HAIGHT, Senior District Judge:
Plaintiff Jonathan Borgos-Hansen filed this action against defendant Carolyn W. Colvin, Commissioner of the Social Security Administration ("the Commissioner"). Borgos-Hansen sued under §§ 205(g) and 1631(c)(3) of the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), to review the Commissioner's final decision denying plaintiff's claim for child's insurance benefits based on disability ("CIB") and supplemental security income ("SSI"), also based on disability. The Commissioner denied benefits to plaintiff on the ground that plaintiff was not disabled.
The Court referred the case to Magistrate Judge Holly B. Fitzsimmons for a recommended ruling ("RR") pursuant to 28 U.S.C. § 636(b)(1)(B). The case came before Judge Fitzsimmons on cross-motions. Plaintiff moved for an order reversing or remanding the decision of the Commissioner denying benefits. The Commissioner cross-moved to affirm that decision. The Commissioner's denial of benefits had the effect of affirming the conclusion of an Administrative Law Judge ("ALJ") after a hearing that plaintiff was not disabled. Judge Fitzsimmons filed an RR [Doc. 24] denying plaintiff's motion and granting that of the Commissioner.
The consequence of that recommendation, if accepted by this Court, would be to
This Court has made "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Having done so, the Court enters this Ruling, which resolves the questions arising out plaintiff's objections to the Magistrate Judge's Report and Recommendation.
To be entitled to benefits under the Act, an individual must be "under a disability" as that termed is defined in the Act. 42 U.S.C. § 423(a)(1)(D). An individual claiming to be "disabled" must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore, an individual's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
It is relatively easy for the Congress to speak in general terms of "disability," "impairment" and "severity." It is infinitely more difficult to apply those terms to an individual, prey to "the thousand natural shocks that flesh is heir to,"
168 F.3d at 77 (brackets and ellipsis in original, citations omitted).
With respect, the description of the third inquiry in this quotation from Rosa is not entirely accurate. The third step of the five in the process is described in the SSA regulations as follows:
20 C.F.R. § 404.1520(a)(4)(iii) (emphasis added).
94 F.3d at 37 (emphasis added).
I have emphasized the phrase "meets or equals," as used in the regulation and by the Second Circuit in Pratts, because its plain language shows that in order to be declared disabled, an individual need not present with a condition that conforms exactly to a classic, medical-text-book case of an impairment listed in Appendix 1 to the regulations. According to the SSA, the Appendix 1 Listing of Impairments "describes for each of the major body systems impairments that we consider to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 404.1525(a) (hereinafter "the Listings"). However, in order to qualify as disabling, an impairment need not track precisely the Listings' description of a particular impairment. Under this wording, an individual is presumptively disabled if his or her condition, in terms of its severity, meets or equals that of a listed impairment. In consequence, and with respect, one cannot fully accept the paraphrase in Rosa that the third inquiry is whether "the claimant has an impairment which is listed in Appendix 1 of the regulations." The paraphrase omits the possibility that a claimant's impairment is sufficiently severe to equal a listed impairment, although it may not meet a listed impairment's particulars.
The concept of an impairment's severity can implicate medical or legal considerations, which can overlap in a fashion challenging to administrators and judicial officers. The SSA, in its regulatory definitions for Immune System Disorders, considered it helpful to say: "Severe means medical severity as used by the medical profession. The term does not have the same meaning as it does when
The plaintiff in this case is Jonathan Borgos-Hansen. He was born on January 20, 1991. Borgos-Hansen has had a troubled medical history. On January 22, 2010, he filed with the SSA concurrent applications for CIB and SSI, alleging a disability beginning on January 20, 2006. The agency initially denied those applications. Plaintiff requested a hearing before an Administrative Law Judge.
On January 3, 2012, Borgos-Hansen appeared for a hearing before ALJ James E. Thomas. Borgos-Hansen was represented by counsel. The ALJ continued the hearing until May 31, 2012 for the submission of additional medical records. On June 28, 2012, the ALJ issued a decision adverse to plaintiff. Tr. 9-26. The ALJ concluded that at the relevant times, Borgos-Hansen was not disabled, and at the date of the ALJ's decision is not disabled, under the Act. The SSA Appeals Council denied plaintiff's request for review, a conclusion which became the final decision of the Commissioner. Plaintiff then commenced the captioned action in this Court. Magistrate Judge Fitzsimmons recommends that the Commissioner's decision be affirmed. Plaintiff objects to that recommendation.
The ALJ began his five-step evaluation procedure by finding with respect to the first step: "The claimant has not engaged in substantial gainful activity since January 20, 2006, the alleged onset date." Tr. 14. ALJ Thomas's decision then turns to the second step. The ALJ reviewed Borgos-Hansen's extensive medical record and stated in his decision: "Longitudinal records reveal that the claimant has a complex medical history significant for Lupus. Records reveal that in January 2006 the claimant was diagnosed with and began treatment for Lupus," after presenting with a number of indicative symptoms. Tr. 16. The ALJ further stated: "In addition to Lupus specific treatment, the claimant has also received coinciding treatment for complaints of generalized arthralgias secondary to his Lupus, first treating at Connecticut Children's Medical Center, and then transitioning to Rheumatology Associates of Greater Waterbury." Tr. 17.
Given this medical history, the ALJ answered the inquiry posed by the second step in the five-step sequential process by finding:
Tr. 14. The ALJ followed that finding with this comment:
Lupus is a cruel affliction. Regulations issued under the Act list lupus under the caption "Immune System Disorders," 20 C.F.R. Part 404, Subpart P, Appendix 1, § 14.00, and define the disease in sobering terms, § 14.00(D)(1):
Claims of disability caused by lupus form the subject matter of numerous lawsuits filed under the Social Security Act. See, e.g., Rohrbacher v. Colvin, No. CV 14-4774, 2015 WL 1006678 (C.D.Cal. March 5, 2015); Rockson v. Commissioner, No. 13-cv-14486, 2014 WL 5421239 (E.D.Mich. Oct. 24, 2014); James v. Astrue, Civ. No. H-09-3634, 2010 WL 2985865 (S.D.Tex. July 27, 2010); Vasquez v. Barnhart, No. 02-cv-6751, 2004 WL 725322 (E.D.N.Y. March 2, 2004); and Dowles v. Barnhart, 258 F.Supp.2d 478 (W.D.La.2003). See also Buis v. Colvin, No. 1:13-cv-878, 2015 WL 566889 (S.D.Ind. Feb. 11, 2015) (claimant had severe impairments caused by rheumatoid arthritis, fibromyalgia and obesity).
While the ALJ's findings with respect to the first and second steps in the procedure militated in favor of a conclusion that plaintiff was disabled, the ALJ's ultimate decision, that Borgos-Hansen was not entitled to a finding of disability, is based principally upon the manner in which the ALJ answered the third inquiry. His decision states:
Tr. 15. The ALJ added these words of explanation:
Tr. 15.
It is noteworthy that the wording of the ALJ's decision, consistent with the Court's regulatory construction stated supra, correctly poses the question as whether plaintiff's impairment or combination of impairments "meets or medically equals the severity" of a listed impairment, or whether the record contains medical findings "equivalent in severity to the criteria of any listed impairment."
Under the five-step procedure, then, a claimant may satisfy the second step by showing a severe impairment, but fail to satisfy the third step if the severity of that severe impairment does not meet or medically equal an impairment included in the Listings. In Rosa, the Second Circuit described the procedure's implementation in such a circumstance:
168 F.3d at 77.
In the case at bar, the ALJ further found that Borgos-Hansen had "the residual functional capacity to perform the full range of sedentary work" defined in the regulations, Tr. 15; the "[t]ransferability of job skills is not an issue because the claimant does not have past relevant work," Tr. 19; and "there are jobs that
Pursuant to the regulatory scheme, this combination of findings mandated the conclusion that plaintiff was not disabled under the Act. ALJ Thomas duly entered a decision to that effect.
The brief for Borgos-Hansen [Doc. 25] in support of his objections to Judge Fitzsimmons's RR contends that the ALJ erred by concluding at the third step that "claimant does not have an impairment of combination of impairments that meets or medically equals the severity of one of the listed impairments." The ALJ explained that conclusion by saying, in part, that he "carefully considered all of the listed impairments, and, in particular, the 1.00 Musculoskeletal System Listings and the 14.00 Immune System Disorders Listings." Tr. 15. I interpret plaintiff's objections and brief to focus solely upon the Immune System Disorders, of which lupus is one, and not upon the Musculoskeletal System. Plaintiff's objection challenges the ALJ's conclusion that plaintiff was not disabled by lupus (SLE) and the "generalized arthritis" the ALJ found was present and secondary to lupus. The discussion in plaintiff's brief is limited to section 14.00 of the Listings.
I am commanded by the statute, 28 U.S.C. § 636(b)(1), "to make a de novo determination" of the Magistrate Judge's recommendation that the ALJ's decision in this regard should be approved. To that end, I have reviewed de novo the medical evidence in the administrative record of the hearing before the ALJ. A question of substance promptly arises. It is the ALJ's disregard of the opinions of a treating physician.
That treating physician is Beatrice Memet, M.D. Dr. Memet is board certified in rheumatology and internal medicine.
On February 4, 2010, Borgos-Hansen was seen, apparently for the first time, by Dr. Memet, whose note states: "Patient presents for a followup visit. He has been previously seen by Dr. Bianco in August of
Dr. Memet saw Borgos-Hansen frequently throughout 2010 and 2011, often at six-week intervals. As noted, when plaintiff first appeared for his hearing before ALJ Thomas in January 2012, his counsel asked for a continuance in order to collect additional medical proof, a request the ALJ granted. That additional medical proof included opinions by Dr. Memet which counsel submitted in the form of questionnaires counsel prepared and Dr. Memet completed, signed and dated on February 2 and February 3, 2012. The completed questionnaires, Tr. 865-876, were submitted at the continued hearing before the ALJ on May 31, 2012.
These questionnaires are comprised of printed questions which the physician answers by checking a "No" or "Yes" format, or tables which the physician completes by checking one of several choices. The first type of question is illustrated by the first line of a questionnaire found at Tr. 865. The form poses the question: "Has patient had widespread pain in all four quadrants of the body for a minimum of three months?" The physician responds by checking a "No" box or a "Yes" box. The second type appears on another questionnaire, Tr. 866. An enclosed printed space is captioned "LIFTING/CARRYING." There are five columns. The left-hand column is captioned "Lift," under which four alternative amounts are listed on separate lines: "A. Up to 10 lbs; B. 11 to 20 lbs; C. 21 to 50 lbs; D. 51 to 100 lbs." Each line is followed by four spaces, captioned "Never"; "Occasionally"; "Frequently"; and "Continuously." The questionnaire asks the responder to "Check the boxes representing the amount the individual can carry and how often it can be carried." The physician responds by checking the appropriate boxes.
These questionnaires, prepared by an attorney representing a client claiming social security benefits, resemble the true-false section of a bar examination rather than the essay section. Nonetheless, the questions themselves are straightforward and do not suggest desired answers. A physician who checks one box or another is, by that action, expressing a medical opinion. The questionnaires in evidence, Tr. 865-876, completed by Dr. Memet, constitute the medical opinions she formed about the condition on Jonathan Borgos-Hansen during the two years she was his principal treating physician. Everyone concerned in the case recognizes that these responses are medical opinions. ALJ Thomas said in his decision: "I have also considered the opinion of Dr. Memet proffered on February 3, 2012. (Exhibit 19F)." Tr. 18 (emphasis added). "Exhibit 19F" is the single exhibit number given at the hearing to the collection of questionnaires comprising Tr. 865876. Judge Fitzsimmons said in her RR that "Dr. Memet opined, in pertinent part, that plaintiff has" the several conditions listed in a questionnaire answer, Tr. 876. RR at 42 (emphasis added).
One can transpose Dr. Memet's answers to these questionnaires and restate them
RR at 19-21.
This is an accurate summary of the several impairments and limitations Dr. Memet listed in response to the questionnaires. While the questionnaires Dr. Memet completed do not use the noun "disability" or the adjective "disabled," it seems apparent from her answers that in Dr. Memet's opinion Borgos-Hansen suffers from an impairment or combination of impairments that meets or medically equals the severity of one of the impairments in the Listings: specifically, systemic lupus erythematosus.
This and other listings are preceded by regulatory definitions and explanatory remarks, one of which (¶ 5) reads in part:
No one could seriously contend that placing a particular individual within or without these intricate and overlapping boundaries and definitions is always easy. But it does seem clear that, given Dr. Memet's specific medical opinions as recounted supra, Borgos-Hansen's conditions and impairments bring him within the Listing of lupus. However, in his application for social security benefits, Dr. Memet's opinions availed Borgos-Hansen nothing. That is because the ALJ chose to disregard Dr. Memet's opinions entirely, and the Magistrate Judge approved his doing so.
The ALJ's decision deals in a brief dismissive paragraph with the questionnaires Dr. Memet completed:
Tr. 18. The Magistrate Judge quoted that passage from the ALJ's decision, reviewed some of the medical evidence, and said:
RR at 44.
Plaintiff's Objection [Doc. 25] to the RR specifically challenges the ALJ's rejection of the opinions voiced by Dr. Memet, a treating physician:
Doc. 25 at 2, 9.
In arriving at the conclusions expressed in this Ruling, I must consider de novo whether the record sustains plaintiff's objection that the ALJ's decision violated what has come to be known through frequent invocation, regulatory provision and judicial opinions as "the treating physician rule."
Prior to 1991, Second Circuit case law "established a so-called `treating physician rule' giving substantial weight to the treating physician's opinion as against other medical evidence." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998) (citing cases). In 1991, the SSA promulgated new regulations "which set forth criteria for weighing treating physician opinions in disability cases." Id. The Second Circuit's opinion in Schaal quotes the SSA's 1991 regulations:
134 F.3d at 503 (material in brackets in original). Schaal goes on to say:
Id. In Schaal the Second Circuit made it plain that these are factors "that the ALJ is required to address under the 1991 Regulations when the treating physician's opinion is not given controlling weight." 134 F.3d at 504 (emphasis added). It follows that the ALJ must discuss the relevant factors in his or her decision, since Judge Cabranes's opinion in Schaal took pains to note that "the 1991 Regulations provide that the Commissioner `will always give good reasons in our notice of determination
The Second Circuit has had numerous occasions to consider the treating physician rule as delineated in the 1991 SSA regulations. Rosa v. Callahan, 168 F.3d 72 (2d Cir.1999) is one of those cases. Judge Sotomayor declared these principles:
168 F.3d at 78-79 (citations and internal quotation marks omitted). One of the ALJ's transgressions in Rosa was to emphasize that Dr. Ergas, the treating physician who opined that the claimant was disabled, "`did not report findings of muscle spasm to corroborate any loss of motion.'" Id. at 79. The Second Circuit was blunt in its criticism of that ALJ's non-disability decision:
Id. (citation and some internal quotation marks omitted).
In Schaal, a physician named Jobson began treating the claimant on October 29, 1992 and completed a questionnaire describing his medical condition on May 28, 1993. The questionnaire was submitted to the ALJ at a hearing. The ALJ "apparently assigned little or no weight to Dr. Jobson's opinion as a treating physician. The ALJ cited two reasons for discounting Dr. Jobson's opinion. First, he concluded that the questionnaire completed by Dr. Jobson `is not a statement of the treating physician binding on me because of the lack of clinical findings to support these conclusions.'" 134 F.3d at 504 (footnote omitted). The Second Circuit does not accept that as a sufficient ground for rejecting the opinion of a treating physician, even one expressed in a questionnaire. Judge Cabranes said in Schaal that "even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from Dr. Jobson sua sponte." Id. at 505.
An ALJ's duty to further develop the administrative record is an established principle of Second Circuit jurisprudence. In Rosa v. Callahan, Judge Sotomayor summed up the concept:
168 F.3d at 79 (some citations and internal quotation marks omitted). The Rosa court went on to state:
168 F.3d at 79 n. 5 (citation and internal quotation marks omitted).
More recently, the Second Circuit has said:
Swiantek v. Commissioner, 588 Fed.Appx. 82, 83-84 (2d Cir.2015) (emphasis added). See also Vasquez v. Barnhart, No. 02-CV-6751, 2004 WL 725322 (E.D.N.Y. March 2, 2004) ("The ALJ erred in failing to elicit further written or oral testimony from plaintiff's treating physicians as to the nature and extent of plaintiff's impairment.") (citing Second Circuit cases, including Schaal).
The case at bar presents the question of whether this Court should remand the denial of benefits to the Commissioner with instructions that the ALJ further develop the record, principally for the purpose of eliciting further evidence from Dr. Memet, Borgos-Hansen's treating rheumatologist. Under the principles articulated by the Second Circuit in Rosa, this Court should order such a remand if there are "clear gaps" in the administrative record, but need not do so "if there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history." Rosa v. Callahan, 168 F.3d at 79.
In addressing that inquiry, I focus upon on what the ALJ said in his decision denying benefits, rather than upon what the Magistrate Judge said in her recommendation that the Court accept the ALJ's decision. That is the practical consequence of a district court's mandated de novo review of a claimant's objections to a recommended ruling that would deny benefits. To perform a review de novo, a District Judge reviews the relevant evidence in the administrative record from scratch (a slang rendition of the more elegant Latin phrase) and decides whether the ALJ's reasoning passes muster under Second Circuit authority. "In reviewing the denial of [Social Security] benefits by the [Commissioner], our focus is not so much on the district court's ruling as it is on the administrative ruling." Schaal v. Apfel, 134 F.3d 496, 500-501 (2d Cir.1998)
In the case at bar, ALJ Thomas's decision properly recognizes that Dr. Memet was a treating physician for Borgos-Hansen. His decision also manifests the ALJ's awareness that, under the SSA regulations and Second Circuit precedent, he was required to state his reasons for rejecting opinions expressed by Dr. Memet which, had they been accepted, would have satisfied the third step in the five-step evaluation process and entitled plaintiff to disability benefits. An ALJ's obligation to explain his reasons for disregarding a treating physician's opinion is taken seriously by the Second Circuit, as that court explained in Snell v. Apfel, 177 F.3d 128, 133-134 (2d Cir.1999), an opinion by Judge Calabresi. Snell acknowledges that a regulation "relieves the Social Security Administration of having to credit a doctor's finding of disability,"
177 F.3d at 133-134 (one citation omitted).
The ALJ's reasons for rejecting the opinion of Dr. Memet, a treating physician and board-certified specialist (rheumatology and internal medicine), are stated in a single sentence in the ALJ's decision, which says: "I have accorded this opinion no weight as it is not supported by diagnostic imaging or by Dr. Memet's own treating records, which reveal essentially normal findings, and improvement in the claimant's condition with treatment." Tr. 18.
I note supra that the opinion Dr. Memet expressed, and the ALJ rejected for the reasons just quoted, related to the
I begin my consideration of the ALJ's reasons for rejecting Dr. Memet's opinion with the observation that to the extent the ALJ's reasoning is based upon his view that Dr. Memet's opinion "is not supported by diagnostic imaging," the ALJ's rejection of this treating physician's opinion for that reason is problematic under Second Circuit authority. I noted supra that in Schaal, 134 F.3d at 505, Judge Cabranes said that "even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from Dr. Jobson s [a treating physician] sua sponte." Schaal v. Apfel, 134 F.3d at 505. That is the sort of "additional information" which is routinely obtained during a remand of a security benefits case from a district court to the Commissioner for further development of the record. See, e.g., Leroy v. Colvin, 84 F.Supp.3d 124, 134, No. 3:13-cv-922, 2015 WL 499568 (D.Conn. Feb. 6, 2015), at *10 (case remanded where "the ALJ's terse explanation for her disregard of Dr. Shahid's opinion that Leroy `remains disabled' is inadequate as a matter of law.").
The more substantive reason the ALJ gives for giving Dr. Memet's opinion no weight is its lack of support "by Dr. Memet's own treatment records, which reveal essentially normal findings, and improvement in the claimant's condition with treatment." Tr. 18. The ALJ extends that criticism to the records of other physicians who treated or examined plaintiff, which in the ALJ's view omit any findings of degrees of impairment severity sufficient to satisfy step three.
On this aspect of the inquiry, I accept in principle the proposition that medical records may be so devoid of notations consistent with, or contain notations so contrary to, a treating physician's opinion concerning the existence or severity of an impairment that the records become "overwhelmingly compelling," to borrow Judge Sotomayor's phrase in Rosa — compelling, that is to say, an ALJ's conclusion that a treating physician's opinion should be accorded no weight whatsoever and denying benefits in consequence. It is a strong showing that must be made in principle to justify throwing a treating physician's opinion away. The question is whether that showing has been made in practice on the evidence in this case.
If the administrative record fails to justify the ALJ's rejection of the treating physician's opinion in this case (which would otherwise be controlling), this Court's options are to remand the case to the Commissioner with instructions to calculate and pay plaintiff's benefits, or to remand the case with instructions to further develop the record. The Second Circuit summarized those options in Rosa:
168 F.3d at 82-83 (citations, internal quotation marks, and footnote omitted). The Second Circuit's delineation of a court of appeals' options mirrors those options available to a district court at this earlier stage of the litigation.
As an unbroken line of Second Circuit cases demonstrates, a court may in appropriate circumstances exercise either remand option without exceeding the limitations on the court's authority in social security benefits cases. "It is not our function to determine de novo whether [a plaintiff] is disabled. Rather, we set aside an ALJ's decision only where it is based upon legal error or is not supported by substantial evidence." Rosa, 168 F.3d at 77. Whether an ALJ who rejects a treating physician's opinion in a manner which violates Second Circuit decisions articulating the treating physician rule commits a legal error, or reaches a decision not supported by substantial evidence, or is guilty of both these cardinal sins, makes no difference. The present point is that a court, having considered a claimant's objections to an adverse decision and reviewed the relevant evidence de novo, has the authority to remedy a breach by an ALJ of the treating physician rule if the evidence shows that such a breach occurred.
The unquestionable substance of the opinion expressed by Dr. Memet, plaintiff's treating board-certified rheumatologist, is that Borgos-Hansen's combination of impairments and conditions satisfied the requirements of the third step of disability evaluation, entitling Borgos-Hansen to a finding he was disabled as a matter of law. To be sure, Dr. Memet did not state that proposition in so many words. Instead, she completed a series of questionnaires by answering medical questions: a familiar practice in disability cases. Dr. Jobson, plaintiff's treating physician in Schaal, completed a questionnaire that Judge Cabranes's opinion describes thus:
134 F.3d at 499-500 (emphasis added).
The questionnaires Dr. Memet completed in the case at bar follow the same
What then, of the medical evidence, and its relation to Dr. Memet's opinion that Borgos-Hansen was disabled? I begin with a detailed description of the impairment of systemic lupus erythematosus ("lupus" or "SLE") and the numerous afflictions lupus can visit upon an individual unfortunate enough to suffer from it. In order to search through medical records for evidence of a disease's manifestations and severity, it is useful to know at the outset what we are looking for. Here, the disease is lupus. I have limited the search to evidence of lupus's "manifestations and severity" in Borgos-Hansen's case because the ALJ found, on the medical evidence, that plaintiff "has the following severe impairment: Systemic Lupus Erythematosus (Lupus) with Generalized Arthritis." Tr. 14. That finding satisfies step two. "When, as here, the ALJ has determined at the second step of the analysis that the claimant has" an impairment of sufficient severity to limit his physical or mental ability to do basic work activities, the ALJ "must then determine whether the impairment or impairments `is listed in Appendix 1 or is equal to a[ny] listed impairments'; if so, the claimant will be found presumptively disabled." Vasquez v. Barnhart, 2004 WL 725322, at *6 (citing regulations). That is step three.
Another district court has quoted a description of SLE promulgated by the Department of Health and Human Services, National Institutes of Health. See Dowles v. Barnhart, 258 F.Supp.2d 478 (W.D.La. 2003), where the following governmental profile of lupus appears at 481 n. 3:
This, then, is the medical and regulatory description of the nature and myriad potential effects of systemic lupus erythematosus, that "severe impairment" which (together with "generalized arthritis") the ALJ found was afflicting Jonathan Borgos-Hansen. Upon what medical evidence with respect to plaintiff's treatment for that disease did the ALJ conclude that plaintiff was not disabled?
The ALJ's decision denying benefits is based au fond upon his perception that Dr. Memet's opinion with respect to the severity of Borgos-Hansen's lupus is not supported by entries in "Dr. Memet's own treatment records, which reveal essentially normal findings, and improvement in the claimant's condition with treatment," Tr. 18, or by findings in the records or those of other physicians who treated or examined Borgos-Hansen. I am required to consider the relevant medical records de novo. These sources will be considered separately.
According to the documents contained in the administrative record, during the time prior to Dr. Memet's completion in February 2012 of the questionnaires previously described, she conducted office examinations of Jonathan Borgos-Hansen on ten separate dates: February 4, 2010; March 25, 2010; May 3, 2010; August 20, 2010; November 30, 2010; January 13, 2011; April 18, 2011; September 8, 2011; October 20, 2011; and December 1, 2011. The ALJ's decision and the Magistrate Judge's recommended ruling each purport to recite Dr. Memet's findings and assessments during the course of those office visits.
The ALJ discussed Dr. Memet's treatment records within the context of determining Borgos-Hansen's residual functional capacity (RFC), a component of the fourth step in the five-step process. Tr. 15-19. On that particular question, the ALJ found that "the claimant has the residual functional capacity to perform the full range of sedentary work" as defined in the applicable regulations. Tr. 15. The ALJ cites notations in Dr. Memet's records that Borgos-Hansen is "doing well" or "doing well overall" as a basis for deciding
It should be noted that the ALJ's explicit rejection of an opinion expressed by Dr. Memet occurs entirely within the context of the ALJ's appraisal of the plaintiff's residual functional capacity. Dr. Memet's opinion "proffered on February 3, 2012" is presumably a reference by the ALJ to a six-page questionnaire signed by Dr. Memet on that date (Tr. 866-871) which is captioned: "Medical Source Statement of Ability to Do Work-Related Activities (Physical)."
The distinction between the third and fourth steps is significant, since if a claimant carries his burden on step three, the inquiry is at an end. The claimant is deemed disabled. Questions of his residual functional capacity and work availability do not arise. The agency states the proposition succinctly in its regulations:
20 C.F.R. § 404.1520(d), (e).
Reverting to Dr. Memet's medical records, the ALJ's decision contains repeated references to Dr. Memet's notations that on the occasion of one examination or another, Borgos-Hansen was "doing well" or "doing well overall." Tr. 17. Such a generalized description of a patient, while reassuring and favorable as far as it goes, does not preclude a finding that the patient is disabled by a listed impairment. See Vasquez v. Barnhart, 2004 WL 725322, at *9: "Nor does the fact that this chronic, incurable condition [SLE] was characterized as `stable' mean that it cannot constitute a disability under the Listing, as defendant suggests." For that proposition Judge Ross cited Dowles v. Barnhart, 258 F.Supp.2d 478, 489 (W.D.La.2003) ("finding that discoid lupus, even when treated with appropriate medication, meets definition of skin involvement under Listing 8.00, incorporated in Listing 14.02)."
During her first examination of plaintiff, on March 5, 2010, Dr. Memet recited as part of Borgos-Hansen's history: "He has on and off pain in his knees and lower back which seems to be chronic." Tr. 440. Dr. Memet's "general assessment" at that time specified lupus and: "Possible secondary fibromyalgia in the setting of chronic musculoskeletal complaints." Tr. 442. Dr. Memet's treatment plan at the conclusion of that first examination stated in part: "The pain seems to be controlled with the current regimen with Tramadol and Naproxen. I would avoid adding more medications at this time." Tr. 439.
During her most recent examination of plaintiff, on December 1, 2011, Dr. Memet's noted history stated:
Tr. 707. Dr. Memet's assessment changed "possible secondary fibromyalgia" to a more positively stated "Fibromyalgia," Tr. 109. Her treatment plan, in addition to treatment for lupus, specifies treatment for: "Fibromyalgia, depression. Chronic, diffuse pain." Id. Fibromyalgia and depression were not singled out as conditions requiring treatment in Dr. Memet's first assessment. The most recent assessment changes and increases medication: in that regard, Dr. Memet says:
Tr. 710.
It is difficult to discern, in a comparison of these two bookend treatment records, a patient maintaining the benign level of "doing well" over this crucial period of time. To my untrained and medically unprofessional eye, Borgos-Hansen seems to be getting worse. Moreover, his "overall" condition may be deteriorating for clinically recognized causes: the debilitating effect of systemic lupus erythematosus, an autoimmune disease for which no cure is known and can adversely affect multiple body parts and systems, characterized by periods of illness and wellness, and frequently resulting in the secondary conditions of arthritis, fibromyalgia, depression, and fatigue. These are conditions and symptoms that Borgos-Hansen has complained of at one time or another during his treatment by Dr. Memet.
Borgos-Hansen first appeared for a hearing before ALJ Thomas in January 2012. In addition to Dr. Memet, Borgos-Hansen had seen a number of other physicians during the preceding years. That is not surprising, since as the ALJ found, "in January 2006 the claimant was diagnosed with and began treatment for Lupus." Tr. 16. The ALJ's decision discusses the medical reports of other treating or examining physicians at Tr. 16-18. The Magistrate Judge discusses the "medical evidence" at RR 9-27: a detailed review of records generated by physicians privately retained by plaintiff's family at one time or another over the years, and by physicians and investigators appointed by the SSA in response to plaintiff's application for disability benefits.
This Ruling does not analyze these other sources of medical records in comparable detail because the question of substance that emerges from the medical evidence in the case is the ALJ's rejection of Dr. Memet's opinion that Borgos-Hansen was disabled. The record clearly establishes Dr. Memet as plaintiff's primary treating physician during the two years prior to his hearing before the ALJ.
The view the ALJ took of Borgos-Hansen's medical records, leading to the conclusion that plaintiff was not disabled, is summed up at Tr. 18 of the ALJ's decision:
What the ALJ is saying is that he "carefully considered and weighed" Dr. Memet's opinion, and "have accorded this opinion no weight." The question of substance presented by plaintiff's objections is the propriety of that decision.
I said infra that "Dr. Memet's records seem to demonstrate a worsening in the patient's lupus and its related complications": a qualified and tentative observation because a judge is not competent to express a medical opinion, and the Second Circuit cautions judges: "It is not our function to determine de novo whether [a plaintiff] is disabled." Rosa, 168 F.3d at 77. However, it is emphatically a function of a district judge to determine "if there are gaps in the administrative record" requiring remand to the Commissioner "for further development of the evidence." Id. at 82-83. This is such a case. The gap in the administrative record results from the ALJ's decision to reject a treating physician's
This is a quintessential case for a remand for further medical evidence. As we have seen, Dr. Memet formed an opinion over two years of examination and treatment that Borgos-Hansen was disabled. The ALJ rejected that opinion because, in his words, the medical records did not "identify any objective medical findings to support a conclusion indicating that the claimant is disabled." The ALJ's reasoning echoes that of the ALJ in Rosa, who rejected a treating physician's opinion of disability because the medical records did not include "findings of muscle spasm to corroborate any loss of motion." That reasoning did not satisfy Judge Sotomayor, who wrote for the Second Circuit that "the ALJ simply was not in a position to know whether the absence of muscle spasms would in fact preclude the disabling loss of motion described by Dr. Ergas in his assessment." 168 F.3d at 79. Judge Cabranes expressed the same view in Schaal, where the ALJ rejected a treating physician's opinion of disability (expressed in answers to questionnaires) and was rebuked by the Second Circuit: "even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from Dr. Jobson sua sponte." 134 F.3d at 505.
The court of appeals ordered remands in both Rosa and Schaal. I will do so in the case at bar. Poupore v. Astrue, 566 F.3d 303 (2d Cir.2009), is not to the contrary. Judge Fitzsimmons cited Poupore in her RR at 44 for the proposition that "If the treating physician's opinion is not supported by objective medical evidence or is inconsistent with other substantial evidence in the record, the ALJ need not give the opinion significant weight." One cannot quarrel with that proposition, which is stated in the Regulations, 20 C.F.R. § 404.1527(d)(2), but the facts in Poupore demonstrate its inapplicability to this case. The ALJ in Poupore discounted an opinion by one of the claimant's treating physicians, a Dr. Amir, which Dr. Amir expressed in these circumstances:
566 F.3d at 307.
The case at bar is quite different. The opinion that Borgos-Hansen is disabled was expressed by Dr. Memet during the course of her treatment of plaintiff over time, a disability resulting from conditions and symptoms upon which her answers to the questionnaires are based and fall within her medical specialty. The medical records in the case are replete with findings and results, generated by Dr. Memet and by other physicians who have treated Borgos-Hansen or evaluated him for bureaucratic reasons. Whether the other medical records are so inconsistent with Dr. Memet's opinions as to preclude her opinions will be the subject of further proceedings before the SSA on remand. I cannot reach such a conclusion as a matter of law on the present record.
This further development of the record is necessary to place the Court in a position to decide whether the ALJ's decision denying benefits (if he adheres to it after remand) "is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). Since Dr. Memet is a treating physician, the ALJ is required to evaluate her opinions in a manner consistent with the Second Circuit's implementation of the treating physician rule, and I am not satisfied by the present record that he has done so. The remand in this case is for the purpose stated by the Second Circuit in Schaal, 134 F.3d at 505: "The proper course is to direct that this case be remanded to the SSA to allow the ALJ to reweigh the evidence pursuant to the 1991 Regulations, developing the record as may be needed."
On remand, the ALJ should further develop the record with particular reference to whether Borgos-Hansen's overall condition satisfies either of the two alternative Listings for systemic lupus erythematosus that appear in subsections (A) or (B) of Listing 14.02. See, e.g., Dowles v. Barnhart, 258 F.Supp.2d 478, 487 (W.D.La. 2003) ("Since every physician to examine Dowles has found that Dowles has active SLE, Dowles meets the threshold requirement for Listing 14.02. The next step is to determine whether Dowles meets subsections (A) or (B) of Listing 14.02.") (emphasis added); Vasquez v. Barnhart, No. 02-cv-6751, 2004 WL 725322, at *8 (E.D.N.Y. March 2, 2004) ("On remand, the ALJ should address the criteria at both 14.00B1 and both sections of 14.02, and determine whether the plaintiff's impairment satisfies or is medically equivalent to these criteria.") (emphasis added).
For the foregoing reasons, the Plaintiff's Objections to the Recommended Ruling of the Magistrate Judge are SUSTAINED in part and OVERRULED IN PART. The Objections are Sustained to the extent that the case will be remanded to the Defendant Commissioner.
As for the underlying case:
The motion of the Defendant Commissioner for an order affirming the Commissioner's decision denying Plaintiff benefits is DENIED.
In consequence, the Recommended Ruling of the Magistrate Judge is REJECTED.
The Clerk is directed to close the case.
It is SO ORDERED.
