Ogirri v. Colvin
Filing
16
OPINION AND ORDER: re: 14 CROSS MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin, 8 MOTION for Judgment on the Pleadings . filed by Frederick Ogirri. For the foregoing reasons, the Court grants Ogirri& #039;s motion for judgment on the pleadings, and remands the case pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ should evaluate Dr. Tses opinion as that of a treating physician and reevaluate the weight that should be af forded to the opinion based on the considerations outlined above. To the extent that the ALJ's conclusion remains that "little," rather than controlling, weight should be afforded, the ALJ should provide a comprehensive analysis setting forth good reasons for the weight assigned. The ALJ should also reevaluate Ogirri's credibility in light of all the relevant medical and other evidence. (Signed by Magistrate Judge James L. Cott on 2/28/2018) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FREDERICK OGIRRI,
:
:
Plaintiff,
:
:
-against:
:
NANCY A. BERRYHILL,
:
Acting Commissioner, Social Security
:
Administration, 1
:
:
Defendant.
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
2/28/2018
OPINION AND ORDER
16–CV–9143 (JLC)
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Frederick Ogirri brings this action seeking judicial review of a final
decision by defendant Nancy A. Berryhill, the Acting Commissioner of the Social
Security Administration (the “Commissioner”), denying Ogirri’s claim for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Ogirri has
moved and the Commissioner has cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set
forth below, the case is remanded to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. § 405(g).
Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Berryhill is hereby substituted for former Acting Commissioner Carolyn W. Colvin
as the defendant in this action.
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1
I.
A.
BACKGROUND
Procedural History
Ogirri filed an application for DIB on December 17, 2012, and an application
for SSI on March 24, 2014, alleging in both a disability onset date of August 1, 2012.
Administrative Record (“AR”), dated Apr. 12, 2017, Dkt. No. 7, at 12. The Social
Security Administration (“SSA”) denied Ogirri’s application on April 3, 2013. Id. at
106–08. On May 15, 2013, Ogirri requested an administrative hearing, id. at 109,
and on May 14, 2014, represented by counsel, Ogirri appeared before
Administrative Law Judge (“ALJ”) Gal Lahat. Id. at 41–93. In a written decision
dated July 25, 2014, the ALJ found that Ogirri was not disabled. Id. at 12–24.
Ogirri requested review by the SSA Appeals Council on August 12, 2014, id. at 8,
and submitted additional medical evidence generated after the ALJ’s decision, id. at
40. On November 19, 2015 the Appeals Council denied Ogirri’s request for a review
of the decision, thus rendering the ALJ’s decision final. Id. at 1–4.
Represented by counsel, Ogirri timely commenced this action on November
23, 2016, seeking judicial review of the Commissioner’s decision under 42 U.S.C.
§ 405(g). Complaint, Dkt. No. 1. 2 On June 12, 2017, Ogirri moved for judgment on
the pleadings, Dkt. No. 8, and filed a memorandum in support of his motion (“Pl.
Mem.”), Dkt. No. 9. On July 28, 2017, the Commissioner cross-moved for judgment,
Dkt. No. 14, and filed her own supporting memorandum of law (“Def. Mem.”), Dkt.
On September 26, 2016, the Appeals Council granted Ogirri an additional 60 days
to file a civil action, starting from the date he received the letter granting the
extension. AR. at 31.
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2
No. 15. No reply papers were submitted. On June 21, 2017, the parties consented
to my jurisdiction for all purposes under 28 U.S.C. § 636(c). Dkt. No. 13.
B.
The Administrative Record
1.
Ogirri’s Background
Ogirri was born on April 9, 1983 and was 29 years old on the alleged
disability onset date. AR at 23. Ogirri worked off and on as a security guard from
2008 to 2012, prior to which he had worked in a mailroom and in a warehouse. Id.
at 58–59, 102. Ogirri alleges a number of impairments that limit his ability to
work. In his DIB application he claimed he became unable to work on August 1,
2012 due to cerebellar atrophy, 3 balance and coordination loss, and arthritis. Id. at
190. He believes that an assault in 2008, which resulted in a head injury, caused
his disabilities. Id. at 48, 252, 294. Ogirri has been treated by a number of doctors
for his conditions. Id. at 17–20. As discussed in the next section of this opinion,
multiple doctors have diagnosed Ogirri with cerebellar atrophy.
Ogirri testified at the May 14, 2014 hearing that he lives with his brother
and two other roommates and that he is engaged. Id. at 52. He reported that he
graduated from Queensborough Community College in December 2013, but that he
had “a lot of trouble” obtaining his degree because his impairments caused him
difficulty traveling to and accessing the classrooms. Id. at 52, 76–77. At his
According to Ogirri, “[c]erebellar degeneration is a process in which neurons in the
cerebellum–the area of the brain that controls coordination and balance–deteriorate
and die,” and the “most characteristic symptom of cerebellar degeneration is a widebased, unsteady, lurching walk, often accompanied by a back and forth tremor in
the trunk of the body.” Pl. Mem. at 2.
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3
hearing, Ogirri testified that he has trouble sitting, standing, and walking. Id. at
62–63. He said he could stand without his cane for 20 minutes at most, and could
walk with his cane for two blocks at most. Id. He reported that he could lift a
gallon of milk with both hands, but could not do so while standing up. Id. at 63–64.
His fiancée helps him with household chores like doing the laundry, making his bed,
and preparing food. Id. at 64. He also testified that he has problems with writing
and typing. Id. at 65–66.
2.
Relevant Medical Evidence on Record
As Ogirri does not dispute the ALJ’s findings regarding his mental
impairments, Pl. Mem. at 2 n.5, the Court’s discussion of the medical evidence
primarily focuses on the evidence concerning his physical impairments, and
specifically, on evidence regarding Ogirri’s treatment with neurologist Dr. Winona
Tse since the ALJ’s failure to properly weigh Dr. Tse’s opinion is the basis for the
Court’s remand.
a.
Treatment at Mount Sinai Hospital
Ogirri received primary care treatment as well as specialized treatment from
multiple doctors at Mount Sinai Hospital in 2013 and 2014. See, e.g., AR. 244–47;
291–336; 352–403; 406–09; 446–564; 575–88. 4
On July 30, 2013, Ogirri began treatment with Dr. Ferid Osmanovic, a
primary care physician at Mount Sinai Hospital. Id. at 293–97. Dr. Osmanovic
This Opinion does not recount all of the treatment that Ogirri received at Mount
Sinai.
4
4
conducted an examination and noted atrophied muscles, an unsteady gait, and
positive cerebellar signs. 5 Id. at 295. Dr. Osmonovic diagnosed Ogirri with
cerebellar atrophy, and referred Ogirri for neurology, physiatry, orthopedic,
podiatry, and cardiology consultations. Id. at. 295.
On August 28, 2013, Ogirri met with Dr. Aaron Tansy, a neurologist at
Mount Sinai Hospital. Id. at 304–16. Dr. Tansy noted Ogirri’s reported history of
progressive difficulty with walking and accomplishing activities of daily living, as
well as increased falls and difficulty with speech. Id. at 309. Dr. Tansy conducted a
neurological examination that revealed dysarthric and hypophonic speech as well as
absent pathological reflexes, and he ordered an MRI of Ogirri’s brain. Id. at 306,
313, 321. Dr. Tansy discussed treatment options and expectations with Ogirri, and
referred him to Mount Sinai’s Movement Disorders Clinic and to physical therapy.
Id. at 313–14.
On September 18, 2013, Dr. Tansy met with Ogirri again. Id. at 320–25. He
noted no change in Ogirri’s symptoms and further noted bilateral dysmetria that
was worse in the left hand as well as an ataxic abnormal gait and the use of a cane.
Id. at 321. Dr. Tansy reviewed the MRI, which showed generalized cerebellar
atrophy that was marked and disproportionate to age. Id. at 322. Dr. Tansy
diagnosed Ogirri with cerebellar degenerative disorder. Id. at 323. Dr. Tansy noted
According to Ogirri, “[c]erebellar signs are a group of focal neurological signs,
including an abnormal gait, difficulty with fine motor activities, an inability to
perform rapid alternating movements, and speech difficulties.” Pl. Mem. at 2 n.6.
5
5
that Ogirri had not yet been to the Movement Disorder Clinic, and recommended he
go for treatment. Id. at 320, 323.
Ogirri followed up with Dr. Osmonovic on November 19, 2013 and December
2, 2013. Id. at 509–16, 519–25. Dr. Osmonovic took X-rays, referred Plaintiff to
physical therapy and occupational therapy, and prescribed Voltaren gel. Id.
Ogirri returned to Dr. Tansy on January 15, 2014. Id. at 536–41. He
conducted another neurological exam and again noted dysarthric and hypophonic
speech, absent pathological reflexes, and an abnormal finger-to-nose and heel-toshin testing. Id. at 538. He further noted a short-stepped gait, and an inability to
perform tandem gait or heel and toe walk. Id. He noted that Ogirri had been seen
by the Movement Disorders Clinic. Id. at 536.
Dr. Tansy met again with Ogirri on March 12, 2014. Id. at 549–53. He
continued to note absent pathologic reflexes, abnormal bilateral finger-to-nose
testing, abnormal bilateral heel-to-shin testing, abnormal gait requiring short steps
with use of a walker, and an inability to perform tandem gait or heel and toe walk.
Id. He noted that Ogirri had been seen again by the Movement Disorders Clinic,
and that Dr. Tse had completed a disability evaluation. Id. at 549.
i.
Treatment by Dr. Winona Tse
On October 28, 2013, Ogirri met for the first time with Dr. Winona Tse, a
neurologist at Mount Sinai Hospital’s Movement Disorders Center. Id. at 364–67.
Dr. Tse noted that Ogirri had a four-year history of progressive incoordination,
problems climbing stairs, had been using a cane for the past six months, and was
6
using ankle orthotics for stability. Id. at 364. Based on her examination, Dr. Tse
noted dysarthric scanning speech, and a wide-based unsteady gait. Id. at 364–65.
She diagnosed Ogirri with cerebellar degeneration with cerebellar dysfunction. Id.
at 365. Dr. Tse recommended physical therapy, exercise, and a social work consult
to get more home services. Id. at 365.
On December 3, 2013, Ogirri met with Dr. Tse for a follow up visit. Id. at
353. Ogirri reported that he had fallen and had begun using a walker, feeling that
it was steadier than the cane he had been using. Id. She conducted an examination
and noted that Ogirri’s results for both a bilateral finger-to-nose test and bilateral
heel-to-shin test were ataxic. Id. 6 She continued to note an unsteady wide-based
gait, as well as sway when standing. Id. She recommended he continue with
physical therapy, follow up with a social worker regarding home care services, and
see an occupational therapist. Id. at 354.
On February 6, 2014, Ogirri met once again with Dr. Tse. Id. at 408. She
noted that he had been attending physical therapy, that he continued to use a cane
and sometimes used a walker, and that he was applying for disability benefits. Id.
She continued to note dysarthic speech, ataxic finger-to-nose and heel-to-shin
testing, and a wide-based ataxic gait. Id. at 408–09. Dr. Tse recommended he
continue physical therapy. Id. at 409.
According to the Commissioner, “[a]taxia means defective muscle coordination,
especially manifested when voluntary muscle movements are attempted.” Def.
Mem. at 2 n.3.
6
7
That same day, Dr. Tse completed an impairment questionnaire in
conjunction with Ogirri’s disability application. Id. at 396–403. Dr. Tse wrote that
she had begun to treat Ogirri on October 28, 2013, had seen him every three months
since, and had diagnosed him with cerebellar degeneration. Id. at 396. Asked to
identify the clinical findings that supported her diagnosis, Dr. Tse listed Ogirri’s
dysmetria on finger-to-nose and also the heel-to-shin tests, his slurred scanning
speech, and his wide-based ataxic gait. Id. Asked to identify the diagnostic tests
that supported her diagnosis, Dr. Tse noted that the August 28, 2013 MRI was
consistent with marked cerebellar atrophy. Id. at 397. She described Ogirri’s
primary symptoms as “walking and balance/coordination problem[s]” and “slurred
speech.” Id. at 397.
The form asked Dr. Tse to estimate Ogirri’s residual functional capacity if he
were to be placed in a normal, competitive, five day a week work environment on a
sustained basis. Id. at 398. Dr. Tse opined that in an eight-hour day Ogirri could
sit for four hours and stand/walk for one hour. Id. at 398. She found Ogirri could
sit for 30 minutes before needing to get up and move around for 30 minutes. Id. at
398–399. She also wrote that it was medically recommended or necessary for Ogirri
not to stand or walk continuously in a work setting. Id. at 399. Dr. Tse further
opined that Ogirri could occasionally lift and carry five to 10 pounds and frequently
lift and carry up to five pounds. Id.
Dr. Tse opined that Ogirri had had marked limitations using his left upper
extremities for manipulation, and moderate limitations using his right upper
8
extremities for manipulation. Id. at 399–400. Dr. Tse opined that Ogirri would
periodically experience pain, fatigue or other symptoms severe enough to interfere
with attention and concentration. Id. at 401. Dr. Tse estimated Ogirri’s level of
pain to be a seven on a scale of one to ten, and his level of fatigue to be an eight. Id.
at 398.
Dr. Tse considered Ogirri capable of only low stress work. Id. at 401. He
would need unscheduled 30-minute breaks three times per workday and would be
absent from work more than three times a month. Id. at 401–02. Ogirri would need
to avoid wetness, heights, pushing, pulling, kneeling, bending, and stooping. Id. at
402. Dr. Tse also opined that Ogirri could not work a job requiring him to keep his
neck in a constant position, although his condition did not interfere with his ability
to do so. Id. at 400–01.
In response to the question, “In your best medical opinion, what is the
earliest date that the description of symptoms and limitations in this questionnaire
applies?” Dr. Tse wrote “Now 2/6/14,” the day of the examination. Id. at 402.
Ogirri saw Dr. Tse again on July 15, 2014, for more than 40 minutes. Id. at
576–77. Dr. Tse noted that Ogirri reported his walking had become more unsteady,
and that he had recently lost his balance and fallen, causing him to sprain his
ankle. Id. at 576. Dr. Tse noted that Ogirri had stopped going to physical therapy
in January due to bad weather and depressed feelings. Id. at 576–77. Dr. Tse
continued to note ataxic finger-to-nose, and heel-to-shin testing, and a wide-based,
unsteady gait, and she planned a follow up visit in three months’ time. Id. at 577.
9
On November 5, 2014 (following the ALJ’s decision), Dr. Tse wrote a letter in which
she stated that Ogirri was under her neurologic care and was “very disabled” and
“unable to work,” although the Appeals Council determined that this letter
contained new information about a later date in time, and “[t]herefore, it does not
affect the decision about whether [Ogirri was] disabled beginning on or before July
25, 2014.” Id. at 2, 40.
b.
SSA Consultative Examiners
i.
Dr. David Finkelstein
On October 18, 2012, Ogirri met with Dr. David Finkelstein for a consultative
examination. Id. at 248–50. Dr. Finkelstein observed dysarthric speech, widebased and ataxic gait, that Ogirri could walk on his toes but not his heels, did not
use an assistive device, sway but no falling, some dysmetria bilaterally in the
extremities, and abnormal finger-to-nose testing. Id. at 249. He diagnosed
cerebellar atrophy, and opined “[t]he client has limitations in speech and moderate
limitations in ambulation. Also limitations in targeting the upper extremities.” Id.
at 250.
ii.
Dr. Joyce Graber
On February 7, 2013, Ogirri met with Dr. Joyce Graber for a consultative
examination. Id. at 256–59. Dr. Graber noted slow and unsteady gait, poor
balance, inability to walk on heels and toes, ability to squat fully with difficulty
getting up, some difficulty transferring on and off the exam table, no use of an
assistive device, and intact hand and finger dexterity. Id. at 257–58. Dr. Graber
10
opined that “the claimant has a mild limitation for walking, climbing and other
such activities due to his balance problems.” Id. at 258.
iii.
Dr. T. Harding
On April 2, 2013, state agency psychological consultant Dr. T. Harding
reviewed the record and found that Ogirri had no medically determinable mental
impairment. Id. at 98.
3.
ALJ Hearing
At the hearing before ALJ Lahat on May 14, 2014, Ogirri appeared with
counsel, and both Ogirri and vocational expert Don Schader testified. Id. at 42–93.
a.
Ogirri’s Testimony
Regarding his physical impairments, Ogirri testified that he needed to use a
walker to get around on his own. Id. at 75. He had been using the walker since
December 2013. Id. at 75–76. He testified that when he sits sometimes his “back
hurts a little bit like I have to lean all the way back for it not to hurt. And then
when I do that my legs, you know, they’re just like – it feels like my legs are just
like pulling me, pulling my body forward.” Id. at 62. He testified to having trouble
standing up, and said he could stand without his cane for 20 minutes at most. Id.
He also reported that he cannot walk without a cane, but can walk up to two blocks
with one. Id. at 63. He testified to being unable to write legibly or type easily. Id.
64–65. He testified that he would not be able to maintain a 9:00 a.m. to 5:00 p.m.
schedule because he does not “even wake up until 11:00 or 12:00.” Id. at 62.
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As to his medical history, Ogirri testified that Dr. Osmonovich was his
primary care physician. Id. at 68. He also testified that he had been treated by
neurologist Dr. Tansy, who referred him to Dr. Tse at the Movement Disorder
Center. Id. He also testified regarding his treatment with Dr. Tse. Id. at 71.
b.
Vocational Expert’s Testimony
The ALJ asked the vocational expert if jobs exist in the national economy for
someone with Ogirri’s age, education, and work background, with the following
limitations: the person could only lift, carry, push, and pull up to 10 pounds
occasionally, and less than 10 pounds frequently; stand and walk for a total of two
hours out of eight; sit for a total of six hours out of eight; no climbing ladders, ropes
or scaffolds; can occasionally balance, stoop, kneel, crouch, crawl, climb ramps, and
climb stairs. Id. at 83–84. The vocational expert testified that such an individual
could not perform Ogirri’s past work, but could work as a document preparer,
charge account clerk, and food and beverage order clerk. Id. at 83–85.
Ogirri’s attorney posed four additional hypothetical individuals, and the
vocational expert testified that each such hypothetical individual could not perform
any jobs in the economy. Id. at 86–89.
II.
A.
DISCUSSION
Standard of Review
1.
Judicial Review of Commissioner’s Determination
An individual may obtain judicial review of a final decision of the
Commissioner in the “district court of the United States for the judicial district in
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which the plaintiff resides.” 42 U.S.C. § 405(g). The district court must determine
whether the Commissioner’s final decision applied the correct legal standards and
whether it is supported by substantial evidence. Butts v. Barnhart, 388 F.3d 377,
384 (2d Cir. 2004). “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) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations
omitted).
In weighing whether substantial evidence exists to support the
Commissioner’s decision, “the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.” Id. (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d
Cir. 1983)). On the basis of this review, the court may “enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding . . . for a
rehearing.” 42 U.S.C. § 405(g). Remand is “particularly appropriate where, due to
inconsistencies in the medical evidence and/or significant gaps in the record,
‘further findings would . . . plainly help to assure the proper disposition of [a]
claim.’” Kirkland v. Astrue, No. 06–CV–4861 (ARR), 2008 WL 267429, at *8
(E.D.N.Y. Jan. 29, 2008) (quoting Butts, 388 F.3d at 386) (alterations in original).
The substantial evidence standard is a “very deferential standard of review.”
Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). The reviewing court
13
“must be careful not to substitute its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review.”
DeJesus v. Astrue, 762 F. Supp. 2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations
omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a
reasonable factfinder would have to conclude otherwise.’” Brault, 683 F.3d at 448
(quoting Warren v. Shalaa, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
2.
Commissioner’s Determination of Disability
Under the Social Security Act, “disability” is defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). Physical or
mental impairments must be “of such severity that [the claimant] is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In assessing whether a claimant’s impairments meet the statutory definition
of disability, the Commissioner “must make a thorough inquiry into the claimant’s
condition.” Mongeur, 722 F.2d at 1037. Specifically, the Commissioner’s decision
must take into account factors such as: “(1) the objective medical facts; (2) diagnoses
or medical opinions based on such facts; (3) subjective evidence of pain or disability
14
testified to by the claimant or others; and (4) the claimant’s educational
background, age, and work experience.” Id. (citations omitted).
a.
Five-Step Inquiry
The Commissioner’s determination of disability follows a sequential, five-step
inquiry. Cichocki v. Astrue, 729 F.3d 172, 173 n.1 (2d Cir. 2013). First, the
Commissioner must establish whether the claimant is presently employed. 20
C.F.R. § 404.1520(a)(4)(i). 7 If the claimant is unemployed, at the second step the
Commissioner determines whether the claimant has a “severe” impairment
restricting his ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has
such an impairment, the Commissioner moves to the third step and considers
whether the medical severity of the impairment “meets or equals” a listing in
Appendix 1 of Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so,
the claimant is considered disabled. Id.; 20 C.F.R. § 404.1520(d). If not, the
Commissioner continues to the fourth step and determines whether the claimant
In 2017, new SSA regulations came into effect. The newest regulations apply only
to claims filed with the SSA on or after March 27, 2017. Accordingly, because
Ogirri’s claims were filed in 2012, the Court applies the regulations that were in
effect when Ogirri’s claim was filed. See, e.g., Rousey v. Comm’r of Social Sec., No.
16–CV–9500 (HBP), 2018 WL 377364, at *8 n.8 & *12 n.10 (S.D.N.Y. Jan. 11, 2018)
(noting 2017 amendments to regulations but reviewing ALJ’s decision under prior
versions); O’Connor v. Berryhill, No. 14–CV–1101 (AVC), 2017 WL 4387366, at *17
n.38 (D. Conn. Sept. 29, 2017) (same); Luciano-Norman v. Comm’r of Soc. Sec., No.
16–CV–1455 (GTS)(WBC), 2017 WL 4861491, at *3 n.2 (N.D.N.Y. Sept. 11, 2017)
(same), adopted by, 2017 WL 4857580 (N.D.N.Y. Oct. 25, 2017); Barca v. Comm’r of
Soc. Sec., No. 16–CV–187, 2017 WL 3396416, at *8 n.5 (D. Vt. Aug. 8, 2017) (same).
7
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has the Residual Functional Capacity (“RFC”) to perform his past relevant work. 20
C.F.R. § 404.1520(a)(4)(iv). Finally, if the claimant does not have the RFC to
perform past relevant work, the Commissioner completes the fifth step and
ascertains whether the claimant can do any other work. 20 C.F.R.
§ 404.1520(a)(4)(v).
The claimant has the burden at the first four steps. Burgess v. Astrue, 537
F.3d 117, 128 (2d Cir. 2008). The burden shifts to the Commissioner at the fifth
and final step, where the Commissioner must establish that the claimant has the
ability to perform some work in the national economy. See Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009).
b.
Duty to Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims
v. Apfel, 530 U.S. 103, 110–11 (2000). Consequently, “the social security ALJ,
unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop
the record.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation
marks omitted). As part of this duty, the ALJ must “investigate the facts and
develop the arguments both for and against granting benefits.” Sims, 530 U.S. at
111. Specifically, under the applicable regulations, the ALJ is required to “develop
a complete medical record before making a disability determination.” Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citing 20 C.F.R. § 404.1512(d)–(f)).
Whether the ALJ has satisfied this duty to develop the record is a threshold
question. Before determining whether the Commissioner’s final decision is
16
supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be
satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary’s
regulations’ and also fully and completely developed the administrative record.”
Scott v. Astrue, No. 09–CV–3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9,
2010) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d
Cir. 1982)); see also Rodriguez v. Barnhart, No. 02–CV–5782 (FB), 2003 WL
22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully
develop the record is a bedrock principle of Social Security law.”). The ALJ must
develop the record even where the claimant has legal counsel. See, e.g., Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996). Remand is appropriate where this duty is not
discharged. See, e.g., Moran, 569 F.3d at 114–15 (“We vacate not because the ALJ’s
decision was not supported by substantial evidence but because the ALJ should
have developed a more comprehensive record before making his decision.”).
c.
Treating Physician Rule
“‘Regardless of its source,’ the ALJ must ‘evaluate every medical opinion’ in
determining whether a claimant is disabled under the [Social Security] Act.” Pena
ex rel. E.R. v. Astrue, No. 11–CV–1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y.
Mar. 25, 2013) (quoting 20 C.F.R. §§ 404.1527(c), 416.927(c)). A treating physician’s
opinion receives controlling weight, provided the opinion as to the nature and
severity of an impairment “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). “The regulations define a
17
treating physician as the claimant’s ‘own physician, psychologist, or other
acceptable medical source who provides [the claimant] . . . with medical treatment
or evaluation and who has, or has had, an ongoing treatment relationship with [the
claimant].’” Henny v. Comm’r of Soc. Sec., No. 15–CV–629 (RA), 2017 WL 1040486,
at *9 (S.D.N.Y. Mar. 15, 2017) (quoting 20 C.F.R. § 404.1502). Deference to such a
medical provider is appropriate because they “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the] 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.” 20 C.F.R. § 404.1527(c)(2).
A treating physician’s opinion is not always controlling. For example, a legal
conclusion “that the claimant is ‘disabled’ or ‘unable to work’ is not controlling,”
because such opinions are reserved for the Commissioner. Guzman v. Astrue,
No. 09–CV–3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011); Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician’s statement that the
claimant is disabled cannot itself be determinative.”). Additionally, where “‘the
treating physician issue[s] opinions that [are] not consistent with other substantial
evidence in the record, such as the opinion of other medical experts,’ the treating
physician’s opinion ‘is not afforded controlling weight.’” Pena ex rel. E.R., 2013 WL
1210932, at *15 (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)); see
also Snell, 177 F.3d at 133 (“[T]he less consistent [the treating physician’s] opinion
is with the record as a whole, the less weight it will be given.”).
18
To determine how much weight a treating physician’s opinion deserves, the
ALJ must consider several factors outlined by the Second Circuit:
(i) the frequency of examination and the length, nature and
extent of the treatment relationship; (ii) the evidence in
support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; (iv)
whether the opinion is from a specialist; and (v) other
factors brought to the Social Security Administration’s
attention that tend to support or contradict the opinion.
Halloran, 362 F.3d at 32; see 20 C.F.R. § 404.1527(c). If, based on these
considerations, the ALJ declines to give controlling weight to the treating
physician’s opinion, the ALJ must nonetheless “comprehensively set forth reasons
for the weight” ultimately assigned to the treating source. Halloran, 362 F.3d at 33;
accord Snell, 177 F.3d at 134 (responsibility of determining “the ultimate issue of
disability” does not “exempt administrative decisionmakers from their obligation . . .
to explain why a treating physician’s opinions are not being credited”) (citations
omitted). The regulations require that the Commissioner “always give good reasons
in [its] notice of determination or decision for the weight” given to the treating
physician. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (alteration
in original) (citations omitted). Indeed, “[c]ourts have not hesitated to remand cases
when the Commissioner has not provided ‘good reasons.’” Pena ex rel. E.R., 2013
WL 1210932, at *15 (quoting Halloran, 362 F.3d at 33) (alterations omitted).
d.
Claimant’s Credibility
An ALJ’s credibility finding as to the claimant’s disability is entitled to
deference by a reviewing court. Osorio v. Barnhart, No. 04–CV–7515(DLC), 2006
19
WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the
Secretary’s findings are supported by substantial evidence, the court must uphold
the ALJ’s decision to discount a claimant’s subjective complaints.’” Id. (quoting
Aponte v. Sec’y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
Still, an ALJ’s finding of credibility “must . . . be set forth with sufficient specificity
to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10
(internal quotation marks omitted) (quoting Williams v. Bowen, 859 F.2d 255,
260–61 (2d Cir. 1988)). “The ALJ must make this [credibility] determination ‘in
light of the objective medical evidence and other evidence regarding the true extent
of the alleged symptoms.’” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d
Cir. 1984)).
SSA regulations provide that statements of subjective pain and other
symptoms alone cannot establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). Accordingly, the ALJ must follow a twostep framework for evaluating allegations of pain and other limitations. Id. First,
the ALJ considers whether “the claimant suffers from a medically determinable
impairment that could reasonably be expected to produce the symptoms alleged.”
Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an
impairment, at the second step, the ALJ must consider ‘the extent to which [the
claimant’s] symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence’ of record.” Id. (citing 20 C.F.R. § 404.1529(a)).
Among the kinds of evidence the ALJ must consider (in addition to objective
20
medical evidence) are: (1) a claimant’s “daily activities; (2) The location, duration,
frequency, and intensity of the individual’s pain or other symptoms; (3) Factors that
precipitate and aggravate the symptoms; (4) The type, dosage, effectiveness, and
side effects of any medication the individual takes or has taken to alleviate pain or
other symptoms; (5) Treatment, other than medication, the individual receives or
has received for relief of pain or other symptoms; (6) Any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.” Pena, 2008 WL
5111317, at *11 (citing SSR 96–7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B.
The ALJ’s Decision
In a decision dated July 25, 2014, the ALJ concluded that Ogirri was not
disabled from his alleged onset date of August 1, 2012 to the date of the decision.
AR at 24. The ALJ reached this decision after following the five-step inquiry. At
step one, the ALJ determined that Ogirri had not been engaged in substantial
gainful employment since the alleged onset date. Id. at 14. At step two, the ALJ
found that Ogirri had a severe impairment: cerebellar degeneration with a
diagnosis of marked cerebellar atrophy. Id. At step three, the ALJ concluded that
this impairment did not meet or medically equal the severity of a listed impairment.
Id. at 15. The ALJ then made the following finding as to Ogirri’s residual
functional capacity:
21
[Ogirri] can lift/carry and push/pull 10 pounds
occasionally and less than 10 pounds frequently,
stand/walk for 2 hours in an 8-hour workday, and sit for 6
hours in an 8-hour workday. The claimant requires a
cane for ambulation and cannot climb ladders, ropes, or
scaffolds, but can occasionally climb stairs and ramps,
balance, stoop, kneel, crouch, and crawl. The claimant
cannot work in proximity to moving mechanical parts or
at high exposed places.”
Id. at 15. In making this determination, the ALJ concluded that while “[Ogirri’s]
medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” Ogirri’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible based on the
preponderance of the evidence. . . .” Id. at 17.
In making this finding, the ALJ reviewed the medical evidence and evaluated
the medical opinions in the record. Id. at 17–22. 8 The ALJ accorded Dr. Tse’s
assessment “little weight” because:
the underlying treatment notes indicate some
coordination and gait disturbance but that the claimant
has been otherwise neurologically and cognitively intact.
Furthermore, Dr. Tse also ascribed the above limitations
as of February 2014 with the longitudinal record failing to
support the extent of limitations for any vocationally
relevant period of time (or any 12-month period).
However, the undersigned accepts that the claimant
suffers from a degenerative impairment that could result
in greater limitations over time. The current record,
though, fails to document any period of symptoms or
findings consistent with Dr. Tse’s opinion.
Id. at 21–22.
The Court does not recount here each of the ALJ’s evaluations of opinion evidence.
See id. at 21–22.
8
22
The ALJ afforded more weight to the opinions of Ogirri’s consultative
examiners. Dr. Finkelstein’s opinion was given “considerable weight as to
limitations in ambulation but with limited weight accorded to the opined of
restrictions in speech,” because the “record reflects that the claimant is able to
relate adequately and communicate effectively.” Id. at 21. The ALJ afforded Dr.
Graber’s opinion “some weight,” reasoning that “[t]he assessment as to limitations
in walking, climbing, postural activities is supported by the record though the
extent of that limitation appears greater than mild.” Id. The ALJ also gave
“significant weight” to a state agency psychological consultant, who did not see
Ogirri, because it was “supported by the examinations and observations of record.”
Id. at 22.
In reaching her conclusion that Ogirri’s statements were “not entirely
credible,” id. at 17, the ALJ stated that “the claimant has not been placed on
medications to address either emotional or cognitive loss with the claimant’s
recommended treatment involving physical therapy which the claimant is to begin.
He has also been referred to the Movement Disorders Clinic with no apparent follow
up.” Id. at 20. The ALJ also noted that the claimant’s examination had revealed
“no focal neurological deficit,” and that the “record also fails to reflect ongoing use of
a cane or assistive device.” Id. The ALJ added that Ogirri had a home aide for a
period, but that “the record fails to reflect such assistance for a significant portion of
the period at issue.” Id. While recognizing Ogirri’s “diagnosis of marked cerebellar
atrophy,” the ALJ stated that “some examinations also reflect[ ] that the claimant
23
[is] neurologically intact and [does] not requir[e] any assistive device” and concluded
that, based on the totality of the evidence, Ogirri’s “allegations and testimony”
would be “accorded limited weight.” Id. at 21.
At step four, the ALJ concluded that Ogirri is unable to perform his past
relevant work. Id. at 22–23. At step five, the ALJ concluded that considering
Ogirri’s age, education, work experience, and residual functional capacity, jobs exist
in significant numbers in the national economy that Ogirri would be able to
perform, such as charge account clerk, order clerk, and document preparer, and
therefore, Ogirri was not disabled. Id. at 23–24.
C.
Analysis
Ogirri argues that there are two reasons why the ALJ’s decision should be
reversed or remanded for a new hearing: the ALJ failed to properly weigh the
opinion of treating physician Dr. Tse, and the ALJ failed to properly evaluate
Ogirri’s credibility. Pl. Mem. at 9, 13. For the reasons that follow, the Court agrees
with Ogirri’s first argument and concludes that the ALJ failed to comply with the
treating physician rule. As the Court remands the case on that basis, the Court
need not reach a conclusion about the ALJ’s credibility finding. However, the Court
will briefly address the finding to the extent that the ALJ’s analysis presents
potential problems that she can remedy on remand.
1.
The ALJ Did Not Comply with the Treating Physician Rule
Ogirri argues that the ALJ failed to properly weigh Dr. Tse’s opinion. Pl.
Mem. at 9–13. The Commissioner, while recognizing that a treating source’s
24
opinion is entitled to controlling weight except in certain circumstances, contends
that the ALJ properly gave little weight to Dr. Tse’s opinion. Def. Mem. at 19.
Specifically, the Commissioner claims that the opinion was entitled to little weight
because it was inconsistent with the opinions of Drs. Finkelstein and Graber, was
internally inconsistent, and was issued after only three examinations. Id. at 20.
As discussed below, the Court finds that the ALJ did not comply with the
treating physician rule because she failed to identify Dr. Tse as a treating physician
and she declined to give controlling weight to Dr. Tse’s opinion without discussing
the required factors or providing good reasons.
a.
In her Decision, the ALJ Failed to Identify Dr. Tse as a
Treating Physician
The ALJ’s decision does not explicitly identify Dr. Tse as a treating physician.
However, during the hearing, Ogirri testified that Dr. Tse was treating him about
every month and a half to two months. AR at 70. Indeed, the Commissioner does
not contend that Dr. Tse was not a treating physician; her Memorandum of Law
tacitly concedes the point. See Def. Mem. at 19 (arguing that the ALJ properly gave
only little weight to Dr. Tse’s opinion and stating that a “treating source’s opinion . .
. is entitled to controlling weight, but only if the opinion is well-supported . . . and is
not inconsistent with other substantial evidence”); see also Alicea v. Colvin, No. 14–
CV–1998 (PED), 2016 WL 452320, at *14 (S.D.N.Y. Feb. 4, 2016) (finding tacit
admission in similar circumstances).
According to SSA regulations, a treating source is an “acceptable medical
source who provides [the claimant] with medical treatment or evaluation and who
25
has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. §
404.1527(a)(2). Generally, a physician who has examined a claimant on one or two
occasions is not considered a treating physician. See id. However, there is no
minimum number of visits or period of treatment by a physician before this
standard is met. Id. (ongoing treatment relationship can be established by medical
source “who has treated or evaluated [the claimant] only a few times . . . if the
nature and frequency of the treatment or evaluation is typical for [the claimant’s]
condition(s)”). “[C]ourts have held that SSA adjudicators should focus on the nature
of the ongoing physician-treatment relationship, rather than its length.” Vasquez v.
Colvin, No. 14-CV-7194 (JLC), 2015 WL 4399685, at *20 (S.D.N.Y. July 20, 2015)
(internal alteration and quotation marks omitted) (citing Schisler v. Bowen, 851
F.2d 43, 45 (2d Cir. 1988) (upholding draft Social Security Ruling clarifying that
treating physician’s “ongoing” relationship with claimant may be “of a short time
span”)); see also Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (“The
nature–not the length–of the [physician-patient] relationship is controlling.”);
Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir. 1990) (applying treating physician
rule where doctor saw patient for only three months).
Based on the evidence in the record, the ALJ ought to have considered Dr.
Tse to be a treating physician. Ogirri began his treatment at Mount Sinai in July
2013. AR at 293. There, he saw a primary care physician who referred him for a
neurology consultation, id. at 295, and the next month, he met with a neurologist
who conducted an examination and referred him to Mount Sinai’s Movement
26
Disorders Clinic. Id. at 309, 313–14. As a result of that referral, in October 2013,
Ogirri began seeing Dr. Tse. Id. at 364. Dr. Tse treated Ogirri at least three times
before the hearing. Id. at 353–54; 364–67; 408–09. Dr. Tse examined Ogirri,
diagnosed him with cerebellar degeneration, ordered and reviewed medical tests,
reviewed treatment options, referred Ogirri to physical therapy, occupational
therapy, and gait training, and scheduled follow-up appointments for further
treatment. Id. The record indicates that Dr. Tse reviewed the work of her
colleagues at Mount Sinai who were also treating Ogirri. See, e.g., id. at 375, 553,
582. At Ogirri’s third appointment, in addition to performing an examination, she
completed an impairment questionnaire. Id. at 396–403. 9
Other decisions have inferred a treating relationship in similar
circumstances. In Nunez v. Berryhill, for example, a physician who met with the
claimant three times over the course of three months was considered a treating
source. Nunez v. Berryhill, No. 16–CV–5078 (HBP), 2017 WL 3495213, at *23
(S.D.N.Y. Aug. 11, 2017). There, the doctor “wrote an EMG report[,]” “referred
plaintiff for the EMG[,]” “noted plaintiff’s medical history and the results of the
EMG and a physical examination[,]” “diagnosed plaintiff[,]” and “prescribed
medication[.]” Id. In Vasquez v. Colvin, a doctor who met with the claimant four
After the hearing but before the ALJ issued her decision, Ogirri returned to Dr.
Tse for another follow up visit on July 15, 2014. Id. at 576–77. While the notes
from that visit are included in the list of exhibits in the record, see id. at 575–78;
584–87 (Exs. 28F & 29F), it is not clear whether the ALJ received the evidence
before she issued her decision on July 25, 2014. See id. at 29 (list of exhibits
considered by ALJ that does not include Exs. 28F and 29F).
9
27
times was considered a treating physician where he “referred Vasquez to other
specialists for further treatment and testing[,]” “wrote a brief note confirming
[claimant’s] impairments[,]” and was referred to by the claimant as his treating
physician. Vasquez, 2015 WL 4399685, at *20. In Harrison v. Secretary of Health &
Human Services, a physician who had seen plaintiff four times was considered a
treating source where she “diagnosed plaintiff and referred her for various tests and
treatment.” Harrison v. Sec’y of Health & Human Servs., 901 F. Supp. 749, 755
(S.D.N.Y. 1995); see also Snell, 177 F.3d at 130 (treating relationship found where
doctor met with claimant three times); Vargas, 898 F.2d at 293 (applying treating
physician rule where doctor saw patient for only three months).
Thus, because the record indicates that Dr. Tse evaluated Ogirri, had an
ongoing relationship with him, and provided him with treatment, the ALJ should
have explicitly identified Dr. Tse as a treating physician and evaluated her opinion
accordingly.
b.
The ALJ Failed to Consider Required Factors in
Evaluating What Weight to Afford Dr. Tse’s Opinion
While she did not explicitly recognize Dr. Tse as a treating physician, the
ALJ did evaluate Dr. Tse’s opinion and afforded it “little weight.” AR. at 21.
However, in the four-sentence paragraph setting forth her reasoning, the ALJ failed
to consider all of the factors listed in the applicable regulation. See Burgess, 537
F.3d at 129 (quoting 20 C.F.R. § 404.1527); see also Halloran, 362 F.3d at 32 (“An
ALJ who refuses to accord controlling weight to the medical opinion of a treating
physician must consider various ‘factors’ to determine how much weight to give to
28
the opinion.”). While the ALJ need not have discussed each factor expressly, it
should have been clear from her decision that she considered each factor. See, e.g.,
Camacho v. Colvin, No. 15–CV–7080 (CM) (DF), 2017 WL 770613, at *22 (S.D.N.Y.
Feb. 27, 2017) (“[W]hen an ALJ decides to give less than controlling weight to the
opinion of a treating source, the ALJ’s consideration of each of those factors must be
transparent . . . .”) (internal quotation marks omitted).
Of the five factors listed in 20 C.F.R. § 404.1527, the ALJ’s decision touched,
briefly, on one; however, her boilerplate statements otherwise do not constitute
meaningful consideration of those factors. First, the ALJ referred to but did not
discuss “the consistency of the opinion with the record as a whole.” Halloran, 362
F.3d at 32; 20 C.F.R. § 404.1527(c)(2)(H). The ALJ stated, in a cursory fashion and
without citation to the record, the “current record . . . fails to document any period
of symptoms or findings consistent with Dr. Tse’s opinion.” AR. at 22. The ALJ did
not explain how Dr. Tse’s opinion was inconsistent with symptoms and findings in
the record. In fact, the record includes documentation of both symptoms and
findings that are consistent with Dr. Tse’s opinion. For example, consultative
examiner Dr. Finkelstein, whose opinion to which the ALJ gave “considerable
weight,” diagnosed Ogirri with cerebellar atrophy and noted “[t]he client has
limitations in speech and moderate limitations in ambulation. Also limitations in
targeting the upper extremities.” Id. at 250.
The Commissioner argues without elaboration that Dr. Tse’s opinion was
“inconsistent with the opinions of Dr. Finkelstein and Graber, and thus, not entitled
29
to controlling weight.” Def. Mem. at 20. The ALJ, however, did not provide this
reason in her evaluation. As noted above, Dr. Finkelstein diagnosed Ogirri with
cerebellar atrophy, and both Drs. Finkelstein and Graber noted that Ogirri had
problems with ambulation. AR. at 249–50, 258. Dr. Finkelstein opined that Ogirri
had limitations in speech and moderate limitations in ambulation, id. at 250, and
Dr. Graber opined that Ogirri had limitations in walking. Id. at 258. These doctors’
observations and opinions may vary in degree from those of Dr. Tse’s, but it is not
the law that a treating physician’s opinion must be identical to every other medical
opinion in the record in order to be accorded controlling weight.
The ALJ made no express mention of the other factors, nor does she appear to
have considered them, despite the fact that she was obligated to do so. For
instance, the ALJ did not discuss the evidence in support of the treating physician’s
opinion. See Halloran, 362 F.3d at 32; 20 C.F.R. § 404.1527(d). The ALJ did not
consider whether Dr. Tse was a specialist in the relevant field, whose opinion would
therefore merit particular consideration. See Halloran, 362 F.3d at 32; 20 C.F.R.
§ 404.1527(c)(2)(v). In fact, as a neurologist with a specialty in movement disorders,
her specialty was directly relevant to Ogirri’s condition.
Nor did the ALJ address the frequency of examination or the length, nature,
and extent of the treatment relationship between Ogirri and Dr. Tse. See Halloran,
362 F.3d at 32; 20 C.F.R. § 404.1527(c)(2)(H). Given that Dr. Tse had been treating
Ogirri for three months and had seen him three times when she provided her
opinion, she was likely to obtain a more longitudinal picture of Ogirri’s condition
30
than consultative examiners who saw Ogirri for only a few hours, or than Dr. T.
Harding, who did not examine Ogirri and only reviewed the record as it existed in
April 2013. Furthermore, Dr. Tse consulted laboratory test results and physicians’
notes related to Ogirri’s treatment at Mount Sinai, including treatment by
neurologist Dr. Tansy. See, e.g., AR. at 364–65 (referring to Dr. Tansy and to the
results of the MRI he had ordered). The failure to consider the length, nature, and
extent of the treatment relationship is conspicuous: in contrast to the little weight
the ALJ gave to Dr. Tse’s opinion, the ALJ gave “considerable” weight to the opinion
of consulting Dr. Finkelstein, “some” weight to the opinion of consulting Dr. Graber,
and relied most heavily on the non-examining agency expert, affording “significant
weight” to Dr. T. Harding’s statement. AR. at 21–22. However, “the regulations
clearly warn against reliance on a one-time consultative expert’s opinion over the
extensive records of a treating physician.” Castillo v. Colvin, No. 13–CV–5089 (AT)
(MHD), 2015 WL 153412, at *21 (S.D.N.Y. Jan. 12, 2015).
Where, as here, the ALJ did not address the Halloran factors, the Court must
remand the case for further consideration. See, e.g., Craig v. Comm’r of Soc. Sec.,
218 F. Supp. 3d 249, 266–67 (S.D.N.Y. 2016) (remanding in part due to ALJ’s
failure to consider factors such as specialization, nature of treatment relationship,
and frequency of examination in assessing weight afforded to treating physician’s
medical opinion); Ramos v. Comm’r of Soc. Sec, No. 13–CV–3421 (KBF), 2015 WL
7288658, at *7 (S.D.N.Y. Nov. 16, 2015) (remanding case where ALJ did not
consider required factors such as specialization and length of treatment in weighing
31
the opinion of treating physician); Hidalgo v. Colvin, No. 12–CV–9009 (LTS) (SN),
2014 WL 2884018, at *20 (S.D.N.Y. June 25, 2014) (ALJ’s failure to refer to all
factors when explaining weight given to treating psychiatrist’s opinion was legal
error); Clark v. Astrue, No. 08–CV–10389 (LBS), 2010 WL 3036489, at *4 (S.D.N.Y.
Aug. 4, 2010) (“ALJ did not consider the frequency of examination and the length,
nature, and extent of the treatment relationship, or whether the opinion was from a
specialist,” which was “legal error [that] constitute[d] grounds for remand”)
(internal quotation marks omitted).
c.
The Reasons Provided by the ALJ Were Insufficient to
Afford Less Than Controlling Weight to the Treating
Physician’s Opinions
The ALJ explicitly provided two reasons for offering Dr. Tse’s opinion little
weight: first, because her underlying treatment notes indicated Ogirri was
cognitively intact; and second, because Dr. Tse claimed the disability onset date was
February 2014, after Ogirri’s claimed disability onset date of August 1, 2012. AR.
at 21–22. The Commissioner has proffered a third reason that Dr. Tse’s opinion
should be entitled to little weight, namely, that Dr. Tse’s opinion was internally
inconsistent. Def. Mem. at 20. These reasons are insufficient to afford less than
controlling weight to the treating physician’s opinion. Each will be addressed in
turn.
i.
Underlying Treatment Notes
The ALJ “accorded little weight” to Dr. Tse’s opinion because “the underlying
treatment notes indicate some coordination and gait disturbance but that the
32
claimant has been otherwise neurologically and cognitively intact.” AR. at 21–22.
This statement, unelaborated upon, mischaracterizes the record.
As an initial matter, whether or not Dr. Tse’s treatment notes indicate
cognitive dysfunction is irrelevant – Dr. Tse diagnosed Ogirri with a neurological
condition (cerebellar degeneration) and opined on his resulting physical limitations.
Furthermore, Dr. Tse’s underlying treatment notes indicate far more than
merely “some coordination and gait disturbance.” The ALJ’s statement
mischaracterizes Dr. Tse’s treatment notes, which include detailed and consistent
documentation of Ogirri’s symptoms and examination results, and which support
her diagnosis and opinion. Dr. Tse’s notes include her clinical findings, based on
her own neurological evaluations of Ogirri, of symptoms of neurological deficit such
as wide-based gait and ataxic finger-to-nose tests. See, e.g., id. at 353–54; 364–67;
408–09; 396–403. Dr. Tse’s notes also include her analysis of diagnostic
examinations, such as Ogirri’s September 2013 MRI. See, e.g., id. at 365. In the
impairment questionnaire that she completed in February 2014, Dr. Tse specifically
pointed to these clinical findings and diagnostic tests in support of her diagnosis.
Id. at 396–97. Thus, as the ALJ’s proffered reason “relies on a mischaracterization
of the record,” it “cannot constitute a ‘good reason’ for rejecting a treating
physician’s opinion.” Marthe v. Colvin, No. 15–CV–6436 (MAT), 2016 WL 3514126,
at *7 (W.D.N.Y. June 28, 2016) (ALJ improperly declined to afford controlling
weight to treating physician’s opinion where ALJ found opinion “somewhat”
33
inconsistent with physician’s treating notes but review of record revealed opinion
was consistent with treating notes).
ii.
Disability Onset Date
The ALJ’s statement that “Dr. Tse . . . ascribed the above limitations as of
February 2014” is problematic. AR at 22. In response to the last question at the
end of an eight-page questionnaire that asked “what is the earliest date that the
description of symptoms and limitations in this questionnaire applies?,” Dr. Tse did
write “[n]ow 2/6/14.” Id. at 402. However, while the ALJ proffers Dr. Tse’s stated
onset date as a reason to afford little weight to Dr. Tse’s opinion, she does not
explain how the onset date bears on the weight that should be afforded to Dr. Tse’s
opinion. In the absence of further elaboration by the ALJ, it is not clear to the
Court why the identification of a particular onset date is a reason to discredit Dr.
Tse’s opinion.
In any event, based on the record and in the context of the questionnaire and
also of Dr. Tse’s treatment of Ogirri, the Court finds it highly unlikely that Dr. Tse
intended to state that Ogirri’s symptoms and limitations began on the date she
completed the questionnaire. Dr. Tse had seen and diagnosed Ogirri multiple times
before that day. Id. at 353–54; 364–67; 396–403. Such a response would only make
sense if Ogirri’s condition had deteriorated since she had last examined him. Her
treatment notes from February 6, 2014 indicate the opposite. Dr. Tse wrote that
Ogirri “has been doing PT which has been helpful,” and that he “has no new
complaints.” Id. at 408.
34
To the extent that Dr. Tse’s onset date was determinative, either of the ALJ’s
weight evaluation or of her disability finding, the ALJ should have sought
clarification from Dr. Tse. See Sellan v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013)
(“To the extent [the] record is unclear, the Commissioner has an affirmative duty to
fill any gaps in the administrative record before rejecting a treating physician’s
diagnosis.” (internal quotation marks omitted)); Vazquez v. Comm’r of Soc. Sec., No.
14–CV–6900 (JCF), 2015 WL 4562978, at *17 (S.D.N.Y. July 21, 2015) (ALJ’s
“rejection of [the treating source’s] opinion without first attempting to clarify any
gaps or perceived inconsistencies in the record constituted legal error and grounds
for remand.”).
iii.
Internal Inconsistencies
The Commissioner argues that the ALJ was justified in discounting Dr. Tse’s
opinion because her responses on the impairment questionnaire were internally
inconsistent. Def. Mem. at 20. Specifically, the Commissioner contends that that
the following inconsistencies support the according of “little weight” to Dr. Tse’s
opinion: first, that Dr. Tse circled “No” to a question which asked: “[w]ould it be
necessary or medically recommended for your patient not to sit continuously in a
work setting?” but then opined that Ogirri would need to get up and move around
every 30 minutes for 30 minutes, AR. at 398–99; second, Dr. Tse said Ogirri could
only stand/walk for one hour out of an eight-hour workday, but needed to “get up
and move around” every 30 minutes for 30 minutes, id.; and, third, that Dr. Tse
answered that Ogirri’s condition did not interfere with his ability to keep his neck
35
in a constant position, but then answered that he would not be able to “do a full
time competitive job that requires that activity on a sustained basis.” Id. at 400–01.
As an initial matter, the ALJ did not articulate these alleged inconsistencies
as a reason for discounting Dr. Tse’s opinion. Id. at 21–22 (discussing reasons for
according little weight to opinion). In fact, while the ALJ listed Dr. Tse’s responses
to the impairment questionnaire in a paragraph detailing the medical opinion
evidence in the record, id. at 21, at no place in her decision did the ALJ refer to the
questionnaire as containing inconsistencies. Assuming arguendo that the
inconsistencies would constitute a good reason to afford the opinion “little weight,”
they were not proffered as a reason, and the regulations require that the SSA “give
good reasons in its notice of determination or decision for the weight it gives
claimant’s treating source’s opinion.” Clark, 143 F.3d at 118 (alterations omitted).
Furthermore, even if the ALJ had identified any of the inconsistencies within
the impairment questionnaire, they would not necessarily constitute a “good
reason” to afford the opinion little weight. Courts often recommend that the ALJ
clarify such inconsistencies with the treating physician directly. See, e.g.,
McClinton v. Colvin, No. 13–CV–8904 (CM) (MHD), 2015 WL 6117633, at *23
(S.D.N.Y. Oct. 16, 2015) (“When the evidence in a claimant’s record is inadequate
for the SSA to make a determination, the ALJ ‘will determine the best way to
resolve the inconsistency or insufficiency,’ and . . . when the information needed
pertains to the treating physician’s opinion, the ALJ should reach out to that
treating source for clarification and additional evidence.”) (quoting 20 C.F.R.
36
§ 416.920b(c)); Gabrielsen v. Colvin, No. 12–CV–5694 (KMK) (PED), 2015 WL
4597548, at *6 (S.D.N.Y. July 30, 2015) (“[I]n some cases, the nature of the record
may render re-contacting the treating physician the best, if not the only, way to
address gaps or inconsistencies in the record, such that it is incumbent upon the
ALJ to do so.”); Norman v. Astrue, 912 F. Supp. 2d 33, 84 (S.D.N.Y. 2012) (finding
ALJ should have recontacted treating physician when later opinion conflicted with
earlier opinion by same physician). Remanding the case will allow the ALJ the
opportunity to solicit such clarification from Dr. Tse.
d.
The Failure to Afford the Treating Physician’s Opinion
Less than Controlling Weight was Crucial to the ALJ’s
Rejection of Ogirri’s Claim
The question of whether the ALJ properly weighed Dr. Tse’s opinion
regarding Ogirri’s limitations is critical to the resolution of his claim, as the opinion
is potentially dispositive of whether Ogirri is disabled. At the hearing, the ALJ
asked the vocational expert whether jobs existed for a hypothetical claimant with
limitations similar to those that the ALJ said Dr. Tse had found. Compare AR at 21
(ALJ’s summary of Dr. Tse’s opinion); with id. at 84 (ALJ asking vocational
examiner if jobs existed for claimant with limitations substantially identical to
those opined by Dr. Tse). The vocational expert testified that no jobs existed for
such a claimant. Id. Consequently, it “cannot be said that the ALJ’s analysis of
[Dr. Tse’s] opinion[ ] was harmless error because the vocational expert essentially
testified that if the[ ] opinion[ ] were adopted, [Ogirri] would be unable to work.”
Pines v. Colvin, No. 13–CV–6850 (AJN) (FM), 2015 WL 872105, at *10 (S.D.N.Y.
37
Mar. 2, 2015) (quoting Archambault v. Colvin, No. 13–CV–292, 2014 WL 4723933,
at *10 (D. Vt. Sept. 23, 2014)) (alterations omitted), adopted by, 2015 WL 1381524
(S.D.N.Y. Mar. 25, 2015).
***
Although the law does not require a “slavish recitation of each and every
factor where the ALJ’s reasoning and adherence to the regulation are clear[,]” there
is no such clarity in this case. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013).
Given that the ALJ afforded less than controlling weight to Dr. Tse’s opinion
without giving “good reasons” and failed to consider all the relevant factors in
assigning the weight to the opinion, the Court remands this case for further
proceedings. See, e.g., Hidalgo, 2014 WL 2884018, at *20 (ALJ’s failure to refer to
all factors when explaining weight given to treating psychiatrist’s opinion was legal
error); Randolph v. Colvin, No. 12–CV–8539 (LTS) (JLC), 2014 WL 2938184, at *13
(S.D.N.Y. June 30, 2014) (“The ALJ committed legal error by failing to explicitly
consider all the required factors.”) (citing Clark, 2010 WL 3036489, at *4), adopted
by, Order, dated July 23, 2014; Ellington v. Astrue, 641 F. Supp. 2d 322, 330
(S.D.N.Y. 2009) (remanding in part where “the ALJ made no mention of important
factors such as the length and the frequency of the treating relationship”).
2.
The ALJ Should Reevaluate her Credibility Evaluation on
Remand
Ogirri also argues that the ALJ failed to properly evaluate his credibility. Id.
at 13–16. The Commissioner counters that the ALJ appropriately found Ogirri’s
statements about the intensity, persistence, and limiting effects of his symptoms
38
were not credible. Def. Mem. at 21. Because the Court concludes that the ALJ did
not follow the treating physician rule and remands on that basis, the Court need not
decide this issue. The Court will, however, discuss Ogirri’s contention to the extent
that the ALJ’s credibility determination does raise concerns that should be
addressed on remand.
While “[i]t is the function of the [Commissioner], not the [reviewing courts],
to resolve evidentiary conflicts and to appraise the credibility of witnesses,
including the claimant,” Calabrese v. Astrue, 358 F. App’x 274, 277 (2d Cir. 2009)
(alterations in original), the “ALJ’s decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent reviewers
the weight the ALJ gave to the individual’s statements and the reasons for that
weight.” Cichocki, 534 F. App’x at 76 (internal alternations and quotation marks
omitted). As long as the ALJ provides a sufficiently specific rationale for finding a
claimant’s testimony not credible, the decision is “generally entitled to deference on
appeal.” Selian, 708 F.3d at 420; see also Wicks v. Colvin, No. 15–CV–937 (LEK)
(ATB), 2016 WL 6110503, at *8 (N.D.N.Y. Oct. 19, 2016) (“An ALJ may properly
reject subjective complaints after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility, but must set forth
his or her reasons with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.”) (internal alterations and
quotation marks omitted), adopted by, 2016 WL 6106471 (N.D.N.Y. Oct. 19, 2016).
39
Here, the ALJ found that Ogirri’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but that “[Ogirri’s]
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible based on the preponderance of evidence as
explained below.” AR at 17.
The ALJ began her evaluation by stating that “[Ogirri] has not been placed
on medications . . . with the claimant’s recommended treatment involving physical
therapy, which the claimant is to begin. He has also been referred to the Movement
Disorders Clinic with no apparent follow up.” Id. at 20. However, the ALJ did not
explain what about Ogirri’s failure to be on medication makes his subjective
complaints not credible. Ogirri states that there is no cure for cerebellar
degeneration, Pl. Mem. at 15, a statement that is undisputed by the Commissioner.
See Def. Mem. at 23. Furthermore, the record contradicts the ALJ’s statements
that Ogirri had not begun physical therapy or followed up with the Movement
Disorders Clinic. AR. at 354, 364, 409. In fact, Dr. Tse treated Ogirri at the
Movement Disorders Clinic, See id. at 549, and Ogirri testified at his hearing that
he temporarily stopped attending physical therapy during the winter because it was
very hard for him to get around in the inclement weather, but that, subsequently,
he resumed therapy. Id. at 72.
This is not the only place that the ALJ’s evaluation is contradicted by the
record. The ALJ stated that Ogirri’s examinations have revealed gain and
coordination problems, but “no focal neurological deficit.” Id. at 20. According to
40
Ogirri, focal neurological signs include an abnormal gait, problems with speech, and
problems with fine motor activities. Pl. Mem. at 2. As discussed supra, these
symptoms were observed by multiple doctors. See also, e.g., AR. at 249, 295, 309,
321, 364. The ALJ also stated that while Ogirri testified to having a home aide for
a period, “the record fails to reflect such assistance for a significant portion of the
period at issue.” Id. at 21. However, as the ALJ noted earlier in her decision, id. at
16, Ogirri testified that it was an issue with his medical insurance that caused him
to end his home aide, rather than a diminishing need for such assistance. Id. at 79.
Thus, because the ALJ’s credibility assessment contains statements that are
contradicted or unsupported by the record, the ALJ should more thoroughly
evaluate Ogirri’s credibility on remand.
III.
CONCLUSION
For the foregoing reasons, the Court grants Ogirri’s motion for judgment on
the pleadings, and remands the case pursuant to sentence four of 42 U.S.C.
§ 405(g). On remand, the ALJ should evaluate Dr. Tse’s opinion as that of a
treating physician and reevaluate the weight that should be afforded to the opinion
based on the considerations outlined above. To the extent that the ALJ’s conclusion
remains that “little,” rather than controlling, weight should be afforded, the ALJ
should provide a comprehensive analysis setting forth good reasons for the weight
assigned. The ALJ should also reevaluate Ogirri’s credibility in light of all the
relevant medical and other evidence.
41
The Clerk of the Court is directed to close docket entries 8 and 14.
SO ORDERED.
Dated: New York, New York
February 28, 2018
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