Tomasello v. Astrue
DECISION AND ORDER denying defendant's and plaintiff's motions for judgment on the pleadings and remanding to the Commissioner for administrative proceedings consistent with this decision. Signed by Hon. Michael A. Telesca on 6/23/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Plaintiff Selena Tomasello (“Plaintiff”) brings this action
pursuant to the Social Security Act (codified in relevant parts at
42 U.S.C. §§ 405(g) and 1383(c)(3)), seeking review of a final
decision of the Commissioner of Social Security (“Commissioner”),
her application for disability insurance benefits and
supplemental security income. Specifically, Plaintiff alleges that
the decision of Administrative Law Judge (“ALJ”) J. Timothy McGuan
denying her application for benefits was against the weight of
substantial evidence contained in the record. Plaintiff requests
that the Court reverse the judgment of the Commissioner and remand
for calculation of benefits, or in the alternative, for further
The Commissioner moves for judgment on the pleadings on the
evidence in the record and was based upon the application of the
– 1 –
correct legal standards. Plaintiff cross-moves for judgment on the
pleadings and opposes the Commissioner’s motion on the grounds that
Commissioner’s decision was not supported by substantial evidence in
the record. I hereby grant Plaintiff’s motion and remand this claim
to the Social Security Administration for further administrative
proceedings consistent with this decision.
On March 14, 2005, Plaintiff filed applications for disability
insurance benefits, and supplemental security income. (Tr. 60). She
alleged she was disabled due to Rheumatoid Arthritis which began
June 15, 2004. (Tr. 60-65). These claims were initially denied on
April 1, 2005. (Tr. 24-30). Thereafter, the Plaintiff timely filed
a written request for a hearing on June 27, 2005. (Tr. 33). On
November 7, 2006, the Plaintiff and her attorney appeared at a
hearing held in Buffalo, NY. (Tr. 279-310). Dr. Timothy Janikowski,
a vocational expert (“VE”) was also present. Id. In a decision dated
November 20, 2006, ALJ J. Timothy McGuan found that the Plaintiff
was not disabled within the meaning of the Social Security Act. (Tr.
11-23). The Appeals Council denied review on May 28, 2009, rendering
the ALJ’s decision the final decision of the Commissioner. (Tr. 58). The Plaintiff subsequently filed this action on November 19,
– 2 –
I. Jurisdiction and Scope of Review
Title 42, Section 405(g) of the United States Code grants
jurisdiction to Federal District Courts to hear claims based on the
denial of Social Security benefits.
U.S. 319, 320 (1976).
See Mathews v. Eldridge, 424
In addition, Section 405(g) directs that the
District Court accept the Commissioner’s findings of fact if those
findings are supported by substantial evidence in the record.
Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); see also Williams
v. Comm'r of Soc. Sec., 2007 U.S. App. LEXIS 9396, at *3 (2d Cir.
2007). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”
See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The Court must “scrutinize the record in its entirety to determine
the reasonableness of the decision reached.” Lynn v. Schweiker, 565
F. Supp. 265, 267 (S.D. Tex. 1983) (citation omitted). Section
405(g) thus limits this Court’s scope of review to two inquiries:
substantial evidence in the record as a whole, and (ii) whether the
See Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d
Cir. 2003); see also Wagner v. Secretary of Health & Human Serv.,
906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the
– 3 –
findings are conclusive if supported by substantial evidence).
Both Plaintiff and Defendant move for judgment on the pleadings
pursuant to 42 U.S.C. 405(g) and Rule 12(c) of the Federal Rules of
Section 405(g) provides that the District Court
“shall have power to 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
the cause for a rehearing.”
42 U.S.C.S. § 405(g) (2007).
Rule 12(c), judgment on the pleadings may be granted where the
material facts are undisputed and where judgment on the merits is
possible merely by considering the contents of the pleadings.
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.
1988). “[W]here the administrative record contains gaps, remand to
appropriate.” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2005).
II. The ALJ’s decision is erroneous because the ALJ did not follow
the treating physician rule
Standard for evaluating a Claimant’s disability claim
In finding that the Plaintiff was not disabled within the meaning
of the Social Security Act, the ALJ adhered to the Social Security
applications and determining whether an individual is disabled. See
20 C.F.R. § 404.1520 and 416.920(a)(4)(i)-(v)(2009).
– 4 –
Pursuant to the
consider: (1) whether the claimant is currently engaged in substantial
gainful activity; (2) whether the claimant has any severe impairment
or combination of impairments which significantly limit his physical
or mental ability to do basic work activities; (3) whether the
claimant has any impairment or impairments listed in Appendix 1 of the
Social Security Regulations; (4) whether or not the claimant maintains
the residual functional capacity to perform his past work; and
(5) whether the claimant can perform other work. See id. Under step
one, the ALJ found that the Plaintiff had not engaged in substantial
(Tr. 16). At steps two and three, the ALJ found that the Plaintiff’s
impairments, rheumatoid arthritis and osteoarthritis in her right
knee, were severe within the meaning of the Regulations but were not
severe enough to meet or equal, either singly or in combination, any
of the impairments listed in Appendix 1, Subpart P of Regulations
No. 4. (Tr. 16-17). At step four, the ALJ determined that the
Plaintiff had the residual functional capacity to perform light work.
The ALJ also determined that Plaintiff must have a
sit/stand option and therefore could not perform her past relevant
work as a cafeteria worker.
At step five of the analysis,
the ALJ used the Medical-Vocational Rules found in 20 C.F.R. Part 404,
Subpart P, Appendix 2 (“the Rules”) to direct a finding of not
disabled. (Tr. 27). Specifically, the ALJ stated that “considering the
claimant’s age, education, work experience, and residual functional
– 5 –
capacity, the claimant has been capable of making a successful
adjustment to other work that exists in significant numbers in the
national economy.” (Tr. 28).
The ALJ failed to properly apply the treating physician rule
Plaintiff contends that the ALJ’s decision failed to provide
good reason for discounting the weight afforded to her two treating
A treating physician’s opinion is given controlling
weight where it is well-supported by the medical evidence and is not
20 C.F.R. §§ 416.927 (d)(2), 416.1527 (d)(2). The opinion of a
treating physician is generally given greater weight than that of a
consulting physician, because the treating physician has observed
the patient over a longer period of time and is able to give a more
weight, the ALJ must consider (1) whether there is a treatment
relationship between the physician and the claimant; (2) the length
and nature of the treatment relationship; (3) the consistency of the
consistency of the opinion with the record as a whole; (5) the
specialization of the treating physician; and (6) other evidence
that supports or contradicts the treating physician’s opinion.
20 C.F.R. §§ 416.927(d)(3)-(6), 416.1527 (d) (3)-(6).
factors establish that the treating physician’s opinion is entitled
– 6 –
to controlling weight, the ALJ must adopt the opinion of the
treating physician regardless of the findings he or she could have
made in the absence of the treating physician’s opinion. S.S.R. 96-p
While the ultimate decision of disability is reserved to
the ALJ should give controlling weight to the
treating physician’s opinion where it is supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
20 C.F.R. § 404.1527 (d)(2); See Snell v. Apfel, 177 F.3d 128, 134
established that the treating physician’s opinion should be given
controlling weight, it is still entitled to deference, and should
not be disregarded. S.S.R. 96-2p (1996).
The above-listed factors should also be used to determine the
weight given to a consultative physician’s opinion.
relationship to the claimant is more favorable in terms of the
length, nature and extent of the relationship, then the treating
physician’s opinion will be given more weight than that of the
consultative examining physician. See generally 20 C.F.R. §404.1527
The “ALJ cannot arbitrarily substitute his or her own
judgment for competent medical opinion.” Rosa v. Callahan, 168 F.3d
72, 78-79 (2d Cir. 1999).
In addition, the failure of the ALJ to
provide good reasons for discrediting the treating physician’s
– 7 –
opinion constitutes legal error. Schaal v. Apfel, 134 F.3d 496, 505
(2d Cir. 1993); See also, 20 C.F.R. § 404.1527(d)(2).
“treating physician’s opinion [is] binding unless contradicted by
substantial evidence, and even if contradicted, [is] entitled to
extra weight.” Schisler v. Sullivan, 3 F.3d 563, 565 (2d Cir. 1993);
see also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998).
Plaintiff received treatment from Dr. Jihad Abialmouna, a
Plaintiff and found some pain with motion over Plaintiff’s elbows
He also noted right knee swelling and
effusion and recommended X-rays of Plaintiff’s hands and knees. Id.
appointment with Dr. Abialmouna.
Dr. Abialmouna again
noted effusion of the right knee, performed arthrocentesis and
thereafter injected the knee with anti-inflammatories.
On February 8, 2005 Plaintiff returned and Dr. Abialmouna found
that Plaintiff exhibited “fairly good range of motion” in her upper
extremities with tenderness over her joints and pain with palpation.
Dr. Abialmouna noted a large effusion on Plaintiff’s
right knee area as well as pain with motion, and again performed
arthrocentesis on the right knee.
On February 7, 2006,
Dr. Abialmouna found that Plaintiff had “fair range of motion” in
her lower extremities and noted a small effusion in Plaintiff’s
right knee with some pain associated with flexion and extension.
– 8 –
Id. Dr. Abialmouna recommended that Plaintiff continue taking her
prescribed medications, continue to exercise on a regular basis and
have another set of x-rays taken of her knees Id.
On October 31, 2006, Dr. Abialmouna signed a letter stating
laboratory testing. (Tr. 272). The letter stated that “[Plaintiff]
is unable to perform any work requiring her to be on her feet for
two hours out of an eight hour day, is unable to sit for more than
a half-hour, and could not perform work requiring her to sit for six
Additionally the letter stated that Plaintiff “is
unable to walk a block at a reasonable pace on rough or uneven
Her ability to perform routine ambulatory activities is
affected as a result.”
A near-identical letter was issued by
Dr. Pusatier, Plaintiff’s general practitioner, the following day.1
The Plaintiff also received a consultative internal medical
examination from Dr. John Schwab.
Dr. Schwab observed
a full range of motion in all of Plaintiff’s examined joints and
full strength (5/5) in Plaintiff’s upper and lower extremities (Tr.
redness, heat, swelling or effusion was noted.
Id. Dr. Schwab also
notes that Plaintiff’s hand and finger dexterity were intact and she
It is unclear which of Plaintiff’s treating physicians, Dr. Pusatier or Dr. Abialmouna, drafted
the letter. However, as both physician’s signed the letter, it appears that they had a similar
assessment of the Plaintiff. See (Tr. 271-272).
– 9 –
possessed full grip strength (5/5), bilaterally.
also ordered x-rays of Plaintiff’s right knee and foot, which
revealed evidence of moderate osteoarthritis in the medial side of
Plaintiff’s right knee joint and a “normal right foot” (Tr. 21).
headaches and being status post uterine cancer.
prognosis was “fair” and he found “no restrictions” based on his
On June 16, 2006, Charles J. Stock2 performed a state agency
review of Plaintiff’s medical records and prepared a physical
residual functional capacity (“RFC”) assessment which is composed of
check boxes and sections for explaining supportive evidence. (Tr.
Mr. Stock opined that Plaintiff could “occasionally lift
and/or carry fifty pounds” and could “frequently lift and/or carry
He also opined that Plaintiff could stand
or walk, “with normal breaks for a total of about 6 hours in a
8 hour workday”, “sit, with normal breaks for a total of about 6
hours in an 8 hour workday,” and had an unlimited ability to push
Mr. Stock found that Plaintiff had no other
limitations and concluded that Plaintiff’s claim of suffering pain
of a severity of 10/10 “is not supported by the objective findings”
The record does not state what medical qualifications, if any, Mr. Stock has (Tr. 216).
– 10 –
In his decision, the ALJ stated that he “discount[ed]” the
opinions of the Plaintiff’s treating physicians because
“First, [the opinion] is not supported by the objective
evidence that [Dr. Abialmouna] refers to, particularly the
inability to sit for six hours in an eight-hour day.
Second, [Plaintiff] complained of hand problems, but
always referred to problems with standing, walking,
climbing stairs and kneeling. Third, [Plaintiff] never
mentioned problems with sitting and it would not be
reasonable that she could not sit since being off of the
knee should alleviate most pain or discomfort. Finally,
in June 2005, [Plaintiff] told Dr. Pusatier that she could
not work because she could not stand and was ‘looking for
a job where she can sit most of the time’ thus
contradicting Dr. Abialmouna’s statement that she was
unable sit for six hours per day since June 2004.” (Tr.
Dr. Abialmouna and Dr. Pusatier stated that their opinions were
consistent with objective medical findings.
In this case, the ALJ McGuan did not reference the findings of
the consultative examiner, Dr. Schwab, or those of Mr. Stock, when
discounting the opinions of the Plaintiff’s two treating physicians.
Additionally, the ALJ does not note the weight he affords
to the consultative examiner’s opinions.
However, the ALJ did not directly address the
opinions of Plaintiff’s treating physicians that she could not
(Tr. 21, 271-272).
Instead the ALJ focused
exclusively on Plaintiff’s ability to sit for extended periods of
– 11 –
time and use her hands as an explanation of why he declined to
afford controlling weight to the entire opinions of Dr. Pusatier and
Inconsistencies in the notes regarding Plaintiff’s
ability to sit or use her hands does not relate to Plaintiff’s
inability to ambulate.
The ALJ was required to explain to Plaintiff
See Schaal, 134 F.3d 496, 505 (2d Cir. 1993).
Plaintiff argues that if her treating physicians’ opinions on
her inability to ambulate effectively were given controlling weight,
the severity of her arthritis would meet or medically equal Listing
Section 14.09 “Inflammatory arthritis.”
(Plaintiff’s Memorandum of
“Pl. Mem.” 10), See, 20 C.F.R part 404, subpart P, Appendix 1,
In discounting the weight afforded to these opinions regarding
reasons, the ALJ violated his duty to provide “good reasons” to
Plaintiff for his unfavorable decision and therefore failed to
comport with the requirements of the treating physician rule.
is not to say that the ALJ was not ultimately entitled to disagree
with the opinions of Dr. Abialmouna and Dr. Pusatier, but rather
that the ALJ failed to provide Plaintiff with clear, enumerated and
For “Inflammatory Arthritis” to reach listings-level severity, it must consist of “persistent
inflammation or deformity in one major peripheral weight-bearing joint resulting in inability to
ambulate effectively” 20 C.F.R. 404(P), Appendix 1, Part 114.09(a). “Examples of ineffective
ambulation include, but are not limited to ... the inability to walk a block at a reasonable pace on
rough or uneven surfaces.” 20 C.F.R. 404(P), Appendix 1, Part 1.00(B)(2)(b).
– 12 –
sufficient reasons for doing so.
Further, if the ALJ believed the
record was incomplete, based on the opinions of the plaintiff’s
treating physicians, it was his duty to fully develop the record.
Becker v. Astrue, 2009 U.S. Dist. LEXIS 82694 at *12 (citing 20
C.F.R. § 404.1512(e)(1)).
Accordingly, because this court finds that the ALJ failed to
properly apply the treating physician rule, this court remands this
case to the Commissioner for further administrative proceedings.
For the reasons set forth above, this Court finds that the
Commissioner’s decision denying the Plaintiff disability benefits
Plaintiff’s two treating physicians, regarding Plaintiff’s inability
to ambulate, was not supported by good reasons.
Defendant’s and Plaintiff’s motions for judgment on the pleadings
are denied and this claim is remanded to the Commissioner for
administrative proceedings consistent with the decision.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
June 23, 2011
– 13 –
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?