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finding the ALJ must seek additional evidence or clarification when the plaintiff's medical reports contain conflicts or ambiguities, if the reports do not contain all necessary information, or if the reports lack medically acceptable clinic and laboratory diagnostic techniques
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12-CV-432 (FB)
01-24-2013
DINORAH A. DEMERA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
Appearances: For the Plaintiff: BARRY SIMON, ESQ. Simon & Gilman, LLP 91-31 Queens Blvd. Suite 411 Elmhurst, NY 11373 For the Defendant: LORETTA E. LYNCH, ESQ. United States Attorney KAREN T. CALLAHAN, ESQ. Special Assistant United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201
MEMORANDUM AND ORDER Appearances:
For the Plaintiff:
BARRY SIMON, ESQ.
Simon & Gilman, LLP
91-31 Queens Blvd. Suite 411
Elmhurst, NY 11373 For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
KAREN T. CALLAHAN, ESQ.
Special Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201 BLOCK, Senior District Judge :
Plaintiff Dinorah A. Demera seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for benefits under the Social Security Act. Both parties move for judgment on the pleadings. For the reasons set forth below, the case is remanded for further proceedings.
I.
Demera filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on October 14, 2008, alleging disability due to back and right leg problems, carpal tunnel syndrome, and incontinence. After the Social Security Administration denied her applications, she requested a hearing before an Administrative Law Judge ("ALJ").
On November 2, 2010, the ALJ concluded that Demera was not disabled. Applying the familiar five-step process, the ALJ found that: (1) Demera had not engaged in substantial gainful activity since July 27, 2008, the alleged onset date; (2) her right ankle degenerative joint disease, lumbar and thoracic spine disease, cervical disc disease, left wrist degeneration, obesity, and asthma qualified as "severe impairments," AR at 17, while her sleep apnea did not; (3) her impairments did not meet the criteria listed in 20 CFR Part 404, Subpart P, Appendix 1; (4) she "is unable to perform any past relevant work," AR at 28. namely as a cashier, stocker, or airline security representative; and (5) "there are jobs that exist in significant numbers in the national economy" that she can perform, AR at 30,including surveillance systems monitor, document preparer, and order clerk. The last two steps were based on the ALJ's finding that Demera "has the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a): walk two blocks at a time; stand one hour at a time; sit five to 10 minutes at a time; lift a gallon of milk—about eight pounds—with both hands; sit six hours out of an eight hour day, stand/walk six hours out of an eight hour day." AR at 20. In addition, the ALJ found that Demera "should avoid concentrated exposure to smoke, dust and known respiratory irritants." AR at 20.
The burden of proof is on the claimant in the first four steps, but it shifts to the Commissioner at the fifth step. See 20 C.F.R. §§ 404.1560(c)(2), 416.920(b)-(g); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000).
The Appeals Council denied Demera's request for review, rendering the Commissioner's decision to deny benefits final. Demera timely sought judicial review.
II.
"In reviewing the final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Demera argues that the ALJ violated the treating physician rule and improperly evaluated her credibility. The Court concludes that the ALJ did not provide valid reasons for discounting certain treating physicians' opinions, and thus remand is necessary. After reassessing the medical evidence upon remand, the ALJ must also reevaluate Demera's subjective complaints.
A. The Treating Physician Rule
Demera first argues that the ALJ failed to properly apply the treating physician rule. Demera vaguely alleges that the ALJ failed to contact her treating physicians to obtain their complete medical records and detailed assessments of Demera's ability to work.
Under the treating physician rule, "the opinion of a claimant's treating physician as to the nature or severity of the impairment is given 'controlling weight' so long as it 'is well-supported by medically acceptable clinical and laboratory or diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'" Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). The ALJ "draws its own conclusions as to whether those data indicate disability," but the ALJ must consider the physician's "ultimate finding of whether a claimant is disabled and cannot work." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Id.
Though the claimant bears the burden of supplying evidence to establish her impairments, see 20 C.F.R. §§ 404.1512(a), 416.912(a), the ALJ bears "an affirmative obligation to develop the administrative record," Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). According to the regulations in effect at the time of the ALJ's decision, the agency "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §§ 404.1512(e)(1); 416.912(e)(1). The Second Circuit has recognized that "an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record," Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999), and thus an ALJ's failure to develop the record is also a ground for remand, see Butts, 388 F.3d at 385-86.
Although new regulations took effect on March 26, 2012, the version in effect when the ALJ adjudicated the claim applies to this Court's review. See Lowry v. Astrue, 474 F. App'x 801, 805 n.2 (2d Cir. 2012) (applying the version of 20 C.F.R. § 416.912(e) in effect when the ALJ adjudicated the disability claim). The current regulations relieve the ALJ of the duty to re-contact the medical source as the first step to resolving an inconsistency or insufficiency, see 20 C.F.R. §§ 404.1512, 416.912 (2012), and instead allow the ALJ to "determine the best way to resolve the inconsistency or insufficiency" based on the facts of the case, 20 C.F.R. §§ 404.1520b, 416.920b (2012). The ALJ must attempt to resolve the inconsistency or insufficiency by taking one or more of the following approaches: (1) re-contacting the treating physician or other medical source, (2) requesting additional existing records, (3) asking the claimant to undergo a consultative examination, or (4) asking the claimant or others for further information. Id. §§ 404.1520b(c)(1)-(4), 416.920b(c)(1)-(4). Notably, the new regulations "do not alter an adjudicator's obligations under §§ 404.1512(d) and 416.912(d)," and the agency "expect[s] that adjudicators will often contact a person's medical source(s) first." How We Collect and Consider Evidence of Disability, 77 Fed. Reg. 10,651, 10,652 (Feb. 23, 2012).
Demera satisfied her burden since the ALJ determined that the evidence establishes that Demera suffers from several severe impairments, AR at 17, and that these impairments prevent Demera from performing her past work, AR at 28. The ALJ, however, improperly discounted the opinions of certain treating physicians and failed to satisfy her duty to develop the record. Although the ALJ gave significant weight to some of the treating physicians' opinions, the ALJ decided not to give significant weight to "[t]he material provided by Dr. Varma, Dr. Manejias, Dr. Vosseller and Dr. Karpe . . . because it is not couched in vocationally relevant terms." AR at 28. This conclusory rationale is an insufficient basis for discounting medical opinions. Once the ALJ determined that these opinions were unclear or did not contain all of the necessary information, she had the responsibility to attempt to resolve these deficiencies by re-contacting the physicians or by taking alternative measures. See 20 C.F.R. §§ 404.1512(e)(1); 416.912(e)(1).
The ALJ's dismissal of Dr. Karpe's opinion is particularly troubling. Dr. Karpe, one of Demera's treating podiatrists, indicated in a note dated June 8, 2010, that "[t]he patient cannot bear weight or ambulate for period of greater than 5 minutes [without] significant edema and pain-Please limit periods of weight bearing and ambulation to less than 5 minutes." AR at 365. Contrary to the ALJ's view, Dr. Karpe's opinion does frame Demera's limitations in a vocationally relevant way. The ALJ nevertheless rejected this opinion without proper explanation and found that Demera could walk for two blocks and stand for one hour at a time. AR at 20.
The ALJ further erred by discounting the opinions of three other treating physicians —Dr. Varma, Dr. Manejias, and Dr. Vosseller—also based on their supposed lack of vocational relevance. In a report containing detailed test results, Dr. Varma, a treating neurologist, diagnosed Demera with cervical radiculopathy, as well as severe left and mild right bilateral carpal tunnel syndrome. AR at 232-34. Despite this opinion, the ALJ did not incorporate any fine motor restrictions into her determination of Demera's residual functional capacity ("RFC"). Dr. Vosseller, a treating orthopedist, opined on April 13, 2010, that Demera was "temporarily unemployable" and "has pain in her [right] ankle that makes being on her feet difficult." AR 328-29. The ALJ did nothing to investigate why Demera was temporarily unemployable or for how long this restriction would last. Finally, Dr. Manejias, a treating physiatrist, diagnosed Demera with degenerative disc disease and facet joint arthrosis of the lumbar spine, and advised her to limit her lifting and bending. AR at 330. She ordered physical therapy, an MRI, and a follow-up in two months, yet the ALJ did not seek to obtain any subsequent information from this source.
Because the ALJ failed to provide "good reasons" for rejecting the opinions of Dr. Varma, Dr. Manejias, Dr. Vosseller, and Dr. Karpe and failed to develop the record, remand is warranted. See Snell, 177 F.3d at 133. Further, on remand, the ALJ must attempt to resolve any conflicts or ambiguities in these medical opinions by re-contacting the physicians or by taking an alternative approach, such as requesting additional records.
The Commissioner attempts to justify the ALJ's determinations by noting that Dr. Karpe's opinion was inconsistent with the record evidence and that Dr. Vosseller's opinion was conclusory on an issue reserved for the Commissioner. The ALJ did not provide these explanations, however, and post hoc rationalizations for the ALJ's decision are not entitled to any weight. See Snell, 177 F.3d at 134 ("A reviewing court 'may not accept appellate counsel's post hoc rationalizations for agency action.'" (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
The Court finds that the remainder of Demera's vague arguments regarding the ALJ's treatment of her medical sources are without merit.
B. Evaluation of Subjective Complaints
Demera next contends that the ALJ improperly discredited her statements about her symptoms and limitations. To evaluate the credibility of a claimant's subjective complaints, the ALJ must first determine whether the claimant has a medically determinable impairment that could reasonably be expected to produce her symptoms, and second evaluate the intensity, persistence, and limiting effects of those symptoms. See 20 C.F.R. §§ 404.1529(b)-(c); 416.929(b)-(c). The ALJ must provide "specific reasons for the finding on credibility, supported by the evidence in the case record." SSR 96-7. When a claimant's subjective complaints suggest a greater severity than can be shown solely by objective medical evidence, the ALJ must consider other relevant factors, including: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain and other symptoms; (3) any precipitating or aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the pain or other symptoms; (5) treatment received other than medication; (6) any measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain and other symptoms. 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3).
Here, the ALJ found that Demera's medical impairments could reasonably be expected to cause some of her alleged symptoms but that her "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." AR at 26. In support of this determination, the ALJ noted that Demera took a 6-hour flight to spend Christmas with her family and that she cleans her house, cooks for 2 or 3 hours, washes dishes, and feeds and bathes her cats. AR at 26. The ALJ also noted that Demera is able to take public transportation and shop. AR at 26. Though Demera contends that the ALJ did not apply any of the enumerated factors in assessing her credibility, the ALJ clearly considered her daily activities.
Nevertheless, because this Court finds that the ALJ improperly discounted the opinions of four treating physicians in determining Demera's RFC, the ALJ must also reconsider Demera's credibility. The ALJ determined that Demera's subjective complaints were not credible to the extent they were inconsistent with the ALJ's RFC assessment and that her complaints suggest a greater severity than is demonstrated by the medical evidence. But once the ALJ reconsiders the medical evidence, it may fully support Demera's subjective complaints. Therefore, after the ALJ reassesses the opinions of the four treating physicians and obtains additional information as needed to resolve any inconsistencies or ambiguities, the ALJ must likewise reassess the credibility of Demera's subjective complaints.
For example, the ALJ improperly discounted Dr. Vosseller's report, which indicated that Demera was receiving injections to relieve her ankle pain and that she may require surgery. AR at 328-29. The regulations direct the ALJ, as part of the credibility evaluation, to consider the types of treatment that the claimant receives. See 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). Thus, the ALJ's improper discounting of Dr. Vosseller's opinion affects the credibility determination as well. --------
III
For the foregoing reasons, the plaintiff's motion for judgment on the pleadings is granted. The case is remanded to the Commissioner for further proceedings consistent with this opinion. Upon remand, the ALJ must apply the proper legal standard for reviewing the opinions of Dr. Varma, Dr. Manejias, Dr. Vosseller, and Dr. Karpe, and the ALJ must develop the record to resolve any gaps or inconsistencies in their opinions. The ALJ must also reassess Demera's credibility in light of the new perspective on the record medical evidence.
SO ORDERED.
/s/_________
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
January 24, 2013