d Cir. 2008). In that case, the court remanded to the
Commissioner because, inter alia, the ALJ relied on the report of a consulting physician who had
not considered an MRI that supported the claimant’s alleged disability. Id. at 130-31. It is true,
as the Commissioner points out, that the consulting physician in that case never examined the
claimant, whereas Dr. Woods examined Scott. Comm’r Obj. at 5. That distinction is not all that
significant, however, because the Second Circuit also found that the report of Dr. Mancheno,
who had examined Burgess, was not supported by substantial evidence; like Dr. Woods with the
CT scan in this case, Dr. Mancheno did not review an MRI that the claimant represented was
abnormal. Burgess, 537 F.3d at 121, 124, 132. Consistent with Burgess, several courts in this
circuit have found remand was necessary when a consulting physician was not provided with
important diagnostic tests. See Mills, 2017 WL 1155782, at *10; Adesina v. Astrue, 12 Civ.
3184, 2014 WL 5380938, at *10 (E.D.N.Y. Oct. 22, 2014); Payne v. Astrue, 10 Civ. 1565, 2011
WL 2471288, at *7-8 (D. Conn. June 21, 2011). In a particularly analogous case, in which the

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ALJ assigned weight to a consulting physician’s assessment of a claimant’s limitations, the court
concluded that a remand was necessary because there was an obvious gap in the record: there
was no medical opinion interpreting the results from the claimant’s MRIs and imaging report and
the Commissioner failed to provide the consulting physician with those diagnostic tests. Riddick
v. Comm’r Soc. Sec., 15 Civ. 8453, 2016 WL 816795, at *10 (S.D.N.Y. Feb. 29, 2016).
When “‘the record contains sufficient evidence from which an ALJ can assess the
[claimant’s RFC],’ a medical source statement or formal medical opinion is not necessarily
required.” Monroe v. Comm’r of Soc. Sec., No. 16-1042, 2017 WL 213363, at *3 (2d Cir. Jan.
18, 2017) (citation omitted) (quoting Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d
Cir. 2013) (summary order)). But Monroe—and the other Second Circuit cases on which it
relies—still requires that the administrative record before the ALJ be sufficiently comprehensive
to permit an informed finding by the ALJ. Id. Here, the Commissioner does not dispute that
neither a treating physician nor Dr. Woods assessed Scott’s limitations in light of the CT scan.
This gap in the record precluded a sufficiently supported assessment by the ALJ of Scott’s RFC.
See Smith v. Comm’r of Soc. Sec., No. 15 Civ. 1473, 2016 WL 1388063, at *11 (S.D.N.Y. Mar.
23, 2016) (“[B]ecause the CT scan report simply documents objective findings without
interpreting their practical implications, the ALJ’s conclusion rests improperly on his lay
assessment of the medical evidence.”); Alessi v. Colvin, No. 14 Civ. 7220, 2015 WL 8481883, at
*5-6 (E.D.N.Y. Dec. 9, 2015) (“[T]here is insufficient basis in the record to determine . . .
[Plaintiff’s RFC] especially because . . . the sole medical source whose functional assessment the
ALJ gave ‘great weight’ to did not review the lumbar and cervical MRIs, which showed some
abnormalities. . . . While the ALJ himself considered the MRIs, the ALJ is not a medical
professional who can interpret the MRIs to assess Plaintiff[’]s RFC.”).

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It may be, as the Report notes, that Dr. Woods would have reached the same conclusion
had Scott’s CT scan been available to him. See Report at 22. Nevertheless, the ALJ should have
further developed the record given that (1) Scott did not have a consistent treating physician, and
none of the treating physicians’ notes includes an opinion on the extent of her limitations, (2) the
CT scan was abnormal and therefore could have affected Dr. Woods’s opinion, and (3) the ALJ
relied in large part on Dr. Woods’s report. Accordingly, upon de novo review of the record, the
Court agrees with the Report that the ALJ’s determination of Scott’s RFC was not based on
substantial evidence. On remand, the ALJ should either order an additional consultative
examination that takes into consideration Scott’s spinal imaging or seek additional information
from a treating physician about the extent of Scott’s limitations.
The Court has reviewed the rest of the Report and found no clear error. See Cruz, 2014
WL 5089580, at *1.
CONCLUSION
For the reasons set forth above, the Report is adopted and Defendant’s motion is denied.
The case is remanded to the SSA for further development of the administrative record. The
Clerk of Court is respectfully directed to terminate the motion at docket entry 10, close the case,
mail a copy of this order to Plaintiff, and note the mailing on the docket.
SO ORDERED.

_________________________________
____________________________
__
__
_
VALERIE CAPRONI
CAPRONI
N
United States District Judge

Date: April 24, 2017
New York, New York

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