HENRY PITMAN, Magistrate Judge.
Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") and disability insurance benefits ("DIB"). Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items ("D.I.") 16, 19). Both parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c) (D.I. 9). For the reasons set forth below, plaintiff's motion for judgment on the pleadings is granted, this matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and the Commissioner's motion for judgment on the pleadings is denied.
In his applications for SSI and DIB, plaintiff alleged that he became disabled on August 4, 2010 due to spinal stenosis,
Plaintiff was born in 1967 and was 43 years old at his alleged disability onset date (Tr. 19). He graduated from high school and from a police academy (Tr. 55, 213).
Plaintiff is single, has no children and lives alone in an apartment on the first floor of a two-family house that he owns (Tr. 53-54, 197, 303). His mother and aunt live on the second floor (Tr. 53-54).
On May 11, 2010, plaintiff went to the emergency room at Orange Regional Medical Center in Goshen, New York with complaints of long lasting, moderate, achy, dull and throbbing lumbosacral pain
A lumbar x-ray showed "mild disc space narrowing" at L1-L2 and L2-L3 and noted "partial lumbarization[
Dr. Carl Silverio, a radiologist, conducted an MRI of plaintiff's lumbar spine on May 15, 2010 (Tr. 313). The MRI showed mild multilevel degenerative disc disease at the L1-L2 and L4-L5 levels, an L1-L2 concentric disc bulge with a posterior annular tear that contributed to mild central canal stenosis, and disc bulging which indented the ventral thecal sac at the L2-L3 level and that contributed to mild central canal stenosis (Tr. 313). The radiologist did not identify any focal disc herniations,
Dr. Marc J. Rosenblatt, a rehabilitation and pain management doctor, examined plaintiff on June 15, 2010 (Tr. 303). Plaintiff stated that, after he was injured at work, he developed low back pain and pain radiating down his left lower leg (Tr. 303). Dr. Rosenblatt noted that plaintiff had an MRI that revealed mild multilevel degenerative disc disease, disc bulges with mild canal stenosis at L1-2 and L2-3 and a concentric disc bulge with posterior annual tear at L1-2 (Tr. 303). Dr. Rosenblatt examined plaintiff and concluded that plaintiff's sensation was "intact throughout," that his "[m]otor evaluation [was] 5/5," and that the "[e]valuation of the thoracolumbar spine reveals relative suppleness with full range of motion" and "sporadic trigger points"
The record does not include any other treatment notes or reports from Dr. Rosenblatt. However, plaintiff reported in a form to SSA that, on an unspecified date, Dr. Rosenblatt administered a "[c]orticosteroid [i]njection to injured disc(s) in [the] lumbar area" (Tr. 215).
Based on plaintiff's primary physician Dr. Raymond Basri's referral, plaintiff attended four physical therapy sessions at Scotchtown Physical Therapy in June and July of 2010 (Tr. 260-62). Plaintiff stated in the intake form that he had lower back pain that caused him to have difficulty sitting, bending and lifting and that the pain was interfering with his work, sleep and daily routine (Tr. 258). Plaintiff's pain caused him to experience aching, tingling, numbness and stiffness (Tr. 258-59). The physical therapist's evaluation showed that plaintiff's lower spine range of motion and strength were normal and straight leg raising tests
On July 24, 2010, Dr. Harvey Seigel, an orthopedist from "Post-Trauma Medical Services, P.C.," conducted an "Orthopedic Evaluation" of plaintiff (Tr. 296-302). Although the record does not clearly state how Dr. Seigel came to examine plaintiff, it appears that he provided an independent medical examination for plaintiff's worker's compensation claim. Plaintiff reported to Dr. Seigel that he had left leg weakness and constant, and sometimes severe, low back pain, that intermittently radiated down his left leg and occasionally radiated "up his spine and anteriorly into his left pectoralis area" (Tr. 296, 298-99). Plaintiff reported that sitting in one position, bending and lifting increased his pain (Tr. 299).
Dr. Seigel noted that "[a]ll throughout the lengthy history taking interval, [plaintiff] move[d] about normally" and "move[d] his head, neck, trunk, as well as the upper and lower extremities without any evidence of physical discomfort" (Tr. 299-300). Dr. Seigel found that plaintiff had a full range of motion in his thoracic and lumbosacral spine, a negative straight leg raising test, no areas of tenderness or muscle spasm in the midline or in the paraspinal musculature of the entire thoracic or lumbosacral spine, that plaintiff's legs had "no evidence of muscle weakness," that he could walk on his heels and toes and that he had a normal gait (Tr. 300-01). Dr. Seigel noted that plaintiff could bend forward and bring his fingertips to within six inches of the floor but that plaintiff "straighten[ed] up slowly" and sat up "slowly and with some difficulty due to low back pain" (Tr. 300-01). Dr. Seigel diagnosed plaintiff with a "lumbosacral sprain/strain, with possible radiculopathy" and recommended physical therapy (Tr. 302). Dr. Seigel noted that plaintiff was then doing only light, desk work and opined that such work was "reasonable at [the] time" (Tr. 302).
On August 2, 2010, Dr. Neal Dunkelman, a doctor of physical medicine and rehabilitation, examined plaintiff and conducted motor nerve and sensory nerve conduction studies and an electromyography ("EMG")
Although Dr. Basri indicated that he had treated plaintiff on a regular basis once a week starting in June of 2010 (Tr. 273, 425), the record contains only two notes from Dr. Basri that pre-date February 2011. There is a note from Dr. Basri dated August 6, 2010 that is entitled "Activity Restriction" (Tr. 253). The note is not addressed to anyone and states that "[t]his letter is to verify that Sal Garretto has currently been under my care from 8-4-10 to 8-6-10" and that he cannot return to work "till [
The record also includes a letter that Dr. Basri wrote on December 10, 2010 to the Medical Board of the New York State and Local Retirement System (Tr. 273). Dr. Basri wrote that he had diagnosed plaintiff with degenerative joint disease of the lumboscracral spine and an annual tear of the lumbar discs at L1-2 and L2-3 (Tr. 273). Dr. Basri opined that plaintiff was "totally disabled" on the basis of his back condition (Tr. 273). Dr. Basri noted that he had prescribed narcotic pain medication for plaintiff, and had referred plaintiff for MRIs, physical therapy, pain management and for a consultation with a neurosurgeon (Tr. 273).
Dr. Basri's treatment notes from February 2011 through December 2013 are extremely brief and provide no details and many of the notations are illegible (Tr. 453-58). The summary provided here is, therefore, based on only the legible portions of these notes. On April 5, 2011, Dr. Basri reported that plaintiff's lower back pain was "moderately bad;" on May 3, 2011 Dr. Basri noted that plaintiff's lower back pain was "controlled" and radiated to both of his legs and that his vital signs were "stable" (Tr. 457). On May 31, 2011, plaintiff had severe pain, on July 5, 2011, Dr. Basri noted that plaintiff's pain was better and on August 2, 2011 Dr. Basri noted that plaintiff's pain was well-controlled (Tr. 457). Later in August 2011, Dr. Basri's notes indicate that plaintiff was experiencing moderate pain (Tr. 457).
On March 28, 2012, plaintiff reported that he had had continuous lower back pain and on May 5, 2012, Dr. Basri noted that plaintiff still had pain. In June 2012, Dr. Basri noted that he asked plaintiff to consider surgery (Tr. 456). In June and July of 2012, plaintiff reported that he had moderate lower back pain and was using a TENS device
On September 18, 2012, Dr. Basri completed a form medical source statement for the New York State Office of Temporary and Disability Assistance, Division of Disability Determinations (Tr. 425). Dr. Basri diagnosed plaintiff with "Lumbar Disc Herniation" that caused lower back pain that radiated to both legs and indicated that the duration of plaintiff's condition was "unknown" (Tr. 425-26). Plaintiff's treatment included narcotic analgesics and physical therapy, but Dr. Basri noted that plaintiff had "refused surgery + epidurals" (Tr. 426, 432). Dr. Basri reported that hydrocodone relieved plaintiff's pain for five to six hours and that plaintiff had a "good response" to using a corset and to treatment with a TENS device (Tr. 429). Dr. Basri did not find that plaintiff had "displayed any behavior suggestive of a significant psychiatric disorder," did not report any other conditions that were "significant to recovery" and did not mention plaintiff's prescriptions for anti-anxiety medication or sleep aids in the portion of the form that asked him to list the medications he had prescribed for plaintiff (Tr. 426, 432). Dr. Basri reported that his examination disclosed that plaintiff's flexion of the lumbar spine was 60 degrees (out of 90) and lateral flexion of the lumbar spine was 10 degrees (out of 25) (Tr. 434). Dr. Basri opined that plaintiff could lift and carry ten pounds occasionally, could stand and/or walk for less than two hours per day, could sit for less than six hours per day and was limited in pushing and pulling (Tr. 430-31).
In November 2012, Dr. Basri noted that plaintiff had moderate lower back pain (Tr. 455). In January 2013, plaintiff reported that he experienced severe lower back pain if he stayed in one position for too long (Tr. 455). In January and in February 2013, Dr. Basri noted that plaintiff had moderate lower back pain and in March through June of 2013, plaintiff reported to Dr. Basri that he was "doing ok," but experiencing moderate pain (Tr. 454-55).
In October 2013, plaintiff reported increased pain for several days, and Dr. Basri gave plaintiff prescriptions for hydrocodone and morphine sulfate (Tr. 453). On December 2, 2013, plaintiff reported that he had had pain on his right side for two days and went to the emergency room where he was seen by a surgeon (Tr. 453).
Dr. Basri's treatment notes also indicate that plaintiff was experiencing anxiety and panic attacks relating to his back pain and that Dr. Basri prescribed anti-anxiety medication (including Xanax) and sleep aids (including Ambien) to treat these conditions for more than a twelve-month period (Tr. 456-58). Dr. Basri's notes also indicate that he prescribed Cymbalta for plaintiff's depression (Tr. 457). There are legible references in Dr. Basri's notes to prescriptions for Xanax, Ambien and/or Cymbalta on July 5, 2011, August 2, 2011, August 30, 2011, October 4, 2011, October 31, 2011 August 14, 2012, September 18, 2012, October 16, 2012, November 20, 2012, January 3, 2013, July 23, 2013, August 20, 2013, September 24, 2013 and November 13, 2013 (Tr. 453-58). On August 14, 2012, Dr. Basri noted that plaintiff reported that he had two anxiety attacks related to his back pain (Tr. 456). Dr. Basri noted similar incidents in July and November 2013 (Tr. 453-54).
On August 17, 2010, Dr. Steven Jacobs, a neurosurgeon, examined plaintiff and provided an "Initial Comprehensive Consultation" at Dr. Basri's request (Tr. 394). Plaintiff told Dr. Jacobs that he had severe lower back pain that he rated as an 8 or 9 out of 10, intermittent numbness and tingling in his left leg and intermittent weakness in both legs (Tr. 395). Plaintiff reported that he was taking Vicodin and Thyroidal for pain and Skelaxin for muscle spasm (Tr. 396). Plaintiff also reported that the pain did not respond to physical therapy or Vicodin and that he had not had epidural or trigger point injections (Tr. 395). Plaintiff stated that his pain was aggravated by lifting, bending, pushing and pulling (Tr. 395). Plaintiff reported that he had difficulty rising from a seated position, maintaining one position for more than five minutes, dressing and undressing, sleeping through the night and "performing household tasks, such as cooking, cleaning, doing the laundry, making a bed or shopping" (Tr. 396).
Dr. Jacobs noted that plaintiff could not remain in one position while reporting his history and that plaintiff had increased pain when rising from a seated position, going from a supine position and then back to a seated position, rolling over, getting on and off the examination table, changing positions and that plaintiff had trigger points, muscle spasms and lordosis
(Tr. 397). Dr. Jacobs found that plaintiff's motor strength in the L4, L5 and S1 nerve roots was five out of five bilaterally, but that there was pain to palpation to plaintiff's lower back, to the third fourth and fifth lumbar vertebral bodies, the first sacrum and the lumbar paraspinal muscles from L1 to S1 bilaterally and from T9 to T12 bilaterally (Tr. 397). Plaintiff's pain increased when he walked on his toes, but Dr. Jacobs found that plaintiff's ability to walk on his heels and toes was "grossly intact" (Tr. 397).
Dr. Jacobs described plaintiff as "a patient in pain," found that plaintiff's prognosis was guarded and opined that plaintiff had a "marked 75% disability and is totally disabled from his job description as a police detective" (Tr. 397). Dr. Jacobs diagnosed plaintiff with a traumatic lumbar disc displacement and post-traumatic lumbar disc degeneration; he gave plaintiff a prescription for a back brace and ordered a discogram
Plaintiff attended approximately 20 physical therapy sessions between August and October 2010 (Tr. 347-52). At his initial visit on August 13, 2010, plaintiff reported that he had low back pain that radiated to his left leg, left leg paresthesia,
On August 20 and 24, 2010, plaintiff told his physical therapist that he was experiencing increased back pain (Tr. 348). In a September 9, 2010 progress note, the therapist noted that plaintiff still had numbness in his lower leg and that his average pain was 5 out of 10, that he had weakness in his left leg of "4-4+/5," and that his spinal range of motion was 50% with pain (Tr. 352).
Dr. Donald Davis, a neurosurgeon, conducted independent medical examinations of plaintiff on October 8, 2010 and August 19, 2011 in connection with plaintiff's worker's compensation claim (Tr. 286-90, 399-408).
At the October 2010 visit, plaintiff complained of lumbar pain, primarily in his lumbosacral spine, with some radiation into both legs and of significant pain in his lower back (Tr. 287). Plaintiff also told Dr. Davis that he had occasional weakness in both legs that caused him to have some problems in standing and walking (Tr. 287).
Dr. Davis noted that the radiological findings showed that plaintiff had an annular tear at L1-2, L2-3, bulging discs and multilevel degenerative disc disease, but that an EMG was negative and, consistent with Dr. Davis' examination, did not suggest any neural element involvement (Tr. 287-88). On examination, Dr. Davis found that plaintiff had "limitation of flexion and extension and pain on direct palpation of the lumbar spine" (Tr. 287-88). Dr. Davis opined that plaintiff had a sprain to his lumbar spine and noted that Drs. Siegel and Jacobs had reached the same opinion (Tr. 286). He noted that plaintiff's MRI report suggested that plaintiff had degenerative disc disease with stenosis at multiple levels but did not show evidence of a herniated disc (Tr. 286). Dr. Davis concluded that plaintiff's "pathology [was] primarily axial"
Dr. Davis also opined that plaintiff should not lift anything heavier than five to ten pounds, avoid prolonged bending, reaching and stooping and should alternate frequently between sitting and standing (Tr. 287).
Dr. Davis supplemented the opinions from his October 2010 examination with a letter dated November 10, 2010 (Tr. 402-08). Dr. Davis clarified that plaintiff's prognosis is "quite guarded and . . . that it is unlikely that [plaintiff would be able to] return to the workplace particularly in his previous job description" (Tr. 403). Dr. Davis did not recommend surgery for plaintiff because he believed that plaintiff had reached his maximum improvement and that surgery would provide no incremental benefit (Tr. 403).
The results of Dr. Davis' examination in August 2011 were similar to those of his previous examination (Tr. 282-83). Dr. Davis found that plaintiff had severe pain in his lower lumbar spine and lumbar spasm (Pl. 282-83). Dr. Davis diagnosed plaintiff with "[s]prain/strain to the lumbar spine with a mechanical back injury and consistent low back pain secondary to soft tissue injury and myofascial pain" and "degenerative disc disease at multiple levels with moderate spinal stenosis" (Tr. 281). Dr. Davis noted that plaintiff had severe pain on any type of flexion or extension of the spine (Tr. 282).
Dr. Davis again opined that plaintiff had reached his maximum improvement, that he should avoid lifting anything heavier than five to ten pounds, prolonged bending, reaching or stooping and should change positions "as necessary" (Tr. 282). The doctor noted that plaintiff took pain medication and did not recommend that plaintiff receive further physical therapy or other treatment (Tr. 282).
In October 2012, Dr. Jose Corvalan, an orthopedist, examined plaintiff at the request of the New York State Bureau of Disability Determinations (Tr. 438). Plaintiff told Dr. Corvalan that he had pain in his lower back that radiated to his legs with numbness and tingling, as well as neck pain triggered by moving his neck (Tr. 437-38). Dr. Corvalan noted that plaintiff's medications were zolpidem, alprazolam, hydrocodone with acetaminophen, omeprazole and simvastatin (Tr. 437-38).
Dr. Corvalan examined plaintiff and found that he had a normal gait and could walk on his heels and toes, squat fully and rise from a chair without difficulty (Tr. 438-39). However, plaintiff had limited range of motion in his cervical and lumbosacral spine, tenderness on lumbar palpation and a positive straight leg raising test at 30 degrees in the supine and sitting positions bilaterally (Tr. 438-39). Plaintiff declined to attempt any backward extension (Tr. 439). Plaintiff's range of motion in the cervical spine was 40 degrees in flexion (out of 50) and 30 degrees in extension (out of 60) and 30 degrees in rotation bilaterally (out of 80), with no cervical or paracervical spasm or pain (Tr. 438). Plaintiff's range of motion in the thoracic and lumbar spine was 40 degrees in flexion (out of 90) and 20 degrees in lateral flexion (out of 25) and plaintiff had tenderness on palpation in the lumbar spine area (Tr. 438-39).
Dr. Corvalan diagnosed plaintiff with low back pain, neck pain and high cholesterol and opined that plaintiff had moderate limitations in his ability to move his neck, sit and stand for long periods of time, walk long distances, bend, squat, climb stairs and lift heavy objects (Tr. 439).
Plaintiff testified at the December 17, 2013 hearing that he could not work due to back pain, insomnia, anxiety and panic attacks (Tr. 61).
Plaintiff testified he had "paralyzing" anxiety attacks, which caused tightness in his chest, breathing trouble, tunnel vision, numbness in his hand and a feeling that he was having a heart attack and on the verge of losing consciousness (Tr. 61, 69, 74-75). Plaintiff's anxiety attacks were sporadic — he could go days without having an attack or he could have attacks several times in a week or he could have daily attacks for a week (Tr. 61). The anxiety attacks lasted twenty minutes to an hour (Tr. 75). Plaintiff's anxiety attacks sometimes woke him up out of a deep sleep (Tr. 61). Plaintiff testified that he was treated by his primary care physician Dr. Basri for his anxiety attacks and had never seen a mental health professional for his anxiety (Tr. 61). Plaintiff stated that Dr. Basri prescribed plaintiff Xanax, which was "somewhat" helpful to address his symptoms and helped him sleep (Tr. 61, 69-70).
Plaintiff also testified that he had "deep throbbing, aching" pain in his back and that he had the sensation that his lower back was asleep and tingling (Tr. 75). He testified that initially his leg pain was limited to his left leg, but that he now had pain in both legs, especially when he was sitting or standing for a "long period of time" (Tr. 75). Plaintiff testified that he slept just two to three hours a night due to pain and anxiety (Tr. 61, 63). Plaintiff stated that his back pain had worsened on May 11, 2010, when he rose from a sitting position and felt back pain with total leg weakness and tingling (Tr. 60, 372). Plaintiff was treated with physical therapy, which he said did not help, and a TENS device (Tr. 62-63, 67). Plaintiff testified that he also took morphine and hydrocodone to treat his back pain and testified that they helped alleviate the sharpness of the pain but caused him to sweat, have dry mouth and bowel obstructions and anxiety about potential drug addiction (Tr. 63). Plaintiff described a "good day" as one in which he got more than two to three hours of sleep, was not taking "as much pain medication" and was not experiencing stomach problems (Tr. 76). Plaintiff decided against having back surgery because his doctors told him that there was no guarantee that it would completely alleviate the pain and there was a risk that surgery might actually exacerbate his pain (Tr. 63, 72-73).
Plaintiff testified that he had to change positions when sitting but that he could not quantify how long he could sit before needing to change positions (Tr. 67-68). Plaintiff testified that on one occasion he had driven his car for 45-60 minutes without a break to go to the doctor (Tr. 66-68). Plaintiff also testified that due to his back pain, he was limited in his kneeling, squatting and reaching and sometimes had difficulty standing up straight (Tr. 68-69, 76, 234-36). Plaintiff could stand and walk for about 20-40 minutes, depending on the day (Tr. 68). He could keep his apartment "[a]s tidy as a bachelor can" and could tidy up outside his house (Tr. 63-65, 73-74). It would take plaintiff one to two days to mow his lawn with a ride-on lawn mower because he would need to take breaks every 15-20 minutes to lie down (Tr. 74). Plaintiff stated that he could prepare meals like frozen dinners, sandwiches and soup, and could do cleaning and laundry, but that he hired out "handyman jobs" (Tr. 65, 75, 231-32). Plaintiff had trouble dressing himself and had to lie down to put on pants (Tr. 65, 75, 231-32). He could shop for 20 minutes weekly (Tr. 233). Plaintiff had trouble opening jars due to weakness and pain in his right hand, which had been broken twice in the past and was never "set right" (Tr. 68). Although his hand was weak, plaintiff could write checks and zip and button clothing (Tr. 68-69).
Plaintiff testified that he spends his time reading about current events, watching television and walking around in his backyard; his hobbies were photography, reading and surfing the internet (Tr. 63-64, 233).
Vocational expert Mary Anderson testified at the hearing and answered questions about whether hypothetical individuals with plaintiff's vocational profile and varying restrictions could perform jobs in the national economy.
Anderson testified that a person with plaintiff's vocational profile who can only lift or carry five to ten pounds, who can only bend, reach and stoop occasionally and who needs to change position at-will from sitting to standing, but could not engage in "prolonged flexion or extension of the spine" could not do plaintiff's past work or any other kind of work (Tr. 33-34).
Anderson testified that a person who can only lift or carry ten to twenty pounds occasionally, who can sit, stand and walk for up to six hours and can intermittently flex or extend the neck in any direction over the course of six hours, stoop, squat or climb stairs as needed for up to six hours in an eight hour workday, could do the light
Anderson further testified that a person who is limited to sedentary
Anderson also testified that if the latter two hypotheticals were changed such that the individual had panic attacks two to three times per week accompanied by pain and tightness in his chest and tingling in his hand that takes him off-task for up to one hour out of a workday, the individual could not do any work (Tr. 43-44). The expert testified that anyone who is off-task for more than 48 minutes per day in addition to regular breaks was "really not employable" (Tr. 45).
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g);
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.
"`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.'"
A claimant is entitled to SSI and DIB if the claimant can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months."
The impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D) and it must be "of such severity" that the claimant cannot perform his previous work and "cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), § 1382c(a)(3)(B). Whether such work is actually available in the area where the claimant resides is immaterial. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, 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."
In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v);
If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's residual functional capacity ("RFC") and whether the claimant can still perform his past relevant work given his RFC. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv);
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite his limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). To determine RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b),(c)and (d) of 20 [C.F.R. §§] 404.1545 and 416.945."
The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step — that the claimant's RFC allows the claimant to perform some work other than his past work.
In some cases, the Commissioner can rely exclusively on the medical-vocational guidelines (the "Grids") contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
Exclusive reliance on the Grids is not appropriate where nonexertional limitations "significantly diminish [a claimant's] ability to work."
"It is the rule in [the Second] [C]ircuit that `the ALJ, unlike a judge in a trial, must [him]self affirmatively develop the record' in light of `the essentially non-adversarial nature of a benefits proceeding.'"
The ALJ is required "affirmatively to seek out additional evidence only where there are `obvious gaps' in the administrative record."
"The duty to develop the record is particularly important where an applicant alleges he is suffering from a mental illness[], due to the difficulty in determining `whether these individuals will be able to adapt to the demands or "stress" of the workplace.'"
In considering the evidence in the record, the ALJ must give deference to the opinions of a claimant's treating physicians. A treating physician's opinion will be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
"[G]ood reasons" must be given for declining to afford a treating physician's opinion controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
As long as the ALJ provides "good reasons" for the weight accorded to the treating physician's opinion and the ALJ's reasoning is supported by substantial evidence, remand is unwarranted.
In determining a claimant's RFC, the ALJ is required to consider the claimant's reports of pain and other limitations, 20 C.F.R. § 416.929, but is not required to accept the claimant's subjective complaints without question.
The regulations provide a two-step process for evaluating a claimant's subjective assertions of disability.
The ALJ applied the five-step analysis described above and determined that plaintiff was not disabled (Tr. 13-20).
As an initial matter, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2015 (Tr. 13).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of August 4, 2010 (Tr. 13).
At step two, the ALJ found that plaintiff suffered from the following severe impairments: axial back pain with degenerative disease and lumbar sprain (Tr. 13). The ALJ found that plaintiff's alleged impairments due to panic attacks and weakness in his right hand were not severe impairments and stated that
(Tr. 13).
At step three, the ALJ found that plaintiff's disabilities did not meet the criteria of the listed impairments and was therefore not entitled to a presumption of disability (Tr. 13-14). In reaching her conclusion, the ALJ stated that she gave "[s]pecific consideration" to "the applicable sections of 1.00 Musculoskeletal System of the listed impairments" (Tr. 14).
The ALJ then determined that plaintiff retained the RFC to perform sedentary work except that he can
(Tr. 27). To reach her RFC determination, the ALJ examined the opinions of the treating and consulting physicians and determined the weight to be given to each opinion based on the objective medical record, including the treatment notes of plaintiff's treating physicians (Tr. 14-19).
The ALJ assessed the opinion evidence in the record and gave more weight to the opinions of those doctors that the ALJ found to be consistent with the objective medical evidence. Specifically, the ALJ gave "considerable weight" to the opinion of consulting examiner Dr. Davis because Dr. Davis examined plaintiff on two occasions, ten months apart; based on Dr. Davis' findings, the ALJ concluded plaintiff could do sedentary work (Tr. 18). The ALJ also found that Dr. Davis' opinions were "supported by the overall medical evidence" (Tr. 18).
The ALJ gave "some weight" to consulting examiner Dr. Corvalan's opinion that plaintiff had restrictions in his lower back that are not disabling (Tr. 18,
The ALJ gave "little weight" to the opinion of plaintiff's orthopedist, Dr. Jacobs, that plaintiff has a 75% disability because that is an issue reserved for the Commissioner (Tr. 18-19).
Finally, the ALJ gave "some weight" to plaintiff's treating physician Dr. Basri's opinion stating:
(Tr. 18).
In reaching her RFC determination, the ALJ also considered plaintiff's testimony and found that while plaintiff's medically determinable impairments could reasonably have caused his alleged symptoms, a review of the entire case record showed that plaintiff's statements regarding their intensity, persistence and limiting effects were not entirely credible (Tr. 17). The ALJ pointed out that plaintiff's description of his daily activities demonstrated that he is not as limited as he claimed because plaintiff told Dr. Corvalan that he shops, does laundry, socializes, reads and pursues photography as a hobby (Tr. 17). The ALJ also found that plaintiff's credibility was undermined by the fact that he has only pursued the "conservative treatment" of physical therapy and medication, "[d]iagnostic studies [were] negative for a herniation and radiculopathy," plaintiff retained full muscle strength in his legs, there was no evidence of muscle atrophy in his legs
At step four, the ALJ concluded that, because plaintiff is limited to sedentary work, plaintiff is unable to perform his past work as a detective and background investigator, which require light exertional physical exertion, or his past work as a patrol officer, which requires medium physical exertion (Tr. 19).
At step five, relying on the testimony of the vocational expert, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform, given his RFC, age and education (Tr. 20). The ALJ noted that the vocational expert testified that given plaintiff's age, education, work experience and RFC, plaintiff could perform unskilled sedentary work as a charge account clerk, DOT 205.367-014, which has 196,000 positions nationally and as an addressing clerk, DOT 209.587-010, which has 96,000 positions nationally (Tr. 20). Concluding that the expert's testimony was consistent with information in the DOT, the ALJ determined plaintiff could perform those occupations and, accordingly, was not disabled (Tr. 20).
Plaintiff argues that remand is required because the ALJ erred by (1) failing to develop the record as to all of plaintiff's impairments, (2) failing to give controlling weight to the opinions and diagnoses of plaintiff's treating physicians, (3) improperly assessing plaintiff's credibility and (4) improperly relying on the vocational expert's testimony (Pl. Mem. of Law in Supp. of Motion for Judgment on the Pleadings, dated May 9, 2016 (D.I. 18) ("Pl. Mem.")). The Commissioner argues that the ALJ applied the correct legal standards and that her decision is supported by substantial evidence (Def. Mem. of Law in Opp. to Pl. Motion for Judgment on the Pleadings and in Supp. of Commissioner's Cross-Motion for Judgment on the Pleadings, dated July 8, 2016 (D.I. 20) ("Def. Mem.")).
Remand is warranted because despite evidence in the record indicating that plaintiff had anxiety and panic attacks, the ALJ rejected these conditions as not being supported by medical evidence without first fully developing the record concerning them. At step two of her analysis, the ALJ stated that "there is no clinical or diagnostic evidence substantiating that the claimant suffers from panic attacks" and that absent such "corroborating diagnostic evidence," an impairment of "panic attacks is not medically determinable" (Tr. 13). The ALJ's analysis was erroneous because there was evidence in the record that plaintiff's primary treating doctor, Dr. Basri, treated plaintiff for anxiety and panic attacks. Further, some of Dr. Basri's treatment notes appear to be missing and the notes that were collected appear to be superficial and are, in large part, illegible. Given that Dr. Basri was plaintiff's treating physician during the relevant period, the foregoing deficiencies in the records obtained from Dr. Basri gave rise to an "obvious gap" in the medical record that may have affected the ALJ's disability determination.
Plaintiff testified at the December 17, 2013 hearing that when he has an anxiety attack "[o]ftentimes, it's so bad, I feel like I need to go to the emergency room and I've had several trips" (Tr. 69). He further testified that his anxiety was related to his back pain and the medication he took for the pain:
(Tr. 63).
There is documentary evidence in the record confirming that plaintiff went to the emergency room in December 2013 and on at least one other date due to his anxiety. The record contains a December 2, 2013 treatment note from Dr. Basri stating that plaintiff went to the emergency room at Orange Regional Medical Center (Tr. 453), but does not contain a corresponding record from the hospital from that date. Dr. Basri's note is largely illegible, but the words "surgeon" and "obstruction" can be made out (Tr. 453). The medical record also includes a discharge note from Orange Regional Medical Center dated August 3, 2010 indicating an emergency room visit (Tr. 342-43). The hospital record does not include treatment notes or a narrative summary explaining the reason for plaintiff's visit. However, the discharge note included a prescription for Xanax (Tr. 342-343). Xanax is prescribed "in the treatment of anxiety disorders and panic disorders and for short-term relief of anxiety symptoms."
Moreover, the treatment notes from Dr. Basri for the period from January 2011 through November 2013 show that plaintiff repeatedly complained of anxiety and panic attacks and that Dr. Basri prescribed anti-anxiety medication for plaintiff (Tr. 453-58). Although the treatment notes are brief and, at times, illegible, Xanax is noted at least twelve times in Dr. Basri's treatment notes (Tr. 453-58). There are also at least three legible references in Dr. Basri's notes to Cymbalta (Tr. 453-58), which is "used for the treatment of major depressive disorder. . . ."
The Commissioner argues that the record clearly shows that Dr. Basri did not believe that plaintiff had a medical impairment as a result of his anxiety attacks. The Commissioner points to Dr. Basri's September 2012 medical source statement in which Dr. Basri opined that plaintiff did not have a significant "psychiatric disorder" and indicated that, aside from his back condition, plaintiff had no other "conditions significant to recovery" (Def. Mem. at 17,
The Commissioner's argument is unavailing for two reasons. First, contrary to the ALJ's findings, Dr. Basri did not find that plaintiff did not have a psychiatric impairment relating to his anxiety; rather, he found that plaintiff did not have a "significant psychiatric disorder" (Tr. 426). The Commissioner's argument, therefore, conflates the doctor's opinion concerning the extent of a condition with the existence of the condition. Second, Dr. Basri's treatment notes contradict his September 2012 medical source statement. In his September 2012 statement, in addition to the opinion noted above, Dr. Basri indicated that he prescribed plaintiff narcotic pain medication and made no reference to anti-anxiety medication (Tr. 426, 429). However, on the same day that Dr. Basri filled out the form, Dr. Basri's treatment notes indicate that he gave plaintiff a prescription for Xanax (Tr. 456). Further, one month earlier, on August 14, 2012, Dr. Basri noted that plaintiff had had two anxiety attacks related to back pain and indicated that he gave plaintiff a prescription for Xanax (Tr. 456). It is not clear why the doctor omitted plaintiff's other medications and other conditions from his September 2012 statement, but it demonstrates a gap in the record that warranted clarification. Given this conflicting evidence, it was not appropriate for the ALJ to guess whether Dr. Basri had diagnosed plaintiff with an anxiety disorder or not, he should have contacted the physician to clarify the record.
The ALJ's refusal to consider plaintiff's anxiety was not harmless error. Even if the evidence ultimately shows that plaintiff's anxiety was not a severe impairment, the ALJ was, nevertheless, required to take it into account in her analysis of plaintiff's RFC. "A RFC determination must account for limitations imposed by both severe and nonsevere impairments."
Accordingly, remand is required for further development of the record with respect to plaintiff's allegations that he had anxiety and panic attacks.
Even if the ALJ had not erred in failing to seek further development of the record regarding plaintiff's anxiety attacks, remand is also required because the ALJ failed adequately to justify giving less than controlling weight to Dr. Basri's opinions regarding plaintiff's physical limitations. The ALJ rejected Dr. Basri's conclusions about the amount of time plaintiff could sit, stand and walk during a workday because he believed they did "not coincide with the benign objective findings" (Tr. 18). In another portion of the opinion, the ALJ stated that "diagnostic studies [were] negative for a herniation and radiculopathy" and that plaintiff's "strength remains full and there is no evidence of atrophy" (Tr. 18). However, these are not the only objective findings in the record, and contrary to the ALJ's conclusion, herniation, radiculopathy and atrophy are not the only indicators of back pain. The ALJ ignored other medically acceptable, objective evidence such as (1) an MRI from May 2010 that showed that plaintiff had a mild multi-level degenerative disc disease, a concentric disc bulge with a posterior annular tear, and disc bulges that contributed to mild central canal stenosis (Tr. 313), (2) an x-ray from May 2010 that showed "mild disc space narrowing" and "partial lumbarization" of the first sacral segment (Tr. 336) and (3) an x-ray from October 2012 that showed that plaintiff had straightening of the spine (Tr. 441). Further, Dr. Jacobs, a neurosurgeon, and Dr. Corvalan, an orthopedist, found that plaintiff had positive straight leg-raising tests in August 2010 and October 2012, respectively (Tr. 397, 438-39). The treating and consulting physicians found that upon examination, plaintiff had limited and/or painful range of motion in the lumbar spine at various points throughout the relevant period (Tr. 374 (May 2010, Orange Regional Medical Center emergency room doctor), 397 (August 2010, Dr. Jacobs), 265-66 (August 2010, Dr. Dunkelman), 434 (September 2012, Dr. Basri), 438-39 (October 2012, Dr. Corvalan). Contrary to the ALJ's conclusions, this evidence is not "benign" and supports plaintiff's testimony that he had lower back pain that restricted his daily activities.
The ALJ's rejection of Dr. Basri's opinion was not harmless because the doctor's assessment of plaintiff's limited ability to stand, walk and sit would have changed plaintiff's RFC. The ALJ concluded that plaintiff could "sit, stand, and walk for six hours in an eight hour workday" (Tr. 14) even though Dr. Basri concluded that plaintiff could stand and walk for less than two hours and sit for less than six hours in a workday (Tr. 431). The ALJ gave "considerable weight" to Dr. Davis and concluded that his "findings are consistent with a sedentary [RFC]" (Tr. 18). However, Dr. Davis did not quantify plaintiff's ability to walk or stand, stating instead that plaintiff should be able to change positions "as necessary such as . . . sitting and standing" (Tr. 400).
The ALJ also relied on Dr. Corvalan's opinion that plaintiff had "moderate limitations" on his ability to sit and stand for long periods of time and on his ability to walk for long distances and concluded that plaintiff could engage in sedentary work (Tr. 18). Dr. Corvalan's use of the word "moderate" is vague and provides no support for the ALJ's conclusion that plaintiff engage in these activities for six hours out of an eight hour day.
By rejecting Dr. Basri's opinion, the ALJ thus "arbitrarily substitute[d] [her] own judgment for a competent medical opinion."
To the extent plaintiff claims that Dr. Basri's opinion should be adopted as controlling, plaintiff's argument is premature. As discussed herein, the record in this case needs to be developed further with respect to plaintiff's treatment by Dr. Basri, and, until the record is further developed, the weight to be given to Dr. Basri's opinions cannot be determined.
The ALJ failed to provide sufficient "good reasons" for the less than controlling weight she gave to Dr. Basri's opinions and erred in not seeking clarification from Dr. Basri to reconcile the inconsistencies and fill the gaps in the record. On remand, the ALJ should further develop the record from plaintiff's treating physician and reassess plaintiff's treating physicians' opinions according to the factors set forth in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
As discussed above, the ALJ failed to develop the record adequately and her reliance on an incomplete record affected her view of the relationship between plaintiff's testimony and the medical record. Further, as discussed above at pages 62-63, the ALJ ignored the objective evidence that was consistent with plaintiff's complaints of pain. Moreover, if anxiety and insomnia were indeed side effects of plaintiff's pain medication (
Further development of the record may alter the ALJ's assessment of plaintiff's RFC. Therefore, I cannot determine at this time whether the ALJ elicited relevant testimony from the vocational expert.
For all the foregoing reasons, plaintiff's motion for judgment on the pleadings (D.I. 16) is granted and the matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The Commissioner's cross-motion for judgment on the pleadings (D.I. 19) is denied.
SO ORDERED.
20 C.F.R. §§ 404.1567(b), 416.967(b).
20 C.F.R. §§ 404.1567(a), 416.967(a).
