Nugent v. Colvin

Filing 14

DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/14/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN L. NUGENT, JR.,
Plaintiff,
-vs-

No. 1:15-CV-00111 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

John

L.

Nugent,

Jr.(“plaintiff”) brings this action pursuant to the Social Security
Act (the “Act”), seeking review of the final decision of defendant
the Acting Commissioner of Social Security1 (the “Commissioner” or
“defendant”)

denying

his

application

for

disability

insurance

benefits (“DIB”). The Court has jurisdiction over this matter
pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ cross-motions for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
discussed below, plaintiff’s motion is granted to the extent that
this

case

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

Procedural History
Plaintiff

protectively

filed

an

application

for

DIB

on

August 5, 2011, which was denied. Administrative Transcript (“T.”)
72-75,

123-26.

At plaintiff’s request, a hearing was held before

administrative law judge (“ALJ”) David S. Lewandowski on May 15,
2013.

T. 33-70.

On May 31, 2013, ALJ Lewandowski issued a

decision in which he found that plaintiff was not disabled as
defined in the act.

T. 15-27.

On December 11, 2014, the Appeals

Council denied plaintiff’s request for review, rendering the ALJ’s
determination the Commissioner’s final decision.

T. 1-3

This

action followed.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity from March 26,
2008, the alleged onset date, through December 31, 2009, the date
he last met the insured status requirements of the Act.

T. 20.

At

step two, the ALJ found that plaintiff suffered from the severe
impairments

of

left

knee

degenerative

disease

(status

post-

arthroscopy) and cervical pain (status post fusion of C3-4 and C56).

Id.

At step three, the ALJ found that, through the date last

insured, plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of any
listed impairment.

Id.
2

Before proceeding to step four, the ALJ determined that,
through the date last insured, plaintiff retained the RFC to
perform light work as defined in 20 CFR 404.1567(b) except that he
could only occasionally climb stairs, rotate his neck from side to
side, or perform overhead activities, could not kneel, crouch,
crawl, or climb ladders, ropes, or scaffolds, and could sit for
four hours and stand/walk for four hours in an eight-hour workday.
T. 21.
At step four, the ALJ found that plaintiff was unable to
perform any past relevant work.
concluded

that,

considering

T. 26.

plaintiff’s

At step five, the ALJ
age,

education,

work

experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff could perform.
Accordingly, the ALJ found plaintiff not disabled.
IV.

Id.

T. 27.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).

3

I.

The ALJ’s RFC Determination was not Based on Substantial
Evidence

Plaintiff argues that remand of this matter is required
because the ALJ’s RFC determination was not based on substantial
evidence.

Specifically, plaintiff notes that the ALJ rejected the

only medical source opinion that assessed plaintiff’s functional
capacity, thereby creating an evidentiary void that the ALJ failed
to fill.

The Court agrees.

“It is well settled that the ALJ has an affirmative duty to
develop the record in a disability benefits case, and that remand
is appropriate where this duty is not . . . .
duty is

the

requirement that

an

ALJ

Encompassed in this

assemble

the

claimant’s

complete medical history and re-contact treating physicians or
obtain consultative examinations where the information received is
inadequate to determine whether the claimant is disabled.”

Weed

Covey v. Colvin, 96 F. Supp. 3d 14, 29 (W.D.N.Y. 2015) (internal
quotations omitted).

“[T]he ALJ cannot arbitrarily substitute his

own judgment for competent medical opinion. . . .

[W]hile an [ALJ]

is free to resolve issues of credibility as to lay testimony or to
choose between properly submitted medical opinions, he is not free
to set his own expertise against that of a physician who [submitted
an opinion to or] testified before him.” Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998) (internal quotations omitted); see also
Filocomo v. Chater, 944 F. Supp. 165, 170 (E.D.N.Y. 1996) (“In the

4

absence of supporting expert medical opinion, the ALJ should not
have engaged in his own evaluations of the medical findings.”).
In this case, the only physician who offered a medical opinion
regarding plaintiff’s functional capacity was Dr. John Ring, Jr.,
an orthopedic surgeon who examined plaintiff on June 4, 2008, and
opined that he was capable of performing only sedentary work with
a restriction to lifting less than 20 pounds.

T. 216-17.

The ALJ

gave Dr. Ring’s opinion “little weight” because it was rendered
prior to plaintiff’s arthroscopy.

T. 25.

Plaintiff initially argues that the ALJ erred in affording
little weight to Dr. Ring’s opinion.

The Court disagrees.

It is

well-established that “medical source opinions that are . . .
stale, and based on an incomplete medical record may not be
substantial evidence to support an ALJ finding.”•Camille v. Colvin,
104 F. Supp. 3d 329, 343-44 (W.D.N.Y. 2015), aff’d, 652 F. App’x 25
(2d Cir. 2016) (quotation marks and citation omitted); see also
Jones v. Comm’r of Soc. Sec., 2012 WL 3637450, at *2 (E.D.N.Y.
Aug. 22, 2012) (ALJ should not have relied on a medical opinion in
part because it was 1.5 years stale as of the plaintiff’s hearing
date and did not account for her deteriorating condition); Girolamo
v. Colvin, 2014 WL 2207993, at *7-8 (W.D.N.Y. May 28, 2014) (ALJ
should not have afforded great weight to medical opinions rendered
before plaintiff’s second surgery).

5

The ALJ was entitled to give

little

weight

to

Dr.

Ring’s

opinion,

which

was

based

on

an

incomplete medical record.
However, the Court agrees with plaintiff that, having rejected
Dr. Ring’s opinion, the ALJ was left with an evidentiary void
regarding plaintiff’s functional capacity. The ALJ was required to
attempt to fill that evidentiary void, but apparently made no
effort to do so.

Remand is therefore required.

The Commissioner argues that no further development of the
record was required because treating physician Dr. James A. Smith
sent a letter to the Workers’ Compensation Board on November 24,
2008 in which he stated, “I think [plaintiff] could resume his
duties

in

two

weeks’

time.”

T.

231.

Contrary

to

the

Commissioner’s argument, this statement by Dr. Smith does not
establish that plaintiff was capable of returning to work at that
time.

The language used by Dr. Smith (“I think”) makes it clear

that he is offering his best guess as to plaintiff’s future
functioning,

not

making

a

definitive

assessment

thereof.

Importantly, plaintiff’s medical records after November 24, 2008 do
not support the conclusion that he in fact was capable of returning
to regular duty at that time.

For example, physical therapy notes

from June 2011 specifically state that plaintiff failed to improve
following his arthroscopic meniscectomy.

T. 220.

Although these

records are from the period after plaintiff’s last-insured date,
“[e]vidence bearing upon an applicant’s condition subsequent to the
date upon which the earning requirement [i.e., insured status] was
last met is pertinent evidence in that it may disclose the severity

6

and

continuity

of

impairments

existing

before

the

earning

requirement date or may identify additional impairments which could
reasonably be presumed to have been present and to have imposed
limitations as of the earning requirement date.”

Lisa v. Sec’y of

Dep’t of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)
(internal quotation omitted).
The

Court

is

also

not

persuaded

by

the

argument

that

plaintiff’s own testimony established that he was not disabled
prior to his last insured date. Plaintiff testified before the ALJ
that he wanted to return to work and that, in 2009, he thought he
could work at “75 percent” and perform “light duty.”

T. 43-44.

These statements do not constitute substantial evidence regarding
plaintiff’s functional capacity.

There is no basis for concluding

that the term “light duty” as used by plaintiff is the equivalent
of light work as defined in the Commissioner’s regulations plaintiff is not an attorney who is versed in the language of the
regulations, and it is equally (if not more so) likely that his
conception of “light duty” would fall within the definition of
sedentary work.

Moreover, plaintiff’s statements were vague and

tentative - when the ALJ specifically asked him if he thought he
could have worked light duty full-time in 2009, plaintiff stated
that he “would have dared [sic] [his] best.”

T. 44.

Plaintiff’s

commendable desire to return to work and his statement that would
have tried his best to perform light duty in 2009 had it been
offered to him simply do not constitute substantial evidence that
he was capable of performing light work at that time.

7

The

Court further notes that, although plaintiff’s last-

insured date is remote in time, the ALJ still could have sought a
retrospective opinion from plaintiff’s treating physician (or a
consulting physician) in order to fill the evidentiary gap.

See,

e.g., Campbell v. Astrue, 596 F. Supp. 2d 446, 452 (D.Conn. 2009)(a
“retrospective medical diagnosis by a subsequent treating physician
is entitled to controlling weight when no medical opinion in
evidence contradicts a doctor's retrospective diagnosis finding a
disability”) (internal quotation omitted).

Indeed, as plaintiff

notes in his motion papers, numerous treating physicians who
examined plaintiff both before and after his last-insured date
opined that he was disabled in the workers’ compensation context.
While the ALJ was correct to note that different standards apply to
Social Security disability determinations (see T. 25), he could and
should

have

re-contacted

these

physicians

for

additional

clarification of their opinions.
In sum, the Court finds that while the ALJ was entitled to
afford little weight to Dr. Ring’s opinion, doing so left an
evidentiary gap that the ALJ was affirmatively required to make an
effort to fill.

The ALJ’s failure to do so was not harmless, and

so remand is required.
II.

Assessment of Plaintiff’s Credibility

Plaintiff has also argued that the ALJ improperly assessed his
credibility.

Because the Court has already determined that remand

is required in this case, it need not and does not reach this
argument.

On

remand,

the

ALJ

8

should

consider

plaintiff’s

credibility in light of the record as a whole, including any newly
obtained information.
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings motion (Docket No. 8) is granted to the extent that
this

matter

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order.
The Commissioner’s motion for judgment on the pleadings (Docket
No. 11) is denied.

The Clerk of the Court is directed to close

this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 14, 2017
Rochester, New York.

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