Shappy v. Commissioner of Social Security
OPINION AND ORDER granting 6 MOTION for Order Reversing the Decision of the Commissioner; denying 15 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge Geoffrey W. Crawford on 8/28/2017. (esb)
tt.-s. ntsrmcr COURT
DISTRICT OF VERMONT
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
JAMES SHAPPY, III,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
2011 AUG 30 AH 10: 29
Case No. 5:16-cv-108
OPINION AND ORDER
(Docs. 6, 15)
Plaintiff James Joseph Shappy, III brings this action under 42 U.S.C. § 405(g), requesting
reversal of the decision of the Commissioner of Social Security denying his application for
disability insurance benefits ("DIB"). Pending before the court is Mr. Shappy's motion to
reverse the Commissioner's decision (Doc. 6) and the Commissioner's motion to affirm
(Doc. 15). For the reasons stated below, the court GRANTS Mr. Shappy's motion to reverse and
DENIES the Commissioner's motion to affirm.
Mr. Shappy, born in 1967, applied for DIB benefits on April 2, 2014, alleging a disability
onset date of March 14, 2013. (AR 21, 45, 201.) The claim was denied initially on July 10,
2014, and on reconsideration on September 22, 2014. (AR 21, 154, 159.)
Mr. Shappy testified at a hearing before an ALJ on June 16, 2015. (AR 21, 42.)
Mr. Shappy attended school through tenth grade and later obtained a GED. (AR 46.)
The court has amended the caption to reflect the current Acting Commissioner of Social
Security, who assumed office on January 20, 2017. See Fed. R. Civ. P. 25(d).
Mr. Shappy testified that his disability began in March 2013, when he took a significant
electric shock when he was changing a motor switch in a large chilling system. (AR 47.) He
was standing on a plastic bucket, and fell, hitting his head and injuring his back. (AR 47.) He
was shocked again a few days later when he had gone back to work. (AR 58.) The second shock
was less severe. (AR 58.) He damaged discs in both his neck and his back, and later had to have
spinal fusion surgery. (AR 47.)
Mr. Shappy's issues with his back and neck have never fully resolved. (AR 48, 50.) He
stated that he continues to have back pain which is "off the charts," and that he has pain in his
neck and down his left arm and into his left hand. (AR 50.) He has to continuously alternate
positions throughout the day, and can sit for only about 10 or 15 minutes at a time. (AR 52.) He
said that his pain "doesn't go away" and that "[t]here's really nothing that alleviates it."
Mr. Shappy testified that his neck issues have also caused "issues in my left arm with
numbness and motor skills and my left hand." (AR 48.) He also said that since he had begun to
use a walker, he had developed carpal tunnel in his left hand from "[p]icking myself up from a
sitting position." (AR 48.) His carpal tunnel syndrome has made his penmanship less legible
and made it hard to pick things up off the ground and to drive, because it causes numbness in his
arm. (AR 50.) He testified that he could drive, but "over a 20, 25 mile ride, ... I need to
basically stop and stretch." (AR 50.)
Mr. Shappy also said that he suffered from polyneuropathy in his feet. (AR 48.) Since
his back surgery, he has had numbness in his feet that has "progressively gotten worse" and that
is constant. (AR 48, 50.) Electrodiagnostic studies have found nerve damage in his feet.
(AR 48.) He has balance issues and "issues standing for any period of time," so he prefers to
keep his walker close by. (AR 48.) While he does occasionally walk without it, it is typically
with either the assistance of his girlfriend or by using a wall for support. (AR 48.) Ifhe spends
too much time on his feet, they will swell, and he has to spend a few days in bed to get the
swelling down "in order to be functional again." (AR 53.) He estimated that he could spend
15 minutes of every hour or two hours on ~is feet. (AR 54.) He spends a lot of time in bed
during the day and he says that lying down is helpful, especially with the neuropathy in his feet.
Mr. Shappy testified that the walker was issued to him right after his spine surgery.
(AR 49.) He said that, while he is embarrassed to use the walker because it makes him "feel like
an invalid," he feels he is danger of falling without his walker. (AR 54.)
Mr. Shappy also testified to a history of mental illness, specifically depression and
substance abuse. (AR 50-51, 55.) His son passed away four years before the hearing, and he
said that his brain replays the mistakes he has made in his life "over and over and over."
(AR 57.) He attempted suicide in 2011. (AR 55, 392.) He also stated that, while he had
previously struggled with drug abuse, including prescription pain pills, cocaine, and heroin, he
stated that he had no such problems at the time of the hearing. (AR 50--51, 55.) He said that
since his injury 2013, he had "stayed clean most of the time," and especially since beginning
pain management. (AR 56.) His mental illness makes it hard for him to concentrate, and says
that he has both "lost interest in everything" and can "immediately get overwhelmed." (AR 57.)
Mr. Shappy also testified that he had gained 50 pounds since the injury, and currently
weighed 370 pounds. (AR 53.) He said that he gained weight because of a lack of exercise,
depression, and emotional stress. (AR 53.)
A vocational expert, Lynn Paulson, also testified at the hearing. (AR 60-66.) She
answered questions posed by both the ALJ and Mr. Shappy' s attorney regarding whether a
hypothetical worker with specified limitations could perform either Mr. Shappy' s past work or
other work in the national economy. (AR 61-65.)
The ALJ is required to follow the five-step process in determining a claimant's disability.
Machia v. Astrue, 670 F. Supp. 2d 326, 333 (D. Vt. 2009) (internal citation omitted);
see 20 C.F.R. § 404.1520. The answer at each step determines if the next step must be
addressed. Machia, 670 F. Supp. 2d at 330. At the first step the ALJ determines if the claimant
has engaged in substantial gainful activity since the alleged onset date of his disability. Id. If the
answer is no, step two then asks if the claimant has any "impairments" that are "severe." Id.
If there is one or more severe impairment, step three evaluates whether any of these
impairments meet the listed impairments in Appendix 1 of the regulations; if an impairment
meets the listing the claimant is deemed disabled. If it does not, step four asks whether the
claimant retains the residual functional capacity ("RFC") to do his past relevant work. Id. If the
claimant can no longer do his past relevant work, step five asks whether the claimant is able to
do any job available in significant numbers in the national economy. Id. "The claimant bears
the burden of proving his case at steps one through four, ... and at step five, there is a 'limited
burden shift to the Commissioner' to 'show that there is work in the national economy that the
claimant can do."' Larkin v. Comm 'r of Soc. Sec., No. 2:10-CV-291, 2011WL4499296, at *2
(D. Vt. Sept. 27, 2011) (quoting Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)).
At step one, the ALJ determined that Mr. Shappy had not engaged in substantial gainful
activity since March 14, 2013, his alleged onset date. (AR 23.) At step two, he found that
Mr. Shappy had the following severe impairments: obesity, degenerative disc disease, peripheral
neuropathy, left carpal tunnel syndrome, sleep apnea, depression, anxiety, a personality disorder,
and polysubstance abuse. (AR 24.) At step three, the ALJ found that none of Mr. Shappy's
impairments, either alone or in combination meet or medically equals the severity of a listed
impairment. (AR 24.)
The ALJ determined that Mr. Shappy had an RFC to perform light work with certain
limitations. (AR 26.) In an eight-hour work day, Mr. Shappy could stand or walk for two hours
and sit for six hours, he could never climb ladders, ropes, or scaffolds, he could occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, he could occasionally push and
pull with his lower extremities, and he could occasionally reach overhead with his left upper
extremity, but could frequently handle and grasp with it. (AR 26.) Mr. Shappy was further
limited to simple, unskilled work in a low stress environment-"requiring little to no change in
the work setting and little to no need for the use of judgment." (Id.) He could maintain attention
and concentration for two-hour periods during the day, and, while he should avoid interaction
with the general public, he could "sustain brief and superficial social interaction with coworkers
and supervisors." (Id.)
At step four, the ALJ found that, with this RFC, Mr. Shappy could not perform any past
relevant work. (AR 33.) At step five, the ALJ concluded that sufficient jobs existed in the
national economy that Mr. Shappy could perform, including "inspector/hand packer,"
"merchandise marker," and "touch-up screener." (AR 34.) The ALJ therefore concluded that
Mr. Shappy was not disabled. (AR 35.)
The Appeals Council denied review on February 25, 2016. (AR 1.) The complaint in
this case was filed on April 19, 2016. (Doc. 3.)
Standard of Review
Disability is defined by the Social Security Act in pertinent part 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)(l)(A).
Under the Act, a claimant will only be found disabled if it is determined that his "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." Id. § 423(d)(2)(A).
When considering the ALJ' s disability decision, the court "review[ s] the administrative
record de novo to determine whether there is substantial evidence supporting the ... decision
and whether the Commissioner applied the correct legal standard." Machadio v. Apfel, 276 F.3d
103, 108 (2d Cir. 2002) (citing Shaw v. Chafer, 221F.3d126, 131 (2d Cir. 2000));
see 42 U.S.C. § 405(g). The decision is subject to a factual review determining whether
"substantial evidence" exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera
v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) ("Where there is substantial evidence to support either position, the determination is one to
be made by the fact[-]finder."). "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.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305. The court is
mindful that the Social Security Act is "a remedial statute to be broadly construed and liberally
applied." Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981); see also, e.g., Johnson v.
Comm 'r of Soc. Sec., No. 2:13-cv-217, 2014 WL 2118444, at *3 (D. Vt. May 21, 2014).
Mr. Shappy raises two arguments on appeal. First, he contends that the ALJ improperly
relied on a gap in the record when he concluded that Mr. Shappy did not meet Listings 1.04 and
11.14, and that the ALJ instead should have sought additional evidence from Mr. Shappy's
treating physician, Dr. Timothy Lishnak. (Doc. 6 at 8-11.) Second, he contends that the
Appeals Council should have considered an additional statement by Dr. Lishnak that Mr. Shappy
submitted after the ALJ's decision. He further asserts that the Appeals Council's failure to
consider this evidence, along with regulations regarding the submission of evidence to ALJ s
generally, violate the Due Process Clause. (Doc. 6 at 11-16.)
Substantial Gap in the Evidence
Mr. Shappy argues that there was a clear gap in the record: whether Dr. Lishnak or other
treating sources believe that he could ambulate effectively without a walker-a crucial issue in
the ALJ's conclusion at step three that Mr. Shappy did not meet either Listing 1.04, Disorders of
the Spine, or Listing 11.14, Peripheral N europathy. (Doc. 6 at 9.) He contends that, before he
concluded that Mr. Shappy could ambulate effectively, the ALJ should have requested an
opinion on the matter from Dr. Lishnak. (Id. at 11.)
Relevant Evidence in the Record
The court begins with the record, reciting only those parts related to the ALJ's
determination that Mr. Shappy can ambulate effectively without a walker. After the accident in
March 2013, Dr. Lambro Demetriades, an orthopedist in New Jersey, diagnosed him with
degenerative disc disease in both his cervical and lumbar spine, and an MRI revealed disc
herniation at L5-Sl and L4-L5. (AR 439.) Dr. Demetriades recommended that Mr. Shappy
undergo a "two-level lumbar fusion with instrumentation," and the surgery was performed on
September 26, 2013. (AR 439, 449.) At several appointments in the summer of 2013, before the
surgery, Dr. Demetriades noted that Mr. Shappy had a normal gait and did not note any use of a
walker for ambulation. (AR 434, 438, 446.)
Following his surgery, Mr. Shappy moved to Vermont, though he continued to follow-up
with Dr. Demetriades in New Jersey. Dr. Demetriades ordered Mr. Shappy out of work until
January 22, 2014, when he placed Mr. Shappy on light duty restrictions and prescribed a cane for
his assistance. (AR 418-20.) He noted that, though Mr. Shappy had "normal strength and
reflexes in both lower extremities," he continued to "have numbness and dysesthesias in both his
feet." (AR 419.) At a follow-up in February 2014, an examination revealed that he had "normal
strength and sensation in both lower extremities." (AR 416.) Dr. Demetriades commented,
however, that he did "not feel that Mr. Shappy will ever be able to return to full activities due to
the fact that he will [have] some ongoing pain. I had a long talk with [him] and I recommended
that he consider a change of career or possibly retirement [or] disability." (Id.)
On March 17, 2014, Mr. Shappy fell on some ice. (AR 467.) He made several visits to
the emergency room and to doctors. Notes from his visit to the ER that day state that he initially
"was unwilling to get off [his] back and [was] in [a] stretcher." (AR 481.) After he received
IV narcotics, he was able to ambulate to the bathroom, although with the help of a walker and the
assistance of two emergency medicine technicians. (AR 475, 481.) He required the walker for
another trip to bathroom, and a note states that he "ambulate[d] slow[ly], but did not look like he
was under distress while walking and talking." (AR 476.) He was later discharged "ambulatory
with a normal gait" and in no apparent distress. (Id.)
He saw a family practice physician on March 20, 2014. (AR 467.) The doctor noted that
he walked with an antalgic gait and had tenderness over his lumbar spine. (AR 468.) He
returned to the ER on March 22, 2014. (AR 485.) He "[w]alk[ed] to Triage slowly with [a]
cane." (AR 485.) He complained that he had had increased pain since his back surgery and had
had "chronic numbness in both of his feet." (AR 486.) After receiving some pain medication, he
was eventually discharged in a wheelchair. (AR 485, 488.)
Mr. Shappy traveled to New Jersey and saw Dr. Demetriades again on March 25.
(AR 412.) The doctor noted that an examination of his lower back showed "pain and cramping,"
but that he had "normal strength and sensation in all four extremities." (AR 413.)
In summer 2014, Mr. Shappy saw three primary care physicians. (AR 668-94.)
Dr. Jesse Coenen saw Mr. Shappy on June 12, 2014, and concluded that Mr. Shappy was unable
to work for the next two months because of both his back pain and depression. (AR 670.)
Dr. Stanley Hunter saw Mr. Shappy on June 30 and noted in his examination that Mr. Shappy
had a normal range of motion and no edema or tenderness. (AR 677.) Dr. Lishnak saw
Mr. Shappy on July 31, and Mr. Shappy complained of the "worst pain ever" in his back, neck,
and feet. (AR 680.) He reported swelling in his feet that had gotten worse recently, and that he
has tingling and numbness in both feet. (AR 686-87.) In his physical examination, Dr. Lishnak
noted that Mr. Shappy had 2+ pitting edema in his bilateral lower extremities. (AR 688.)
On August 4, 2014, Mr. Shappy saw Dr. Nomaan Ashraf, a spinal surgeon, and
Dr. Jonathan Lester, a physical medicine and rehabilitation doctor. (AR 620, 626.) Mr. Shappy
complained of back pain and numbness in both feet. (AR 620.) On examination, Dr. Ashraf
noted that Mr. Shappy' s lumbar range of motion was diminished by 50%, that he had pain with
forward flexion or extension of his lumbar spine, and that Mr. Shappy had normal sensation and
strength in both legs. (AR 621.) Dr. Ashraf ordered a CT scan of the lumbar spine and nerve
conduction studies of Mr. Shappy's lower extremities. (AR 622.) Dr. Lester also noted that
Mr. Shappy's lumbar flexion was markedly limited, but that he had both normal strength and
sensation in his lower extremities. (AR 627.)
The CT of the lumbar spine, performed August 29, 2014, revealed no hardware failures
from his back surgery or definite central canal stenosis, but did show some disc degeneration and
foraminal narrowing. (AR 653.) On September 26, 2014, Dr. Timothy Fries performed nerve
conduction studies in Mr. Shappy's lower extremities. (AR 787.) Dr. Fries found evidence of
abnormalities in the conductions that were "very consistent with a polyneuropathy with
predominantly axonal features." (AR 788.) He also noted "fairly prominent denervation of the
tibialis anterior," and noted that this raised the possibility of an "Sl root lesion." (AR 788.) He
commented that "[g]iven the quality and distribution of his current complaints in the feet, it
seems likely that his lower extremity problems are primarily related to a polyneuropathy with
associated dysesthesias." (AR 788.) Reviewing these tests, Dr. Ashraf stated that Mr. Shappy's
symptoms "are primarily related to a polyneuropathy with associated dysesthesias in the legs,"
but that it did "not appear that the symptoms are causally related to his spine operation."
In February 2015, Mr. Shappy returned to Dr. Lishnak. (AR 854.) He reported balance
problems, and continued to have leg pain and weakness. (AR 855.) Dr. Lishnak noted in his
exam that Mr. Shappy had an "antalgic gait with [the] assistance of [a] rolling walker."
(AR 856.) Dr. Lishnak assessed Mr. Shappy with worsening balance stemming from a cardiac
arrest in December 2014, and also noted that Mr. Shappy said his leg and neck pain had led him
to use the illicit substances which had resulted in the recent overdoses. (AR 857.) On
February 25, Mr. Shappy saw Dr. Waqar Waheed, a neurologist. (AR 782.) Dr. Waheed noted
that Mr. Shappy had a distal loss of sensation to pin-pricks. (AR 784.) Dr. Waheed noted that
Mr. Shappy's "balance and gait disorder" was "multifactorial," and was due to his "morbid
obesity, chronic low back pain, and chronic cervical pain, as well as mild to moderate degree of
axonal polyneuropathy." (AR 784.)
On March 10, 2015, Dr. Arthur Becan, an orthopedic surgeon, examined Mr. Shappy for
his workers' compensation claim. (AR 932.) Among other findings, he noted from his physical
exam that Mr. Shappy "ambulates with a markedly guarded and antalgic gait and uses a walker
for ambulation. He exhibits difficulty arising from seated position. He is unable to perform
calcaneal or equinus gait." (AR 935, 938.) He assessed Mr. Shappy to have lumbosacral
radiculopathy and lumbosacral myositis at an 85% level of total disability for his lumbar spine.
(AR 939.) He also assessed cervical radiculitis and myositis, at 70% partial disability, and
32.5% disability for Mr. Shappy's left hand due to carpal tunnel syndrome. (AR 940.)
On March 11, 2015, Mr. Shappy was examined by Dr. Angela Adams, a neurologist, for
his workers' compensation claim. (AR 768.) Among other findings, Dr. Adams noted in her
physical examination that his "motor strength testing in the bilateral upper and bilateral lower
extremities was limited due to pain," and that he "used a walker," "had an antalgic gait," and
"carried the back in a stiff and rigid manner." (AR 776.) She diagnosed him with cervical
radiculopathy resulting in partial 25% disability, lumbosacral radiculopathy at 40% disability,"
and an adjustment disorder and depression. (AR 776-77.)
In May 2015, Mr. Shappy returned to Dr. Lishnak, complaining ofradicular pain and
muscle spasms and stating that "he has been using a walker to help with ambulation." (AR 863.)
Dr. Lishnak assessed radiculitis. (AR 865.)
On March 18, 2015, Dr. Lishnak filled out a medical opinion form regarding Mr. Shappy.
(AR 797-800.) He listed Mr. Shappy's conditions: depression and anxiety, peripheral
neuropathy, carpal tunnel syndrome, shock from electric current, radicular neck and back pain.
(AR 797.) He identified Mr. Shappy's symptoms: "low back pain, neck pain, memory difficulty,
headaches, feet numbness and tingling, balance difficulty, [and] blurry vision." (AR 797.) He
listed bases for his conclusions: the electrical diagnostic studies which showed "axonal sensory
motor polyneuropathy," an MRI of his cervical spine and a CT of his lumbar spine which
showed "multilevel degenerative changes," and "decreased sensation of feet on exam."
(AR 797.) Dr. Lishnak did not fill out the section of the form identifying function-by-function
limitations for lifting, posture, and manipulation. (AR 797-98.) Instead, he noted in the margin
that he had "not evaluated [Mr. Shappy' s functional capacity] by myself," and "recommend[ ed]
[a] functional capacity evaluation." (AR 797.) He did note that he "suspect[ ed]" that
Mr. Shappy would be unable to "stay positioned at a work station with a combination of sitting
and standing for an 8-hour work day." (AR 799.) On the last page of the form, Dr. Lishnak
wrote that Mr. Shappy "may benefit from a functional capacity evaluation," and that the "[b ]ulk
of my information comes not from direct observation but in review of studies performed and
consultant notes." (AR 800.)
The ALJ's Findings
Reviewing these records, the ALJ concluded at step three that Mr. Shappy did not meet
Listing 1.04, Disorders of the Spine, or Listing 11.14, Peripheral Neuropathy. (AR 24.) The
subsections at issue from each listing require that a claimant be unable to "ambulate effectively"
without assistance to meet the listing. 2 The ALJ concluded that the evidence in the record
demonstrated that Mr. Shappy could ambulate effectively:
Listing 1. 04 provides:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
The record clearly establishes that the claimant is able to ambulate effectively and
thus does not meet listing 1.04 or 11.14. The record documents the claimant's
"normal casual gait." Although the claimant did use a cane for a period of time,
this was after a recent fall. The claimant also occasionally uses a walker out of
alleged need, but even counsel acknowledges that the claimant does not always
use a walker. If the claimant were truly as limited as asserted, his treating
sources would have at least documented substantial deficits in gait, if not
providing a full finding of disability, but neither is documented in the record. For
these reasons, I find that the claimant does not meet or medically equal the criteria
oflistings 1.04 or 11.14.
(AR 24 (emphasis added and record citations omitted).)
Relatedly, the ALJ explained why he gave no weight to Dr. Lishnak's medical opinion
later in his decision:
Notably, I considered the March 2015 medical source statement of treating
physician Timothy Lishnak, M.D., who only reports the claimant's subjective
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R. Ch. 404 Appendix Part 1, Listing 1.04. An "inability to ambulate effectively" is
defined as "an extreme limitation of the ability to walk,'' and "generally as having insufficient
lower extremity functioning (see l .OOJ) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities." Id.
Although Listing 11.14 does not use the phrase "ambulate effectively,'' it includes a
similar requirement in its definition of peripheral neuropathy, which it defines as:
A. Disorganization of motor function in two extremities (see 11. OOD 1), resulting
in an extreme limitation (see l 1.00D2) in the ability to stand up from a seated
position, balance while standing or walking, or use the upper extremities[.]
Id. Listing 11.14(A). An "extreme limitation in the ability to ... balance while standing
or walking" is defined as being "unable to maintain an upright position while standing or
walking without the assistance of another person or an assistive device, such as a walker,
two crutches, or two canes." Id. Listing 11.00(D)(2).
complaints and then refuses to rate a residual functional capacity, rather saying
the claimant needs a Functional Capacity Evaluation. This opinion, which merely
parrots the claimant's subjective complaints, is afforded no weight as it is not
actually a medical opinion provided by Dr. Lishnak. Dr. Lishnak himself declined
to provide any objective, function-by-function opinion. The lack of any such
assessment by any source is persuasive and generally supports the range of lightexertion work cited by the State examiners above.
(AR 32 (emphases added, record citation omitted, and spelling of Dr. Lishnak's name
An ALJ has an "affirmative duty to develop the administrative record." Burgess v.
Astrue, 537 F.3d 117, 129 (2d Cir. 2008). "'[A]n ALJ cannot reject a treating physician's
diagnosis without first attempting to fill any clear gaps in the administrative record."' Id.
(quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (Sotomayor, J.)). And by statute, an
ALJ is required to "make every reasonable effort to obtain from the individual's treating
physician (or other treating health care provider) all medical evidence, including diagnostic tests,
necessary in order to properly make" a determination regarding the claimant's disability.
42 U.S.C. § 423(d)(5)(B); see also Evans v. Comm 'r of Soc. Sec., 110 F. Supp. 3d 518, 537
(S.D.N.Y. 2015) (quoting§ 423(d)(5)(B)). Moreover, an ALJ has regulatory authority to order a
"consultative examination" to "resolve an inconsistency in the evidence" or "when the evidence
as a whole is insufficient to allow" the ALJ to make a decision. 20 C.F.R. § 404.1519a(b). An
ALJ' s failure "to order a consultative examination when an examination is required for an
informed decision" can be reversible error. Tankisi v. Comm 'r of Soc. Sec., 521 F. App'x 29, 32
(2d Cir. 2013); accord Phelps v. Colvin, 20 F. Supp. 3d 392, 401-02 (W.D.N.Y. 2014).
The court agrees that there is a gap in the evidence that the ALJ should have attempted to
fill before concluding that Mr. Shappy is able to ambulate effectively. At step three, the ALJ
reasoned that Mr. Shappy' s need for a walker to ambulate was not supported by the record
because his treating sources did not "document substantial deficits in gait" or "provid[ e] a full
finding of disability." (AR 24.) In 2013 and early 2014, doctors tended to note either that
Mr. Shappy had a normal gait or omit any mention of his gait in their exams. (AR 413, 419, 434,
438, 446, 476.) But by 2015, doctor after doctor (including his treating physician, Dr. Lishnak)
noted deficits in Mr. Shappy's gait, characterizing it as an "antalgic gait,'' a "balance and gait
disorder," and a "markedly guarded and antalgic gait." (AR 784, 856, 935.) These reports were
supported by the electrodiagnostic tests performed in September 2014 that showed
polyneuropathy in Mr. Shappy's feet. (AR 788.) This chronology supports Mr. Shappy's
testimony that his gait problems worsened over time.
To the extent the ALJ felt the doctors' statements in 2015 did not constitute a
documentation of "substantial deficits in gait," he should have sought additional evidence from
Dr. Lishnak or ordered a consultative functional capacity evaluation to resolve any insufficiency
or ambiguity in the evidence. See Garcia v. Colvin, No. 12-CV-2140, 2014 WL 119433, at *6
(E.D.N.Y. Jan. 10, 2014) (concluding that "ALJ was under a duty to develop the record" before
discounting treating physician's second opinion as inconsistent with an earlier opinion where the
second opinion and other evidence suggested a condition worsening over time); cf Phelps,
20 F. Supp. 3d at 402 (concluding that "consultative examination was not necessary" where
plaintiffs treatment for the alleged impairment at issue was limited to a single treatment note).
This conclusion is bolstered by the ALJ's treatment of Dr. Lishnak's opinion. The ALJ
dismissed Dr. Lishnak's opinion as "merely parrot[ing] the claimant's subjective complaints,"
and noted that Dr. Lishnak "refuse[d] to rate [Mr. Shappy's] residual functional capacity" and
"declined to provide any objective, function-by-function opinion."3 (AR 32.)
This is a mischaracterization. First, the opinion does not "merely parrot" Mr. Shappy's
complaints. Instead, Dr. Lishnak lists the objective bases for his opinion: an EMG study, a CT
scan, an MRI, and clinical findings. (AR 797.) Second, to say that Dr. Lishnak "refused" to rate
Mr. Shappy's functional capacity suggests that Dr. Lishnak believed such an evaluation was not
worthwhile-perhaps because he believed either that Mr. Shappy was not actually disabled or
that he was malingering. While it is true that Dr. Lishnak did not complete the section of the
form concerning limitations regarding lifting, posture, and manipulation, he instead wrote in the
margin that he "recommend[ s]" that Mr. Shappy obtain a functional capacity evaluation.
(AR 797.) At the end of the form, the doctor further explained that the "[b]ulk of my
information comes not from direct observation[,] but in review of studies performed and
consultant notes," and again suggested that Mr. Shappy "may benefit from a functional capacity
evaluation." (AR 800.)
These remarks suggest that Dr. Lishnak, who had available to him all of the objective
medical tests and clinical findings that would be considered by the ALJ three months later, in
fact believed that a functional capacity evaluation would be helpful. Where a medical opinion,
especially the opinion of a treating physician, suggests that further testing is necessary, this is a
compelling reason to either clarify the physician's opinion or order a consultative examination.
See Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984) (noting that ALJ's "failure to
order a consultative examination by an orthopedist even though the SSA's consulting doctor
As this court has noted recently, a failure to provide a "function-by-function
assessment" is "not a basis for discounting a medical opinion." Doyle v. Berryhill,
No. 5:16-cv-24, 2017 WL 2364312, at *6 & n.4 (D. Vt. May 31, 2017).
recommended such an evaluation" may have violated ALJ's obligation "to order a consultative
examination when such an evaluation is necessary for him to make an informed decision,"
although not basing its "decision on this issue"); Falcon v. Apfel, 88 F. Supp. 2d 87, 91
(W.D.N.Y. 2000) (concluding that "ALJ had an obligation to further develop the record and
clarify the opinion of the consulting physician" where the consulting physician stated in his
report that he needed to review the results of an MRI and a CAT scan to determine if claimant
had a herniated disc).
Accordingly, the ALJ in this case had an obligation to further develop the record before
concluding that Mr. Shappy could ambulate effectively and therefore that his impairments did
not meet or medically equal any listing. The ALJ could have sought clarification from
Dr. Lishnak regarding his opinion on Mr. Shappy's ability to ambulate and need for a walker, or
the ALJ could have ordered a consultative functional capacity examination, see 20 C.F.R.
§ 404.1519, either conducted by Dr. Lishnak himself, see 20 C.F.R. § 404.1519h, or by another
qualified medical source, see 20 C.F .R. § 404.1519i.
The Appeals Council and Due Process
Mr. Shappy next argues that the Appeals Council erred by failing to consider a letter by
Dr. Lishnak that Mr. Shappy submitted after the ALJ's decision and that its failure to do so
constituted a denial of due process. (Doc. 6 at 11-16. )4 Because the administrative record must
Dr. Lishnak's letter, written August 20, 2015, states:
[Mr. Shappy] has several medical conditions which impair his ability to ambulate
and [which] have led him to using a walker to ambulate effectively and safely.
He has radiculitis (lumbar) and is status post lumbar spinal fusion surgery done in
2013. Additionally he has been documented to have a mild to moderate degree of
axonal polyneuropathy which affects the sensation (impaired) in his feet.
be reopened for further development, the court need not address this argument. In addition to the
above directions to the ALJ to develop the record, Mr. Shappy may submit and the ALJ may
consider any new evidence as appropriate. See Thompson v. Astrue, 583 F. Supp. 2d 472, 475
(S.D.N.Y. 2008) ("Case law recognizes that, in the absence oflimiting instructions or court
findings, the Commissioner may revisit on remand any issues relating to the application for
For the reasons stated above, Mr. Shappy's Motion to Reverse the Commissioner's
Decision (Doc. 6) is GRANTED, the Commissioner's Motion for Order Affirming the
Commissioner's Decision (Doc. 15) is DENIED, and the case is REMANDED for further
proceedings consistent with this opinion.
Dated at Rutland, in the District of Vermont, thi:J day of August, 2017.
Geoffrey W. Crawford, Ju ge
United States District Court
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