Bullock v. Colvin
Filing
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OPINION AND ORDER: For the foregoing reasons, the conclusions in the Report, and the recommendation to grant Plaintiff's motion, are adopted. Accordingly, the Commissioner's motion for judgment on the pleadings is DENIED, and Plaintiffs mo tion is GRANTED insofar as the case is REMANDED to the ALJ pursuant to 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The Clerk of Court is respectfully directed to close the motions at Docket Nos. 13 and 17 and close the case. (Signed by Judge Lorna G. Schofield on 2/28/2019) (jca) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ABRAHAM BULLOCK,
:
Plaintiff,
:
:
-against:
:
CAROLYN W. COLVIN,
:
Defendant. :
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2/28/2019
17 Civ. 5657 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiff Abraham Bullock filed this action against the Commissioner (the
“Commissioner”) of the Social Security Administration (the “SSA”) on July 25, 2017, seeking
review of the final decision of an Administrative Law Judge (“ALJ”) denying him benefits under
the Social Security Act (“the Act”). Before the Court is a Report and Recommendation of
Magistrate Judge Kevin Fox (the “Report”), recommending that the Court grant Plaintiff’s
motion for judgment on the pleadings and deny the Commissioner’s cross-motion for judgment
on the pleadings. The Commissioner objected to the Report. For the following reasons, the
recommendation to grant Plaintiff’s motion is adopted, the case is remanded to the SSA and the
Commissioner’s motion is denied.
I.
BACKGROUND
The following facts are taken from the administrative record and the parties’ submissions.
A.
Plaintiff’s Medical History
An undated physician’s employability report from Dr. Conrado Aranda when Plaintiff
was 39 years-old -- around the year 2000 or 2001-- reports diagnoses of chronic intermittent low
back pain, pulmonary sarcoidosis and substance abuse with associated disorders. The report
states that Plaintiff was taking the medications Elavil and Gabapentin and advised that Plaintiff
should avoid lifting, bending and prolonged standing. The report also states Plaintiff should not
perform desk work. In a letter dated November 29, 2004, Dr. Aranda wrote that Plaintiff “has
been a patient of mine, and . . . is totally disabled.” In a letter dated November 28, 2000, Dr.
Robert Delgado stated that Plaintiff was “totally disabled.”
Treatment records from the Department of Veterans Affairs (“VA”) from 2010, 2011 and
2012 state that Plaintiff has a history of sarcoidosis and chronic back pain managed through
opioids. MRIs from 2010 show disc herniation at L5-S1, lumbarization of the S1 segment, mild
disc desiccation at L4-L5 and L5-S1, mild foraminal stenosis at L4-L5 and moderate right
foraminal stenosis at L5-S1. Reports from 2010 state that Plaintiff has degenerative disc disease
at L5-S1 and L4-L5. An MRI of the cervical spine from 2012 shows multilevel degenerative
spondylosis with disc osteophyte complexes, disc herniation at C3-C4, a disc bulge at C4-C5 and
mild to moderate foraminal stenosis at C5-C6, C6-C7 and C7-T1.
On December 18, 2013, Dr. Arlene Broska conducted a consultative psychiatric
evaluation. She concluded that Plaintiff’s impairments did “not appear to be significant enough
to interfere with [Plaintiff’s] ability to function on a daily basis.” On the same day, Dr. Marilee
Mescon, an internal medicine physician, conducted a consultative examination. She concluded
that although Plaintiff suffered from sarcoidosis and back pain, there were “no limitations” in
Plaintiff’s “ability to sit, stand, climb, push, pull or carry heavy objects.”
B.
ALJ Proceedings
The ALJ conducted a hearing on December 9, 2015. At the hearing, Dr. Ronald
Kendrick, an orthopedic medical expert, testified that based on his review of Plaintiff’s medical
record, Plaintiff could perform the full range of light work. The transcript from the December 9,
2015, proceeding also reflects the following exchange between the ALJ and Plaintiff:
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ALJ: Why can’t you lift five pounds?
CLMT: Because I have a pinched nerve here, sir, and all of these -- this is numb.
I can’t feel . . .
ALJ: I have a pinched nerve in my neck. I can lift five pounds, I would imagine
you’re at least as strong as I am, without even moving my neck a quarter of an
inch.
C.
ALJ’s Report
On March 17, 2016, the ALJ issued a decision, finding that Plaintiff was not disabled
under §§ 202(f) and 223(d) of the Act. His opinion followed a five-step process outlined in the
administrative guidelines to the SSA to make this determination. At step one, the ALJ concluded
that Plaintiff has not engaged in substantial gainful activity since January 1, 2000, the alleged
onset date. At step two, the ALJ found that Plaintiff suffers from sarcoidosis, degenerative joint
disease, rotator cuff tendonitis and posttraumatic stress disorder. At step three, the ALJ
determined that Plaintiff’s impairments are not severe enough to qualify Plaintiff as disabled. In
making this determination, the ALJ afforded “great weight” to the testifying medical expert Dr.
Kendrick, “significant weight” to the consultative examiners Drs. Broska and Mescon and “little
weight” to treating physician Dr. Aranda. The ALJ concluded that Plaintiff has residual
functional capacity to perform the full range of light work. At step four, the ALJ found that
Plaintiff has no relevant past work. At step five, the ALJ concluded that Plaintiff is capable of
making an adjustment to work that exists in significant numbers in the economy and Plaintiff is
therefore not disabled.
D.
Judge Fox’s Report
On December 17, 2019, Judge Fox issued the Report, recommending that Plaintiff’s
motion for judgment on the pleadings be granted. The Report found that (1) substantial evidence
supported the ALJ’s credibility determination; (2) the ALJ gave proper weight to treating
physician Dr. Aranda’s opinions; (3) the ALJ erred in affording Dr. Kendrick’s opinion “great
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weight” without considering the relevant factors as required under 20 C.F.R. § 404.1527(c); and
(4) the ALJ erred in substituting his own opinion for that of a medical expert during the ALJ
proceedings.
E.
Commissioner’s Objections
In its Objections to the Report, the Commissioner argues that the ALJ implicitly
considered the factors in analyzing the weight allocated to Dr. Kendrick’s opinion and that the
ALJ’s stray remarks at the hearing, substituting his own opinion for that of an acceptable medical
source, do not warrant a remand.
II.
STANDARD
A.
Reviewing Magistrate Judge Report and Recommendations
A reviewing court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court
“may adopt those portions of the report to which no ‘specific, written objection’ is made, as long
as the factual and legal bases supporting the findings and conclusions set forth in those sections
are not clearly erroneous or contrary to law.” Santiago v. Berryhill, No. 17 Civ. 5149, 2018 WL
4387554, at *4 (S.D.N.Y. Sept. 14, 2018) (quoting Fed. R. Civ. P. 72(b) and citing Thomas v.
Arn, 474 U.S. 140, 149 (1985)).
“If a party timely objects to any portion of a magistrate judge’s report and
recommendation, the district court must ‘make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.’” United
States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015) (quoting 28 U.S.C. § 636(b)(1)). Even when
exercising de novo review, a “district court need not . . . specifically articulate its reasons for
rejecting a party’s objections or for adopting a magistrate judge’s report and recommendation in
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its entirety.” Morris v. Local 804, Int’l Bhd. of Teamsters, 167 F. App’x. 230, 232 (2d Cir. 2006)
(summary order); accord Rapaport v. Comm’r of Soc. Sec., No. 16 Civ. 2617, 2018 WL
3122056, at *2 (S.D.N.Y. June 26, 2018).
B.
Reviewing ALJ Opinions
A claimant is disabled “if she 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.” McIntyre v. Colvin, 758 F.3d 146, 149–50 (2d Cir. 2014) (internal quotation
marks omitted); accord Reyes v. Berryhill, No. 17 Civ. 1851, 2018 WL 3728933, at *4
(S.D.N.Y. Aug. 6, 2018). A disability determination of the ALJ may be set aside only if “it is
based upon legal error or is not supported by substantial evidence.” Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999); accord Greenhaus v. Berryhill, No. 16 Civ. 10035, 2018 WL 1626347, at
*7 (S.D.N.Y. Mar. 30, 2018). “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.”
Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443, 447–48 (2d Cir. 2012) (internal quotation
marks removed); accord Mauro v. Berryhill, 270 F. Supp. 3d 754, 759 (S.D.N.Y. 2017) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
III.
DISCUSSION
A.
20 C.F.R. § 404.1527(c) Factors
The ALJ erred in not considering the factors outlined in 20 C.F.R. § 404.1527(c) before
deciding to afford “great weight” to non-treating physician Dr. Kendrick. The regulations state
that an ALJ should consider the following factors when determining the appropriate weight to
give to a physician’s opinion: (1) the frequency of examination and the length, nature and extent
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of the treatment relationship; (2) the evidence in support of the treating physician’s opinion; (3)
the consistency of the opinion with the record as a whole; (4) whether the opinion is from a
specialist and (5) any other significant factors. 20 C.F.R. § 404.1527(c)(2) – (6). The ALJ must
“explicitly consider” the factors outlined in the regulation. Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013); accord Tilles v. Comm’r of Soc. Sec., No. 13 Civ. 6743, 2015 WL 1454919, at
*29 (S.D.N.Y. Mar. 31, 2015).
A consulting physician’s opinions or report are typically given limited weight because
“consultative exams are often brief, are generally performed without benefit or review of
claimant’s medical history and, at best, only give a glimpse of the claimant on a single day.
Often, consultative reports ignore or give only passing consideration to subjective symptoms
without stated reasons.” Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990); Marcano v. Berryhill,
No. 16 Civ. 08033, 2018 WL 2316340, at *18 (S.D.N.Y. Apr. 30, 2018).
The ALJ improperly afforded the non-treating physician’s opinion “great weight” without
considering the factors under 20 C.F.R. § 404.1527(c). The ALJ’s opinion states, “[g]reat weight
has been given to [Dr. Kendrick’s] opinion as he is impartial, reviewed all the evidence, and
gave cogent and convincing reasons for his opinion.” The ALJ’s opinion is silent as to the
length, nature and extent of Dr. Kendrick’s treatment relationship with Plaintiff and fails to
address contradictory evidence in the record. That the opinion identifies Dr. Kendrick as an
“orthopedic medical expert” does not sufficiently establish whether Dr. Kendrick is an expert
with respect to Plaintiff’s specific medical needs. 20 C.F.R. § 404.1527(c)(2) – (6). See, e.g.,
Ogirri v. Berryhill, No. 16 Civ. 9143, 2018 WL 1115221, at *12 (S.D.N.Y. Feb. 8, 2018)
(holding that the ALJ erred when her decision cursorily concluded that the physician’s opinion
was inconsistent with the record as a whole but “made no express mention of the other factors,
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nor . . . appear[ed] to have considered them, despite the fact that she was obligated to do so”);
Ramos v. Comm’r of Soc. Sec., No. 13 Civ. 3421, 2015 WL 7288658, at *7 (S.D.N.Y. Nov. 16,
2015) (remanding, in part, because the ALJ considered only the “consistency of the [physician’s]
opinion with the record as a whole” but not the other regulatory factors). Without explanation,
the ALJ gave more weight to Dr. Kendrick, a testifying expert who reviewed Plaintiff’s medical
history, than to consultative physicians Drs. Broska and Mescon, who conducted medical
examinations of Plaintiff. Accordingly, the ALJ erred in failing to consider the statutory factors
with respect to Dr. Kendrick’s opinion.
B.
Functional Capacity Determination
The ALJ improperly substituted his own opinion for that of an acceptable medical source.
ALJs may not substitute their own lay opinions in place of professional ones. See Selian, 708
F.3d at 419 (stating that the ALJ improperly substituted her own criteria as to what is necessary
to establish a fibromyalgia diagnosis without support from medical criteria); accord Rivera v.
Berryhill, No. 17 Civ. 7177, 2019 WL 692162, at *11 (S.D.N.Y. Jan. 28, 2019).
At the December 9, 2015, proceeding, the ALJ suggested that Plaintiff was capable of
performing light work based on the ALJ’s own experience. The ALJ stated, “I have a pinched
nerve in my neck. I can lift five pounds, I would imagine you’re at least as strong as I am,
without even moving my neck a quarter of an inch.” The ALJ’s statement is inconsistent with
the administrative record, which repeatedly states that Plaintiff experiences chronic spine pain,
and among other things, has degenerative disease in the cervical spine. The ALJ thus improperly
substituted his opinion for that of a medical expert and erred in evaluating Plaintiff’s residual
functional capacity.
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IV.
CONCLUSION
For the foregoing reasons, the conclusions in the Report, and the recommendation to
grant Plaintiff’s motion, are adopted. Accordingly, the Commissioner’s motion for judgment on
the pleadings is DENIED, and Plaintiff’s motion is GRANTED insofar as the case is
REMANDED to the ALJ pursuant to 42 U.S.C. § 405(g) for further proceedings consistent with
this opinion.
The Clerk of Court is respectfully directed to close the motions at Docket Nos. 13 and 17
and close the case.
Dated: February 28, 2019
New York, New York
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