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remanding where prolonged administrative proceedings presented a hardship to the plaintiff whose original claim occurred 21 years before the decision and where most of the medical evidence weighed in the plaintiff's favor
Summary of this case from Ronald V v. O'MalleyOpinion
14-CV-8204 (DF)
12-17-2015
ROBERT CARLANTONE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner Of Social Security, Defendant.
MEMORANDUM AND ORDER
DEBRA FREEMAN, United States Magistrate Judge :
In this action, before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Robert Carlantone ("Plaintiff") seeks review of the final decision of defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Defendant" or the "Commissioner"), denying Plaintiff's application for Social Security Disability Insurance ("SSDI") benefits under the Social Security Act (the "Act"). Plaintiff has moved, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the decision of the Commissioner and remanding the claim to the Social Security Administration ("SSA") solely for the calculation of benefits. (Dkt. 14.) Defendant concedes that remand is necessary due to legal error in the Commissioner's decision, but has cross-moved for judgment on the pleadings remanding the claim for further proceedings, rather than for the calculation of benefits. (Dkt. 18.)
For the reasons set forth below, Plaintiff's motion is granted, the Commissioner's cross-motion is denied, and the case is remanded for the immediate calculation of benefits.
BACKGROUND
The background facts set forth herein are taken from (1) the administrative record (the "Record," referenced herein as "R."), which includes, inter alia, Plaintiff's medical records, the transcripts of administrative hearings at which Plaintiff testified, and several administrative decisions, and (2) the record of prior proceedings in this Court.
A. Procedural History
The extensive, tortuous procedural history of this case can be summarized as follows.
Plaintiff filed for SSDI benefits on May 6, 1994, alleging a disability onset date of June 7, 1993. (R. at 51-54.) After his application was denied (id. at 55-56, 58-59B), Plaintiff requested an administrative hearing. In a decision dated September 11, 1995, Administrative Law Judge ("ALJ") Jose R. Gautier found that Plaintiff was not disabled. (Id. at 114-19.) Plaintiff appealed to the Appeals Council (id. at 123), which remanded his claim back to the ALJ (id. at 124-26). Upon remand, Plaintiff received a second unfavorable decision, this time from ALJ Allan T. O'Sullivan. (Id. at 227-35, 173-83.) He then successfully appealed the ALJ's decision again (id. at 184, 189-91), and, on March 10, 2000, after a supplemental hearing, received another unfavorable decision from ALJ O'Sullivan (id. at 22-44). After the Appeals Council then denied Plaintiff's request for review (id. at 6-9), Plaintiff brought an action for judicial review of the Commissioner's decision, see Carlantone v. Barnhart, No. 04-CV-0102 (AKH) (S.D.N.Y.). Upon the parties' stipulation, the Court ordered that the claim be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (R. at 367-68; Stipulation and Order of Remand, dated Sept. 24, 2004 (Dkt. 8), in Carlantone, No. 04-CV-0102 (AKH).)
After hearings held on September 7, 2005 (R. at 418-32), and November 17, 2005 (id. at 433-62), the stipulated remand resulted in a fourth unfavorable decision, dated January 24, 2006. (Id. at 354-62.) On August 21, 2008, after an unsuccessful appeal to the Appeals Council (id. at 236-38, 353), Plaintiff sought review by this Court for the second time (see id. at 511-22). In a decision dated July 14, 2009, the Honorable Sidney H. Stein, U.S.D.J., found that the ALJ had failed to engage in a proper weighing of the medical opinions of record and remanded the claim for further proceedings. (Id.; see also Carlantone v. Astrue, No. 08 Civ. 7393 (SHS), 2009 WL 2043888, at *5 (S.D.N.Y. July 14, 2009).) Judge Stein specifically directed the ALJ: (1) to give appropriate weight to the opinion of Plaintiff's treating physician, by analyzing the factors set forth in the applicable regulation; and (2) to consider the other medical opinions of record and explain the weight he was assigning to those opinions. (R. at 518-20; Carlantone, 2009 WL 2043888, at *5.)
On March 30, 2011, Plaintiff attended a new hearing before ALJ Seth I. Grossman. In a July 21, 2011 decision, ALJ Grossman found that Plaintiff was not disabled on or before December 31, 1998, the last date upon which Plaintiff was insured for disability benefits. (See id. at 897-915). Plaintiff appealed again, and the Appeals Council remanded the claim because the hearing recording could not be located, the exhibit list had not been updated, the medical expert who testified at the hearing had not reviewed all the evidence, and the decision had misspelled Plaintiff's name. (Id. at 929.) In a decision dated December 13, 2012, after yet another hearing, which took place on November 19, 2012 (id. at 1070-1103), ALJ Grossman found Plaintiff not disabled (id. at 494-509). On September 8, 2014, when the Appeals Council denied Plaintiff's request for review, ALJ Grossman's second opinion became the final decision of the Commissioner. (Id. at 462-66.) On October 14, 2014, Plaintiff filed this action, alleging that the Commissioner's decision was not supported by substantial evidence. (See generally Complaint, dated Oct. 14, 2014 (Dkt. 1).)
The transcript of this hearing is not available in the Record.
"To be eligible for disability insurance benefits, an applicant must be 'insured for disability insurance benefits.'" Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (citing 42 U.S.C. § 423(a)(1)(A)). An individual claiming disability benefits must therefore establish that he became disabled before the date on which his insured status lapsed, or his "date last insured." See 20 C.F.R. § 404.130.
B. Medical Records
1. Treating Sources
a. Emergency Treatment and Diagnostic Tests
On June 7, 1993, while employed as a sanitation worker, Plaintiff was in a roll-over accident in a truck, which was not equipped with a seatbelt. (Id. at 28, 501.) Plaintiff visited the Northern Westchester Hospital Center's emergency department that same day, seeking treatment for lower-back pain and numbness of the right foot and fingertips. (Id. at 79.) A radiology report from the same visit showed straightening of the cervical spine, with no other significant findings. (Id. at 80.) Plaintiff was diagnosed with a cervical strain and discharged. (Id. at 79.)
Plaintiff obtained a number of diagnostic medical tests within a year of the accident. A September 18, 1993 magnetic resonance imaging test ("MRI"), performed by Frank J. Garofalo, M.D., and Earl M. Kabnick, M.D., showed a herniated disc at L3-L4 and a bulge of the disc at L4-L5. (Id. at 82.) On April 25, 1994, Seong K. Kang, M.D., performed nerve conduction studies of Plaintiff's lower extremities, concluding that the results suggested L4-L5 nerve root dysfunction. (Id. at 105.) An electromyography ("EMG") conducted on April 29, 1994, showed findings consistent with lumbar radiculopathy. (Id. at 85.) A paraspinal EMG conducted on the same day noted severe hypertonicity at C4 and L5. (Id. at 106.)
An EMG is "a diagnostic procedure to assess the health of muscles and the nerve cells that control them." http://www.mayoclinic.org/tests-procedures/electroconvulsive-therapy/basics/definition/prc-20014183 (last visited Dec. 1, 2015).
"Radiculopathy is a condition caused by compression, inflammation and/or injury to a spinal nerve root." http://www.ninds.nih.gov/disorders/backpain/detail_backpain.htm (last visited Dec. 2, 2015).
Hypertonia is a condition in which the presence of too much muscle tone results in stiffness and limited mobility. The condition is caused by damage to the regions of the brain or spinal cord that regulate the nerve signals that cause muscles to contract. See http://www.ninds.nih.gov/disorders/hypertonia/hypertonia.htm (last visited Dec. 1, 2015).
b. Orthopedic Surgeon William Unis , M.D.
From October 1995 to September 1997, Plaintiff regularly sought treatment from orthopedic surgeon William Unis, M.D. In a report dated October 31, 1995, Dr. Unis noted that Plaintiff had been "followed closely medically and chiropractically" since his accident, and that EMG results showed a herniated disc at L3-L4, a disc bulge at L4-L5, and nerve root involvement. (Id. at 144.) Plaintiff stated that he had initially injured his neck, but was totally asymptomatic with respect to that problem by the time of the examination. (Id.) Plaintiff reported low back pain, with radiation into the buttock, thigh, and outer leg, and occasional pain in the lower left extremity. (Id.) Dr. Unis also noted that Plaintiff was experiencing loss of motion in all planes and had straight leg raising on the right to about 70 degrees. (Id. at 144.) Dr. Unis opined that Plaintiff was "totally disabled" at the time of the examination. (Id.)
The straight leg raise test is a physical examination technique used to determine whether nerve root irritation is a possible cause of a patient's pain. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC406328/ (last visited Dec. 16, 2015). The "test is positive if pain in the sciatic distribution is reproduced between 30° and 70° passive flexion of the straight leg." Id.
According to Dr. Unis's treatment notes from November 28, 1995, Plaintiff reported pain in his right lower extremity and stated that he had been using a back brace and cane. (Id.) On March 5, 1996, Plaintiff reported that he was "[n]ot doing well," and that he was still having low back pain with radiation down the right lower extremity and occasional left sciatic symptoms. (Id. at 143-44.) Dr. Unis noted that Plaintiff had loss of motion in all planes and that his straight leg raising was unchanged. (Id. at 143.) No pathological reflexes were noted. (Id.)
In his treatment notes for an April 30, 1996 visit, Dr. Unis recorded that Plaintiff was still experiencing low back pain, with radiation into the right buttock, posterior thigh, and leg. (Id.) Dr. Unis further noted that Plaintiff was not working at that time. (Id.) In an undated report prepared after the April 30, 1996 examination, Dr. Unis stated that Plaintiff could not "return to being a sanitation worker" and was "unable to perform other full-time work" because of chronic and permanent pain. (Id. at 136.) On June 17, 1996, Dr. Unis stated that Plaintiff was still symptomatic, with pain radiating from his lower back to his right buttock and thigh, with occasional tingling. (Id. at 143.) Plaintiff reported that he was, at times, still having changes in his gait, and Dr. Unis therefore urged Plaintiff to see a neurologist. (Id.)
While undated, the report indicates that, as of the time that Dr. Unis completed the report, Plaintiff's most recent examination had been on April 30, 1996. (Id. at 136.)
On September 19, 1997, Dr. Unis reported that Plaintiff was still "quite symptomatic," due to continued low back pain and radiation to both extremities, with "the right more involved than the left." (Id. at 166.) Dr. Unis noted that an MRI had shown an L3-L4 disc herniation and disc bulging at L4-L5. (Id.) He further noted limited motion in all planes and straight leg raising on the right to 60 degrees, and opined that Plaintiff was "totally disabled to be employed as a sanitation worker." (Id.) Following this September 19, 1997 examination, Dr. Unis, in a report dated October 16, 1997, stated that Plaintiff's symptoms included low back pain with radiation into the right buttock, thigh, and leg, and that his diagnosis was lumbosacral and thoracic radiculitis. (Id. at 158.) He again noted that Plaintiff could not "return to being a sanitation worker" and was "unable to perform other full-time work" because of chronic and permanent pain. (Id.)
Dr. Unis completed three Residual Functional Capacity ("RFC") Forms during the course of the treatment relationship. On the RFC Form dated May 17, 1996, Dr. Unis indicated that Plaintiff had the capacity to sit for "0-1 hour" in an eight-hour day and stand/walk for "0-1 hour" in an eight-hour day. (Id. 138.) He also checked boxes indicating that Plaintiff could "never" lift 0 to 5 pounds, "occasionally" carry 0-5 pounds, "occasionally" bend, and "frequently" reach or climb steps. (Id.)
On the RFC Form dated August 21, 1997, Dr. Unis circled "0-2 hours" for Plaintiff's capacity to sit in an eight-hour day and "0-2 hours" for Plaintiff's capacity to stand/walk in an eight-hour day. (Id. at 155.) He also indicated that Plaintiff could "occasionally" lift or carry objects weighing 0 to 5 pounds and "never" lift or carry objects weighing more than five pounds. (Id.) On the RFC Form dated October 16, 1997, Dr. Unis reported the same findings as those contained in the May 17, 1996 RFC Form. (Id. at 159-60). On all three RFC Forms, Dr. Unis indicated that Plaintiff had difficulty dealing with low levels of stress and had a condition that caused pain. (Id. at 137, 156, 160.)
2. Chiropractic Treatment
Subsequent to the accident, Plaintiff also sought care from two chiropractors. On April 29, 1994, Dr. Stanley M. Sonn completed an Attending Doctor's Report for the Workers' Compensation Board, in which he noted that he had treated Plaintiff with spinal manipulation from March 26, 1994, until the date of the report. (Id. at 83.) Dr. Sonn stated that Plaintiff's "known or reported" injuries were lumbago, lumbar radiculopathy, low-back syndrome, a herniated disc at L3-L4, and a bulging disc at L4-L5, and that Plaintiff was experiencing pain radiating into both legs and lower back spasms accompanied by pain and weakness. (Id.) Dr. Sonn also checked a box on the form indicating that Plaintiff was subject to a "total disability." (Id.)
From February 1, 1995, to March 10, 1995, Plaintiff was treated with spinal manipulation by another chiropractor, Dr. Henry Hall. (Id. at 107.) On March 10, 1995, Dr. Hall completed an Attending Doctor's Report for the Workers' Compensation Board, in which he also stated that Plaintiff's "known or reported injuries" were lumbago, lumbar radiculopathy, low-back syndrome, a herniated disc at L3-L4, and a bulging disc at L4-L5, and in which he noted severe hypertonicity at C4 and L5 and nerve root dysfunction at L4-L5. (Id. at 107.) Dr. Hall also checked a box indicating that Plaintiff was totally disabled. (Id.)
3. Consultative Examiners
The Record also shows that Plaintiff was evaluated by several consultative examiners, at the request of the Commissioner. Unlike Plaintiff's treating sources, these consultative examiners gave opinions that generally support the ALJ's conclusion that Plaintiff was not totally disabled, though not all of the consultative examiners discussed how their findings specifically impacted Plaintiff's work-related capabilities.
Mario Mancheno, M.D., examined Plaintiff on June 30, 1994, noting tenderness from L4 to S1 with flexion in a sitting position to 90 degrees, flexion in a standing position to 80 degrees, extension to 15 degrees, lateral bending to 20 degrees, and rotation to 30 degrees. (Id. at 87.) Dr. Mancheno noted that, according to Plaintiff, he had pain that was constant and radiated to the right lower extremity, that he had stiffness in both extremities, and that he had difficulty moving around in the morning. (Id. at 86.) Dr. Mancheno also noted, though, that Plaintiff showed no signs of muscle wasting or atrophy, and he opined that Plaintiff's impairment was "moderate" as to lifting and carrying, and only "mild" as to standing, sitting, pushing and pulling. (Id.)
"Normal ranges of motion for the lumbar spine are as follows: 60 degrees of flexion, 25 degrees of extension, 25 degrees of left and right lateral flexion, and 30 degrees of left and right rotation." Villarreal v. Colvin, No. 13 Civ. 6253 (LGS), 2015 WL 6759503, at *6 (S.D.N.Y. Nov. 5, 2015).
D. Rosenberg, M.D., a state agency physician, completed an RFC Assessment Form on September 28, 1994. (Id. at 89-96.) In contrast to Plaintiff's treating physician, Dr. Rosenberg opined that Plaintiff could occasionally lift and/or carry up to 20 pounds, frequently lift and/or carry up to 10 pounds, stand and/or walk for at least two hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. (Id. at 90.) He further stated that Plaintiff had only slightly limited range of motion and no neurological deficit. (Id.)
On July 25, 1995, Plaintiff was evaluated by Dr. Igor Khelemsky, who diagnosed possible lumbar radiculopathy with back pain syndrome, but without major motor deficits. (Id. at 108-10.) Dr. Khelemsky noted that Plaintiff's reported severity of pain did not correspond to the findings of his physical neurological examination. (Id.) Dr. Khelemsky also noted that he was not able to determine a prognosis because he did not have access to outside records including MRI, EMG, and nerve conduction data, and other physicians' progress notes. (Id. at 110.) As for Plaintiff's impairment, Dr. Khelemsky opined that Plaintiff's ability to use his upper extremities, including pulling, pushing, lifting and carrying, and his ability to stand and walk, "may [have been] somewhat impaired" due to lower back pain. (Id. at 110.)
On January 13, 1998, Plaintiff was evaluated by Dr. Bridget Patterson-Marshall, who performed a physical examination that found no abnormal spontaneous movements, no atrophy, normal motor strength and tone, no spinal tenderness, and normal straight leg raising. (Id. at 168.) Dr. Patterson-Marshall also stated that she found no abnormalities during a neurological examination, and opined that Plaintiff should avoid bending, lifting heavy objects, and prolonged walking. (Id. at 169.)
On December 29, 1999, about one year after Plaintiff's date last insured, consultative physician D. Karam, M.D., examined Plaintiff. (Id. at 199-201.) Dr. Karam stated that Plaintiff had a mild stiff gait when walking without a cane, some difficulty getting up from the table to a sitting position, and slight difficulty getting up from a chair. (Id. at 200.) The examination showed no muscle atrophy or spasm and normal muscle power and reflexes. (Id.) There was some sensory impairment on the lateral side of Plaintiff's right leg, and moderate low back pain upon movement. (Id.) Dr. Karam opined that Plaintiff's ability to do work-related activities was limited by low back pain in lifting or carrying objects, pushing and pulling, long-distance ambulation, and standing for a long time. (Id. at 201.) Dr. Karam also completed a Medical Assessment of Ability to Do Work-Related Activities (Physical) Form, in which he indicated that Plaintiff could occasionally lift or cany up to five pounds and frequently lift or carry up to 10 pounds, that Plaintiff was limited to standing and walking for a total of four hours, in half-hour intervals, in an eight-hour day, and that Plaintiff was limited to sitting for a total of four hours, at one-hour intervals, in an eight-hour day. (Id. at 205-06.)
Dr. Karam appears either to have switched these numbers, or to have otherwise reported his findings in error. It is unlikely that he intended to state that Plaintiff could frequently lift 10 pounds, while only occasionally being able to lift half that weight.
The ALJ's decision also discusses medical records that were generated several years after the end of the insurance period. This evidence includes records from a treating orthopedic surgeon, Dr. Donald I. Goldman (id. at 263-73, 277-79, 339-45, 400-10, 545-47, 573-79, 724-28); a treating neurologist, Dr. Surinder Jinal (id. at 245-60, 284-305, 473-83, 580-98, 606-09, 741-825, 827-44); and a consultative examiner, Louis Tranese, D.O. (id. at 687-96, 867-76, 1002-06). These records and opinions, however, will not be summarized herein as they are not relevant to this Court's decision.
4. Independent Medical Examiner
On December 1, 1999, nearly one year after his date last insured, Plaintiff was examined, at his own request, by an independent orthopedist, Robert Zaretsky, M.D. (Id. at 217-18.) In his report of that examination, Dr. Zaretsky noted that he had reviewed records of Plaintiff's MRI and EMG tests, and that those records revealed a herniated disc at L3-L4, a bulging disc at L4-L5, and evidence of lumbar radiculopathy. (Id.) Dr. Zaretsky stated that he found "some flattening" of the lumbar lordotic curve associated with paravertebral muscle spasm, trunk flexion to 50 degrees, extension to five degrees, right and left lateral bend to 10 degrees, and positive straight leg raising on the right. (Id.) He opined that Plaintiff "appear[ed] disabled" at the time of the consultation and had "a limited capacity for sitting, standing, walking, lifting, carrying and bending." (Id.)
On the same date as his examination of Plaintiff, Dr. Zaretsky completed a Physical Functional Capacity Assessment Form, in which he diagnosed Plaintiff with herniated nucleus pulposus of the lumbar spine with radiculopathy and noted that the "clinical findings and objective signs" of Plaintiff's condition included MRI results, flattening of the lordotic curve, and spasm. (Id. at 220.) Dr. Zaretksy stated that Plaintiff suffered from chronic lower back pain, and that his symptoms had "lasted or [could] be expected to last at least twelve months." (Id.) With respect to Plaintiff's work-related limitations, Dr. Zaretsky opined that Plaintiff could walk three city blocks without rest, and that Plaintiff had to change position after sitting for 10 to 20 minutes, standing for five to 10 minutes, and walking for 10 to 20 minutes. (Id. at 222-23.) In an eight-hour work day, Dr. Zaretsky opined, Plaintiff could sit for a total of two hours and stand/walk for a total of two hours. Dr. Zaretsky further stated that Plaintiff could occasionally lift six to 10 pounds. (Id. at 224.)
"Herniated nucleus pulposus is a condition in which part or all of the soft, gelatinous central portion of an intervertebral disk is forced through a weakened part of the disk, resulting in back pain and nerve root irritation." https://www.nlm.nih.gov/medlineplus/ency/imagepages/9700.htm (last visited Dec. 15, 2015).
5. Testimony of Medical Expert
In addition to the medical records from treating and examining physicians, the ALJ obtained testimony from medical expert Dr. Gerald Galst at the hearings on November 17, 2005 (id. at 453-61), and November 19, 2012 (id. at 1083-1100). At both hearings, Dr. Galst testified that the medical records were inconsistent as to the severity of Plaintiff's condition, in that Plaintiff's treating physician, Dr. Unis, had opined that Plaintiff was totally disabled, while the consultative examiners had found lesser limitations. (Id. 458, 1087-89.) During the 2012 hearing, Dr. Galst also testified that Plaintiff did not have the muscle atrophy that he would have expected to find in a patient of Plaintiff's reported level of inactivity (id. at 1092-94), and that the Record did not contain objective evidence of substantial muscle weakness (id. at 1097).
C. ALJ's Decision
In his December 13, 2012 decision, ALJ Grossman found that Plaintiff had the severe impairments of a herniated disc, a disc bulge, lumbar radiculopathy, and lumbosacral and thoracic radiculitis, but that he retained the RFC to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). (Id. at 500-07.) Under that definition, "[s]edentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools," sitting, and a certain amount of walking and standing. 20 C.F.R. § 404.1567(a). To be capable of the full range of sedentary work, a person must be able to sit for a total of six hours, and stand or walk for a total of two hours in an eight-hour workday. See Carvey v. Astrue, 380 F. App'x 50, 52 (2d Cir. 2010) (citing Rosa v. Callahan, 168 F.3d 72, 78 n.3 (2d Cir. 1999)). In determining Plaintiff's RFC, the ALJ considered Plaintiff's own testimony during the hearing; medical reports within the insurance period by Plaintiff's treating chiropractors, treating physician, and examining consultants; and objective medical evidence such as the MRI and EMG reports.
With respect to Plaintiff's own testimony, the ALJ first found Plaintiff's statements concerning the intensity and limiting effect of his pain not credible "to the extent they were inconsistent with the ALJ's RFC assessment." (R. at 501.) The ALJ did not explain the reasons for this finding expressly, although he noted that Plaintiff did not seek chiropractic care until seven months after the accident and that Plaintiff was only taking Advil for pain as of May 1996. (Id. at 502-03.)
Several recent decisions have identified identical language in ALJ decisions as, inter alia, "boilerplate" or "template-driven." See Molina v. Colvin, No. 13 Civ. 4989 (AJP), 2014 WL 3445335, at *14 n.19 (S.D.N.Y. July 14, 2014) (collecting cases in which similar language has been used by ALJs); Cahill v. Colvin, No. 12 Civ. 9445 (PAE) (MHD), 2014 WL 7392895, at *23 (S.D.N.Y. 2014) (characterizing identical language as "meaningless boilerplate"). Courts in this Circuit have also criticized such language on the basis that it evinces "conclusory reasoning" by which a claimant's "subjective statements about his symptoms are discarded if they are not compatible with an RFC that has been predetermined based on other factors." Cruz v. Colvin, 12 Civ. 7346 (PAC) (AJP), 2013 WL 3333040, at *16 (S.D.N.Y. July 2, 2013) ("Neither the Social Security regulations nor this Circuit's caselaw support the idea that an ALJ may discredit a claimant's subjective complaints on the basis of the ALJ's own finding of the claimant's RFC.").
Regarding the medical opinions of record, the ALJ noted that the chiropractic reports of Dr. Sonn and Dr. Hall "did not document clinical signs but documented diagnoses and subjective complaints." (Id. at 502.) "For that reason alone," the ALJ decided not to give "much, if any, weight" to Dr. Hall's assessment, stating that the failure to document clinical signs rendered the assessment "unsubstantiated," and that, in any event, chiropractors were not "acceptable medical sources" under 20 CFR § 404.1513. (Id. at 504.) The ALJ did not explicitly assign any weight to Dr. Sonn's assessment.
The ALJ also declined to give "significant, much less controlling, weight" to the opinion of Plaintiff's treating orthopedist, Dr. Unis. (Id. at 505.) The ALJ reviewed Dr. Unis's reports and contemporaneous treatment records and concluded that "the signs contained therein [we]re not so severe as to foreclose sedentary exertion." (Id. at 504.) In reaching this conclusion, the ALJ noted that Dr. Unis had not recorded any sensory, reflex, or motor strength deficits in his reports. (Id. at 504.) Indeed, the ALJ stated that Dr. Unis had failed to record any clinical signs, other than a limited range of motion, in support of his conclusion that Plaintiff could not work, due to his pain and the chronic and permanent nature of his condition. (Id.) While Dr. Unis did note that Plaintiff's positive straight leg raise test at 70 degrees was indicative of "a nerve injury emanating from the spine" (id. at 504-05), the ALJ stated that a "normal" result for that test was "60 to 90 degrees" (id. at 504). The ALJ further noted that Dr. Unis's January 24, 1996 report indicated that Plaintiff was taking no medication other than Advil for his pain. (Id.) While the ALJ agreed with Dr. Unis's opinion that Plaintiff was unable to engage in the type of heavy lifting that his previous employment as a sanitation worker had required, he concluded that "[s]tanding alone, a loss of range of motion of the lumbar spine without more would not justify a finding that the claimant was unable to do sedentary exertion." (Id. at 505.)
By contrast, the ALJ accorded significant weight to the consultative opinions of Drs. Mancheno, Khelemsky, and Patterson-Marshall. (Id.) The ALJ noted that these examiners' reports contained certain findings that were consistent with those reported by Drs. Unis, Hall and Sonn - for example, a limited range of motion of the lumbar spine and tenderness, but no signs of abnormalities with respect to motor strength, tone, and reflexes. (Id.) After recounting the findings contained in their consultative examination reports, the ALJ stated that these three physicians "all indicate[d] that [Plaintiff] was capable of doing sedentary exertion." (Id.) Furthermore, the ALJ gave "significant weight" to their opinions, "given the minimal findings that [we]re documented in the reports by Drs. Unis, Hall and Sonn." (Id.)
In addition, the ALJ relied on Dr. Galst's testimony during the November 2005 administrative hearing in determining that the objective evidence from Plaintiff's MRI and EMG tests "failed to report findings so significant as to preclude sedentary exertion." (Id. at 506.) Specifically, the ALJ considered Dr. Galst's testimony that the September 1993 MRI did not indicate encroachment or impingement on a nerve root. (Id.) The ALJ did not address whether Dr. Galst's testimony could be reconciled with the April 1994 EMG report that showed lumbar radiculopathy, the nerve conduction study report that suggested nerve root dysfunction, or the paraspinal EMG report that revealed severe hypertonicity. (See id. at 501.)
D. Parties' Positions
In his motion for judgment on the pleadings, Plaintiff claims that the Commissioner's finding is not supported by substantial evidence because the ALJ failed to weigh the medical evidence properly or to evaluate Plaintiff's credibility as required. (See Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated Apr. 27, 2015 ("Pl. Mem.") (Dkt. 15), at 22-29.) The case, according to Plaintiff, should be remanded solely for a calculation of benefits because the evidence overwhelmingly supports a finding of disability, and because it would serve no purpose to remand the claim for an eighth hearing, before yet another ALJ, for determination of an application filed 21 years ago. (Id. at 30.)
Defendant concedes that the ALJ committed legal error in in the opinion that is now the Commissioner's final decision, but argues that the appropriate remedy is to remand, yet again, for further proceedings. (See Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of the Commissioner's Cross-Motion for Remand Pursuant to the Fourth Sentence of 42 U.S.C. § 405(g), dated June 16, 2015 ("Def. Mem.") (Dkt. 19), at 18.) In particular, Defendant agrees that the ALJ failed to weigh the medical opinions properly, in that, inter alia, he did not weigh the opinion of Plaintiff's treating physician opinion in accordance with the factors contained in 20 C.F.R. § 404.1527(d). (See id. at 18-19.) Nonetheless, Defendant argues that the only appropriate remedy is to remand for further proceedings because the Record contains contradictory evidence as to the question of whether Plaintiff was disabled, and because those contradictions should be resolved by the ALJ. (See id. at 20.)
DISCUSSION
I. STANDARD OF REVIEW
This Court has the authority to affirm, reverse, or modify a decision of the Commissioner "with or without remanding the case for a rehearing." Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405(g) (fourth sentence)). The Court may set aside the Commissioner's decision when it is based on legal error or is not supported by substantial evidence in the record. See Rosa, 168 F.3d at 77. Here, as noted above, Defendant concedes that the ALJ has committed legal error in this case with respect to the weighing of medical opinions. (See Def. Mem., at 23.) Under these circumstances, this Court will briefly review the nature of the conceded legal errors in ALJ's opinion, and then turn to the question of the appropriate remedy.
While Defendant concedes that the ALJ committed legal error in his weighing of the medical evidence, Defendant does not agree with Plaintiff that the ALJ also erred in assessing Plaintiff's credibility. As noted infra, at Section III(A), this is ultimately of no moment, as, regardless of whether Plaintiff testified credibly or incredibly, the medical evidence in the Record is insufficient, in any event, to support the ALJ's finding of disability.
II. THE ALJ'S LEGAL ERROR IN THE WEIGHING OF MEDICAL OPINIONS
A. Weight Accorded to Opinion of Treating Physician
The medical opinion of a treating source as to "the nature and severity of [a claimant's] impairments" is entitled to "controlling weight," where the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 416.927(c)(2). A "treating source" is defined as the claimant's "own physician, psychologist, or other acceptable medical source who . . . has provided [the claimant] with medical treatment or evaluation" and who has had "an ongoing treatment relationship" with him or her. 20 C.F.R. § 416.902.
A medical source who has treated or evaluated the claimant "only a few times" may be considered a treating source "if the nature and frequency of the treatment or evaluation is typical for [the claimant's] condition(s)." 20 C.F.R. §§ 404.1502, 416.902.
Where an ALJ determines that a treating physician's opinion is not entitled to "controlling weight," the ALJ must "give good reasons" for the weight accorded to the opinion. 20 C.F.R. § 416.927(c)(2). Failure to "give good reasons" is grounds for remand. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician's opinion . . . ."). Moreover, in determining the weight to be accorded to an opinion of a treating physician, the ALJ "must apply a series of factors," Aronis v. Barnhart, No. 02cv7660 (SAS), 2003 WL 22953167, at *5 (S.D.N.Y. Dec. 15, 2003) (citing 20 C.F.R. § 416.927(d)(2) ), including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the treatment received was particular to the claimant's impairment; (3) the supportability of the physician's opinion; (4) the consistency of the physician's opinion with the record as a whole; and (5) the specialization of the physician providing the opinion, 20 C.F.R. § 416.927(c)(2)-(5); see Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (noting that these five factors "must be considered when the treating physician's opinion is not given controlling weight"); Rolon v. Comm'r of Soc. Sec., 994 F. Supp. 2d 496, 507 (S.D.N.Y. 2014) (citing Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)) (requiring an ALJ to "explicitly consider" the factors in order to "override the opinion of a treating physician").
On February 23, 2012, the Commissioner amended 20 C.F.R. § 416.927, by, among other things, removing paragraph (c), and redesignating paragraphs (d) through (f) as paragraphs (c) through (e).
Even where a treating physician's opinion is not entitled to "controlling weight," it is generally entitled to "more weight" than the opinions of non-treating and non-examining sources. 20 C.F.R. § 416.927(c)(2); see Social Security Ruling 96-2p (S.S.A. July 2, 1996) ("In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight."); see also Gonzalez v. Apfel, 113 F. Supp. 2d 580, 589 (S.D.N.Y. 2000). A consultative physician's opinion, by contrast, is generally entitled to "little weight." Giddings v. Astrue, 333 F. App'x 649, 652 (2d Cir. 2009) (internal quotation marks and citation omitted).
Treating physicians' opinions are generally accorded deference because treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of a claimant's condition and "bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c); see Taylor v. Barnhart, 117 F. App'x 139, 140 (2d Cir. 2004). Consultative examinations, on the other hand, "are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only passing consideration to subjective symptoms without stated reasons." Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citation omitted).
In his July 14, 2009 decision, Judge Stein instructed the ALJ, upon remand, "to give appropriate weight to Dr. Unis's opinion," by applying the factors set out in the applicable regulation. (R. at 519-20; Carlantone, 2009 WL 2043888, at *5.) In the decision now under review, however, the ALJ again failed to consider the required factors when determining whether to afford controlling weight to Dr. Unis's opinion. While it appears that the ALJ may have impliedly considered the supportability of Dr. Unis's opinion, as well as its consistency with other evidence, the decision contains no analysis of the other three relevant factors - the length of the treatment relationship and frequency of examination, the nature of extent of the treating relationship, and the specialization of the physician. (Id. at 504-505.) Defendant concedes that this failure constitutes legal error requiring remand. (Def. Mem., at 17-19.)
Furthermore, to the extent that the ALJ discredited Dr. Unis's opinion that a positive straight leg test at 70 degrees was indicative of a nerve injury, based on the ALJ's own understanding that straight leg raising to 70 degrees was within the "normal" range (R. at 504-05), the ALJ was not entitled to substitute his own lay opinion of the medical evidence for that of a physician. See, e.g., Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (holding that an ALJ may not "arbitrarily substitute his own judgment for competent medical opinion" and "is not free to set his own expertise against that of a physician" (internal quotation marks and citations omitted)).
B. Weight Given to Other Sources
Judge Stein's decision also specifically directed the ALJ to give appropriate weight to the opinions of Drs. Patterson-Marshall, Mancheno, and Khelemsky, "based on whether the doctor examined the patient; the extent of the treatment relationship; the consistency of the opinion with the rest of the record; and whether the doctor specializes in the area of concern." (R. at 520; Carlantone, 2009 WL 2043888, at *5 (citing 20 C.F.R. § 1527(c) (listing the factors to be considered in deciding the weight of any medical opinion).) The ALJ did not, however, explicitly consider any of these factors in assigning weight to the opinions of the consultative examiners, and Defendant concedes that the ALJ "failed to undertake the analysis of the consultative opinions that was required by Judge Stein." (Def. Mem., at 19.)
Furthermore, Judge Stein's decision also directed the ALJ, upon remand, to assign a specific weight to the opinions of Drs. Hall and Sonn, Plaintiff's chiropractors. (R. at 520; Carlantone, 2009 WL 2043888, at *5.) While chiropractors are not considered "acceptable medical sources" for the purposes of establishing an impairment, 20 C.F.R. § 404.1513(a), they are considered "other sources," whose opinions may be used to show the severity of an impairment, id. § 404.1513(d). An ALJ must therefore assign some weight to the opinion of such a source. See Losquardo v. Astrue, No. 11-CV-1798 (JFB), 2012 WL 4342069, at *15 (E.D.N.Y. Sept. 21, 2012). The ALJ failed, however, to assign any weight to Dr. Sonn's opinion, and stated only that he declined to accord Dr. Hall's opinion "much, if any, weight" because his assessment contained no "clinical signs" and chiropractors are not acceptable medical sources. (R. at 504.)
The ALJ's failure to make an appropriate determination as to the weight to assign to the medical opinions of the consultative examiners and Plaintiff's chiropractors also constitutes legal error. For this reason, as well as for the ALJ's failure to make a proper evaluation of the weight to be assigned to Plaintiff's treating physician, this matter must be remanded, and the only remaining question is whether the remand should be for yet another hearing or, alternatively, for the calculation of benefits.
III. REMAND FOR THE CALCULATION OF BENEFITS
A court reviewing a Commissioner's final decision may, in its discretion, remand a claim for further proceedings, or solely for the calculation of benefits. 42 U.S.C. § 405(g) (sentence four) (a reviewing court may enter, upon the pleadings and the administrative record, "a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing"); see Butts, 388 F.3d at 385 (holding that district court's exercise of authority under § 405(g), sentence four, is discretionary), amended on other grounds on reh'g, 416 F.3d 101 (2d Cir. 2005). In exercising this discretion, the court must assess the completeness of the administrative record, including whether further development of the record is necessary to "assure the proper disposition" of the claim, and whether there is a "basis to conclude that a more complete record might support the Commissioner's decision." Id. at 386-87 (internal citations and quotation marks omitted). Where the record is sufficiently complete and contains persuasive proof of disability, such that "no purpose would be served" by additional administrative proceedings, remand for calculation of benefits is warranted. Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). In addition, in determining whether further proceedings should be held, "the hardship to a claimant of further delay should be considered." Butts, 388 F.3d at 387; see also Archer ex rel. J.J.P. v. Astrue, 910 F. Supp. 2d 411, 428 (N.D.N.Y. 2012) ("Courts are directed to avoid contribut[ing] any further to the delay of the determination of [a claimant's] application by remanding for further administrative proceedings when such an instruction would prove unnecessary." (internal quotation marks and citation omitted)).
Remand solely for calculations of benefits is "particularly appropriate" where a plaintiff has already endured a substantial delay since first applying for benefits. Curry, 209 F.3d at 124 (calculation for benefits "particularly appropriate" where Plaintiff's case had been pending more than six years and a remand could result in "substantial, additional delay"); see also Carroll, 705 F.2d at 644; Balsamo, 142 F.3d at 82. Where one or more ALJs have repeatedly committed the same errors in previous decisions, courts have also declined to remand for further proceedings. See Mortise v. Astrue, 713 F. Supp. 2d 111, 128 (N.D.N.Y. 2010) (remanding for calculation where the ALJ had repeatedly erred in applying the treating physician rule and further development of the record would not change that result); Steficek v. Barnhart, 462 F. Supp. 2d 415, 421 (W.D.N.Y. 2006) (remanding for calculation where the Commissioner committed "the exact same errors the second time around").
In this case, there is no reason to believe that, upon remand, the Record that has been presented to this Court could be made any more "complete." At 21 years past the date of Plaintiff's claim, and after all the proceedings already had, there is certainly no reason to believe that any treater or consultant would now be able to produce additional records that would augment any clinical assessments that they made at the relevant time. Further, as discussed below, the Record, as it stands, is not only marred by legal error, but does not contain substantial evidence to support the ALJ's decision. When examined closely, the Record contains only a minimal amount of competent evidence - from a single non-treater - that could potentially support a finding that Plaintiff was not disabled, while most of Plaintiff's medical records - including the opinion of his treating physician - weigh in Plaintiff's favor. Given the character of the medical record, coupled with the ALJ's repeated commission of legal error and the already extensive delay Plaintiff has endured, this Court finds that remand for the calculation of benefits is appropriate in this case.
A. Persuasive Proof Of Disability
Through the first four steps of the five-step procedure set out in the regulations governing the administration of Social Security benefits, see 20 C.F.R. § 416.90, the ALJ determined that: (1) Plaintiff did not engage in substantial gainful activity between his disability onset date and the date he was last insured; (2) Plaintiff had several severe impairments - a herniated disc, a disc bulge, lumbar radiculopathy, and lumbar and thoracic radiculitis; (3) these severe impairments did not meet or exceed a listed impairment; and (4) although Plaintiff could not perform his past relevant work, he had the RFC to perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a). (See R. at 500-01, 505.)
At step five, once "the claimant shows that his impairment renders him unable to perform his past work, the burden then shifts to the [Commissioner] to show there is other gainful work in the national economy which the claimant could perform." Carroll, 705 F.2d at 642. Where a claimant has only exertional impairments, and can perform the full range of sedentary work, the Commissioner may meet this burden by reference to the Medical-Vocational Guidelines found at 20 C.F.R. § 404, Subpart P, Appendix 2 (the "Grids"). See Kessler v. Colvin, 48 F. Supp. 3d 578, 598-99 (S.D.N.Y. 2014). Here, the ALJ relied on the Grids, and concluded that, based on his RFC determination and Plaintiff's age, education, and work experience, the Grids dictated a finding that Plaintiff was "not disabled." (R. at 508.) Had the ALJ determined, however, that Plaintiff had limitations that prevented him from performing the full range of sedentary work, then the ALJ would have been required to conduct an individualized assessment of whether there was gainful work in the national economy that Plaintiff could perform. Donnelly v. Colvin, No. 13-CV-7244 (AJN) (RLE), 2015 WL 1499227, at *14 (S.D.N.Y. Mar. 31, 2015) ("When a claimant is incapable of the full range of . . . sedentary work, he must be evaluated on an individualized basis since the . . . [Grids do] not apply to claimants who cannot do sedentary work." (internal quotation marks and citation omitted)). This Court's review of the Record reveals persuasive evidence of disability that is at odds with the ALJ's RFC determination. Moreover, this Court finds that, even if the ALJ were to modify his RFC assessment on remand so as to add exertional limitations, it is unlikely, based on the Record, that the Commissioner would then be able to meet her burden, at step five, to show that there was work in the national economy that Plaintiff was capable of performing.
First, Plaintiff's own testimony from both the 2005 and 2012 hearings does not support a finding that he could perform any kind of work. (R. at 1041-57 (Transcript of Nov. 17, 2005 Hearing); Id. at 1075-83, 1090-91 (Transcript of Nov. 19, 2012 Hearing).) At the 2005 hearing, Plaintiff testified that he had not worked at all since he was injured in the June 7, 1993 accident. (Id. at 1044.) Plaintiff also stated that he was not able to exercise or go for walks (id. at 1050), and that he never drove to visit his children because it was "a long drive . . . on [his] back" (id. at 1051). He further testified that, in 1997 and 1998, sitting was uncomfortable, and he could only sit "[o]n and off for periods of about 10 to 15 minutes at a time, for a total of an hour and a half or two hours in a day (id. at 1057), and that he spent about half of his waking hours during that time lying down (id. at 1054). In 2012, Plaintiff again testified that he had not worked at all since the date of the accident (id. at 1076), and that his medical conditions imposed significant limitations on his daily activities. For instance, Plaintiff stated that he rarely left the house and that he "ha[d] a hard time even getting out of bed." (Id. at 1091.) Plaintiff also testified that his activities in 2012 were "fairly reflective" of the activities in which he had been able to engage before his date last insured. (Id. at 1083.)
Second, even if, on remand, the ALJ were given another opportunity to consider the Record and, employing a proper credibility analysis, were again to discount Plaintiff's credibility, the Record would still lack medical evidence sufficient to outweigh the opinion of Plaintiff's treating physician. In this regard, Dr. Unis - a board-certified orthopedist who had regularly treated Plaintiff for two years - consistently opined that Plaintiff was totally disabled during the insurance period. (Id. at 136, 144, 166.) He completed three RFC Forms from 1996 to 1997, all indicating that Plaintiff was able to sit or stand less than one hour in an eight-hour workday, and lift less than five pounds. (Id. at 137-38, 155-56, 159-60.) Thus, in the opinion of Dr. Unis, Plaintiff suffered from a condition that prevented him from being able to perform even sedentary work. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("Sedentary work is defined as work that involves lifting up to ten pounds at a time and occasionally lifting and carrying light objects. Sedentary work also generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." (internal citations omitted)).
Dr. Unis's opinion, which is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory techniques and is not inconsistent with the other substantial evidence in the case record, see 20 C.F.R. § 404.1527(d)(2), is the only medical evidence of record from a treating source that specifically discusses whether Plaintiff's work-related limitations prevented him from engaging in sedentary exertion during the insurance period. Dr. Unis based this opinion on his own examination of Plaintiff, his review of Plaintiff's objective MRI and EMG results, and Plaintiff's subjective reports of his symptoms. (Id. at 136-60.) Furthermore, Dr. Unis's conclusions are generally supported by the opinion of the independent examiner, Dr. Zaretksy - also an orthopedist - who stated that Plaintiff could sit and stand/walk for only two hours in an eight-hour workday, and could sit for only 10 to 20 minutes before needing to change positions (R. at 222-23), and the opinions of Plaintiff's chiropractors, Drs. Sonn and Hall, who both opined that Plaintiff was "totally disabled" (id. at 83, 107). In all, Dr. Unis's opinion, which is consistent with the opinions of Drs. Zaretsky, Sonn, and Hall, and is supported by medically acceptable clinical and laboratory techniques, provides persuasive evidence of Plaintiff's disability.
In arguing that this case should be remanded for further proceeding so that the ALJ can properly weigh the evidence, Defendant states that the opinions of Drs. Unis, Zaretsky, Sonn, and Hall are contradicted by the RFC assessment of the state agency physician, Dr. Rosenberg, as well as by the additional consultative opinions of Drs. Mancheno, Khelemsky, and Patterson-Marshall. (Def. Mem., at 21.) None of these purportedly contrary assessments, however, provide persuasive evidence that Plaintiff was not disabled during the relevant period. The best supported of these consultative opinions is that of Dr. Rosenberg, who opined that Plaintiff could occasionally lift or carry up to 20 pounds, frequently lift or carry up to 10 pounds, stand or walk for at least two hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. (R. at 90.) It appears, though, that, in making his assessment, Dr. Rosenberg gave no consideration to any opinion expressed by Plaintiff's treaters, as he failed even to fill out the portion of the RFC Form that asked if his conclusions differed from those of any treating sources, and, if so, to explain why the treaters' conclusions were not supported. (See id. at 95 (section of form left blank).) Further, Dr. Rosenberg's assessment is quite cursory, containing only brief notes regarding Plaintiff's symptoms (or lack thereof), without explanation as to how the reported findings were made.
Specifically, the RFC Form filled out by Dr. Rosenberg notes that Plaintiff had a "slightly limited" range of motion ("ROM") for lumbar spinal stenosis ("LSS") (R. at 90), but does not indicate that this finding was the result of any particular test. Similarly, the report indicates "no spasm"; "gait [and] motor WNL [within normal limits]"; and "no neurological deficit" (id.), but does not explain whether these findings were made upon an actual physical examination, and, if so, whether particular tests were performed. The report also contains what appears to be a diagnosis of "LSS - generalized facet arthropathy," indicated to be "worse at L4-S1, L5-S1" (id.), but does not disclose the manner in which this condition was "worse" at the cited locations. The Form contains no further discernable information regarding the basis for Dr. Rosenberg's conclusions. (See id. at 89-96.)
As for the consultative opinions of Drs. Mancheno, Khelemsky, and Patterson-Marshall, upon which the ALJ relied heavily in concluding that Plaintiff was capable of doing sedentary exertion, these opinions are simply not legally sufficient to support the ALJ's RFC determination. Dr. Mancheno's opinion, for instance, merely concluded that Plaintiff's impairment was "moderate" for lifting and carrying, and "mild" for standing, sitting, pushing, and pulling. (Id. at 87.) In reviewing an ALJ's decision that relied on a nearly identical description of the claimant's impairments, from an opinion of the very same doctor, the Second Circuit stated:
The only evidence supporting the ALJ's conclusion that [the plaintiff] "retains the [RFC] to perform the exertional requirements of at least sedentary work," is Dr. Mancheno's opinion that [the plaintiff's] "impairment is: [l]ifting and carrying moderate; standing and walking, pushing and pulling and sitting mild." While the opinions of treating or consulting physicians need not be reduced to any particular formula, Dr. Mancheno's opinion is so vague as to render it useless in evaluating whether [the plaintiff] can perform sedentary work. In particular, Dr. Mancheno's use of the terms "moderate" and "mild," without additional information, does not permit the ALJ . . . to make the necessary inference that [the plaintiff] can perform the exertional requirements of sedentary work.Curry, 209 F.3d at 123; see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (noting that the opinion of a medical expert is not "sufficiently substantial to undermine the opinion of the treating physician," when such an opinion vaguely describes an impairment with words such as "mild" or "moderate").
The opinions of Drs. Khelemsky and Patterson-Marshall are similarly vague with respect to Plaintiff's capacity to perform sedentary work. Dr. Khelemsky opined that Plaintiff's ability to stand, walk, and use his upper extremities "may [have been] somewhat impaired" due to lower back pain (R. at 110), while Dr. Patterson-Marshall said little more than that Plaintiff should "avoid bending, lifting heavy objects or prolonged walking" (id. at 169). In fact, the ALJ cited no evidence from these opinions that specifically supports his determination that, prior to his date last insured, Plaintiff was able to sit for six hours of an eight-hour workday, do a certain amount of walking and standing, and lift up to 10 pounds. See 20 C.F.R. § 404.1567. Making an RFC determination "based on medical reports that do not specifically explain the scope of [the] claimant's work-related capabilities" constitutes legal error. Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000). In light of the deficiencies in the consultants' opinions, Defendant has not shown how, even if properly weighed upon remand, these opinions could outweigh the opinion of Plaintiff's treating physician and support a determination that Plaintiff was not disabled from working during the relevant period.
Finally, although Defendant does not raise this in her motion papers, the Court notes that the Record contains an additional consultative RFC assessment - from Dr. Karam (R. at 205-06) - that partially supports each party's position here. Specifically, Dr. Karam stated in his assessment that Plaintiff was capable of sitting for a total of about four hours, at one-hour intervals, in an eight-hour day, and that he could lift or carry some light objects. (Id.) Thus, while Dr. Karam's findings suggested that, while restricted, Plaintiff may have been able to perform some physical activities, his findings also indicate that Plaintiff could not preform the full range of sedentary work. See Rosa, 168 F.3d at 78 n.3 (noting that sedentary work generally requires a person to sit for six hours per day).
In the most recent administrative decision, the ALJ stated that Dr. Karam's opinion was that, "in essence[,] [Plaintiff] could do sedentary exertion" (R. at 506), even though Dr. Karam had actually opined that Plaintiff could perform less than the full range of sedentary work. --------
To the extent that the RFC assessment completed by Dr. Rosenberg (and portions of the one completed by Dr. Karam) suggest that, upon remand, the Commissioner could possibly marshal substantial evidence sufficient to outweigh Dr. Unis's treating opinion, this Court nonetheless declines to remand for another hearing. See McClain v. Barnhart, 299 F. Supp. 2d 309, 329 (S.D.N.Y. 2004) ("[C]ase law evidences reviewing courts' refusal to recycle deserving claimants through the SSA bureaucracy simply because the ALJ has failed to produce a legally adequate opinion."). In the ordinary case where an ALJ has failed to follow the applicable regulations in weighing the medical opinions, such a remand might make sense, but, here, where the SSA has had numerous opportunities, over more than two decades, to perform a proper evaluation of the evidence, the totality of the circumstances makes remand for the calculation of benefits the more appropriate course.
B. Repeated Legal Errors
At this point, the ALJs' repeated failure to weigh the medical opinions properly, even after Judge Stein explicitly instructed him to do so, militates in favor of a remand for the calculation of benefits. An ALJ's commission of the exact same legal error that necessitated a prior remand, despite being afforded an opportunity to correct that error, supports the conclusion that remand for further proceedings would serve no purpose. See Steficek v. Barnhart, 462 F. Supp. 2d 415, 421 (W.D.N.Y. 2006). In particular, courts in this Circuit have determined that, where one or more ALJs in a case have repeatedly erred in applying the treating physician rule, remand for further development of the record is unwarranted. See Mortise v. Astrue, 713 F. Supp. 2d 111, 128 (N.D.N.Y. 2010) (remanding for calculation of benefits based on repeated violation of treating physician rule).
Here, Dr. Unis's opinion would be entitled to controlling weight on remand, unless the ALJ were to determine, based on the proper application of the factors enumerated in 20 C.F.R. § 416.927(c), that the opinion was not entitled to such weight. See, e.g., Halloran, 632 F.3d at 33. Having had the opportunity to conduct such an assessment on the most recent remand, with the benefit of Judge Stein's explicit instructions to consider the necessary factors, the ALJ still failed to do so. (See Def Mem., at 23 (conceding that ALJ failure to correct the deficiencies specifically identified by Judge Stein).) There is no reason to believe that further proceedings would change this result.
C. Delay
Remand for calculation of benefits is also appropriate in light of the lengthy delay that Plaintiff has already endured in waiting for a final determination of his claim. In addition to the ALJ's commission of the exact same legal errors in the two most recent decisions, Plaintiff's case has been riddled with other errors that have required a multitude of appeals and remands over a period of more than 21 years. (See, e.g., R. at 929-30 (Aug. 10, 2012 Order of Appeals Council); id. at 125-26 (April 15, 1997 Order of Appeals Council).) During the 21 years that have now passed since Plaintiff filed for SSDI benefits, Plaintiff testified in seven hearings, received six decisions from four different ALJs, and traveled three times to federal court to challenge those decisions. His claim was remanded three times by the Appeals Council for further proceedings before an ALJ, and this decision will mark the third time that Plaintiff's claim is remanded to the Commissioner by this Court.
The Second Circuit has deemed remand for calculation of benefits "particularly appropriate" in cases that were pending for much shorter periods of time than that at issue in this case. See Curry, 209 F.3d at 124; see also Williams ex rel. Torres v. Barnhart, 314 F. Supp. 2d 269, 275 (S.D.N.Y. 2004) (ordering remand for calculation of benefits to end a four-year delay); McClain v. Barnhart, 299 F. Supp. 2d 309, 330-31 (S.D.N.Y. 2004) (ordering remand for calculation of benefits in light of a nine-year delay). Given the extraordinary delay that Plaintiff has already endured, "the present case [is] an appropriate one in which to carry out Congress' mandate to foreshorten the often painfully slow process by which disability determinations are made." Carroll, 705 F.2d at 644.
For the foregoing reasons, this Court concludes that remand to the Commissioner for further proceedings would serve no productive purpose, and, in light of the already extensive delay in adjudicating this application, this case should be remanded solely for the calculation of benefits.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. 14) is granted and the Commissioner's motion (Dkt. 18) is denied. The case is remanded pursuant to 42 U.S.C. § 405(g) (sentence four), solely for the calculation and payment of SSDI benefits.
In light of this Order directing remand, the Clerk of Court is requested to enter judgment in Plaintiff's favor. Dated: New York, New York
December 17, 2015
SO ORDERED
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to: All counsel (via ECF)