Drozdowski v. Colvin
Filing
9
-CLERK TO FOLLOW UP-DECISION AND ORDER granting in part and denying in part 5 Motion for Judgment on the Pleadings and denying 6 Motion for Judgment as a Matter of Law. The case is remanded to the Commissioner for further administrative proceedings. Signed by Hon. Michael J. Roemer on 9/26/2016. (RAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
KENNETH A. DROZDOWSKI,
Plaintiff,
15-CV-292-MJR
-v-
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
Defendant.
_______________________________
INTRODUCTION
Pursuant to 28 U.S.C. §636(c), the parties have consented to disposition of this
case by a United States Magistrate Judge. (Dkt. No. 8)
On April 6, 2015, plaintiff Kenneth Drozdowski (“plaintiff” or “Drozdowski”) filed a
complaint, pursuant to 42 U.S.C. §405(g) of the Social Security Act (the “Act”),
challenging defendant Commissioner of Social Security’s (“defendant” or
“Commissioner”) determination that he is not entitled to Title II Social Security Disability
(“SSD”) benefits. Both plaintiff and defendant have filed motions for judgment on the
pleadings. For the following reasons, plaintiff’s motion for judgment on the pleadings
(Dkt. No 5) is granted in part and defendant’s motion for judgment on the pleadings
(Dkt. No. 6) is denied. The case is remanded to the Commissioner for further
administrative proceedings consistent with this Decision and Order.
BACKGROUND
Procedural History
Plaintiff filed an application for SSD benefits on April 27, 2012. (Tr. 51)1 Plaintiff
claimed that he has been disabled since April 22, 2012, as a result of cervical neck and
lower back injuries following a neck and spinal surgery in April of 2011. (Tr. 52)
Drozdowski’s disability claim was denied on August 14, 2012 and he filed a request for
a hearing. (Tr. 59-64) Administrative Law Judge Grenville W. Harrop, Jr. (the “ALJ”)
conducted a hearing on September 12, 2013. (Tr. 26-50) During the hearing, the ALJ
took testimony from plaintiff and Vocational Expert Rachel Duchon (“VE”).2 Id.
Following the hearing, the ALJ issued a decision denying Drozdowski’s claim for
benefits. (Tr. 12-21) Plaintiff requested review of the determination by the Appeals
Council. (Tr. 7-8) On January 29, 2015, the Appeals Council denied plaintiff’s request
for review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-6)
Drozdowski then filed the instant action on April 6, 2015. (Dkt. No. 1)
Prior Medical Evidence
On June 18, 1999, Drozdowski visited the emergency room at Buffalo General
Hospital complaining of severe and intransigent lower back pain as a result of a work
related injury. (Tr. 290) Plaintiff was employed as a firefighter and paramedic for the
City of Lackawanna. (Tr. 30) An MRI of plaintiff’s lumbar spine showed a large, left
paracentral and lateral recess disc herniation at L5-S1. (Tr. 288, 307) Dr. James G.
1
References to “Tr.” are references to the administrative record in this case.
2
At the hearing, Drozdowski was represented by a paralegal employed by attorney Robert J.
Maranto.
2
Egnatchik, a neurosurgeon, performed lumber spine surgery on plaintiff on June 22,
1999. (Tr. 288) During the surgery, Dr. Egnatchik performed a laminotomy, removed a
fragment, and decompressed the S1 nerve root. (Tr. 288) Following the surgery,
plaintiff was discharged from physical therapy after three sessions as a result of nonattendance. (Tr. 319) In July 1999, Drozdowski reported to Dr. Egnatchik that he was
doing well, and that his pain and numbness had significantly improved. (Tr. 269) He
returned to work full time. (Tr. 270)
On February 28, 2008, plaintiff had hernia surgery, which included a bilateral
laparoscopic inguinal hernia repair. (Tr. 252)
Plaintiff was injured at work again on October 2, 2010, when an obese woman
he was assisting fell on him. (Tr. 338) As a result of the accident, Drozdowski saw pain
management specialist Dr. Adaku Nwachuku on October 15, 2010 for neck and back
pain that radiated to his extremities. (Tr. 338) Dr. Nwachuku examined plaintiff and
found limited ranges of motion of the cervical and lumbar spine, right-sided cervical
muscle pulling with range of motion testing, and protraction of the shoulders. Id. Dr.
Nwachuku limited plaintiff to working no more than eights hours per day and no more
than forty hours per week. (Tr. 341) He also prohibited plaintiff from lifting in excess of
20 pounds, pushing or pulling more than 25 pounds, or engaging in repetitive bending,
lifting and twisting. Id. Dr. Nwachuku found that plaintiff had a moderate (50%)
disability at that time. Id. An MRI of plaintiff’s cervical spine on November 5, 2010
revealed disc herniations at C3-4, C4-5, C5-6 and C6-7. (Tr. 304-305) X-rays of
plaintiff’s cervical spine taken on the same day demonstrated: (1) mild spondylotic
changes with anterior osteophytes at C3-4, C4-5 and C6-7; (2) mild facet joint
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arthropathy predominately involving the lower cervical spine; (3) slight retrolisthesis of
C5 over C6; and (4) straightening of the normal cervical lordosis. (Tr. 300)
Drozdowski saw his primary care physician, Dr. Michael Cellino, on November
18, 2010. (Tr. 259) He told Dr. Cellino that he was experiencing neck pain radiating
into his arm with some weakness. Id. Plaintiff also stated that he was currently on
disability, and that he would need to retire on disability at some point. Id. Plaintiff saw
Dr. Nwachuku later that same month, at which time plaintiff reported that his cervical
symptoms had improved but his lumbar issues remained stagnant. (Tr. 335-337) Dr.
Nwachuku found that Plaintiff had a mild to moderate temporary disability and that he
was able to return to work without restrictions. Id.
Plaintiff saw Dr. Egnatchik on January 31, 2011. (Tr. 271) He complained that
since his October 2010 neck injury he has had chronic cervical pain with radiation into
his shoulders as well as numbness and tingling in both hands. Id. Plaintiff stated that
although he was still working, he had difficulty with range of motion and was taking
Flexeril to help with his muscle spasms. Id. Plaintiff further stated that his symptoms
had become progressively worse since the injury. Id. Dr. Egnatchik reviewed the MRI
scan of Drozdowski’s cervical spine, and determined that he would be an excellent
candidate for a surgery which involved an anterior cervical discectomy and fusion at C56 and C6-7 with allograft bone spacers and Synthes plating. (Tr. 272) Plaintiff’s
preoperative diagnosis was cervical disc herniations at C5-6 and C6-7. (Tr. 267) At a
preoperative conference on April 8, 2011, Dr. Egnatchik indicated that plaintiff’s
temporary impairment was 100%. (Tr. 274)
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Dr. Egnatchik performed the neck surgery on plaintiff on April 22, 2011. (Tr.
267) As planned, the surgery included an anterior cervical discectomy and fusion at
C5-6 and C6-7 supported by plate and screws. (Tr. 267) Also during the operation, Dr.
Egnatchik noted that the central disc herniation at C6-7 included osteophyte
involvement that compressed the thecal sac and removed disc material. Id. A central
osteophytic herniation at C5-6 was also extracted. Id. At a post-surgical follow-up on
May 19, 2011, plaintiff reported that he was doing well but had significant discomfort in
the back of his neck. (Tr. 276) X-rays revealed postsurgical changes from C5 through
C7 with excellent alignment. (Tr. 287) Dr. Egnatchik opined that plaintiff continued to
have a temporary impairment of 100%. (Tr. 279)
Dr. Egnatchik next saw Drozdowski on August 1, 2011. (Tr. 278) At that time,
plaintiff complained of a burning, gnawing pain in the back of his neck. Id. After
reviewing the spinal x-rays, Dr. Egnatchik opined that plaintiff’s “fusion instrument was
intact and incorporating” but was not yet solidly fused. (Tr. 280) He further found that
plaintiff continued to have a temporary impairment of 100%. (Tr. 281) Dr. Egnatchik
had a follow-up with Drozdowski three months later on November 3, 2011. (Tr. 28)
Plaintiff again complained of some burning, gnawing pain in the back of his neck. Id. A
physical exam revealed that plaintiff ambulated without any assistive devices, his motor
strength was normal, and that his reflexes and sensation were intact. Id. Dr. Egnatchik
reviewed x-rays and concluded that while plaintiff’s upper level was still not solidly
fused, his lower level “look[ed] very good.” Id. Dr. Egnatchik noted that plaintiff would
most likely never be able to return to fire-fighting work, and suggested VESTID
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retraining. Id. Plaintiff’s temporary impairment level remained at 100%. Id. On
January 8, 2012, Dr. Egnatchik wrote a letter stating that he was unable to complete
functional capacity evaluations as they were not part of a routine office visit, and
recommended that plaintiff go a rehabilitation facility or physical therapy establishment
if that type of evaluation was needed. (Tr. 421)
Dr. Egnatchik saw Drozdowski again on February 6, 2012. (Tr. 282) Plaintiff
indicated that his symptoms had improved, but he was still experiencing some achiness
and soreness. Id. He was ambulating without assistive devices. Id. Plaintiff’s motion
strength, reflexes and sensation were all normal, though his range of motion was
somewhat limited. Id. A review of the most recent x-rays demonstrated that the fusion
and instrumentation were “intact and incorporating nicely.” Id. Dr. Egnatchik continued
to find that plaintiff had a temporary impairment of 100%. Id.
SSD Benefits Application and Subsequent Medical Evidence
Plaintiff filed for SSD benefits on April 27, 2012, stating that he could not work
due to cervical and lower back injuries post fusion. (Tr. 176) Plaintiff indicated on his
application that he worked for the City of Lackawanna as a firefighter and paramedic
from March 1990 through April 2011, and that he worked as a federal emergency
manager from December 2008 through April 2012. Id.
On August 2, 2012, plaintiff underwent an Independent Medical Examination by
Dr. Hongbiao Liu, a consulting internist, nuclear medicine and pain specialist. (Tr. 355358) Dr. Liu found that plaintiff could squat only 80% of full and could walk on heels
and toes with difficulty. Id. Plaintiff had no difficulty changing for the exam or getting on
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and off the exam table. (Tr. 356) Plaintiff was able to raise from the chair without
difficulty. Id. During the exam, Dr. Liu found that plaintiff had limited range of cervical
spine motion, lumbar spine motion and bilateral shoulder motion. (Tr. 357) Dr. Liu
diagnosed Drozdowski with: (1) chronic low back pain secondary to work injury, status
post surgery; and (2) chronic neck pain secondary to work injury, status post surgery.
(Tr. 357-358) He concluded that plaintiff had mild limitation for his routine activities and
that he “should try to avoid lifting, carrying, bending, kneeling or overhead reaching.” Id.
Plaintiff saw Dr. Cellino on August 15, 2012, at which time he complained of
neck pain, myalgias, back pain and joint pain. (Tr. 425) Plaintiff also stated that he
took Lortab every six hours as needed for pain as well as naproxen. Id. A physical
exam indicated that plaintiff had normal range of motion, and exhibited no edema or
tenderness. Id. Plaintiff then saw Dr. Egnatchik on September 20, 2012. (Tr. 387)
Plaintiff reported that he was able to perform some activities but was very sore
afterwards. He also stated that he used very occasional pain medication for achiness
and stiffness. Id. Following a physical exam, Dr. Egnatchik concluded that plaintiff had
a normal gait, and that his motor strength and reflexes were intact and normal. Id.
Spinal x-rays demonstrated that the fusion instrumentation was intact and working well.
(Tr. 388) Dr. Egnatchik reported that plaintiff had a 75% marked permanent disability
and that, in his opinion, plaintiff would never be able to return to firefighting. Id.
Dr. Robert Weisberg, a Social Security Administration (“SSA”) review internist,
reviewed Drozdowski’s SSA file and completed a Physical RFC Assessment. (Tr. 35964) Dr. Weisberg, who did not physically examine plaintiff, concluded that plaintiff could
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sit, stand, and walk for about 6 hours in an 8-hour workday, could lift 20 pounds
occasionally, and could lift 10 pounds frequently. (Tr. 360) Dr. Weisberg limited
Drozdowski to never balancing, occasionally climbing, kneeling, crouching, and
crawling, and frequently stooping. (Tr. 361) Plaintiff was examined on October 17,
2012 by Dr. Michael Landi, an orthopedic surgeon, for purposes of his workers’
compensation claim. (Tr. 404-405) Dr. Landi determined that plaintiff had reduced
ranges of cervical and lumbar motions. Id. His gait and station were normal, and he
had no trouble getting on or off the examining table. Id.
Drozdowski saw Dr. Cellino on October 19, 2012. (Tr. 423-24) Plaintiff indicated
that he was feeling much better on his current medication and a musculoskeletal exam
revealed normal range of motion. Id. On December 13, 2012, Dr. Egnatchik wrote
another letter indicating that he is unable to complete functional capacity evaluations
and recommended plaintiff go to a rehabilitation facility or physical therapy
establishment if such an evaluation was needed. (Tr. 370) Drozdowski saw Dr. Cellino
on March 19, 2013. (Tr. 427-429) Plaintiff complained of back and neck pain and
indicated that Dr. Egnatchik, his neurosurgeon, found him to be 75% disabled. Id.
Plaintiff was examined and found to have normal range of motion with no edema or
tenderness. Id.
Hearing Testimony
Drozdowski testified that he was employed by the City of Lackawanna as a
firefighter and paramedic for twenty years. (Tr. 30) Plaintiff also testified that he
worked as a federal emergency manager from December 2008 through April 2011 and
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that he now receives injured on duty salary from the City of Lackawanna.3 (Tr. 30, 33)
The physical requirements for a federal emergency manager include moving and lifting
briefcases, paperwork and boxes. (Tr. 31) The position also requires approximately six
hours of sitting at a desk during the work day. Id. Plaintiff testified that his disability
arose following neck surgery in April of 2011. (Tr. 32) Plaintiff testified that Dr.
Egnatchik and Dr. Cellino advised him that it would take approximately a year for him to
recover from surgery, but that his condition actually worsened during that time. Id.
Plaintiff further testified that he takes 10 milligrams of hydrocodone every 6
hours for pain and that he is in constant pain. (Tr. 34) The pain radiates from his neck
up to his head and down his back and spine, where it also travels to his arms and
fingers. Id. Plaintiff testified that without medication his pain level is 9 or 10 out of 10
on the pain scale. (Tr. 35) His wife helps him dress and cooks for him. (Tr. 37)
Plaintiff testified that he spends about 45 minutes stretching every morning and then
walks around for a short time. Id. Plaintiff testified he has difficulty finding a
comfortable position for sitting to watch television. (Tr. 37) However, plaintiff also
testified that he spends four to six hours a day sitting outside, weather permitting, and
that he has trouble standing for more than 45 minutes to an hour. (Tr. 38) Plaintiff can
kneel on one knee, but has trouble gripping objects. (Tr. 39)
3
There is conflicting information in the record as to plaintiff’s last day of work. When asked
during the hearing when he last worked, plaintiff answered “April 20th, I believe...[i]t was just prior to the
surgery.” (Tr. 30) The Court assumes plaintiff was referring to April 20, 2011, since his neck surgery took
place on April 22, 2011. However, plaintiff indicated in his SSD benefits application that he was employed
as a firefighter through April 2011 and as a federal emergency manager through April 2012. (Tr. 177)
The ALJ indicated in his decision that plaintiff worked until April 2012. Plaintiff’s counsel states that
although plaintiff received disability payments from his employer and possibly worker’s compensation
benefits from his employer, he did not work after his neck surgery on April 22, 2011. (Dkt. No. 5-1, p. 4 n.
1) As a result, the Court is unable to state with certainly when plaintiff last worked.
9
Rachel Duchon, the VE, was given a number of hypothetical scenarios by the
ALJ to determine what, if any, available jobs plaintiff was capable of performing. First,
Duchon was asked if there are available national and regional jobs for a individual who
is 48 years old, college educated, has plaintiff’s work experience and training, who has
had cervical neck and lower back fusion, takes hydrocodone, and has a residual
functional capacity of light work. (Tr. 45) Duchon testified that 169 DOT titles matched
the given scenario based on transferrable skills, and that with a residual functional
capacity of light work, some of the possible jobs included first aid attendant, ticket seller
and assembly machine tender. (Tr. 46) All had available positions within the national
economy and New York state. The ALJ then asked Duchon to assume all the same
criteria except that the individual’s residual functional capacity was sedentary work. (Tr.
47) Duchon gave examples of available jobs in the national economy and New York
State which included telephone solicitor, appointment clerk, and envelope addressor.
Id. Upon questioning by plaintiff’s attorney, Duchon testified that if the individual in the
hypothetical had to rest for two hours a day in addition to lunch and other breaks, they
would be unable to perform the positions she had listed. (Tr. 49)
DISCUSSION
Scope of Judicial Review
The Court’s review of the Commissioner’s decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
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conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
Colvin, 17 F. Supp. 3d 260, 264 (WDNY 2014). “Where the Commissioner’s decision rests
on adequate findings supported by evidence having rational probative force,” the Court
may not “substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart, 312
F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record, read
as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574
(WDNY 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).
While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner’s decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions, even if supported by substantial evidence, must be applied to the correct legal
standard. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). Failure to do so is reversible
error. Id.
Determining “Disability” Under the Act
In order to be entitled to disability insurance benefits, the claimant must be under
a disability prior to his date last insured — in Drozdowski’s case, on or before April 22,
2012. A “disability” is an “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
11
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). The Commissioner may conclude that a
claimant is disabled “only if his physical or mental impairment or impairments are of such
severity that he 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, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for the work.” Id. §423(d)(2)(A). The Commissioner must
make these determinations based on “objective medical facts, diagnoses or medical
opinions based on these facts, subjective evidence of pain or disability, and . . . [the
claimant’s] educational background, age, and work experience.” Dumas v. Schweiker, 712
F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris, 645 F.2d
122, 124 (2d Cir. 1981)).
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).
These steps proceed as follows.
First, the Commissioner must determine whether the claimant is “working” during
the time for which they are seeking benefits and whether that work “is substantial gainful
activity.” Id. §404.1520(b). If the claimant is engaged in substantial gainful activity, the
Commissioner’s inquiry is over: the claimant is “not disabled regardless of [his or her]
medical condition or . . . age, education, and work experience.” Id.
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Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner determines whether the claimant has a “severe impairment.”
Id.
§404.1520(c). To make this determination, the Commissioner asks whether the claimant
has “any impairment or combination of impairments which significantly limits [the
claimant’s] physical or mental ability to do basic work activities.” Id. As with the first step,
if the claimant does not have a severe impairment, he or she is not disabled regardless of
any other factors or considerations and the inquiry ends. Id.
Third, if the claimant does have a severe impairment, the Commissioner asks two
additional questions: first, whether that severe impairment meets the Act’s duration
requirement, and second, whether the severe impairment is either listed in Appendix 1 of
the Commissioner’s regulations or is otherwise “equal to” an impairment listed in Appendix
1. Id. §404.1520(d). If the claimant satisfies both requirements of step three, the
Commissioner will find that he or she is disabled without regard to his or her age,
education, and work experience. Id.
If, however, the claimant does not have the severe impairment required by step
three, the Commissioner’s analysis proceeds to steps four and five.
Initially, the
Commissioner must “assess and make a finding about [the claimant’s] residual functional
capacity based on all the relevant medical and other evidence” in the record.
Id.
§404.1520(e). Residual functional capacity “is the most [the claimant] can still do despite
[his or her] limitations.” Id. §404.1545(a)(1). The Commissioner’s assessment of the
claimant’s residual functional capacity is then applied at steps four and five.
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At step four, the Commissioner “compare[s] [the claimant’s] residual functional
capacity assessment . . . with the physical and mental demands of [his or her] past relevant
work.” Id. §404.1520(f). If, based on that assessment, the claimant is able to perform his
or her past work, the Commissioner will find that the claimant is not disabled within the
meaning of the Act. Id.
Finally, if the claimant cannot perform his or her past relevant work, the
Commissioner considers whether, based on the claimant’s residual functional capacity
assessment, age, education, and work experience, the claimant “can make an adjustment
to other work.” Id. §404.1520(g)(1). If the claimant can adjust to other work, he or she is
not disabled. Id. If, however, the claimant cannot perform any other work, he or she is
disabled within the meaning of the Act. Id.
The burden of proof at steps one through four described above rests on the
claimant. If the claimant carries his burden through the first four steps, “the burden then
shifts to the [Commissioner] to show there is other gainful work in the national economy
which the claimant could perform.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d
638, 642 (2d Cir. 1983).
ALJ’s Decision
Here, the ALJ followed the required five-step process for evaluating disability claims.
With respect to step one, the Commissioner found that plaintiff had not engaged in
substantial gainful activity since April 22, 2012, the alleged onset date of disability. (Tr.
14) At the second step, the ALJ found that plaintiff had severe impairments that caused
significant limitations in plaintiff’s ability to perform basic work activities. Id. Specifically,
14
the ALJ found that plaintiff had C5-6 and C6-7 disc herniation status post discectomy and
fusion, cervical spine facet joint osteoarthritis, and L5-S1 disc herniation status post
microdiscectomy. Id. At the third step, the ALJ found that plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in the regulations. (Tr. 15) The ALJ went on to find that
plaintiff had the residual functional capacity to perform sedentary work as defined in
Section 404.1567(a) of Title 20 of the Code of Federal Regulations. Id. For this reason,
the ALJ found that plaintiff was not disabled within the meaning of the Act.
Plaintiff’s Challenge
Plaintiff asserts that the Commissioner failed to properly evaluate the opinion of Dr.
Egnatchik, plaintiff’s treating surgeon. Plaintiff argues that the ALJ erred not only by giving
“no weight” to Dr. Egnatchik’s opinion that plaintiff had a marked 75% permanent disability,
but also that the ALJ failed to consider Dr. Egnatchik’s opinion in light of the factors set
forth in 20 C.F.R. §404.1527.
Social Security regulations require an ALJ to give “controlling weight” to the opinion
of a treating physician on the issue of the nature and severity of a claimant’s impairment
if that opinion “is well-supported by medically acceptable clinical and laboratory techniques
and is not inconsistent with the other substantial evidence in [the claimant’s] case record.”
Venio v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); accord 20 C.F.R. §404.1527. In
addition, an ALJ is entitled to give greater weight to the opinion of a non-treating
physician–and even to disregard the opinion of the treating physician altogether– but only
if the ALJ considers the following factors: “(1) the frequency of examination and the length,
15
nature, and extent of the treatment relationship, (2) the evidence supporting the treating
physician’s opinion, (3) the consistency of the opinion with the record as a whole, (4)
whether the opinion is from a specialist, and (5) any other factors brought to the list that
contradict the treating physician’s opinion.” Foxman v. Barnhart, 157 Fed. Appx. 344 (2d
Cir. 2005); accord 20 C.F.R. §404.1527. Federal regulations also require the ALJ to
provide good reasons in their decision for the weight given to treating source’s opinions.
See 20 C.F.R. §404.1527. Indeed, while the ALJ need not explicitly recite each and every
factor, he or she “must apply the substance of the treating physician rule.” Halloran v.
Barnhart, 362 F.3d 28, 31-32 (2d Cir 2004).
Dr. Egnatchik opined, on September 20, 2012, that claimant had a marked 75%
permanent disability and that he did not think the claimant would be able to return to
firefighting.
The ALJ states, in conclusory fashion, that no weight is given to Dr.
Egnatchik’s opinion that plaintiff is disabled because “opinions that the claimant is disabled
or unable to work are reserved to the Commissioner.” (Tr. 19) There is insufficient detail
in the remainder of the decision for this Court to find that the ALJ complied with the treating
physician rule.
Specifically, aside from referring to Dr. Egnatchik as plaintiff’s
neurosurgeon, there is no discussion of the length and nature of their relationship,
including the fact that Dr. Egnatchik treated plaintiff since 1999, that he performed two
surgeries on plaintiff, and that he treated plaintiff over a number of years for the injury that
resulted in the alleged disability. In evaluating the opinion evidence, there is no indication
that the ALJ considered that Dr. Egnatchik performed the lumbar and cervical spine
surgery on plaintiff and saw plaintiff repeatedly in the year following the surgery, which is
16
when plaintiff alleges that the injury became worse and eventually caused him to become
totally disabled. While the ALJ references some of the visits, he does not explain or
analyze how these visits fail to support a finding of disability or are inconsistent with the
record as a whole. In addition, the ALJ does not specifically compare Dr. Egnatchik’s
finding that plaintiff is 75% permanently disabled with other evidence in the record.
Instead, the ALJ states only that Dr. Egnatchik’s opinion is to be given no weight because
it references an issue left to the Commissioner. It is correct that a treating physician’s
statement that an applicant is disabled “cannot itself be determinative.” Snell v. Apfel, 177
F.3d 128 (2d Cir. 1999). However, if the record contains an opinion from a medical source
on an issue reserved to the Commissioner, the ALJ “must evaluate all the evidence in the
case record to determine the extent to which the opinion is supported by the record.”
Solsee v. Astrue, 737 F. Supp. 2d 102 (WDNY 2010).
Here, the ALJ appears to
completely discount the opinion of Dr. Egnatchik for the sole reason that it encompasses
a final determination to be made by the Commissioner. While Dr. Egnatchik does not
comment on the plaintiff’s ability to do sedentary work, he does opine that plaintiff he has
a 75% marked permanent disability. There may be reasons to discount this opinion or to
give greater weight to other conflicting testimony and opinion evidence in the record, but
the ALJ erred by failing to specifically state those reasons. See Foxman v. Barnhart, 157
Fed. Appx. 344 (2d Cir. 2005) (matter remanded for proper application of the treating
physician rule where ALJ afforded no weight to treating physician’s opinion, including his
finding that plaintiff was “totally disabled” from work even though the ALJ did not make any
specific findings as to plaintiff’s ability to perform sedentary work); Erb v. Colvin, 2015 U.S.
17
Dist. LEXIS 122873 (WDNY 2015) (ALJ’s statements that the rejected opinions of plaintiff’s
doctor were “inconsistent with the record as a whole” were too conclusory to constitute a
“good reason” to reject the treating psychiatrist’s opinions); Ashley v. Comm’r of Soc. Sec.,
2014 U.S. Dist. LEXIS 178560 (NDNY 2014) (“this...conclusory statement about the
treatment records fails to fulfill the heightened duty of explanation”).
The Second Circuit has instructed that it will “not hesitate to remand when the
Commissioner has not provided good reasons for the weight given to a treating physician’s
opinion and...will continue remanding when...encounter[ing] opinions from ALJ’s that do
not comprehensively set forth reasons for the weight assigned to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28 (2d Cir. 2003) (internal citation omitted). For
the reasons just stated, the matter will be remanded to the Commissioner for a reevaluation of Dr. Egnatchik’s opinion in accordance with 20 C.F.R. §404.1527.
Between April 22, 2011, the date of plaintiff’s surgery, and February 6, 2012, Dr.
Egnatchik saw plaintiff on at least three occasions and repeatedly found that plaintiff had
a 100% temporary impairment during that time. The ALJ gave no weight to these opinions
because they were stated prior to the alleged onset date of disability. (Tr. 18) Courts have
found medical opinions provided prior to the alleged onset date to be irrelevant in many
situations. Binder v. Commissioner of Social Security, 2016 U.S. Dist. LEXIS 99254
(NDNY 2016). However, not every medical opinion provided before an alleged onset date
is necessarily irrelevant. Id.; see also Mills v. Astrue, 2012 U.S. Dist. LEXIS 180644
(NDNY 2012) (“Notably, medical records which predate the claimant’s alleged onset date
can prove relevant to a claimant’s later condition provided that there is indication that the
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symptoms experienced extended in duration into the relevant time period.”) Here, plaintiff
alleges that his disability was the result of cervical and lower back injuries post fusion. The
fusion occurred during his cervical and lumbar spine surgery on April 22, 2011. In sum,
plaintiff maintains that he suffered a work injury to his neck in October 2010, that he
underwent surgery in April 2011 as a result, and that his symptoms worsened over the
course of the year following the surgery to the point were he became permanently disabled
in April 2012. Because the claimed disability relates to the April 2011 surgery and plaintiff’s
progress and symptoms over the following year, it is not apparent that the opinions offered
by Dr. Egnatchik during that time are irrelevant to plaintiff’s claim. Therefore, on remand,
the ALJ is also instructed to consider what weight, if any, to give the opinions of Dr.
Egnatchik from April 22, 2011 through the alleged onset date of plaintiff’s disability.
Plaintiff further argues that the ALJ erred by improperly “splitting” the medical
opinion of Dr. Liu and failing to perform a function-by-function analysis before making
an RFC finding. (Dkt. No. 5-1, pgs. 15-20) In light of the determination to remand this
matter for further proceedings, the Court declines to reach plaintiff’s remaining
contentions. See e.g., Lloyd v. Colvin, 2016 U.S. Dist. LEXIS 94034 (WDNY 2016)
(where matter was remanded on the basis of the ALJ’s error in evaluating a treating
physician’s opinion, the court declined to reach plaintiff’s argument about weight given
to another doctor’s opinion); Erb v. Commissioner of Social Security, 2015 U.S. Dist.
LEXIS 122873 (WDNY 2015) (“In light of my determination that the ALJ erred in
evaluating the opinion of [plaintiff’s] treating physician, thus warranting remand, I
decline to evaluate whether the ALJ erred in assessing plaintiff’s RFC or credibility.”);
Norman v. Astrue, 912 F. Supp. 2d 33, 85 n. 79 (SDNY 2012) (“[b]ecause I find that
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remand is proper on the basis of the ALJ’s failure to properly develop the record and to
properly apply the treating physician rule, I do not reach plaintiff’s arguments with
respect to (1) the ALJ’s determination of his RFC at step four and (2) whether the ALJ
carried his burden at step five of the analysis...[t]he aforementioned legal errors cause
the remaining portions of the ALJ’s analysis to be inherently flawed”).
CONCLUSION
For the foregoing reasons, Drozdowski’s motion (Dkt. No. 5) is granted in part,
the Commissioner’s motion (Dkt. No. 6) is denied, and the case is remanded to the
Commissioner for further administrative proceedings consistent with this Decision and
Order.
The Clerk of the Court shall take all necessary steps to close this case.
SO ORDERED.
DATED:
September 26, 2016
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
UNITED STATES MAGISTRATE JUDGE
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