Graham v. Colvin
Filing
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DECISION AND ORDER GRANTING Plaintiff's 11 Motion for Judgment on the Pleadings; DENYING Defendant's 10 Motion for Judgment on the Pleadings; REMANDING this case for proceedings consistent with this Decision and Order; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 7/20/2014. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER GRAHAM,
Plaintiff,
v.
DECISION AND ORDER
13-CV-728S
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Christopher Graham challenges the decision of an Administrative Law
Judge (“ALJ”) that he is not disabled within the meaning of the Social Security Act (“the
Act”).
2.
Alleging disability due to issues related to his cervical and lumbar spine, a
torn meniscus in his right knee, and the loss of his left eye, Graham applied for Social
Security benefits on October 16, 2010. The Commissioner of Social Security
(“Commissioner”) denied that application, and as result, Graham requested an
administrative hearing. He received that hearing before ALJ David Lewandowski. The
ALJ considered the case de novo, and on February 22, 2012, issued a decision denying
Graham’s application. Graham filed a request for review with the Appeals Council, but
the Council denied that request, prompting him to file the current civil action, challenging
Defendant’s final decision. 1
3.
On February 28, 2014, Graham and the Commissioner both filed motions
for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.
1
The ALJ’s decision became the Commissioner’s final decision when the Appeals Council denied
Plaintiff’s request for review.
1
For the following reasons, Graham’s motion is granted and the Commissioner’s is
denied.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).
Rather, the
Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla”; it has been defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842
(1971). Where evidence is deemed susceptible to more than one rational interpretation,
the Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).
5.
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner's finding must be sustained “even where substantial evidence may
support the plaintiff's position and despite that the court's independent analysis of the
evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's
determination considerable deference and may not substitute “its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a
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de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled as defined under the Act. See
20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287,
2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing
whether a claimant is disabled.
7.
This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe impairment" which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a "listed" impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520. The claimant has the
burden of proof as to the first four steps, but the Commissioner has the burden of proof
on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728
F.2d 582, 584 (2d Cir. 1984).
8.
In this case, the ALJ made the following findings: (1) Graham has not
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engaged in substantial gainful activity since his application date (R. 18) 2; (2) Graham
suffers from a series of severe impairments, including, “a C3-4 through C6-7 disc/spur
complex with cervical stenosis, right C5 radiculopathy, and degenerative joint disease;
right knee meniscus tear; left eye enucleation, right elbow epicondylitis; and mild left
carpal tunnel syndrome (R. 19); (3) he does not have an impairment or combination of
impairments that meets or medically equals the criteria necessary for finding a disabling
impairment under the regulations (id.); (4) he retains the residual functional capacity
(“RFC”) to perform light work with several exertional limitations, including limitations in
working at heights, around heavy machinery, climbing, neck rotation, field of vision on
his left side, depth perception, and reaching. (id.); and, pointing to the testimony of a
vocational expert, (5) there are jobs that exist in significant numbers in the national
economy that he can perform. (R. 24–25.) Ultimately, the ALJ concluded that Graham
was not under a disability, as defined by the Act, from his application date through the
date of the decision. (R. 25.)
9.
Graham argues, among other things that the ALJ neglected his duty to
develop the record by failing to obtain RFCs from his treating physicians. Although there
is no dispute that there is no medical-source statement or RFC from a treating source in
the record, the Commissioner contends that one is not needed.
10.
It is a familiar and oft-cited tenet of Social Security law that an ALJ must
affirmatively “develop the record in light of the essentially non-adversarial nature of a
benefits proceeding.” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999) (quoting Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir.1996)). Although the regulations provide that “the lack of
2
Citations to the underlying administrative record are designated “R.”
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the medical source statement will not make the report incomplete,” 20 C.F.R. §
404.1513(b)(6), they also provide that the Commissioner will first request such a
statement. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996) (“[B]efore we make a
determination that you are not disabled, we will develop your complete medical history .
. . [and] will make every reasonable effort to help you get medical reports from your own
medical sources when you give us permission to request the reports.” (quoting 20
C.F.R. § 404.1512(d)); see also Robins v. Astrue, No. CV–10–3281 (FB), 2011 WL
2446371, at *3 (E.D.N.Y. June 15, 2011) (“Although the regulation provides that the lack
of such a statement will not render a report incomplete, it nevertheless promises that
the Commissioner will request one.”). There is good reason to impose such a
requirement. Simply put, these medical-source opinions are meaningful:
What is valuable about the perspective of the treating
physician – what distinguishes him from the examining
physician and from the ALJ – is his opportunity to develop an
informed opinion as to the physical status of a patient. To
obtain from a treating physician nothing more than charts
and laboratory test results is to undermine the distinctive
quality of the treating physician . . . .
Peed v. Sullivan, 778 F. Supp 1241, 1246 (E.D.N.Y. 1991).
11.
In its brief to this Court, the Commissioner argues that the ALJ fulfilled his
duty – that he solicited both records and RFCs from each of the treating sources
Graham had identified. Its citation to the record in support of this argument, however,
reveals no conclusive sign that RFCs were requested.
12.
The Commissioner points to Graham’s disability worksheet, found at
pages 332 to 337 of the Administrative Record. This worksheet is an internal document
used to record actions taken by the district office. Presumably because it is meant for
internal use, it is replete with abbreviations, codes, and other cryptic information
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indiscernible to anyone unfamiliar with this specific bureaucratic syntax. Without
attempting to explain any of the information found on the worksheet, the Commissioner
argues that this document proves that it solicited both records and RFCs from each of
the treating sources Graham had identified. Specifically, it contends, “[i]n every instance
where the agency noted that it had sent a form “3883,” the agency had requested from
the physicians their medical opinion, not just their records.” (Def.’s Br. at 5; Docket No.
14.) But the worksheet contains no references to any “3883” form, and there is no such
form in the remainder of record. There is simply no sign whatsoever in this document, at
least to someone unversed in the shorthand vernacular of the Social Security
Administration, that any opinion evidence was requested. Because this worksheet does
not even mention a “form 3883,” and because the Commissioner fails to explain
whatever significance the disability worksheet may have, this Court cannot determine
whether any RFCs or other opinion evidence was ever requested. The ALJ’s opinion
does not clear up the matter: he does not say whether any requests were made.
13.
As in Johnson v. Astrue, the record does contain voluminous medical
records from a wide span of time. 811 F. Supp. 2d 618, 629 (E.D.N.Y. 2011). It also
contains reports from a consultative examiner and a disability-review physician, as well
as Graham’s testimony and that of the vocational expert. But, also like Johnson, “there
is no reference in the decision or the record as a whole that the ALJ
requested RFC assessments from plaintiff's treating sources.” Id.
14.
Although the Commissioner argues that the record is sufficiently complete
and developed, thus establishing a foundation on which the ALJ could render a full and
fair decision, the Commissioner's regulations foreclose this argument.
See Robins,
2011 WL 2446371 at *3 (“The Commissioner contends that the medical records
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obtained were sufficient to make a disability determination” but “the Commissioner's
own regulations refute his arguments”). As explained in detail by the Johnson court:
First, § 404.1512(d) provides “[w]e will make every
reasonable effort to help you get medical reports from your
own medical sources when you give us permission to
request the reports.” Second, § 404.1513(b)(6) states that a
treating source's medical report should include “[a] statement
about what [the claimant] can still do despite [his or her]
impairment(s).” Finally, “Social Security Ruling 96–5p
confirms that the Commissioner interprets those regulations
to mean that “[a]djudicators are generally required to request
that acceptable medical sources provide these statements
with their medical reports.” In other words, the
Commissioner has an affirmative duty to request RFC
assessments from plaintiff's treating sources despite
what is otherwise a complete medical history.
811 F. Supp. 2d at 630 (internal citations and quotation marks omitted).
15.
Remand is therefore necessary because, despite an otherwise complete
record, there is no clear indication that the ALJ fulfilled his duty to request critical
opinion evidence from Graham’s treating sources. See, e.g., id.; Clark v. Astrue, 08 Civ.
10389(LBS), 2010 WL 3036489, *6 n. 5 (S.D.N.Y. August 4, 2010) (remand required
where, inter alia, “the administrative transcript d[id] not contain any statements from any
of plaintiff's treating sources regarding how plaintiff's impairments affect her ability to
perform work-related activities.”).
16.
On remand, the ALJ must request opinion evidence from Graham’s
treating physicians. Then, the ALJ must reassess Graham’s RFC, taking into account
any RFC assessments or “medical source statements” provided in response to his
request. Alternatively, the Commissioner can confirm in verifiable fashion that “every
reasonable effort” to obtain medical reports has already been made. See 20 C.F.R. §
404.1512(d).
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IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 11) is GRANTED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
10) is DENIED.
FURTHER, that this case is REMANDED for proceedings consistent with this
Decision and Order.
FURTHER, that the Clerk of Court shall close this case.
SO ORDERED.
Dated: July 20, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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