ANDREW J. PECK, United States Magistrate Judge:
Francis Wilson, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Disability Insurance Benefits ("DIB"). (Dkt. No. 2: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 14: Wilson Motion; Dkt. No. 18:
For the reasons set forth below, Wilson's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED to the extent of remanding the case to the Commissioner for further proceedings consistent with this Opinion. The Commissioner's motion for judgment on the pleadings (Dkt. No. 18) is DENIED.
Wilson applied for DIB on May 22, 2012, alleging disability since January 29, 2012. (Dkt. No. 12: Administrative Record ("R.") 103.) The Social Security Administration ("SSA") initially denied Wilson's application. (R. 29-36, 51-56.) On June 10, 2013, Wilson had a hearing before Administrative Law Judge ("ALJ") Michael Friedman. (R. 39-50.) On June 27, 2013, ALJ Friedman denied Wilson's claim. (R. 16-25.) On October 10, 2014, the Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner. (R. 1-6.) The period at issue for Wilson's application runs from January 29, 2012, when Wilson alleged he became disabled, through June 27, 2013, the date of ALJ Friedman's decision. (R. 39.)
Wilson was born in January 1955 and was between fifty-seven and fifty-eight years old during the period at issue. (R. 29, 103.) Wilson completed four years of college. (R. 120.) Wilson's past relevant work included over thirty-seven years of employment at the New York City Human Resources Administration, most recently as a staff analyst. (R. 42, 120.) Wilson's work included policy and planning, reports, analysis, budgeting and proofreading of documentation. (R. 42, 121.) Wilson retired on January 29, 2012. (R. 42, 119.)
Wilson is not married. (R. 104.) Wilson lives with a female friend who is a stroke victim. (R. 41, 139-40.) Wilson took public transportation to his hearing by himself, but stated "I got a seat. I was lucky." (R. 44.) Wilson's daily routine involved getting up, washing himself, and walking and caring for his two dogs. (R. 140-41.) Wilson picks up after himself if he makes a mess. (R. 47.) Wilson also puts out the garbage two times a week and goes to church on Sunday. (R. 141.) Because the grocery store is not far from his home, Wilson sometimes goes himself and sometimes has others shop for him. (R. 46.) Wilson states that he does not do "too much" cooking. (Id.) Wilson enjoys reading and watching the television news. (R. 47.)
Although Wilson used to exercise, he gained weight while working and now has a bad back. (R. 140.) Wilson stated that he is "too big" and has "trouble fitting into clothing." (Id.) Wilson reports having trouble bending to bathe, although he washes regularly. (Id.) Wilson stated that "I don't do too much" because of how his pain affects his activities. (R. 141.) Wilson goes to the doctor when in pain. (Id.)
Wilson testified that he stopped working because, "Well, I had the time but I had medical problems. I had trouble standing up, getting up, my back, my legs, you know." (R. 42.) Wilson reported that he stopped working "[b]ecause of [his] condition(s)" and "[b]ecause of other reasons." (R. 119.) Wilson wrote: "My medical conditions were worsening and limiting my ability to work, and I was eligible to retire." (Id.) Wilson indicated that his conditions did not cause him to make changes in his work activity. (Id.) Wilson reported that he used machines, tools or equipment in his work as well as technical knowledge
Wilson reported that although his weight fluctuates, it was close to 300 pounds in June 2013. (R. 42.) At the hearing in June 2013, Wilson reported pain and discomfort in his breathing, lower back and legs. (R. 42-43.) Wilson also reported asthma and chronic obstructive pulmonary disease ("COPD") that "comes and goes." (R. 43.) Wilson reported taking medication for the pain that "[s]ometimes" helped. (R. 43.) Wilson stops to rest a little when doing tasks, and stated that heat from baths or showers "sometimes" helps. (R. 43.) Wilson usually does not stand for more than five or ten minutes at a time. (R. 43-44.) When asked how long he can sit for, Wilson stated "[s]ometimes I get up a couple minutes." (R. 44.) Wilson testified that he could walk for about five to ten minutes at a time. (Id.) Wilson reported difficulty climbing stairs and taking the subway to and from work as a result, which was one reason for Wilson leaving his job. (R. 47-48.)
Wilson uses a nebulizer machine at home. (R. 43.) Wilson's conditions affect his sleeping, but he does not use any devices to aid in sleeping. (R. 43, 140.) Weather that is too hot or too cold affects Wilson's shortness of breath and causes his lungs to constrict. (R. 48, 142.) After Wilson's telephone interview for a disability report on May 22, 2012, the interviewer noted that Wilson "had great difficulty breathing during call, often coughing, choking and needing to take a break or drink water. He also seemed to have difficulty reaching for papers, and during call stated he was feeling ill." (R. 136.)
On August 16, 2012, Wilson completed a disability report online and reported "severe and constant low back pain" as a change that had occurred in his daily activities since his May 2012 report. (R. 153-56.)
On October 27, 2005, Dr. Muhammed Naeem saw Wilson for a neck-related complaint. (R. 189.) Dr. Naeem described Wilson as "a pleasant, 50 year old male in no apparent distress who looks his given age, is well-developed and nourished with good attention to hygiene and body habitus [sic]." (Id.) Dr. Naeem observed "no rales,
On April 17, 2006, Dr. Naeem saw Wilson for complaints of pain in his neck and left forearm, as well as "mild to moderate" non-radiating lower back pain. (R. 192.) Dr. Naeem noted that a motor vehicle accident caused trauma to Wilson's lower back. (Id.) Wilson's weight was 258 pounds. (Id.) Examination results were largely unremarkable. (Id.) Dr. Naeem ordered an MRI "of the spinal canal and contents, cervical without contrast," opined that Wilson's neck and back pains were due to the accident, and referred Wilson to neurosurgery and pain management. (Id.) On June 15, 2006, Wilson showed no symptoms during examination. (R. 194.)
Dr. Naeem saw Wilson on December 11, 2007 for unrelated conditions; his review of Wilson's respiratory and musculoskeletal systems was normal. (R. 196.)
On January 11, 2010, Wilson went to Dr. Naeem "for evaluation of breathlessness, dyspnea,
At a February 9, 2010 follow-up evaluation with Dr. Naeem, Wilson reported that he still had shortness of breath and had not been taking his medication. (R. 200.) Wilson's physical exam results were "unchanged from previous visit," but Wilson was "in no apparent distress." (Id.) Dr. Naeem diagnosed Wilson with dyspnea and ordered a diagnostic EKG. (Id.)
On November 29, 2010, Dr. Naeem saw Wilson again for "breathlessness, dyspnea, shortness of breath, tachypnea and wheezing" that had occurred for two weeks. (R. 201.) Dr. Naeem's review of Wilson's systems was substantially identical to his January 2010 review. (Id.) Dr. Naeem's physical examination recorded Wilson's height
On December 20, 2010, pulmonologist Dr. Jay Dobkin examined Wilson. (R. 237-41.) Wilson reported having a cough and wheezing at night for the previous month. (R. 237.) Wilson reported chest congestion and green sputum, dyspnea on exertion
Dr. Dobkin examined Wilson again on January 28, February 17, March 3, June 2 and September 15, 2011. (R. 180-82, 227-36.) In each instance, Wilson reported symptoms of wheezing and dyspnea after walking only short distances. (Id.) In January, Wilson had wheezing on examination and in February, Dr. Dobkin noted that Wilson had dyspnea after any exertion, a productive cough and frequent wheezing. (R. 180-82, 235-36.) In March, June and September, Wilson's lungs were clear on auscultation bilaterally without wheezes or rales, and Wilson had no respiratory distress, cyanosis, clubbing, edema or deformity. (See R. 227-32.) Dr. Dobkin repeatedly opined that Wilson should continue or restart his asthma medications. (See R. 180-82, 227-36.)
At the January 2011 examination, Wilson weighed 260 pounds with a BMI of 34.43. (R. 235.) His peak flow was 260 out of a predicted value of 616. (Id.) Dr. Dobkin ordered full pulmonary function studies and rib x-rays. (Id.) On February 17, 2011, Wilson's effort on another spirometry exam was "fair." (R. 180-81.) The predicted FEV1 value was 4.26 liters. (R. 181.) Baseline FEV1 was 3.14 liters, seventy-three percent of the predicted value. (Id.) No post-brochodilator study was obtained. (Id.) Wilson weighed 270 pounds and was seventy-four inches tall. (Id.) Dr.
On March 3, 2011, Wilson weighed 280 pounds with a BMI of 37.08. (R. 233.) His peak flow was 360 out of a predicted value of 616. (Id.) On June 2, 2011, Wilson weighed 283 pounds with a BMI of 37.47. (R. 230.) His peak flow was 450 out of a predicted value of 616. (Id.) On September 15, 2011, Wilson weighed 288 pounds with a BMI of 38.13. (R. 227.) His peak flow was 300 out of a predicted value of 616. (Id.)
On February 13, 2012, Dr. Dobkin examined Wilson again for wheezing and dyspnea. (R. 224-26.) Wilson weighed 276 pounds with a BMI of 36.55. (R. 224.) He did not appear to be in pain and was in no respiratory distress, and his lungs were clear bilaterally without wheezing or rales. (R. 224-25.) His peak flow was 350 out of a predicted value of 613. (R. 224.) Wilson's examination results and diagnosis were substantially identical to those from June and September 2011. (Id.)
On April 17, 2012, Wilson complained to Dr. Naeem of cold symptoms that had been present for two to three days. (R. 205.) Dr. Naeem noted a sore throat, nasal congestion and cough with yellow phlegm. (Id.) Wilson reported wheezing and "exertional shortness of breath." (Id.) Wilson appeared "[n]ot sick but congested." (R. 206.) Wilson's nose was stuffy and his throat congested. (Id.) Dr. Naeem opined that Wilson suffered from acute bronchitis and acute asthma, and prescribed antibiotics. (Id.)
An April 17, 2012 spirometry report for Wilson for show that his predicted FEV1 value was 2.729 liters. (R. 184.) Pre-bronchodilator FEV1 was 3.076 liters, 113 percent of the predicted value. (Id.) Post-brochodilator FEV1 was 3.532 liters, 129 percent of the predicted value. (Id.) The spirometry was "[n]ormal" and the "[p]ost bronchodilator test improved." (Id.)
On April 26, 2012, Dr. Naeem saw Wilson for a follow up on his shortness of breath. (R. 203.) Dr. Naeem noted that Wilson was "better" and appeared comfortable. (Id.) Wilson's lungs were "[b]ilateral clear on ausculta[t]ions and no additional sounds present." (R. 204.)
On May 3, 2012, Dr. Dobkin examined Wilson, who reported symptoms consistent with his prior treatment by Dr. Dobkin. (R. 221-23.) Wilson weighed 271 pounds with a BMI of 35.88. (R. 221.) Wilson's peak flow was 350 out of a predicted value for peak flow of 613. (Id.) Once again, Wilson's examination results were consistent with his prior treatment from Dr. Dobkin, whose diagnosis and opinion remained unchanged. (R. 221-22.)
On June 27, 2012, consultative internist Dr. Sharon Revan examined Wilson. (R. 209-13.) Wilson's chief complaints were low back pain, bilateral knee pain, "overweight," sinus problems, asthma, and pain in the back of his head. (R. 209.) Dr. Revan recorded Wilson's height as five feet, eleven inches. (R. 210.) Wilson described his activities as showering and dressing himself; taking his time with cooking, cleaning, laundry and shopping; listening to the radio; and following up with his doctor. (Id.) On examination, Wilson was in no acute distress and had both a normal gait and stance. (Id.) Wilson performed a squat "halfway, holding on due to back pain." (Id.) Wilson was unable to walk on heels and toes. (Id.) He did not require an assistive device, needed no help changing for the examination or getting on or off the examination table, and could rise from a chair without difficulty. (R. 210-11.) Wilson's chest and
Dr. Revan diagnosed Wilson with lower back pain, bilateral knee pain, overweight, sinus problems, asthma and head pain. (Id.) Dr. Revan gave Wilson a "[f]air" prognosis. (Id.) Dr. Revan opined that Wilson had no limitations with speech, vision, hearing, or use of the upper extremities for fine and gross motor activity. (Id.) Dr. Revan opined that Wilson had mild limitations with walking due to knee pain, mild limitations with climbing stairs due to shortness of breath, and mild limitations on the activities of daily living. (Id.) Dr. Revan opined that Wilson had "[l]imitations with standing and sitting due to back pain and neck pain." (Id.)
On August 9, 2012, Wilson had a follow-up examination with Dr. Dobkin relating to his asthma and dyspnea, which remained largely unchanged from prior visits, although he now reported two episodes of wheezing a week. (R. 218.) Wilson's weight was 284 pounds, and his BMI was 37.60. (Id.) His peak flow was 350 out of predicted value of 613. (R. 218.) Examination results were otherwise unremarkable, and Dr. Dobkin's opinion remained consistent with prior examinations. (R. 218-19.)
On September 28, 2012, state agency medical consultant Dr. Jack Bankhead reviewed Wilson's medical records and concluded that the data presented would fully support a residual functional capacity ("RFC") for light work. (R. 246.) Dr. Bankhead noted the pulmonary function test from February 17, 2011 showing a pre-bronchodilator FEV1 of 3.14 liters, which he characterized as "73% of normal." (Id.) Dr. Bankhead also noted the April 2012 pulmonary function test showing a post-bronchodilator FEV1 of 3.52 liters, which he characterized as "129% of normal." (Id.) From the June 2012 consultative examination, Dr. Bankhead noted that Wilson's straight leg raise was "positive at 60 degrees, [that Wilson had] mild limitations in forward flexion, normal neurological exam, [and] normal fine motor activity." (Id.) Dr. Bankhead noted that Wilson's lumbar x-rays were negative. (Id.)
On May 14, 2013, treating physician Dr. Husain prepared a physical capacity evaluation for Wilson. (R. 248.) Dr. Husain opined that Wilson could lift a maximum of five pounds, stand and/or walk for up to two hours per day and sit for less than six hours in an eight-hour workday. (Id.) Dr. Husain provided no documentation or explanation for the basis of his opinion. (Id.)
On May 30, 2013, Dr. Naeem completed a pulmonary medical source statement. (R. 254-57.) Dr. Naeem stated that he had been seeing Wilson for ten years and had diagnosed Wilson with COPD and obesity. (R. 254.) Dr. Naeem identified Wilson's symptoms as shortness of breath, orthopnea, chest tightness and fatigue. (Id.) Dr. Naeem speculated without further explanation that emotional factors relating to Wilson's wife's stroke contributed to the severity of Wilson's symptoms and functional limitations. (Id.) Dr. Naeem gave Wilson a poor prognosis and indicated that Wilson's limitations had lasted or would last at least twelve months. (R. 255.) Dr. Naeem opined that Wilson could only walk half a block without rest or severe pain. (Id.) Dr. Naeem opined that Wilson could sit for fifteen minutes at a time before needing to get up, and stand for ten minutes before needing to sit down or walk around. (Id.) Dr. Naeem opined that Wilson could sit for a total of less than two hours in an eight-hour work day with normal breaks. (Id.) Dr. Naeem opined that Wilson would have to take unscheduled breaks of a few minutes duration every few hours to sit quietly. (Id.) Dr. Naeem opined that Wilson would be "`off task'" for twenty-five percent or more of each workday. (R. 256.) Dr. Naeem opined that Wilson's conditions would likely cause good and bad days at work and absences of approximately three days per month. (R. 257.) Dr. Naeem opined that Wilson could never lift any weight, nor could he twist, stoop, squat, climb ladders or climb stairs. (R. 256.) Dr. Naeem opined that Wilson should avoid concentrated exposure to extreme heat or cold and avoid all exposure to cigarette smoke, solvents/cleaners, fumes, odors, gases, dust and chemicals. (Id.) Dr. Naeem opined that because of Wilson's COPD and obesity he was incapable of even low stress jobs. (R. 257.)
On June 27, 2013, ALJ Friedman denied Wilson's claim for benefits. (R. 16-25.) ALJ Friedman followed a five-step analysis, considering Wilson's testimony and the medical record. (R. 19-21.) At the first step, ALJ Friedman determined that Wilson "has not engaged in substantial gainful activity since January 29, 2012, the alleged onset date." (R. 21.)
At the second step, ALJ Friedman determined that Wilson had "the following severe impairments: Obesity, Chronic Obstructive Pulmonary Disorder, and Orthopedic Pain." (Id.)
At the third step, ALJ Friedman determined that Wilson "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." (R. 21.) ALJ Friedman "considered section[] 3.02 of the Listings in particular" in making his finding, stating:
(R. 21, record citation omitted.)
ALJ Friedman found that Wilson had the RFC "to perform light work as defined in 20 C.F.R. § 404.1567(b) except he is restricted from performing jobs involving pulmonary irritants." (R. 22.) ALJ Friedman "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." (Id.) He also "considered opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (R. 22.) ALJ Friedman found that Wilson's medically determinable impairments could reasonably be expected to cause Wilson's alleged shortness of breath that "`comes and goes'" and chronic pain limiting his ability to work. (R. 22.) However, ALJ Friedman found that Wilson's statements concerning the intensity, persistence and limiting effects of the symptoms were "not entirely credible." (R. 22.) In particular, ALJ Friedman wrote:
(R. 23, record citations omitted.) Despite finding Wilson not entirely credible, ALJ Friedman found that Wilson's orthopedic pain, obesity and COPD limited him to light work without exposure to pulmonary irritants. (Id.)
ALJ Friedman acknowledged that Wilson's reported lower back, neck and leg pain when standing and walking was supported in the medical records, and that Wilson exhibited positive straight leg raising while supine. (R. 22.) However, ALJ Friedman found this outweighed by Wilson's appearance and performance in examinations, responsiveness to pain treatments, and normal medical imaging. (Id.) ALJ Friedman highlighted that Wilson "is able to care for himself, including dressing, bathing, cooking meals, and shopping. He is able to travel via train to attend appointments." (R. 22-23, record citation omitted.)
ALJ Friedman stated that Wilson's height of seventy-three inches and weight fluctuating around 300 pounds placed him "well within the range of obese." (R. 23.) ALJ Friedman stated that Wilson's "records do not indicate any significant complications from his obesity beyond possible contribution to his orthopedic pain." (Id.) ALJ Friedman noted that Wilson "does not exercise and only `tries to watch his diet.'" (Id.)
ALJ Friedman found that Wilson's medical records indicated that his chronic obstructive pulmonary disorder had been less persistent and limiting than alleged. (Id.) Although ALJ Friedman noted that Wilson had experienced "`very severe obstruction, with low vital capacity,'" and
ALJ Friedman also relied on Wilson's objective medical tests: "Furthermore, objective medical tests have shown FEV1 peak flow testing of 3.14, 3.076, 3.532, 2.499, and 3.245. This testing has ranged from 73% to 129% of predicted and normal rates.... This suggests that his condition is not as limiting as alleged." (Id., record citations omitted.) ALJ Friedman noted Wilson's walking and caring for dogs, for himself and for his home. (Id.) ALJ Friedman also observed that Wilson's "records indicate that he ceased work in March of 2012 through retirement, not as a result of limitations due to his condition." (Id.) ALJ Friedman concluded that "[t]hese facts strongly suggest[ed]" that Wilson's allegations were "not fully credible." (Id.)
ALJ Friedman accorded "great weight" to the opinion of state agency reviewer Dr. Bankhead that Wilson is capable of performing light exertional work. (R. 23.) ALJ Friedman noted that Dr. Bankhead "based his opinion on findings from [objective] peak flow testing revealing FEV1 levels in 2012 up to 129% of expected values" and on the fact that Wilson had a positive straight leg raising test and some limitation in forward flexion. (Id.) ALJ Friedman gave Dr. Bankhead's opinion great weight because "his opinion's rationale is explained in great detail" and "is consistent with [Wilson's] objective medical evidence" despite the fact that Dr. Bankhead is neither a treating nor examining source. (Id.)
ALJ Friedman gave "some weight" to consultative examiner Dr. Revan's opinion. (R. 24.) ALJ Friedman noted Dr. Revan's opinion that Wilson had "only `mild limitations with walking due to knee pain. Limitations with standing and sitting due to back pain and neck pain [and] mild limitation to climbing stairs due to shortness of breath.'" (Id.) ALJ Friedman noted that Dr. Revan's opinion did not provide specific limitations on Wilson's abilities nor specify her opinion as to an appropriate exertional category. (Id.) ALJ Friedman found that Dr. Revan's opinion was "somewhat consistent with the objective medical evidence, including FEV1 testing," and was based on an examination of Wilson. (Id.) Dr. Revan's opinion was given only some weight because it "fail[ed] to give specific limitations or abilities." (Id.)
ALJ Friedman gave "little weight" to treating physician Dr. Naeem's opinion that Wilson could stand for only ten minutes, sit for fifteen minutes at a time for a total of two hours, lift no more than ten pounds, had limitations in motion, must avoid exposure to many environmental factors, had an inability to work at even low stress jobs, and would be off-task twenty-five percent of the day. (R. 24.) ALJ Friedman found that Dr. Naeem's opinion was "inconsistent with the medical evidence as a whole." (Id.) ALJ Friedman compared Dr. Naeem's reliance on Wilson's "fatigue, shortness of breath, orthopnea, and chest tightness" with records that "routinely show [Wilson] to have lungs clear to auscultation," and concluded that Wilson's "medical records do not support Dr. Naeem's opinion." (Id.) ALJ Friedman also noted Wilson's reportedly stable condition, "normal FEV1 peak flow testing," and actual "activities of daily living
ALJ Friedman also gave "little weight" to treating physician Dr. Husain's opinion. (R. 24.) ALJ Friedman noted Dr. Husain's opinion that Wilson could stand or walk for up to two hours per day, stand for less than six hours per day, and lift only five pounds. (Id.) ALJ Friedman observed that Dr. Husain's opinion "contain[ed] no explanation or reference of objective medical evidence or tests" and was "merely conclusory in nature." (Id.) Further, ALJ Friedman noted that "objective medical evidence, including spirometric testing, reveals that [Wilson's] conditions, including COPD, are not nearly as limiting as he has alleged." (Id.) Therefore, ALJ Friedman found Dr. Husain's opinion to be inconsistent with the medical evidence and not entitled to controlling weight as the opinion of a treating physician. (Id.)
ALJ Friedman did not address Dr. Dobkin's medical records. (R. 19-25.)
At the fourth step, ALJ Friedman determined that Wilson "is capable of performing past relevant work as a Staff Analyst" as the work "does not require the performance of work-related activities precluded by [Wilson's] residual functional capacity." (R. 24.) In comparing Wilson's RFC to his past relevant work, ALJ Freidman found that because Wilson "is able to perform light exertional work and is only precluded from work involving pulmonary irritants ... [Wilson is] capable of returning to his past relevant work as a Staff Analyst." (R. 25.) ALJ Friedman noted that work as a staff analyst required lifting no more than ten pounds, walking for three hours, standing for two hours, and sitting for two hours during a workday. (Id.) ALJ Friedman also noted that Wilson "did not testify that his work involved work with pulmonary irritants." (Id.)
ALJ Friedman concluded that Wilson had not been under a disability from January 29, 2012 through the date of his decision, June 27, 2013, and did not continue to step five. (R. 25.)
On July 29, 2013, Wilson submitted medical evidence from Dr. Carl Gerardi (spanning the period from April 22, 2008 to May 1, 2013) to the Appeals Council with his request to review ALJ Friedman's decision. (R. 4, 258-364.)
Dr. Gerardi saw Wilson on numerous occasions for urology-related treatments. (See, e.g., R. 260, 352, 353.) On May 14, 2008, Dr. Gerardi performed a TUNA procedure on Wilson. (R. 352, 362.) On September 8, 2009, Wilson again saw Dr. Gerardi. (R. 288.) Wilson did not report fatigue, nasal congestion, cough, shortness of breath, wheezing, back pain, joint pain, muscle pain or dizziness. (Id.)
On April 6, 2010, Wilson was examined by Dr. Gerardi. (R. 284, 332.) Wilson did not report fatigue, nasal congestion, cough, shortness of breath, wheezing, back pain, joint pain, muscle pain or dizziness. (R. 284, 333.) Wilson reported his height as seventy-three inches and his weight as 250 pounds, which calculates a BMI of 32.98. (R. 284.) Wilson's respiration was noted as "[u]nlabored." (Id.) On physical examination, Dr. Gerardi noted that Wilson was "[n]ot in acute distress" and had "normal respiratory effort" on chest and lung exam. (R. 284-85.) Notes from Wilson's May 18, June 15, and September 21, 2010 examinations by Dr. Gerardi are essentially identical. (R. 277, 279-80.)
On February 20, 2013, Wilson reported to Dr. Gerardi that he had fatigue, nasal congestion, shortness of breath, cough, wheezing, chest pain and palpitations, back pain, joint pain, muscle pain and dizziness.
On July 8, 2013, Wilson requested Appeals Council review of ALJ Friedman's decision. (R. 14.) Wilson's counsel argued that the ALJ had "1. Made no function by function assessment of the [Wilson's] residual functional capacity. 2. Failed to properly assess [Wilson's] complaints. 3. Failed to recognize the need for vocational expert testimony due to his finding that [Wilson's] `chronic obstructive pulmonary disorder mandates that he not work with pulmonary irritants.'" (R. 169.) On October 10, 2014, the Appeals Council considered the additional evidence submitted by Wilson, concluded that it did not provide a basis for changing ALJ Friedman's decision, and denied review. (R. 1-5.) ALJ Friedman's decision thus became the Commissioner's final decision.
A person is considered disabled for Social Security benefits purposes when he is unable "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)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S.Ct. 376, 379, 157 L.Ed.2d 333 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268, 152 L.Ed.2d 330 (2002); Impala v. Astrue, 477 Fed.Appx. 856, 857 (2d Cir.2012).
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 111; Betances v. Comm'r of Soc. Sec., 206 Fed.Appx. at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam).
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record as a whole to support such determination. E.g., 42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 Fed.Appx. 53, 53 (2d Cir.2011).
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); accord, e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74.
The Court, however, will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004), amended on other grounds, 416 F.3d 101 (2d Cir.2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80, 157 L.Ed.2d 333 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). The Supreme Court has articulated the five steps as follows:
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S.Ct. at 379-80 (fns. & citations omitted); accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.2012); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
20 C.F.R. § 404.1527(c)(2); see, e.g., Rugless v. Comm'r of Soc. Sec., 548 Fed.Appx. 698, 699-700 (2d Cir.2013); Meadors v. Astrue, 370 Fed.Appx. 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254 Fed.Appx. 87, 89 (2d Cir.2007); Lamorey v. Barnhart, 158 Fed.Appx. 361, 362 (2d Cir.2006).
Further, the regulations specify that when controlling weight is not given to a treating physician's opinion (because it is not "well-supported" by other medical evidence), the ALJ must consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(c)(2)-(6); see, e.g., Cichocki v. Astrue, 534 Fed.Appx. 71, 74 (2d Cir.2013); Gunter v. Comm'r of Soc. Sec., 361 Fed. Appx. 197, 197 (2d Cir.2010); Foxman v. Barnhart, 157 Fed.Appx. 344, 346-47 (2d Cir.2005); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998).
When a treating physician provides a favorable report, the claimant "is entitled to an express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's] favorable ... report and, if the [ALJ or] Council does not credit the findings of that report, to an explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999); see, e.g., Cichocki v. Astrue, 534 Fed.Appx. at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010) (ALJ's failure to consider favorable treating physician evidence ordinarily requires remand pursuant to Snell but does not require remand where the report was "essentially duplicative of evidence considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984) ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable [reviewing courts] to decide whether the determination is supported by substantial evidence." (citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May 6, 2003)
The Commissioner's "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993).
It is the "well-established rule in [the Second] circuit" that the ALJ must develop the record:
Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir.2009). This duty is heightened when a claimant proceeds pro se, see, e.g., Moran v. Astrue, 569 F.3d at 113; Hamilton v. Colvin, 10 Civ. 9641, 2013 WL 3814291 at *13 (S.D.N.Y. July 23, 2013), but still "applies even where the applicant is represented by counsel," see, e.g., Eusepi v. Colvin, 595 Fed.Appx. 7, 9 (2d Cir.2014) (ALJ must seek additional record evidence when there are "obvious gaps," even when represented parties are involved); Rivera v. Comm'r of Soc. Sec., 728 F.Supp.2d 297, 321-22, 328-29 (S.D.N.Y.2010).
The ALJ has an affirmative duty to fill any obvious gaps in the administrative record prior to rejecting a treating physician's opinion. See, e.g., Swiantek v. Comm'r of Soc. Sec., 588 Fed.Appx. 82, 84 (2d Cir.2015) (citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999)); Barbera v. Barnhart, 151 Fed.Appx. 31, 33 (2d Cir. 2005); Ulloa v. Colvin, 13 Civ. 4518, 2015 WL 110079 at *11 (S.D.N.Y. Jan. 7, 2015).
ALJ Friedman found that Wilson had the RFC to "perform light work as defined in 20 C.F.R. § 404.1567(b) except he is restricted from performing jobs involving pulmonary irritants." (See page 14 above.) Wilson argues that ALJ Friedman's RFC determination for Wilson is contradicted by the medical evidence of record, particularly that Wilson's pulmonary function test results, "do not support a finding that Mr. Wilson enjoyed an unrestricted capacity for walking." (Dkt. No. 15: Wilson Br. at 15-16.) Wilson argues that where "ALJ Friedman reviewed the file and cites the FEV1 findings as reflective of normal findings, he impermissibl[y] sets his lay interpretation of the evidence against that of Dr. Naeem, a board certified internist [who] has treated Mr. Wilson for more than ten years." (Dkt. No. 15: Wilson Br. at 16, record citation omitted.)
In assessing whether a claimant has a disability, the factors to be considered include:
Singleton v. Colvin, 13 Civ. 4185, 2015 WL 1514612 at *12 (S.D.N.Y. Mar. 31, 2015) (quoting Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980)); see also, e.g., Sayles v. Colvin, 13 Civ. 6129, 2014 WL 4384133 at *11 (S.D.N.Y. Aug. 28, 2014), report & rec. adopted, 2014 WL 4631202 (S.D.N.Y. Sept. 16, 2014); Rivera v. Comm'r of Soc. Sec., 728 F.Supp.2d 297, 319 (S.D.N.Y.2010).
In determining Wilson's RFC, ALJ Friedman relied extensively on Wilson's objective pulmonary function tests (specifically, spirometry tests), interpretations of those tests by Wilson's doctors and state examiners, and the ALJ's own interpretation of them. (See pages 16-18 above.) ALJ Friedman referred to five specific FEV1 results and stated that Wilson's "testing has ranged from 73% to 129% of predicted and normal rates." (See page 16 above). ALJ Friedman also relied on Wilson's spirometry results and his doctors' interpretations of them in determining Wilson's credibility when he found that Wilson's symptoms were not substantiated by objective medical evidence. (See page 16 above.)
ALJ Friedman also relied on the spirometry results in determining the weight to be given to the medical opinion evidence in the record. (See pages 16-18 above.) ALJ Friedman gave "great weight" to state agency reviewing physician Dr. Bankhead's opinion because he "based his opinion on findings from [objective] peak flow testing revealing FEV1 levels in 2012 up to 129% of expected values." (See page 16 above.) ALJ Friedman gave "some weight" to consultative examiner Dr. Revan's opinion as "somewhat consistent with [Wilson's] objective medical evidence, including FEV1 testing." (See page 17 above.) ALJ Friedman gave "little weight" to treating physician Dr. Naeem's opinion because Wilson's "medical records do not support Dr. Naeem's opinion" including Wilson's "normal FEV1 peak flow testing." (See page 17 above.) ALJ Friedman also gave little weight to treating physician Dr. Husain's opinion in part because "objective medical evidence, including
There is, however, an obvious gap in the medical record in the form of the pulmonary function tests' multiple and unexplained predicted normal values for Wilson. Spirometry is an objective form of pulmonary function testing. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.00(A), (E). Two particular measurements are important: "one-second forced expiratory volume (FEV1) and forced vital capacity (FVC)." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.00(E). A person's reported FEV1 and FVC are gauged in relation to the predicted normal value of each measure for an individual. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.00(E) (triggering use of a bronchodilator "if the pre-bronchodilator FEV1 value is less than 70 percent of the predicted normal value").
As opposed to one fixed predicted normal value for Wilson's FEV1, as many as four different predicted normal values appear in the record. (See pages 6-9 above.)
Date Predicted FEV1 Actual FEV1 Percentage of Percentage of Dr.
Predicted FEV1 Dobkin's Predicted
FEV1 (4.26)
Jan. 11, 2010 4.169 3.245 78% 76%
4.169 3.112 75% 73%
Nov. 29, 2010 2.777 unreported n/a n/a
2.777 2.499 90% 59%
Apr. 17, 2012 2.729 3.076 113% 72%
2.729 3.532 129% 83%
(See pages 6-10 above.)
The record contains insufficient information to determine how the other predicted normal values were generated or why they vary, because no height or other information actually was recorded on any of the spirometry reports other than Dr. Dobkin's February 17, 2011 report. (R. 180-81, 184-85; see pages 6-7, 9-10 above.) Moreover, although the 2010 spirometry results from Dr. Naeem that omit Wilson's height and weight were obtained on the same days as examinations that do note Wilson's height and weight, Dr. Naeem's records contain wildly different heights and weights for Wilson on each occasion. (See R. 198, 201; pages 6-7, 7 n. 11 above.) Finally, neither Wilson's April 17, 2012 spirometry result nor Dr. Naeem's examination records from the same day mention Wilson's height or weight. (See R. 184, 205; pages 9-10 above.) Because Wilson's predicted normal FEV1 value varies greatly without explanation, it is unclear that the measurement of his reported FEV1 as a percentage of his predicted normal FEV1 has any utility whatsoever.
It is not the ALJ's role (nor the Court's, for that matter) to determine which predicted normal value from the variety of available reference values is correct or how the spirometry results should be interpreted. See, e.g., Calzada v. Asture, 753 F.Supp.2d 250,
Legal errors regarding the duty to develop the record warrant remand. See, e.g. Rosa v. Callahan, 168 F.3d 72, 79-80 (2d Cir.1999) (Sotomayor, C.J.) (remanding where ALJ failed to fully develop record by neglecting to seek information or explanation to supplement treating physicians "sparse" notes which were "`conclusive of very little'"); Elliott v. Colvin, No. 13-CV-2673, 2014 WL 4793452 at *18 (E.D.N.Y. Sept. 24, 2014) ("[W]here the ALJ has failed to fully develop the factual record, the proper remedy is to remand the case for further proceedings."); Barnwell v. Colvin, 13 Civ. 3683, 2014 WL 4678259 at *12 (S.D.N.Y. Sept. 9, 2014); Oliveras v. Astrue, 07 Civ. 2841, 2008 WL 2262618 at *8 (S.D.N.Y. May 30, 2008), report & rec. adopted, 2008 WL 2540816 (S.D.N.Y. June 25, 2008); see also cases cited at page 26-27 above. Because the unexplained error in the predicted normal values for Wilson's FEV1 creates an obvious gap in the record that ALJ Friedman should have developed, remand is appropriate.
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings (Dkt. No. 18) is DENIED, and Wilson's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED to the extent of remanding the case to the Commissioner for further proceedings consistent with this Opinion.
SO ORDERED.
