Morales v. Berryhill
Filing
22
OPINION AND ORDER re: 17 MOTION for Judgment on the Pleadings filed by Peter P. Morales. For the foregoing reasons, Morales' motion for judgment on the pleadings is granted in part, the Commissioner's cross-motion is grante d in part, and the case is remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ is instructed to take the following actions: (1) Fully develop the record regarding Morales' post-2014 work activity. (2) Fully develop the record for the period between 2008 and 2014, including obtaining the 2010 MRI and medical records from any treating physicians. (3) Assess the weight that should be given to Dr. Bioh's opinion in light of his treatment notes now availabl e in the record. (4) To the extent possible, obtain physical therapy records since October 7, 2002. (5) Obtain all treatment notes from Dr. Palvia, and obtain an RFC opinion from Dr. Kohler; assess the weight that should be given to their opinions. (6) Hold a new hearing at which the ALJ shall call a vocational expert to testify; obtain a new consultative examination from a physician who will have access to the full record and who will physically examine Morales; reassess Morales' credib ility; and complete the necessary five-step analysis to determine Morales' eligibility for benefits. (7) Render a decision within 120 days of the date of this Opinion and Order. The Clerk is respectfully directed to close Docket Number 17, and enter judgment granting Morales' motion in part and the Commissioner's cross-motion in part, and to reverse the determination of the Commissioner and remand this case for further administrative proceedings. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 12/6/2018) (ne) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PETER P. MORALES,
:
:
Plaintiff,
:
:
-against:
:
NANCY A. BERRYHILL, Acting
:
Commissioner, Social Security
:
Administration,
:
:
Defendant.
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
12/6/2018
DATE FILED: ______________
OPINION AND ORDER
17-CV-9315 (JLC)
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Peter P. Morales, whose claim for benefits has been pending for
more than 15 years, seeks judicial review of the latest decision by defendant Nancy
A. Berryhill, the Acting Commissioner of the Social Security Administration,
denying his claim for Disability Insurance Benefits and Supplemental Security
Income under the Social Security Act. Morales has moved for judgment on the
pleadings and, given the passage of time and development of the record, requests
that the Court reverse the Commissioner’s decision and remand the case solely for
the calculation of benefits. The Commissioner has cross-moved for judgment on the
pleadings. While she consents to reversal, the Commissioner contends that the
Court should remand the case for further administrative proceedings instead of
solely for the calculation of benefits. For the reasons set forth below, Morales’
motion is granted in part, the Commissioner’s cross-motion is granted in part, and
1
the case is reversed and remanded for further administrative proceedings to be
completed within 120 days of the date of this Opinion and Order.
I.
A.
BACKGROUND
Procedural History
Morales originally filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) on August 22, 2003, alleging that
he had been disabled since January 1, 2002. Administrative Record (“AR”) dated
April 9, 2018, Dkt. No. 16, at 63. The Social Security Administration (“SSA”) denied
Morales’ application on February 13, 2004. Id. at 47–51. Morales challenged the
denial and appeared before Administrative Law Judge Paula Garrety on October 4,
2005. Id. at 409–38. ALJ Garrety’s decision, issued January 5, 2006, concluded
that Morales was not eligible for benefits. Id. at 33. After the Appeals Council
denied his request for review on May 25, 2007, Morales filed an action in District
Court, seeking judicial review of the decision pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Id. at 5, 472. On January 9, 2008, the Court remanded the case by
stipulation for further administrative proceedings. Id. at 468–69.
In his second administrative round, Morales appeared before ALJ Kenneth
Levin on March 23, 2009. Id. at 609–52. On April 9, 2009, ALJ Levin concluded
that Morales was not eligible for benefits. Id. at 467. After Morales failed to timely
submit written exceptions to the Appeals Council, ALJ Levin’s decision became the
Commissioner’s final decision. Id. at 439. Morales sought judicial review of the
2
decision, and on July 1, 2013, the Court again remanded the case by stipulation for
further administrative proceedings. Id. at 735.
In his third administrative round, Morales appeared before ALJ Robert Dorf
on February 28, 2014. Id. at 763. On May 5, 2014, ALJ Dorf found Morales was not
eligible for benefits in the period after October 6, 2002. Id. at 689. ALJ Dorf did
find that Morales qualified for benefits in the period between June 28, 1999 and
October 6, 2002. Id. at 676–77. However, the Appeals Council ultimately sent the
case back to ALJ Dorf because the hearing tape had been certified as lost. Id. at
663.
Morales again appeared before ALJ Dorf on March 29, 2017 in his fourth
administrative round. Id. at 655. On September 28, 2017, ALJ Dorf again
concluded that Morales was not disabled. Id. at 659. In this decision, however, ALJ
Dorf found for the first time that Morales had engaged in substantial gainful
activity since October 2002, and chose not to address any other issues as to whether
Morales was disabled. Id. at 658–60. Morales did not file written exceptions with
the Appeals Council and chose instead to request judicial review of the decision on
November 28, 2017. Dkt. No. 1. The parties consented to my jurisdiction for all
purposes under 28 U.S.C. § 636(c) on December 18, 2017. Dkt. No. 12. The
Commissioner answered Morales’ complaint by filing the administrative record on
March 8, 2018, and re-filed the record on April 9, 2018. Dkt. No. 16.
On June 5, 2018, Morales moved for judgment on the pleadings and
submitted a memorandum in support of his motion (“Pl. Mem.”). Dkt. Nos. 17–18.
3
The Commissioner cross-moved for judgment on the pleadings and submitted a
memorandum in support of her cross-motion on August 1, 2018 (“Def. Mem.”). Dkt.
Nos. 19–20. Morales replied on August 9, 2018 (“Pl. Reply.”). Dkt. No. 21.
B.
The Administrative Record
1.
Morales’ Background
Morales, born in 1968, was 35 years old when he first filed his application for
benefits on August 22, 2003, alleging a disability onset date of January 1, 2002. AR
at 61. He is now 50 years old. His disability claim stems from a car crash. 1 In
June 1999, while working as a limousine driver, Morales was in an accident that
injured his back, neck, left shoulder, and both knees. Id. at 194. Prior to the
accident, Morales had also worked as a cook, a graphic artist, a housekeeper, a
mailroom employee at a record company, a supermarket worker, and in sales at a
record distribution company. Id. at 120–21. Morales completed high school and two
years of college. Id. at 124. He attended a computer training course and received
his certificate in June 2002. Id.
Since the onset of his disability, Morales has not engaged in sustained
full-time employment, though he has held a few jobs over the last 15 years. Shortly
after his accident, he attempted to work as a limousine driver again for a month,
but could not continue “because it was just too overbearing for [him].” Id. at
At two points in the administrative record, physicians stated that Morales was
injured in 1999 while commuting on the New York City subway rather than in a car
crash. AR at 791, 869.
1
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613–14. He also worked for a few months as a doorman. Id. at 613. Morales also
earned some income from recording work that he did from his own home, including
editing, mixing, and composing. Id. at 418–19. In 2014, Morales, with a business
partner, started a business called Emence Records, which manufactured and
distributed music products. Id. at 685, 1005–06. 2 In recent years, however, he did
not work regularly with Emence because he could not “focus like [he] used to.” Id.
at 1006.
Also in 2014, Morales, with two business partners, started an ambulette
service for non-emergency medical transportation. Id. at 1002. The company,
Cloud Med Transport, LLC, mostly derived its income from organizing drivers for
its sole client, Maximum Orthopedics Clinic. Id. at 1007. Morales contacted the
drivers for the service; based on his testimony, this role ended in November 2016.
Id. at 1008. Currently, the company owns two transportation vans that are not
operational for insurance reasons. Id. at 1003. Morales testified that he did not
receive any income from this company. Id. at 1007. In a letter to ALJ Dorf
submitted after the 2017 hearing, Morales’ counsel stated that Morales and his
partners were changing their business model, which Morales expected “will make
the operation truly profitable because they will be able to secure much better
contracts from health care institutions.” Id. at 917.
Based on a passage from ALJ Dorf’s 2014 decision, Morales appears to have
discussed his work with Emence Records in greater detail at the 2014 hearing. AR
at 685. But because the 2014 hearing tape was lost, the record is not fully
developed as to Morales’ role in that company.
2
5
Morales has lived in the same apartment in Manhattan since his initial
application for benefits in 2003. Id. at 46, 1000–01. He lives on the fifth floor of a
walk-up building. Id. at 641. In January 2014, Morales stated in a psychiatric
evaluation that he lived with his wife and their then-two-year-old son; he also had
custody of his then-19-year-old daughter from another marriage and his wife’s
then-12-year-old son. Id. at 802. Morales first met his wife in 2005 or 2006 during
a business trip to the Dominican Republic; he married her in November 2007. Id. at
634–35. As of the 2009 ALJ hearing, Morales’ wife had not yet moved to the United
States for visa reasons (though she has since done so). Id. at 634. At the 2009
hearing, Morales stated he would make one to two trips a year to the Dominican
Republic to see her for one to two months. Id. at 636.
From 1999 to 2009, Morales lived with his father in Manhattan. Id. at 634,
637. Because his father was in poor health, Morales cared for him by helping him
bathe and put on his clothes. Id. at 640. Morales wrote in a 2003 New York State
Disability Determination Function Report that his daughter would stay with him
for two weeks out of each month. Id. at 137. He would cook for her, walk her to the
school bus stop two blocks away, and take the bus to pick her up in the afternoon.
Id.
Morales has taken many medications since his initial injuries, including
Relafen, Percocet, and Naprosyn for pain management. Id. at 426, 622, 628. But he
has stated that he is “trying not to take too many medications.” Id. at 628. Morales
has attended physical therapy sessions and did the prescribed exercises at home.
6
Id. at 427–28. Morales can use public transportation to travel alone, though he
testified in 2009 that he could not use it every day. Id. at 642, 1010. In the past,
Morales prepared his own meals and washed his own clothes, doing everything in
“little portions.” Id. at 637. Currently, his wife helps him with household chores.
Id. at 805. Morales is able to dress, bathe, and groom himself, though his wife helps
him with anything that requires him to bend down. Id.
2.
Relevant Medical Evidence in the Record
a.
Treatment by Drs. Sosina and Cabatu
Between June 1999 and March 2004, Drs. Klara Sosina and Orsuville
Cabatu, specialists in physical medicine and rehabilitation, treated Morales for his
shoulder, knee, neck, and back injuries. AR at 157–202, 206–17, 315–79. Dr.
Sosina saw Morales between June 1999 and December 2002, at least 23 times; Dr.
Cabatu saw Morales between March 2003 and March 2004, at least nine times. Id.
At Dr. Sosina’s last session with Morales on December 30, 2002, she determined
that his lumbar strain had resolved, and he had full motion of his left shoulder
following surgery he had undergone in August 2002. Id. at 157. She stated:
“Patient may return to work full duty as computer technician.” Id.
In March 2003, however, her colleague Dr. Cabatu determined Morales
“continues to be partially disabled from duty.” Id. at 352. On April 29, 2003,
Morales reported decreased neck, back, shoulder, and knee pain that was
nevertheless “still painful,” and reported that physical therapy helped. Id. at 353.
Dr. Cabatu continued to identify Morales as “partially disabled from duty” until a
7
November 4, 2003 session when Morales reported that he had strained his back
picking up a blanket on October 17, 2003. Id. at 361. At that time, Dr. Cabatu
opined: “Patient continues to be totally disabled from duty.” Id. at 362. After
sessions the following December and February, Dr. Cabatu found that Morales
continued to be totally disabled. Id. at 363–66. In Dr. Cabatu’s final session with
Morales on March 3, 2004, he observed that Morales had back pain, occasional pain
in both thighs, and decreased left knee pain. He stated: “Patient goes to NY Sports
Club (gym),” and “has missed therapy for 4 weeks.” Id. at 368. He concluded the
final session by finding that Morales continued to be “partially disabled from duty.”
Id. at 369.
b.
Treatment by Dr. Mian
Between January 2001 and October 2003, Dr. Shahid Mian, an orthopedic
surgeon at Cabrini Medical Center, treated Morales for his shoulder, knees, back,
and neck injuries. Id. at 226–305. Dr. Mian saw Morales at least 14 times. Id. On
January 25, 2001, Dr. Mian diagnosed him with herniation of the 6-7 disc, bulging
C2 through C6 discs, low back syndrome, and tears of the left shoulder rotator cuffs
and medial meniscus of both knees. Id. at 273. On October 28, 2003, following an
incident at home where Morales strained his back, Dr. Mian diagnosed Morales
with acute exacerbation of low back syndrome. Id. at 290. On that date, Dr. Mian
also requested an MRI of the lumbrosacral spine. Id. at 291. Dr. Mian also
operated on Morales twice — surgery on Morales’ left shoulder on August 21, 2002
and on Morales’ left knee on October 29, 2003. Id. at 294, 298.
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c.
Treatment by Dr. Gotlieb
Between July 2004 and October 2006, Dr. David Gotlieb, an internist at
Lenox Hill Hospital, treated Morales as his primary care physician. Id. at
569–605. 3 Dr. Gotlieb saw Morales at least 11 times. Id. On his first visit on July
8, 2004, Morales informed Dr. Gotlieb that two weeks previously, he had yawned
and felt a pain on the left side of his neck. He had difficulty moving but no sensory
loss. Id. at 573. Dr. Gotlieb considered prescribing medication (but did not
prescribe it at the time), considered ordering an MRI, and stated Morales should
return in two weeks if he did not improve. Id. at 574.
On December 20, 2004, Morales returned to Lenox Hill Hospital where he
was seen by a different doctor, Dr. Ladan Ahmadi. 4 Id. at 576. Dr. Ahmadi
recorded that Morales reported “numbing pain, now radiating on [average] 8/10
intensity. Can sit for only 1–2 [hours] before feeling pain. . . . Worse bending or
picking things up.” Id. at 576. Also on December 20, 2004, Morales received a
lumbar spine x-ray; the technician opined that the results showed a normal study.
Id. at 578. On January 10, 2005, Dr. Gotlieb noted that Morales had lower back
weakness and pain after he lifted a quilt, which had resulted in an emergency room
With several of the records from Lenox Hill Hospital, it is unclear who was the
attending physician. Many of the notes were not signed, and had varying types of
handwriting.
3
The record is not clear as to the actual date of this visit. The date indicated is
followed by a question mark (12/20?). AR at 576.
4
9
visit the previous November. Id. at 581. 5 On July 12, 2005, Morales reported that
he had lower back pain with a pain level of seven out of ten without medication, and
denied having lower extremity numbness or tingling. Id. at 583.
On December 8, 2005, Dr. Gotlieb provided a medical opinion to the SSA. In
his report, he stated that he “cannot determine at present” the prognosis for
Morales. Id. at 381. He opined that Morales could sit up to half an hour
continuously and for four hours total in a workday, stand up to one hour
continuously and for one hour total in a workday, and walk up to three blocks
continuously and three blocks total in a workday. Id. at 382. He further opined
that Morales could not use his hands for simple grasping, pushing, pulling, or fine
manipulation, and that Morales could not physically travel on a daily basis. Id. at
383–84.
On March 6, 2006, Dr. Gotlieb noted that Morales’ back pain was well
controlled. Id. at 593. On May 30, 2006, Morales reported that his back pain was
“still not controlled with Naproxen,” but felt that physical therapy helped. Id. at
596–97. On June 26, 2006, Dr. Gotlieb noted that Morales’ lower back pain was
better controlled on Motrin/Ultram, that his MRI showed signs of S1 nerve
compression, and that he was not a candidate for surgery. Id. at 597, 599. On July
26, 2006, Morales reported that physical therapy helped him with his pain, and he
wanted more physical therapy sessions. Id. at 602. On Morales’ last visit on
This seems to be a separate incident from October 2003 when Morales reported to
Dr. Cabatu and Dr. Mian that he had hurt his back lifting a blanket and had to visit
the emergency room. AR at 290, 361.
5
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October 31, 2006, Dr. Gotlieb noted that Morales “had very good pain control and
physical therapy.” Id. at 604.
d.
Treatment by Dr. Palmeri
Between May 2005 and August 2006, Dr. Michael Palmeri, an orthopedic
surgeon, treated Morales at least eight times. Id. at 521–48. In his first exam on
May 17, 2005, Dr. Palmeri found Morales suffered from “continued cervical strain
with radiculopathy, continued weakness in the left shoulder, lumbosacral strain
with radiculopathy, patellofemoral syndrome involving the left knee and right knee
contusion.” Id. at 526. Dr. Palmeri opined that Morales “can work in a limited
capacity.” Id.
On January 18, 2006, Morales received a lumbar spine MRI. Id. at 591. The
result showed mild disc bulging with mild spinal canal stenosis at L4 through L5
and L5 through S1, a small superimposed left-sided disc herniation at L5 through
S1 with mild thecal sac and left S1 nerve root compression, and a small foraminal
disc herniation without nerve root compression at L4 through L5. Id. at 591–92.
On March 21, 2006, Dr. Palmeri opined that Morales could continue to work in a
limited capacity. Id. at 541.
On July 12, 2006, Dr. Palmeri provided a medical opinion to the SSA. In his
report, Dr. Palmeri stated: “Patient needs further testing such as EMG/NCV study
to further diagnose treatment” and “Patient must rest in between after 1–2 hours of
standing/walking.” Id. at 398–99. Dr. Palmeri’s prognosis was “guarded, at this
time.” Id. at 399. Dr. Palmeri did not fully complete the section describing the
11
day-to-day activities that Morales could undertake on a sustained basis. He merely
stated that Morales could sit up to two hours continuously, stand between one to
hours continuously, and walk between one to two hours continuously. Id. at 400.
He did not state how many hours in total Morales could do these activities in a
workday. Id. Dr. Palmeri observed that Morales was not physically able to travel
on a daily basis because he has “trouble stair climbing, walking, and standing for
prolonged periods.” Id. at 402. He noted that Morales refused authorization for a
nerve conduction test and epidural lumbar injections. Id.
During his final session with Morales on August 15, 2006, Dr. Palmeri stated
that “he is still having continued pain with radiations down his legs. He has had
some relief with a course of Naprosyn and Ultram. He is working in a sedentary
capacity.” Id. at 546.
e.
Treatment by Drs. Boppana and Kaplan
Between November 2006 and November 2008, Dr. Madhu Boppana, a
neurologist at NY Ortho, Sports Medicine & Trauma, P.C., saw Morales at least 10
times. Id. at 549–69. 6 At his first session on November 16, 2006, Dr. Boppana
found that Morales’ symptoms were consistent with lumbosacral radiculopathy and
cervical radiculopathy, and prescribed Percocet for pain management. Id. at 550.
On November 30, 2006, Morales reported that he experienced significant
improvement but remained in pain. Id. at 552. On December 19, 2006, Morales
Plaintiff’s counsel states that Morales saw Dr. Boppana through the time of the
hearing in March 2009. Pl. Mem. at 6. However, the administrative record only
contains notes from visits to Dr. Boppana through November 19, 2008. AR at 566.
6
12
reported symptoms of an “acute thoracic and lumbosacral spasm” over the weekend,
which nearly brought him to the emergency room. Id. at 553. Dr. Boppana’s
examination revealed “thoracic and lumbosacral paraspinal level spasm at T2
through C8 and L2, L3, L4, L5, and S1, that is quite prominent restriction of
lumbar extension and flexion and thoracic rotation and thoracic flexion.” Id. at 553.
On January 31, 2007, Morales reported that “his back is killing him.” As a result,
Dr. Boppana renewed his prescription of Percocet. Id. at 554. After an
electrodiagnostic report taken on March 30, 2007, Dr. Boppana concluded Morales’
exam results were consistent with a bilateral multi-levels lumbar radiculopathy.
Id. at 556. Morales saw Dr. Boppana again on July 9, 2007 and then on March 19,
2008. Id. at 560, 561. In March 2008, Dr. Boppana reported that Morales had
chronic severe back pain that responded to medications and renewed Morales’
medications. Id. at 561.
On September 29, 2008, Morales reported that he had persistent back pain
radiating into both legs, neck pain and stiffness, and left shoulder pain. Id. at 563.
He had reinjured his left shoulder in a recent incident, but did not want to see his
prior orthopedic surgeon, Dr. Palmeri. Id. Accordingly, Dr. Boppana referred him
to Dr. Jeffrey Kaplan in the same office. Id. On October 15, 2008, Dr. Boppana
wrote a letter “To Whom It May Concern,” finding that Morales “is totally disabled
and unable to work at this time.” Id. at 568. On the final recorded visit to Dr.
Boppana on November 19, 2008, Morales reported no change in signs or symptoms,
and Dr. Boppana renewed his medications. Id. at 566.
13
On referral from Dr. Boppana, Morales saw Dr. Kaplan, an orthopedic
surgeon, on October 15, 2008 and December 8, 2008. Id. at 564. Dr. Kaplan treated
Morales primarily for a shoulder problem after Morales reinjured it doing gentle
exercises. Id. Dr. Kaplan noted that x-rays showed an abnormal orientation to the
AC joint, but Dr. Kaplan believed “this [was] just a variant of normal.” Id. Dr.
Kaplan gave Morales an injection in the left shoulder, a prescription for Flector
patches, and directed him to continue with Percocet as needed. Id.
f.
Treatment from Dr. Bioh
Between November 2011 and September 2015, Dr. Dominick Bioh, an
internist, treated Morales at least 11 times as his primary care physician. Id. at
879–84, 978–88, 1001. 7 On November 17, 2011, Morales reported his lower back
pain had worsened over the last several months; Dr. Bioh diagnosed Morales with
lower back pain and muscle spasms. Id. at 978. On January 31, 2012, after
reviewing Morales’ lumbar MRI, Dr. Bioh prescribed medications. Id. at 979.
Nearly a year later, on December 13, 2012, Morales reported he had intermittent
lower back pain symptoms, and had difficulty with adult daily living activities “at
times.” Id. at 980. On April 3, 2013, Morales reported that physical therapy was
mildly helpful but he was unable to go to all sessions every week, and that he used
his pain medication intermittently as he was afraid of addiction. Id. at 982. On
July 31, 2013, Morales reported no clear pattern to his pain: “one day tolerable, next
Plaintiff’s counsel states that Morales saw Dr. Bioh through the date of the
hearing in March 2017. Pl. Mem. at 7. However, the administrative record only
contains notes from visits to Dr. Bioh through September 16, 2015. AR at 988.
7
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day, unable to walk around 10 feet without severe pain.” Id. at 983. He added that
the pain was partially relieved with medications. Id. On January 24, 2014,
Morales reported he had difficulty with activities of daily life, was unable to sleep,
stand, or ambulate for significant periods of time, took Percocet intermittently, and
still participated in physical therapy. Id. at 987. On September 16, 2015, Morales
reported increased stress due to his housing situation, admitted to cocaine use for
pain relief, reported no injuries or trauma since his last visit, and reported that his
pain level varied from three to eight out of ten. Id. at 988.
On January 27, 2014, Dr. Bioh provided a medical opinion to the SSA. Id. at
816–20. Dr. Bioh noted that Morales had chronic pain symptoms both at rest and
with ambulation for the past 15 years. Id. at 816. His prognosis was “guarded.” Id.
at 817. He opined that Morales could sit up to 15 to 30 minutes continuously and
up to a total of three hours a day, could stand up to 10 minutes continuously and for
a total of 60 minutes a day, and could walk up to five minutes continuously and for
a total of 45 minutes a day. Id. at 818. Dr. Bioh also found that Morales could
occasionally bend and reach, and could do simple grasping and fine manipulation
with both hands. Id. at 818–19. He also opined that Morales could physically
travel on a daily basis by both bus and subway. Id. at 820.
On June 28, 2016, Dr. Bioh diagnosed Morales with unspecified asthma,
cervicalgia, radiculopathy of the cervical region, and other intervertebral disc
displacement in the lumbosacral region. Id. at 881. This examination was on
referral from an examination on June 26, 2016 by Tyrrell Carbury, a drug abuse
15
counselor. Id. at 885, 890, 906. In that examination, Morales reported he had
taken both cocaine (since age 17) and cannabis (since age 13). Id. at 885. Carbury
noted that Morales had a high school level education, a technical skill, and “runs his
own ambulette service.” Id. at 894. Morales “shared that he does not want to work
on this life area [education or vocational opportunities] and he does not see the need
to.” Id. Morales reported that it was “very easy” to use a washing machine and
dryer and take care of his personal hygiene, and did not need to improve on any of
his “adult daily living skills.” Id. at 895. He also reported that, for fun or
relaxation, he liked to take his children to the park. Id.
g.
Treatment by Dr. Kohler
Between July 2016 and November 2016, Dr. Matthew Kohler, an
anesthesiologist and pain specialist at Hudson Spine & Pain Medicine Clinic, saw
Morales at least seven times for his low back pain and neck pain. Id. at 864–68. In
the initial consultation on July 5, 2016, Morales reported that the pain started
“several years ago, without any precipitating event, and has been worsening
recently.” Id. at 864. He reported that the pain interfered with sitting, standing,
walking, and standing from a seated position. Id. Dr. Kohler performed procedures
such as trigger point injections; they helped temporarily, but the pain returned. Id.
Over the next several months, Morales continued to visit Dr. Kohler, reporting pain
in his lower back that radiated down to his feet. Id. at 864–65. On August 12,
2016, Morales also reported intermittent neck pain “that [was] recurring more
frequently recently.” Id. at 864. On October 10, 2016, Morales reported that his
16
neck pain caused migraines and reported his pain as 10 out of 10. Id. at 865. Dr.
Kohler opined that Morales had several ailments, including radiculopathy of the
cervical region and radiculopathy of the lumbar region. Id. at 866-867. Morales
also received two MRIs during this period: a lumbar spine MRI on July 29, 2016
and a cervical spine MRI on August 30, 2016. Id. at 869, 871.
h.
Examination by Dr. Woods
Dr. Ted Woods, a preventive medicine doctor, conducted an orthopedic
examination of Morales on January 17, 2014 at ALJ Dorf’s request. Id. at 791–800.
Dr. Woods opined that Morales’ cane use was “not medically necessary,” his gait
was steady, and his station was normal. Id. at 792. He stated that Morales needed
no help changing for the exam or getting on or off the exam table. Id. He opined
that Morales had a mild to moderate limitation for bending, lifting, carrying heavy
objects, and prolonged sitting. Id. at 793. He opined that Morales could
occasionally lift and carry up to 50 pounds, sit 30 minutes, stand two hours, and
walk two hours continuously, and sit four hours, stand eight hours, and walk eight
hours total in a workday. Id. at 795–96.
i.
Medical Opinion of Dr. Palvia
Dr. Tanuj Palvia, a colleague of Dr. Kohler at Hudson Spine & Pain Medicine
Clinic, submitted a medical statement to the SSA on December 6, 2016 that stated
Morales had both lumbar and cervical radiculopathy confirmed by MRIs. Id. at 905.
Dr. Palvia opined:
[T]he chronic lower back pain and neck pain Morales
describes seriously interfere with his ability to sit, stand,
17
or walk for prolonged periods of time. . . . Basically, Mr.
Morales is not someone who is going to be able to work a
normal 7 to 8 hours work day. Although he is capable of
some part-time work activity, he will not be able to do so
on a reliable and predictable schedule. . . . In sum, the
symptoms Mr. Morales describes are, in my opinion,
completely consistent with his MRIs and general clinical
presentation.
Id. 8
j.
Medical Opinion of Dr. Hansen
At the ALJ hearing on March 29, 2017, Dr. Jeffrey Hansen testified by phone
from Montana. Id. at 993. Dr. Hansen is a board-certified orthopedic surgeon who
was retained by ALJ Dorf. Id. at 1014. Dr. Hansen testified that Morales had:
[D]egenerative disc disease of the cervical spine, with
radiculopathy of the C5 nerve root. He has degenerative
disc disease of the lumbar spine. It’s an S1 nerve root
abnormality. It must have been present . . . [throughout]
that whole timeframe, but it had certainly worsened
. . . [over] the last few years with some of the more recent
imaging confirming all that. . . . And then in 2007, he had
some lumbar EMGs . . . that describes some lumbar
radiculopathy, so, he basically has had ongoing cervical
and lumbar degenerative disc disease, neuroforaminal
narrowing from arthritis and nerve root abnormalities.
That really hasn’t changed.
Id. at 1014–15. Dr. Hansen opined that, based on the record, Morales’ condition
qualified as an impairment under SSA guidelines, and at least equaled Listings
1.04A (disorder of the spine) and 1.02A (major dysfunction of a joint) from 2002 to
the present day. Id. at 1018. At the beginning of Dr. Hansen’s testimony, ALJ Dorf
noted that “[t]here appear to be no records, or very few records, between 2003 and
8
The record does not include any treatment notes from Dr. Palvia.
18
2014,” and Dr. Hansen agreed. Id at 1013. 9 With regard to Listing 1.04A, Dr.
Hansen mentioned that “[t]here is, kind of, falsity . . . in the record – in . . . [the]
2004 to 2012 timeframe, but . . . there are some indication of things – basically on
point.” Id. at 1015. With regard to Listing 1.02A (left hip), Dr. Hansen mentioned
that “[t]he exam isn’t real thorough that Dr. Kohler did, but it does show pain with
internal rotation attempts, and so that to me means that hip is arthritic,” and “I’m a
little less certain about the progression of that condition [left hip joint], but it, you
know, hip arthritis develops over a long period of time. . . .” Id. at 1016, 1018. Dr.
Hansen concluded that Morales’ impairments equaled two listings (and thus
Morales is per se disabled). Id. at 1018.
It is not clear from his testimony which medical records were in the file that Dr.
Hansen reviewed. At the beginning of the hearing, ALJ Dorf stated the following
records were in the file: 1. “The first filings related to the initial claim that was
decided by Judge Garrety,” 2. “The 2006 report of Dr. [Robbins],” 3. “The report of
Dr. Kohler dated November 14, 2016,” 4. “The report of Dr. Palvia,” 5. “The report of
Dr. [Bioh] [that] . . . indicates that the Claimant, quote, runs his own ambulette
service, unquote, and was arrested for possession of narcotics and is on probation
through the Criminal Court. . .,” 6. “The report of Dr. Woods,” 7. “The psychiatric
report of MSW Gordon Whitaker,” and 8. “[T]he Remand Orders.” AR at 994–97.
Plaintiff’s counsel responded that several files were missing from the record: 1.
“[T]reatment records from Dr. [Bioh],” and 2. “[E]xtensive psychiatric treatment
records from the Karen Horney Clinic.” Id. at 997. The record is not clear if
portions of Dr. Gotlieb’s and Dr. Palmeri’s notes (those taken after the 2006
hearing), or Dr. Boppana’s notes from November 2006 through November 2008 were
in the record reviewed by Dr. Hansen.
9
19
3.
ALJ Hearings
a.
Morales’ Testimony
i.
October 4, 2005 Hearing
During his first hearing in October 2005, Morales testified that his main
health problems were “uncomfort and pain for my lower back to my mid and my
upper area” that he experienced every day. Id. at 421. He testified that
medications brought down the pain, but they made him “queasy.” Id. at 422.
Sitting or standing for too long made the back pain worse; he could walk only at a
normal pace. Id. He could sit 15 to 20 minutes in reasonable comfort, and could
stand half an hour to 45 minutes. Id. at 422–23. He would lay down approximately
three to four times a day for five to ten minutes. Id. at 424. He could lift a gallon of
milk from the counter. Id. at 423. Morales testified his middle back would act out
sporadically, and he experienced “shooting pain.” Id. at 424–25. He testified that
after surgery in 2003, his left shoulder felt better, stating that “[he] can reach for
items, [he] can go over [his] head like this, [he] couldn’t do none of that before.” Id.
at 425. Morales testified that he had full use of his shoulder, but it was not as
strong as before. Id. He also had issues with both his knees. He had surgery on his
left knee, but “it was too painful,” so he “chickened out on the other knee.” Id. at
426. During the day, his knee ached, especially when it was cold. Id. He took
Relafen for the pain, did physical therapy exercises provided by his therapist every
day, and used an “electro stimulant” device on his back. Id. at 426–27. Morales
testified that he attended a course for computer technical support in 2000; he
20
obtained his certificate in three years rather than a year and a half because he
“kept missing days.” Id. at 428–29.
ii.
March 23, 2009 Hearing
During his second hearing in March 2009, Morales testified that he worked
as a doorman for a few months after his car accident. Id. at 613. Morales also
testified that he worked at a car service for a few months while waiting for workers’
compensation after his accident. Id. at 614. 10 His job required him to pick up
passengers, sometimes with luggage, and take them to the airport, or pick up
passengers from work to bring them home; he would work around 10 hours a day.
Id. at 613–14. He stated: “I was pretty much forcing myself to do it although I had
the pains and stuff. But I couldn’t continue because it was just too overbearing for
me.” Id. at 614. Morales testified that after his accident he also “tr[ied] to survive
with a little bit of recording sessions” which he offered at his home. Id. at 620.
Morales testified to at least a few occasions where his pain and inflammation kept
him from working — once as a DJ at a club for two hours and for recording jobs that
would take multiple continuous hours to complete. Id. at 621.
Morales testified that he experienced back pains, heaviness “on the legs,” and
chronic headaches. Id. at 622. He sometimes could not walk because of the pain.
Id. His right leg improved after a neural injection in 2007, but he still experienced
numbness and dullness in his left leg. Id. at 623. He also testified that his neck
While the hearing transcript does not contain exact dates for the doorman or car
service jobs, they both occurred a few years after his accident in 1999.
10
21
pain would keep him from sitting in front of a desk and looking down for more than
five minutes. Id. at 626. This symptom lasted from 1999 to 2007, at which point it
“got better.” Id. at 627. Morales attributed the recovery to “other medicine that
[he’d] been [taking], the stretching, the breathing and also the eating, not eating
junk food, like just eating good food from vegetables to fish and stuff like that.” Id.
Morales testified that he could sit 20 to 30 minutes in reasonable comfort, and could
walk two blocks without having to stop and rest. Id. at 631. Morales testified that
he used a cane that a doctor had prescribed “a long time ago.” Id. at 632. He also
testified that he typically laid down twice a day for an hour each to relieve tension
in his back. Id. at 639.
At the hearing, plaintiff’s counsel contended that Morales’ impairments met
or equaled Listing 1.04, based on testimony from his doctors. Id. at 650–51. ALJ
Levin responded that because the record covered seven years, one “might” be able to
add together multiple symptoms and treating notes from multiple doctors to equal a
listing. Id. at 651. But he expressed skepticism that, in Morales’ case, even with a
long record, he exhibited “enough of the items . . . to make a listing.” Id.
iii.
March 29, 2017 Hearing
As previously mentioned, the tape from the February 28, 2014 hearing before
ALJ Dorf was certified as lost, so there is no record of Morales’ 2014 testimony. Id.
at 663. In 2017, Morales again appeared before ALJ Dorf for a fourth hearing. ALJ
Dorf questioned Morales about his two businesses, Cloud Med and Emence Records.
Id. at 1002–09. Morales testified that he was unable to do sedentary work because
22
“[he gets] the pain on [his] neck and it goes into [his] head. It feels like [he has] a
rock on [his] head, very uncomfortable.” Id. at 1009. Morales then testified that he
sometimes used a cane; he was able to use public transportation; and, while he
walked one-and-a-half blocks to work about once or twice a month, he was unable to
walk five blocks on a regular basis. Id. at 1010. ALJ Dorf also questioned Morales
about his conviction for drug possession in 2016. Id. at 1012–13. Morales testified
that he used cocaine and alcohol to relieve pain. Id. at 1013. ALJ Dorf then raised
the issue of substantial gainful activity. Id. at 1019. He stated that it would be
helpful to know what income Morales received from his work with his business
operations. Id. Plaintiff’s counsel stated he would obtain “whatever there is.” Id.
b.
Vocational Expert’s Testimony - March 23, 2009
Vocational expert Andrew Pasternak provided testimony at the 2009 hearing.
ALJ Levin asked Pasternak to consider jobs for:
a person the claimant’s age, education and prior work
experience who is capable of sedentary exertion. . . sitting
up to six hours of a workday total with the usual breaks,
standing and/or walking up to two hours or a workday
with breaks . . . lifting and carrying not to exceed 10
pounds. . . . [The] work tasks would have to be simple,
routine and repetitive.
Id. at 649. Pasternak provided options including an order clerk (4,500 locally),
assembly jobs (5,000 locally), and machine tender jobs (4,900 locally). Id. at 649–50.
Pasternak’s testimony is the only vocational testimony available in the record. 11
Vocational expert Christine DiTrinco was present at the 2017 hearing but did not
testify. AR at 993. According to the 2014 ALJ Decision, Yaakov Taitz, Ph.D.
11
23
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
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).
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
“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
testified as a vocational expert at the 2014 hearing, but that testimony has been
lost. Id. at 667.
24
reasonable factfinder would have to conclude otherwise.’” Brault, 683 F.3d at 448
(quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis 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.” Selian, 708 F.3d at 417 (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).
In certain circumstances, the court may remand a case solely for the
calculation of benefits, rather than for further administrative proceedings. “In . . .
situations[ ] where this Court has had no apparent basis to conclude that a more
complete record might support the Commissioner’s decision, [the court has] opted
simply to remand for a calculation of benefits.” Michaels v. Colvin, 621 F. App’x 35,
38–39 (2d Cir. 2015) (quoting Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999))
(internal quotation marks omitted). The court may remand solely for the
calculation of benefits when “the records provide[ ] persuasive evidence of total
disability that render[s] any further proceedings pointless.” Williams v. Apfel, 204
F.3d 48, 50 (2d Cir. 1999). However, “[w]hen there are gaps in the administrative
record or the ALJ has applied an improper legal standard, [the court has], on
numerous occasions, remanded to the [Commissioner] for further development of
25
the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980)) (alteration in original).
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 a claimant’s impairments and determining whether they meet
the statutory definition of disability, the Commissioner “must make a thorough
inquiry into the claimant’s condition and must be mindful that ‘the Social Security
Act is a remedial statute, to be broadly construed and liberally applied.’” Mongeur,
722 F.2d at 1037 (quoting Gold v. Sec’y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)).
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 testified to by the claimant or
others; and (4) the claimant’s educational background, age, and work experience.”
Id. (citations omitted).
26
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); 20 C.F.R.
§ 404.1520. 12 First, the Commissioner must establish whether the claimant is
presently employed. 20 C.F.R. § 404.1520(a)(4)(i). 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
has the residual functional capacity (“RFC”) to perform his or her 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
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
Morales’ claims were filed in 2003, the Court applies the regulations that were in
effect when Morales’ claims were filed. See, e.g., Rousey v. Comm’r of Soc. Sec.,
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, 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.,
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., 16-CV-187, 2017 WL 3396416, at *8 n.5 (D. Vt. Aug. 8, 2017) (same).
12
27
ascertains whether the claimant possesses the ability to perform 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). If the claimant is successful, 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 in light of the essentially non-adversarial nature of a benefits
proceeding.” 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
claimant’s complete medical history. Pratts, 94 F.3d at 37 (citing 20 C.F.R.
§§ 404.1512(d)–(f)). This responsibility “encompasses not only the duty to obtain a
claimant’s medical records and reports but also the duty to question the claimant
adequately about any subjective complaints and the impact of the claimant’s
impairments on the claimant’s functional capacity.” Pena v. Astrue, 07-CV-11099
(GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted).
28
Whether the ALJ has satisfied this duty to develop the record is a threshold
question. Before determining whether the Commissioner’s final decision is
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, 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, 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.”) (citing Brown v. Apfel, 174 F.3d 59
(2d Cir. 1999)). 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.
Substantial Gainful Activity
To qualify for benefits, a claimant must show the “inability to engage in any
substantial gainful activity by reason of . . . impairment . . . 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). If a claimant has engaged in substantial gainful activity (“SGA”), he
cannot qualify for benefits, no matter his medical condition. See 20 C.F.R.
29
§§ 404.1520(a)(4)(i) and (b). The regulations define SGA as “work activity that is
both substantial and gainful.” 20 C.F.R. § 404.1572. “Substantial work activity”
involves “doing significant physical or mental activities.” 20 C.F.R. § 404.1572(a).
Even part-time work or work where “you do less, get paid less, or have less
responsibility than when you worked before” can qualify as substantial work. Id.
“Gainful work activity” involves work that you do for “pay or profit.” 20 C.F.R.
§ 404.1572(b). Work will meet this requirement if “it is the kind of work usually
done for pay or profit, whether or not a profit is realized.” Id.
For employees, work activity is considered SGA if the claimant’s earnings
exceed the “earning guidelines” in 20 C.F.R. § 404.1574(b). For self-employed
persons, the regulations provide a three-part test; if a claimant satisfies any one of
the three tests, his work will be considered SGA. See 20 C.F.R. § 404.1575. This
additional analysis is necessary because income alone:
. . . is not a reliable factor in determining SGA, since it is
influenced not only by the individual’s services but also by
such things as market conditions, capital investments, the
services of other people, and agreements on distribution of
profits. An individual’s services may help build up capital
assets during a period of development where no profits
are evident . . . . Hence, it is necessary to consider the
economic value of the individual’s services, regardless of
whether an immediate income results from such services.
Titles II & XVI: Determining Whether Work Is Substantial Gainful Activity-SelfEmployed Persons, SSR 83-34, 1983 WL 31256, at *1 (S.S.A. 1983) (hereinafter
“SSR 83-34”).
30
“Test One” provides that a claimant is engaged in SGA if he “render[s]
services that are significant to the operation of [a] business and received a
substantial income from the business.” 20 C.F.R. § 404.1575(a)(2)(i). A claimant
renders “significant services” in a business with more than one person if he
contributes “more than half the total time required for the management of the
business, or . . . more than 45 hours a month regardless of the total management
time required by the business.” 20 C.F.R. § 404.1575(b). A claimant receives
“substantial income” when his net income or “countable income” exceeds the
earning guidelines in 20 C.F.R. § 404.1574(b), or if his “countable income” is
“comparable to what it was before [the claimant] became seriously impaired . . . or
. . . to that of unimpaired self-employed persons in [the claimant’s] community who
are in the same or a similar business[ ] as their means of livelihood.” 20 C.F.R.
§§ 404.1575(c)(2)(i)–(ii).
“Test Two” provides that a claimant is engaged in SGA if his work activity “in
terms of factors such as hours, skills, energy output, efficiency, duties, and
responsibilities, is comparable to that of unimpaired individuals in [the claimant’s]
community who are in the same or similar business as their means of livelihood.”
20 C.F.R. § 404.1575(a)(2)(ii).
“Test Three” provides that a claimant is engaged in SGA if his work activity
“is clearly worth the amount shown in [the earning guidelines] when considered in
terms of its value to the business, or when compared to the salary that an owner
31
would pay to an employee to do the work [the claimant is] doing.” 20 C.F.R.
§ 404.1575(a)(2)(iii).
With regards to Tests Two and Three, SSR 83-84 states: “An important part
of the comparison is the selection of the group of unimpaired persons. . . . Wellestablished businesses are generally the most reasonable choice for comparison.”
SSR 83-84 at *9. SSR 83-84 further provides: “Development must be specific. Each
work factor . . . must be described in detail, showing its contribution to the business
operation. . . . If only a general description is possible or available, any doubt as to
the comparability of the factors should be resolved in favor of the impaired
individual.” Id. SSR 83-84 encourages the fact-finder to conduct a “personal
interview with an unimpaired self-employed individual from the selected group,” if
necessary. Id. Fact-finders should also make contact with people with “firsthand
knowledge of the impaired individual’s work situation obtained through actual
participation or observation.” Id. And, if necessary, they should also consider “data
supplied by outside authorities (e.g. county agents, etc.)” on the comparability or
worth of services. Id. at *10.
If the fact-finder did not properly develop the record with regards to
substantial gainful activity, courts have remanded the case for further proceedings.
See, e.g., Klemens v. Berryhill, 703 F. App’x 35, 37 (2d Cir. 2017); DeRienzis v.
Heckler, 748 F.2d 352, 354 (2d Cir. 1984); Bertram v. Colvin, 2015 WL 4545770, at
*1 (D. Vt. July 27, 2015); Ellis-Clements v. Comm’ of Soc. Sec., 2011 WL 2884870, at
*9 (D. Vt. July 18, 2011).
32
d.
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, 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar.
25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d)) (internal quotation marks
omitted). A treating physician’s opinion is given 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 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].” 20 C.F.R. § 404.1502.
Deference to such medical providers 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 evidence 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,
09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R.
33
§§ 404.1527(e)(1), 416.927(e)(1)); accord 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 issued opinions
that [were] 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)) (internal quotation marks omitted)
(alteration in original); 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.”).
Importantly, however, “[t]o the extent that [the] record is unclear, the
Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative
record’ before rejecting a treating physician’s diagnosis.” Selian, 708 F.3d at 420
(quoting Burgess, 537 F.3d at 129); see Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998) (discussing ALJ’s duty to seek additional information from treating physician
if clinical findings are inadequate). As a result, “the ‘treating physician rule’ is
inextricably linked to a broader duty to develop the record. Proper application of
the rule ensures that the claimant’s record is comprehensive, including all relevant
treating physician diagnoses and opinions, and requires the ALJ to explain clearly
how these opinions relate to the final determination.” Lacava v. Astrue, 11-CV-7727
(WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (“In this Circuit,
34
the [treating physician] rule is robust.”), adopted by, 2012 WL 6621722 (S.D.N.Y.
Dec. 19, 2012).
To determine how much weight a treating physician’s opinion should carry,
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 (citation omitted); see 20 C.F.R. § 404.1527(c)(2). 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 133 (responsibility of determining weight to be afforded
does not “exempt administrative decisionmakers from their obligation . . . to explain
why a treating physician’s opinions are not being credited”) (referring to Schaal,
134 F.3d at 505 and 20 C.F.R. § 404.1527(d)(2)). The regulations require that the
SSA “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 hesitate[d] 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) (second and third alteration in original) (internal quotation marks omitted).
35
e.
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, 04-CV-7515 (DLC), 2006 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
two-step 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
36
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 that the ALJ must consider (in
addition to objective 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 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 ALJs’ Decisions
1.
ALJ Garrety’s January 5, 2006 Decision
On January 5, 2006, ALJ Garrety issued a decision denying Morales’
application. At step one of the disability analysis, ALJ Garrety found that Morales
had not engaged in SGA since January 1, 2002. AR at 23. She noted: “there is
insufficient evidence to determine if the claimant’s self-employment has been at
substantial gainful activity levels for some months and as this is unclear, the
claimant is given the benefit of the doubt that he has not engaged in substantial
37
gainful work activity. . . .” Id. At step two, ALJ Garrety found Morales had the
following severe impairments: left shoulder tear and impingement, bulging cervical
discs with herniation at C7-T1, possible left C6 nerve root irritation, left knee
medial meniscus tear, and possible right knee medial meniscus tear. Id. at 24. ALJ
Garrety deemed Morales’ back issues a non-severe impairment; she found his back
pain had a “minimal effect on [Morales’] ability to perform basic work activity . . .
and on several occasions such condition exhibited minimal clinical findings and the
examining physicians indicated that it was resolved.” Id. at 25. At step three, ALJ
Garrety found Morales’ impairments did not meet or medically equal a listed
impairment. Id.
For step four’s residual functional capacity (“RFC”) analysis, ALJ Garrety
found that Morales retained the capacity to perform a range of light work: lift/carry
up to 20 pounds, sit for four hours in an eight-hour workday, stand for one hour in
an eight-hour workday, and walk for three hours in an eight-hour workday. Id. at
26. To support this finding, ALJ Garrety found that Morales’ impairments could
reasonably be expected to produce his alleged symptoms; however, she found
Morales’ statements about the intensity, duration and limiting effects of the
symptoms to be not entirely credible. Id. She noted that Morales:
. . . is able to perform personal care, child care, and
household care tasks. He can prepare meals, wash
dishes, do laundry, pay bills, use public transportation,
get his daughter to and from school, go to therapy and
other appointments, visit relatives, go to church, do audio
engineering work out of his home, perform physical
therapy exercises at home for one hour daily, and in
38
addition, he was able to complete a computer technician
support course receiving certification.
Id. at 27–28.
ALJ Garrety also found further evidence that Morales’ impairments were not
work preclusive in the records of his treating and examining physicians. Id. at
28–30. She noted that between 2000 and 2003, his physicians often found that he
had a full range of motion, normal muscle strength, and normal reflexes. Id. at
28–29. She gave considerable, but not substantive, weight to a consultative
examination by Dr. Mohammed Khattak, who found Morales’ examination to be
basically normal. Id. at 30. 13 She gave substantial weight to examinations by Dr.
Kenneth Falvo, a physician who examined Morales for his worker’s compensation
case, who opined that Morales was not disabled and was capable of full-time gainful
employment. Id. at 31. She gave some weight to opinions given by Drs. Klara
Sosina and Orsuville Cabatu about Morales’ ability to work, but noted that they
“appear[ed] to be based on worker’s compensation guidelines and rules rather than
on [SSA] disability guidelines . . . .” Id. at 31. ALJ Garrety gave substantive weight
to portions of Dr. Gotlieb’s medical report that asserted Morales could occasionally
lift/carry up to 20 pounds, could sit four hours in an eight-hour workday, stand one
hour in an eight-hour workday, and walk three hours in an eight-hour workday.
Sometime after this decision, Dr. Khattak was removed from the New York State
Agency panel of physicians eligible to perform consultative examinations in Social
Security cases. The Appeals Council directed ALJs not to rely on his opinions or
assessments. AR at 473.
13
39
Id. 14 She found that Dr. Gotlieb’s additional limitations were not supported by the
evidence from other treating or examining physicians. Id.
After determining Morales’ RFC, ALJ Garrety found Morales was unable to
perform any past relevant work. Id. at 32. Finally, at step five, ALJ Garrety used
the Medical-Vocational Rules to find Morales capable of performing at least five
separate occupations among the 1,600 unskilled sedentary and light occupations.
Id. at 33. Thus, ALJ Garrety concluded that Morales was not disabled within the
meaning of the Social Security Act. Id.
Following Morales’ filing of a federal complaint, the parties stipulated to a
remand for further administrative proceedings on January 9, 2008. Id. at 472. The
Appeals Council Order remanding the case directed the ALJ to recontact Dr. Gotlieb
to obtain more information and to obtain a vocational expert. Id. at 473–74.
2.
ALJ Levin’s April 9, 2009 Decision
On April 9, 2009, ALJ Levin issued a decision denying Morales’ application.
At step one of the analysis, ALJ Levin found that while Morales had worked “on
and off” since his onset of disability, he never earned enough for the work to be
considered SGA. Id. at 460, 466. At step two, ALJ Levin found that Morales had “a
‘severe’ combination of discogenic disease of the cervical and lumbosacral spines;
history of symptomatic knee arthritis, now resolved; and a history of left shoulder
internal derangement that has partially recurred.” Id. at 466. At step three, he
In Dr. Gotlieb’s report, it states that Morales is able to walk up to three blocks
continuously and for a total of three blocks in an eight-hour workday, not hours. AR
at 382.
14
40
found that the impairments did not meet or medically equal a listed impairment.
Id.
For step four’s RFC analysis, ALJ Levin concluded that Morales had the
capacity to sit for six to eight hours in a work day, to stand and/or walk for two
hours in a work day, to lift/carry up to 10 pounds, and to be restricted to work
activity that is simple, routine, and repetitive. Id. at 466. ALJ Levin noted that Dr.
Sosina found Morales at various points to be capable of returning to work as a
computer technician. Id. at 461. He gave little weight to Dr. Gotlieb’s medical
report, finding that Dr. Gotlieb gave a “parrot-like adoption of claimant’s own
subjective statements. A doctor’s statement of residual functional capacity does not
transmute a claimant’s subjective statements into medical gospel.” Id. at 463. 15 He
also noted that Dr. Gotlieb was an internist, “with no documented expertise in
musculoskeletal conditions.” Id. ALJ Levin gave slightly more weight to Dr.
Palmeri’s medical report, but noted that Dr. Palmeri’s own medical findings “[did]
not provide any basis for a conclusion that claimant could never bend, squat, climb
or reach, or push/pull arm controls.” Id. at 464 (emphasis in original). He also
Despite the Appeals Council’s mandate to obtain further information from Dr.
Gotlieb, it appears that ALJ Levin did not have access to many of Dr. Gotlieb’s
records. He stated that he only saw two records of Morales’ visits before Dr.
Gotlieb’s December 8, 2005 medical report to the SSA — one on July 8, 2004 and
one on October 10, 2005. AR at 461. However, the current record before this Court
contains four additional visits to Lenox Hill Hospital on December 20, 2004,
January 10, 2005, July 13, 2005, and October 10, 2005. Id. at 576, 581, 583, 585.
At least the December 20, 2004 visit, however, was to a different physician in the
hospital, Dr. Ahmadi. Id. at 577. The July 13, 2005 visit treatment notes were not
signed. The other visits on January 10, 2005 and October 10, 2005 appear to be
with Dr. Gotlieb based on the signature. Id. at 582, 586.
15
41
found Dr. Palmeri’s findings to be “largely subjective,” noted Dr. Palmeri had opined
that Morales was only moderately partially disabled and could do sedentary work
activity, and observed that Dr. Palmeri did not include the total hours Morales
could work in his RFC questionnaire. Id. at 462. ALJ Levin also found Dr.
Boppana’s October 15, 2008 letter declaring Morales “totally disabled and unable to
work” to be conclusory. Id. ALJ Levin took note of Dr. Falvo’s conclusion that
Morales did not have any limits to his ability to work, stating that “[w]hile that is
doubtless an overstatement, it does help illustrate how extreme, in the other
direction, claimant’s assertions are.” Id. at 464. 16 ALJ Levin also gave considerable
weight to the opinion of Dr. Charles Plotz, a medical expert called to testify at the
hearing after reviewing Morales’ records. Dr. Plotz found that Morales had no
Listings-level impairments, and could do sedentary exertional activity. Id. at 463. 17
ALJ Levin was also influenced by Morales’ activities that “simply do not fit
the picture of a person as seriously impaired as he claims to be, and to have been for
more than seven years now.” Id. at 464. In particular, he noted Morales’ travel to
the Dominican Republic, which led to a courtship with his now-wife, Morales’
responsibility in caring for his ailing father, and his home in a fifth-floor walkup
apartment. Id.
Upon remand, the Appeals Council found that Dr. Falvo’s opinion “was not
supported by objective medical evidence, particularly, magnetic resonance imaging
(MRI) . . . and/or by nerve testing.” AR at 730–31.
16
Upon remand, the Appeals Council found that Dr. Plotz’s findings “were
adversely affected by material omissions and factual inconsistencies.” AR at 731.
17
42
After determining Morales’ RFC, ALJ Levin found Morales was unable to
perform any of his past relevant work. Id. at 466. Finally, at step five, ALJ Levin
identified a significant number of jobs in the national economy that Morales could
perform, including order clerk, sedentary assembly jobs, and machine tending jobs.
Id. at 466–67. Thus, ALJ Levin concluded that Morales was not disabled within the
meaning of the Social Security Act. Id. at 467.
Following Morales’ filing of a federal complaint, the parties stipulated to a
remand for further administrative proceedings on July 1, 2013. Id. at 733. The
Appeals Council Order thereafter directed the ALJ to:
[(1)] Give further consideration to the treating and
nontreating source opinions . . . and explain the weight
given to such opinion evidence . . . [(2)] Give further
consideration to the claimant’s maximum residual
functional capacity and provide appropriate rationale with
specific references to evidence of record in support of the
assessed limitations . . . [(3)] Obtain evidence from a
medical expert to clarify the nature and severity of the
claimant’s impairment . . . [and (4)] If warranted by the
expanded record, obtain supplemental evidence from a
vocational expert to clarify the effect of the assessed
limitations on the claimant’s occupational base. . . .”
Id. at 694–95.
3.
ALJ Dorf’s May 5, 2014 Decision
On May 5, 2014, ALJ Dorf issued a decision denying Morales’ application.
ALJ Dorf divided his disability analysis into two periods: 1) June 28, 1999 through
October 6, 2002, and 2) October 7, 2002 onward.
43
a.
June 28, 1999 through October 6, 2002
At step one, ALJ Dorf found that Morales had not engaged in substantial
gainful activity since June 28, 1999. Id. at 671. At step two, ALJ Dorf found that
Morales had the following severe impairments: degenerative disease of the cervical
and lumbar spine; left shoulder rotator cuff impingement/tear, status post left
shoulder surgery in August 2002; and a medial meniscal tear of the left knee. Id. at
672. ALJ Dorf stated that the medical record did not support Morales’ claims of
frequent headaches and dizzy spells or support Morales’ claims of a severe mental
impairment. Id. At step three, ALJ Dorf found Morales did not have impairments
that met or medically equaled a listed impairment. Id. at 673. At step four, ALJ
Dorf found Morales had the residual functional capacity to:
. . . perform sedentary work, . . . with an option to change
sit/stand positions at will; only occasional handling and
reaching with the non-dominant left upper extremity, no
postural activities except occasional stairs; and no work in
loud noise environments, defined as street, road, and
traffic work, except he needed to take frequent
unscheduled breaks during the day and could not reliably
keep a work schedule, secondary to pain.
Id. He then found that Morales was unable to perform past relevant work, and, at
step five, that no jobs existed in significant numbers in the national economy that
Morales could have performed. Id. at 676. ALJ Dorf found that Morales’
impairments could reasonably produce the alleged symptoms, and that Morales’
statements are generally credible for the period up to October 6, 2002. Id. at 675.
He found that “medical improvement” occurred as of October 7, 2002, based
primarily on Dr. Sosina’s note on October 6, 2002 where she stated that Morales
44
was capable of returning to “full duty” as a computer technician. Id. Thus, ALJ
Dorf concluded that Morales was disabled within the meaning of the Social Security
Act only between June 28, 1999 and October 6, 2002. Id. at 676.
b.
October 7, 2002 onward
ALJ Dorf denied Morales’ application for benefits for the period of time after
October 6, 2002. Id. at 689. At step one, while ALJ Dorf did not address SGA
explicitly, in a later section of his decision he stated: “Although I credit claimant’s
testimony that he has not worked at SGA-level, claimant’s work activity indicates
he is not as functionally limited as alleged.” Id. at 685. At step two, ALJ Dorf
found that Morales had the following severe impairments: degenerative disease of
the cervical and lumbar spine, medial meniscal tears of the bilateral knees, and
since October 2008, a partial tear of the left rotator cuff. Id. at 677. At step three,
ALJ Dorf found no impairment or combination of impairments that met or equaled
a listed impairment. Id. He observed that no treating or examining physician had
indicated findings that met a listed impairment, and Dr. Sreedevi Chandrasekhar,
the expert present at the hearing, testified that none of Morales’ impairments since
October 7, 2002, “individually or in combination,” met Listing-level severity. Id.
At step four, ALJ Dorf found that Morales’ RFC increased beginning October
7, 2002. Id. His RFC calculation remained the same as the pre-October 7 period,
but did not include the language: “needed to take frequent unscheduled breaks
during the day and could not reliably keep a work schedule, secondary to pain.” Id.
at 677. As mentioned above, ALJ Dorf gave significant weight to Dr. Sosina’s
45
opinion that Morales regained the ability to work as of October 6, 2002. Id. at 677,
686. ALJ Dorf did take note of Dr. Cabatu’s treatment notes, which found Morales
totally disabled in late 2003, but opined that those notes referred to Morales’ left
knee surgery in October. Id. at 678. He found that by March 2004, Dr. Cabatu
“reverted to his initial assessment that the claimant was only partially disabled.”
Id. at 679. ALJ Dorf observed that “[d]espite [his] allegations of unremitting
symptoms,” Morales “obtained only sporadic medical treatment for the next year.”
Id. He specifically pointed out that Morales saw Dr. Gotlieb in July 2004, who
directed Morales to follow up in two weeks if the pain in his neck continued. Id.
Morales did not return to the office until December 2004, when he was seen by
another physician for back pain. The physician found Morales had normal clinical
findings, including negative straight leg raising, and his lumbar x-ray results were
normal. Id. ALJ Dorf noted that Dr. Gotlieb’s progress notes found that Morales’
symptoms “improved with conservative treatment” and Morales had “very good pain
control.” Id. ALJ Dorf gave little weight to Dr. Gotlieb’s 2005 opinion that Morales
could not perform even sedentary exertional work, which he opined was not
supported by medical evidence or Dr. Gotlieb’s own progress notes. Id. at 687. He
also observed that Dr. Gotlieb was an internist, not a specialist. Id.
ALJ Dorf commented that Dr. Palmeri “repeatedly indicated . . . that
claimant could work in a limited (but unspecified) capacity,” and that he did not
change his diagnosis even after Morales’ lumbar MRI in January 2006. Id. at 680.
He also noted that Dr. Palmeri opined that Morales could sit two hours at a time
46
and stand/walk two hours at a time, but did not provide the total hours Morales
could sit/stand/walk in a workday. Id. However, on August 15, 2006, Dr. Palmeri
characterized Morales’ limitations as “moderate partial disability.” Id. ALJ Dorf
found no medical evidence to sustain Dr. Palmeri’s assessment that Morales could
not reach with the right upper extremity and could not travel by bus or subway; he
therefore gave little weight to that portion of the assessment. Id. at 686.
ALJ Dorf observed that Dr. Boppana diagnosed Morales with lumbosacral
and cervical radiculopathy in November 2006, but an electrodiagnostic study in
March 2007 was negative for cervical radiculopathy (though consistent with lumbar
radiculopathy). Id. at 680. 18 ALJ Dorf stated that Dr. Boppana opined
“conclusorily” that Morales was totally disabled and unable to work in October
2008, but found no evidence in the record that Morales sought additional treatment
until 2014. Id. at 681. 19 ALJ Dorf then turned to a consultative examination he
ordered in 2014 by Dr. Woods, which found no “clinical basis for a definitive medical
diagnosis.” Id. at 682. ALJ Dorf compared Dr. Woods’ examination to a medical
report by Dr. Bioh, Morales’ treating internist. Id. He found Dr. Bioh’s opinion that
Morales could only sit 30 minutes continuously, stand 10 minutes continuously, and
walk 5 minutes continuously to be unsupported by the underlying record. Id. He
This examination was specifically of the lower extremity and lumbar paraspinal
muscles. AR at 556. There is no indication that the study tested the cervical spine
area.
18
It is clear from this statement that Dr. Bioh’s treatment notes were not part of
the 2014 record. They were also not originally part of the 2017 record; plaintiff’s
counsel provided those notes at the beginning of the 2017 hearing. AR at 997.
19
47
gave limited weight to Dr. Bioh’s assessment because Dr. Bioh did not begin
treating Morales until 2011, and “[appear]ed to have relied on [Morales’] statements
for his functional assessment.” Id. at 688. ALJ Dorf gave significant weight to Dr.
Chandrasekhar’s opinion that Morales’ impairments did not meet a listed
impairment. Id.
ALJ Dorf acknowledged that Morales does have “objective diagnostic
evidence of cervical, lumbar, left shoulder, and bilateral knee impairments,” but he
noted that Dr. Chandrasekhar opined that the impairments did not support a
finding of disability. Id. at 683. He observed that none of Morales’ treating
physicians or specialists “considered it necessary to update the cervical spine MRI
since 1999, or the lumbar spine MRI since 2006” or advise Morales to have cervical
or lumbar surgery. Id. 20 ALJ Dorf opined that a “close review of the treating
records reveals that claimant’s symptoms have waxed and waned in severity. . .
[with] periods of symptom exacerbation, . . . but these episodes have been
infrequent, fairly brief, and largely self-limiting or alleviated by medication . . . .
[A]ll of claimant’s impairments have been managed conservatively.” Id. ALJ Dorf
also found Morales’ “self-described activities to be inconsistent with the degree of
disability alleged.” Id. at 684. ALJ Dorf noted Morales’ ability to take care of his
Morales had lumbar spine MRIs in 2010, 2012, and 2016. AR at 869, 989. His
2012 lumbar spine MRI, which shows “no evidence of lumbar spinal stenosis,”
referred to his 2010 lumbar spine MRI, which is not in the record. Id. at 989. ALJ
Dorf likely did not have access to either the 2010 or 2012 MRI. The 2012 MRI
appears to have been added to the record with Dr. Bioh’s treatment notes in 2017.
Morales also had a cervical spine MRI in 2016. Id. at 871.
20
48
family, courtship of his wife, independent self-care, and daily exit from his fifth-floor
walk-up apartment. Id. at 684–85. ALJ Dorf also stated that Morales “commuted
to recording studios throughout the City and dealt with talent, customers, and
partners,” and started Emence Records, a manufacturer and distributor of music
products. Id. at 685. 21
After determining Morales’ RFC, ALJ Dorf found Morales was unable to
perform any of his past relevant work. Id. at 688. Finally, at step five, ALJ Dorf,
aided by a vocational expert’s testimony, found a significant number of jobs in the
national economy that Morales could perform, including ticket counter, surveillance
systems monitor, and order clerk. Id. at 689. Thus, ALJ Dorf concluded that
Morales was not disabled within the meaning of the Social Security Act after
October 7, 2002. Id.
On June 28, 2016, the Appeals Council remanded ALJ Dorf’s decision
because the hearing tape had been certified as lost. Id. at 663.
4.
ALJ Dorf’s September 28, 2017 Decision
On September 28, 2017, ALJ Dorf issued a decision denying Morales’
application. Id. at 655–60. ALJ Dorf determined that Morales had engaged in SGA
since October 7, 2002, and, as a result, did not consider any of the remaining steps
of the five-step inquiry as to whether Morales was disabled. Id. at 658.
Because the May 2014 hearing tape was lost, the Court does not have Morales’
testimony concerning these activities, and ALJ Dorf did not further inquire about
Emence Records at the March 2017 hearing.
21
49
ALJ Dorf observed that Morales started Cloud Med in 2014 and is “president
of said company.” Id. He stated that Morales had worked since 2002 as a sound
engineer and graphic designer, and in 2014, started a business called Emence
Records. Id. With Emence Records, he actively engaged with producers and was
“‘constantly’ on the phone with other producers.” Id. ALJ Dorf “credit[ed]” Morales’
prior testimony that he had not worked at an SGA level, and that his earnings were
below SGA level. Id. ALJ Dorf asserted, however, that the regulations required
examination of other factors for self-employed persons. Id. He described the three
tests for self-employment. Id. at 659. He then cursorily analyzed all three tests in
a single paragraph, stating:
The work claimant described he performed for his
businesses was of significant value to the viability of each
business. As a sound engineer and graphic designer, he
commuted to recording studios throughout the city and
dealt with talent customers and partners. He did actual
recording, editing, and arranging. At Emence Records,
LLC, he was actively engaged in trying to get other
producers to enter into a productive agreement to work
under the label. At Cloud Med Transport, LLC, he was
active in securing drivers and contracting with health
providers for the company and purchased ambulances.
Id. As a result, ALJ Dorf concluded that Morales was not disabled within the
meaning of the Social Security Act. Id.
C.
Analysis
Morales argues that the latest ALJ decision should be reversed and his claim
should be remanded solely for the calculation of benefits because: (1) no evidence
that he ever engaged in SGA exists in the administrative record (Pl. Mem. at
50
14–22); and (2) the record provides “persuasive proof of disability and . . . further
evidentiary proceedings would serve no purpose.” Id. at 22 (quoting Parker, 626
F.2d at 235). The Commissioner agrees that the ALJ’s decision should be reversed
and remanded, because the ALJ failed to develop the record regarding Morales’
SGA and did not evaluate the medical evidence. Def. Mem. at 2–14. However, the
Commissioner disagrees that Morales’ claim should be remanded solely for the
calculation of benefits because: (1) after developing the record, the ALJ may
reasonably find that Morales engaged in SGA; and (2) several medical examinations
suggest that Morales was not completely disabled and could perform a range of
work. Id. at 14–16. In his reply, Morales reiterates that: (1) the record contains no
evidence of SGA, and finding evidence of SGA in further hearings is “almost purely
fanciful”; and (2) no substantial evidence contradicts the opinions of his treating
physicians. Pl. Reply at 1–9.
For the reasons discussed below, the Court concludes that the ALJ
improperly reconsidered Morales’ work activity prior to 2014 in his SGA analysis,
and failed to adequately develop the record because he did not obtain additional
documents or testimony concerning Morales’ business ventures post-2014. The
Court also concludes that the record does not provide “persuasive proof of disability”
for the entire period of alleged disability because several gaps exist in Morales’
medical history with no treatment records or diagnostic exams, and the various
treating physicians’ opinions exhibit inconsistencies and deficiencies that could be
remedied with further development of the record.
51
1.
The ALJ Improperly Reconsidered Morales’ Pre-2014
Work Activity in His SGA Analysis
As an initial matter, this Court takes issue with ALJ Dorf’s determination
that Morales engaged in SGA between 2002 and 2014. In his May 5, 2014 decision,
ALJ Dorf specifically found: “The claimant has not engaged in substantial gainful
activity since June 28, 1999.” AR at 671. Then, in 2017, after not inquiring at all
about pre-2014 work activities during Morales’ hearing, ALJ Dorf inexplicably
found: “The claimant has engaged in substantial gainful activity since October 7,
2002.” Id. at 658. How ALJ Dorf made this complete about-face is bewildering to
the Court, and his 2017 decision did not explain why he changed his mind. His
2017 decision states only:
[Morales] testified that he has worked at his own business
since 2002 as a sound engineer and graphic designer. He
commuted to recording studios throughout the city and
dealt with talent customers and partners. He did actual
recording, editing, and arranging. He testified he was able
to use his hands to do sound engineering, and use a
mouse, keyboard, and other devices.
Id. Morales did not in fact testify to these activities at the 2017 hearing. Perhaps
he had testified to these activities in 2014, because ALJ Dorf used the exact same
language in his 2014 decision. Id. at 685. And yet ALJ Dorf found that Morales
had not engaged in SGA based on the exact same facts in 2014. Id. at 671.
Social Security regulations do provide that, on remand, “[a]ny issues relating
to your claim may be considered by the administrative law judge whether or not
they were raised in the administrative proceedings leading to the final decision in
your case.” 20 C.F.R. § 404.983. However, the “law of the case doctrine,” “while not
52
binding, counsels a court against revisiting its prior rulings in subsequent stages of
the same case absent ‘cogent’ and ‘compelling’ reasons such as ‘an intervening
change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” Ali v. Mukasey, 529 F.3d 478, 490 (2d
Cir. 2008) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)); see also
Calderon v. Astrue, 683 F. Supp. 2d 273, 276 (E.D.N.Y. 2010) (“[N]umerous other
courts have held that [law of the case doctrine] appl[ies] with equal force to
administrative proceedings, including Social Security appeals.”) (compiling cases).
In this case, no “new evidence” came to light regarding Morales’ pre-2014
work activities during the intervening period between ALJ Dorf’s decisions. ALJ
Dorf makes no reference to any new information that he did not have when making
his 2014 decision. The administrative record contains no new documents and the
2017 hearing contains no new testimony about Morales’ work prior to 2014. ALJ
Dorf thus had no “cogent” or “compelling” reason to reconsider his decision
regarding Morales’ SGA activity prior to 2014. Accordingly, on remand, the ALJ
shall not reconsider Morales’ ability to engage in SGA prior to 2014.
2.
The ALJ Did Not Adequately Develop the Record for
Morales’ Post-2014 Work Activity
As Morales testified to starting two businesses in 2014, ALJ Dorf properly
reconsidered Morales’ ability to engage in SGA for the period after 2014. However,
ALJ Dorf did not adequately develop the record. As the Commissioner herself
recognizes, “it is unclear whether the record includes all necessary relevant
evidence,” and the ALJ “misstated the record.” Def. Mem. at 9. ALJ Dorf’s analysis
53
finding that Morales had engaged in SGA is limited to a single paragraph, with only
general conclusions about the nature of Morales’ work. AR at 659.
As Morales is a self-employed person, income “is not a reliable factor in
determining SGA. . . . An individual’s services may help build up capital assets
during a period of development where no profits are evident . . .” SSR 83-84 at *1.
ALJ Dorf applied the three-part test for self-employed persons in his analysis, but
failed to develop the record for a proper analysis.
“Test One” requires examining whether the claimant’s services are
“significant” and whether his income from the business is “substantial.” 20 C.F.R.
§ 404.1575(a)(2)(i). “Significant” services means “more than half the total time
required for management of the business” or “more than 45 hours a month.” 20
C.F.R. § 404.1575(b). “Substantial” income means any net income that (i) exceeds
the guidelines in 20 C.F.R. § 404.1574(b), or (ii) is “comparable to what it was before
[the claimant] became seriously impaired,” or is “comparable to . . . unimpaired selfemployed persons in [the claimant’s] community who are in the same or similar
business as their means of livelihood.” 20 C.F.R. §§ 404.1575(c)(2)(i)–(ii). ALJ Dorf
sought no information about how many hours Morales worked for Cloud Med or
Emence Records in each year since 2014. While Morales’ tax records since 2014
indicate that his net income does not exceed the applicable guidelines, ALJ Dorf
should have undertaken a more complete analysis comparing Morales’ income to: (1)
his income before he was impaired, and (2) the income of unimpaired individuals in
54
the same or similar business. Pl. Mem. at 11; AR at 751. ALJ Dorf did not properly
apply Test One.
“Test Two” requires an examination as to whether the claimant’s work
activity “in terms of factors such as hours, skills, energy output, efficiency, duties,
and responsibilities, is comparable to that of unimpaired individuals in [the
claimant’s] community who are in the same or similar business as their means of
livelihood.” 20 C.F.R. § 404.1575(a)(2)(ii). Each of these work factors should be
analyzed and described in detail. SSR 83-84 at *9. For Cloud Med, ALJ Dorf asked
only a few questions about Morales’ involvement, and did not solicit any clarifying
information. AR at 1008. Based on his 2014 decision, ALJ Dorf asked more
questions about Emence Records in 2014, yet neglected to do the same in 2017. Id.
at 685. ALJ Dorf should also have sought evidence beyond Morales’ own testimony,
including people with “firsthand knowledge of the impaired individual’s work
situation obtained through actual participation or observation.” SSR 83-84 at *9.
Morales has a business partner with Emence Records and two business partners
with Cloud Med who could have provided information on Morales’ involvement with
the companies. AR at 1003, 1005. Among other things, Morales’ partners at Cloud
Med could explain Morales’ role as “President” of the company. Id. at 1008. They
could also explain in greater detail the new “business plan” that Morales’ counsel
alluded to in his April 6, 2017 letter to ALJ Dorf — a plan that “will make the
operation truly profitable because they will be able to secure much better contracts
from health care institutions.” Id. at 916.
55
ALJ Dorf also should have identified a group of unimpaired persons “who are
in the same or similar business as their means of livelihood” as a comparison point
for Morales; “[w]ell established businesses are generally the most reasonable choice
for comparison.” SSR 83-84 at *9. Morales contends in his motion papers that
“[t]here is quite literally no evidence in the administrative record identifying other
persons in Mr. Morales’ community (New York City) who were unimpaired and
made their living as self-employed operators of recording studios . . . [or] who run
ambulette services.” Pl. Mem. at 18 (emphasis in original). However, the Court
does not agree, as Morales suggests, that no evidence will necessarily turn up on
this point. Pl. Reply at 2. On remand, the ALJ should develop the record to
determine if there are comparable operators of recording studios or persons who run
ambulette services or the equivalent. To that end, SSR 83-84 encourages factfinders to conduct a “personal interview with an unimpaired self-employed
individual from the selected group.” SSR 83-84 at *9. ALJ Dorf did not properly
apply Test Two.
“Test Three” requires an analysis as to whether the claimant’s work activity
“is clearly worth the amount shown in [the earning guidelines] when considered in
terms of its value to the business, or when compared to the salary that an owner
would pay to an employee to do the work [the claimant is] doing.” 20 C.F.R.
§ 404.1575(a)(2)(iii). ALJ Dorf similarly did not conduct a specific analysis of
Morales’ work factors for Test Three. Additionally, the administrative record does
not include comprehensive earnings or financial statements of either Cloud Med or
56
Emence Records. After the hearing, Morales’ counsel provided bank records for
Cloud Med between January 2017 and March 2017, and offered to obtain additional
records if ALJ Dorf requested. AR at 917. ALJ Dorf did not do so. Thus, ALJ Dorf
failed to properly apply Test Three as well.
On remand, the ALJ should seek additional information about Emence
Records and Cloud Med from Morales, Morales’ business partners, representative
persons who are self-employed owners of recording studios or ambulette services,
and, if necessary, “data supplied by outside authorities (e.g. county agents, etc.)” on
the comparability or worth of services. SSR 83-84 at *10. The ALJ should also
obtain comprehensive business records for Cloud Med and Emence for the period of
2014 through 2017. Finally, the ALJ should conduct an analysis under the threepart test that describes in detail each required work factor.
3.
The Record Does Not Provide “Persuasive Proof of
Disability” for the Entire Period of Alleged Disability
Morales requests that this Court remand his case solely for the calculation of
benefits, rather than for further administrative proceedings. A court may remand
solely for the award of benefits when “the records provide[ ] persuasive evidence of
total disability that render[s] any further proceedings pointless.” Williams, 204
F.3d at 50. However, “[w]hen there are gaps in the administrative record or the
ALJ has applied an improper legal standard, [courts] have, on numerous occasions,
remanded to the [Commissioner] for further development of the evidence.” Pratts,
94 F.3d at 39 (quoting Parker, 626 F.2d at 235) (alteration in original). Only where
57
the record is complete and provides “persuasive proof” of disability, can the courts
remand solely for calculation of benefits.
For example, in Balsamo v. Chater, the Second Circuit remanded a case for
the calculation of benefits where the ALJ had rejected treating physicians’ disability
determinations “solely on the basis that the opinions allegedly conflicted with the
physicians’ own clinical findings.” 142 F.3d 75, 80 (2d Cir. 1998). The ALJ did not
identify “any medical opinion to dispute the treating physicians’ conclusions that
[the claimant] could not perform sedentary work.” Id. at 81 (emphasis in original).
The ALJ in that case also attempted to support his conclusion that the claimant
could perform sedentary work by observing that the claimant owned a motor vehicle
and “continues to carry a gun.” Id. The Second Circuit observed that neither fact
established that the claimant “‘engaged in any of these activities for sustained
periods comparable to those required to hold a sedentary job.’” Id. (citing Carroll v.
Sec’y of Health & Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)).
In a more recent case in this District, the court remanded a case solely for the
calculation of benefits where the claimant originally applied for benefits in 1994.
Carlantone v. Colvin, 14-CV-8204 (DF), 2015 WL 9462956, at *1 (S.D.N.Y. Dec. 17,
2015). In that case, multiple ALJs had issued six adverse decisions: three decisions
were remanded by the Appeals Council (one of which because the hearing tape had
been lost), one was remanded by stipulation from the district court, and one was
remanded by a district judge who identified multiple legal errors. Id. at *1–2. The
court found the record to be complete, and “there is certainly no reason to believe
58
that any treater or consultant would now be able to produce additional records that
would augment any clinical assessments that they made at the relevant time.” Id.
at *11. 22 The court also observed the claimant’s treating physician repeatedly found
him to be “totally disabled” and “unable to perform other full-time work”; that the
consultative examiner relied on by the ALJ provided an opinion “so vague as to
render it useless”; and the claimant testified that he rarely left the house and could
hardly get out of bed. Id. at *12–13 (citing Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.
2000)). The court also found the ALJ’s “repeated failure to weigh the medical
opinions properly, even after [having been] explicitly instructed . . . to do so” as a
reason for remanding solely for the calculation of benefits. Id. at *14.
In this case, the Court finds that the administrative record is not fully
developed and it does not demonstrate “persuasive proof of disability.” First, the
ALJ erred in not seeking important treatment records and additional information
for notable gaps in Morales’ treatment. Second, Morales’ treating physicians’
records and his own testimony do not provide “persuasive evidence of total
disability” for the entire period in question in order for this Court to remand solely
for the calculation of benefits.
In Carlantone, the claimant was last insured on December 31, 1998. 2015 WL
9462956, at *2, n.3. Therefore, the court only had to consider whether the claimant
was disabled between the alleged onset date and the date he was last insured — a
period of approximately four years. In this case, Morales’ alleged period of
disability spans almost 17 years. Unlike in Carlantone, Morales’ record is not fully
developed in that lengthy time period and contains contrary evidence of disability.
22
59
a.
The ALJ Erred in Not Fully Developing the Record
In his 2014 decision, ALJ Dorf observed: “Significantly, however, apart from
one visit to Dr. Kaplan in December 2008, there is no evidence in the record of any
medical treatment for more than five years, from October 2008, when Dr. Boppana
pronounced the claimant disabled, until January 17, 2014.” AR at 681. However,
based on the record now available before the Court, Morales did receive medical
treatment from Dr. Bioh (between at least 2011 and 2015), and several diagnostic
exams during that time period. On January 24, 2012, for example, Morales received
a lumbar MRI. Id. at 990. The technician opined: “Since the previous lumbar MRI
dated 4/1/10, the patient has developed a mild left paracentral disc protrusion at
L5-S1 which contacts the descending left S1 nerve root. . . . No additional new
lumbar disc herniations are identified. There is no evidence of lumbar spinal
stenosis.” Id. 23 The 2012 MRI also revealed the existence of another MRI in 2010,
which is not part of the current record. The record does not contain treatment notes
of any doctor between late 2008 and late 2011 that could explain who ordered the
2010 MRI. In the further review of Morales’ claim, the ALJ should consider Dr.
Bioh’s notes and the 2012 MRI in his analysis, obtain the 2010 MRI, and inquire if
Morales saw any other doctors between 2008 and 2011.
Given its location in the record, this exam likely was added to the record along
with Dr. Bioh’s treatment notes from 2011 onward. Based on the 2017 hearing
transcript, Dr. Bioh’s notes and this exam were not added to the record until after
the 2017 hearing. AR at 997.
23
60
In addition, throughout his testimony and in his records with multiple
treating physicians, Morales consistently cited to his physical therapy sessions. Id.
at 427, 629. During his 2009 hearing before ALJ Levin, for example, Morales
testified that he would “get six weeks” of physical therapy every year. Id. at 629.
He also testified that “[he] really liked the one where [Boppana] do their stuff . . .”
Id. In his visits to Dr. Gotlieb, Morales also reported that physical therapy was
helping, and Dr. Gotlieb noted that Morales had very good pain control and physical
therapy. Id. at 595, 604. However, the entire administrative record contains only
one treatment record of Morales’ physical therapy sessions. Id. at 600–01. In this
record, at an initial session on July 5, 2006, the therapist recorded Morales’
complaints and stated: “The patient’s rehabilitation potential is good. Patient
appears motivated. Patient is able to perform exercises correctly. Patient’s
progress toward goals is good. Tolerance to treatment is good.” Id. at 601. In Rosa
v. Callahan, the Second Circuit found that the ALJ committed legal error by failing
to seek additional information from a physical therapist who saw the claimant “on a
regular basis over a significant period of time.” 168 F.3d at 80. Consistent with
Rosa, upon remand, the ALJ should seek out Morales’ physical therapy records. 24
Moreover, no ALJ has yet evaluated Morales’ medical records or RFC after
2014, which includes the treatment notes of Dr. Kohler and the affidavit of Dr.
Palvia from 2016. ALJ Dorf did not consider Morales’ medical condition in his 2017
While more than ten years have passed since many of Morales’ sessions, the one
available record is in electronic format and thus others may still potentially be
available.
24
61
decision. The Second Circuit has remanded cases for further administrative
proceedings where an ALJ ended his analysis without considering the remaining
sequential steps. See, e.g., Brickhouse v. Astrue, 331 F. App’x 875, 878 (2d Cir.
2009) (“[T]he Commissioner has not had the opportunity to try to show that there is
other work that [the claimant] can perform, and we cannot order an award until the
Commissioner has had that chance.”). In further proceedings, the ALJ should
request that Dr. Kohler perform an RFC analysis and obtain treatment notes from
Dr. Palvia (to provide support for his medical statement to the SSA on December 6,
2016). AR at 905.
b.
Morales’ Treating Physicians’ Records and his Own
Testimony Do Not Provide “Persuasive Evidence of
Total Disability”
In Selian, the Second Circuit held that substantial evidence did not support
the ALJ’s RFC determination or the conclusion that the claimant did not suffer
from an impairment. 708 F.3d at 420. However, the court declined to remand the
case solely for the calculation of benefits because the claimant “has not shown that
he is entitled to benefits based on the record.” Id. The court declined to do so
because the treating physicians’ diagnoses appeared “tentative” and a treating
medical professional “suspected [the claimaint] of malingering.” Id; see also
Tomlinson v. Astrue, 11-CV-2477, 2012 WL 346458 (JG), at *2 (E.D.N.Y. Feb. 2,
2012) (finding of disability not “only reasonable outcome” so no remand for
calculation of benefits).
62
Several aspects of the record preclude the Court from finding “persuasive
evidence of total disability.” Williams, 204 F.3d at 50. Unlike in Carlantone and
Balsamo, where the treating physicians’ underlying records consistently referred to
their patients as totally disabled and unable to work, Carlantone, 2015 WL 9462956
at *2–3; Balsamo, 142 F.3d at 77, in Dr. Palmeri’s records, he repeatedly stated that
Morales could work in a limited capacity. AR at 526, 529, 532, 535, 538, 541, 544. 25
In addition, Dr. Gotlieb consistently commented that Morales’ symptoms were
“well-controlled” and that he had “very good pain control.” Id. at 593, 604. Dr.
Gotlieb also reported that Morales told him in his initial visit that he exercised two
to three times a week. Id. at 571. In his 2014 decision, ALJ Dorf provided several
other examples of Morales’ daily activities, which were more substantial than, for
example, the activities of the claimant in Balsamo who rarely left his home. Id. at
684–85; Balsamo, 142 F.3d at 81; see also Micheli v. Astrue, 501 F. App’x 26, 28–29
(2d Cir. 2012) (treating physician’s statements that back pain was well-controlled
and claimant was performing light-to-moderate activity supported ALJ’s finding
that claimant could perform sedentary work).
Dr. Bioh’s medical opinion is also called into question by Dr. Woods’
consultative examination. While “[i]n Balsamo, the ALJ rejected the treating
source’s opinion notwithstanding the lack of a contrary medical opinion,” where a
Dr. Palmeri’s RFC analysis also did not include the total hours that Morales could
sit, stand, or walk. AR at 400. See Smith v. Berryhill, 740 F. App’x 721, 724 (2d
Cir. 2018) (“A treating physician’s opinion may also be rejected if it is internally
inconsistent or otherwise uninformative.”) (citing Halloran, 362 F.3d at 32.)
25
63
contrary opinion exists, the ALJ is “permitted to consider [the treating physician’s]
treatment notes in weighing the opinions of [the treating physician and the
consultative examiner]; and she was permitted to conclude that [the consultative
examiner’s] opinion was more reliable.” Camille v. Colvin, 652 F. App’x 25, 28 (2d
Cir. 2016) (quoting Balsamo, 142 F.3d at 81). While the opinions of Dr. Falvo and
Dr. Plotz, which the Appeals Council found to be deficient, cannot be relied on as
substantial evidence, Dr. Woods’ evaluation has not been “rejected by one or more of
SSA’s decision makers.” Pl. Mem. at 22.
Finally, it remains an open question as to the weight that should be given to
Dr. Hansen, the only physician to conclude that Morales had a Listings-level
impairment since 2002, as the SSA has not yet assessed Dr. Hansen’s testimony.
However, Dr. Hansen’s testimony cannot be considered “persuasive evidence of total
disability,” because he only surveyed other physicians’ records; the transcript makes
clear that he did not have access to at least some of Morales’ treating history; and
he was present at the hearing only by telephone and never personally examined
Morales. See Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Cir. 1987) (testimony of
medical expert who never examined claimant and relied on incomplete medical
records did not constitute substantial evidence).
Given the incompleteness of the record, the Court expresses no opinion on the
ultimate merit of Morales’ claim at this time. But the current record does not allow
the Court to remand solely for the calculation of benefits. It needs to be further
developed to determine if and when Morales was disabled.
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4.
The ALJ Must Resolve Morales’ Claim Within 120 Days
The final matter which the Court must address is the question of delay.
Morales applied for benefits in 2003. More than 15 years have now passed. As
courts have acknowledged, disability determinations are “often painfully slow” and
“a remand for further evidentiary proceedings (and the possibility of further appeal)
could result in substantial, additional delay.” Michaels, 621 F. App’x at 41 (quoting
Butts, 388 F.3d at 387). Understanding the continued hardship faced by the
claimant, courts have seen fit to impose deadlines on the Commissioner to make
final decisions. See, e.g., Michaels, 621 F. App’x at 41 (120 days to finish further
proceedings); Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005) (120 days to finish
further proceedings); Gonzalez-Cruz v. Comm’r of Soc. Sec., 16-CV-6613 (MWP),
2018 WL 3151656, at *3 (W.D.N.Y. June 27, 2018) (120 days to finish further
proceedings); Cruz v. Colvin, 15-CV-1463 (AJP), 2015 WL 5813158, at *1 (S.D.N.Y.
Oct. 6, 2015) (120 days to finish further proceedings); Turkus v. Astrue, 11-CV-3887
(FB), 2012 WL 3877617, at *5 (E.D.N.Y. Sept. 7, 2012) (60 days to finish further
proceedings); Tomlinson v. Astrue, 2012 WL 346458, at *2 (90 days to render final
decision).
Mindful of Morales’ understandable frustration with the protracted
administrative process, this Court will also impose a deadline such that the ALJ
must complete all further administrative proceedings within 120 days of the date of
this Opinion and Order. This deadline is additionally necessary in light of the
“egregious” delay that Morales has experienced. Hilsdorf v. Comm’r of Soc. Sec.,
65
724 F. Supp. 2d 330, 355 (E.D.N.Y. 2010). Unlike in 2014, in a new decision in
2019, Morales will have changed age categories since he first applied in 2002. 20
C.F.R. § 404.1563; AR at 688 (“The claimant’s age category has not changed since
October 7, 2002.”). In the aforementioned cases where courts have imposed
deadlines after acknowledging long delays, the claimants had applied for benefits
five to eight years prior to the courts’ decision. See Michaels, 621 F. App’x at 41 (8
years); Cruz, 2015 WL 5813158, at *4 (6 years); Tomlinson, 2012 WL 346458, at *2
(5 years); Turkus, 2012 WL 3877617, at *5 (6 years). Morales’ wait of 15 years
makes the imposition of a deadline all the more imperative.
Finally, if upon remand the ALJ denies Morales’ claim, the Commissioner
must issue a final decision within 60 days of any appeal from that denial. If the
Commissioner does not adhere to the deadlines set forth herein, and any delay is
not attributable to Morales, a calculation of benefits owed to Morales must be made
immediately. See Gonzalez-Cruz, 2018 WL 3151656, at *3 (imposing same
deadlines and conditions); Turkus, 2012 WL 3877617, at *3 (same).
III.
CONCLUSION
For the foregoing reasons, Morales’ motion for judgment on the pleadings is
granted in part, the Commissioner’s cross-motion is granted in part, and the case is
remanded pursuant to sentence four of 42 U.S.C. § 405(g).
On remand, the ALJ is instructed to take the following actions:
(1)
Fully develop the record regarding Morales’ post-2014 work activity.
66
(2)
Fully develop the record for the period between 2008 and 2014, including
obtaining the 2010 MRI and medical records from any treating physicians.
(3)
Assess the weight that should be given to Dr. Bioh’s opinion in light of his
treatment notes now available in the record.
(4)
To the extent possible, obtain physical therapy records since October 7, 2002.
(5)
Obtain all treatment notes from Dr. Palvia, and obtain an RFC opinion from
Dr. Kohler; assess the weight that should be given to their opinions.
(6)
Hold a new hearing at which the ALJ shall call a vocational expert to testify;
obtain a new consultative examination from a physician who will have access
to the full record and who will physically examine Morales; reassess Morales’
credibility; and complete the necessary five-step analysis to determine Morales’
eligibility for benefits.
(7)
Render a decision within 120 days of the date of this Opinion and Order.
The Clerk is respectfully directed to close Docket Number 17, and enter
judgment granting Morales’ motion in part and the Commissioner’s cross-motion in
part, and to reverse the determination of the Commissioner and remand this case
for further administrative proceedings.
SO ORDERED.
Dated: December 6, 2018
New York, New York
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