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remanding for further record development where the ALJ had not considered a diagnosis of CRPS because the doctor's comments were unclear
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17-cv-2182 (JGK) (RWL)
07-30-2018
JOHN McGINLEY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ROBERT W. LEHRBURGER, United States Magistrate Judge. TO THE HONORABLE JOHN G. KOELTL, United States District Judge:
John McGinley brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of a determination by the Commissioner of Social Security ("Commissioner") finding that he was not entitled to disability insurance benefits ("DIB"). Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the Commissioner's motion for judgment on the pleadings be denied and McGinley's motion be granted.
Background
A. Procedural History
McGinley applied for DIB on October 22, 2013, alleging disability as of May 14, 2012. (R. at 210-11.) McGinley's claim was denied on initial review on January 3, 2014. (R. at 160.) McGinley requested a hearing before an administrative law judge ("ALJ"), and the hearing was held before ALJ Michael J. Stacchini on September 17, 2015. (R. at 34.) McGinley was represented by counsel. (R. at 35.) By a decision dated October 28, 2015, the ALJ found McGinley not disabled for the purposes of the Social Security Act. (R. at 17-26.) McGinley appealed to the Appeals Council, who denied review on October 28, 2015, thus rendering the ALJ's decision the final determination of the Commissioner. (R. at 1.) An appeal was lodged with this Court on March 27, 2017, and referred to me on May 7, 2018. B. Personal History
"R." refers to the administrative record.
While the appeal was pending before the Appeals Council, McGinley developed a new medical condition - stage IV lung cancer - and the Appeals Council granted McGinley leave to file a second claim with a later onset date of disability. (R. at 77-78, 146; Plaintiff's Memorandum of Law ("Pl. Mem.") at 2.) McGinley states in his brief that in connection with the second claim, he is "currently receiving benefits, although the onset date regarding the later claim is currently on appeal at the administrative level." (Pl. Mem. at 2). Only McGinley's first claim is currently before this Court.
McGinley was born on July 31, 1965. (R. at 210.) He is a high school graduate and completed a four-year technical college program in carpentry. (R. at 246.) He worked as a carpenter in the construction business from January 1997 to May 2012. (R. at 246.) He lives with his wife and five children. (R. at 41-42.) McGinley has not worked since May 14, 2012, when he fell at work and tore a tendon in his rotator cuff for the second time. (R. at 242, 246, 562.) C. Medical History
In 2010, McGinley sustained a small rotator cuff tear in his left shoulder that was "treated non-operatively," and he continued to work. (R. at 895.) On May 14, 2012, McGinley fell at work and suffered contusions to his knee, shoulder, and forearm. (R. at 332, 895.) That same day, Dr. Frank Garigali examined McGinley, and determined that a left shoulder x-ray was normal. (R. at 331.) Dr. Garigali prescribed Naproxyn and advised McGinley to return to work without limitations on May 17, 2012. (R. at 335-36.)
On May 16, 2012, McGinley presented to Dr. Patrick Murray, an orthopedist and surgeon, complaining that he had not experienced any relief from the pain in his anterior, posterior, and lateral shoulder. (R. at 560.) Dr. Murray assessed a left shoulder rotator cuff tear and recommended a magnetic resonance imaging (MRI) study. (R. at 562.) The MRI was conducted on May 18, 2012. (R. at 438.) It showed a large full-thickness tear involving the entire supraspinatus tendon, a partial-thickness tear involving the musculotendinous junction of the infraspinatus, and a small partial-thickness tear involving the upper third portion of the distal subscapularis tendon. (R. at 438.) On May 24, 2012, McGinley discussed the results with Dr. Murray and opted for arthroscopic surgery on the tear. (R. at 556-58.) Dr. Murray performed the surgery on June 12, 2012, with no complications. (R. at 276-77.)
On June 14, 2012, McGinley presented to Dr. Murray for a follow-up. (R. at 553.) Dr. Murray noted that it was too early to assess the results of the procedure and instructed McGinley to comply with his instructions. (R. at 553-55.) McGinley began physical therapy a few weeks later and continued through April 2013. (R. at 351-406.) McGinley also wore a shoulder immobilizer. (R. at 552.)
On August 2, 2012, McGinley presented to Dr. Murray. (R. at 550.) Dr. Murray noted that McGinley was "doing well" but that his shoulder remained sore. (R. at 550.) He instructed McGinley to continue to wear the shoulder immobilizer and attend physical therapy. (R. at 552.) Dr. Murray noted that McGinley was unable to work and was totally disabled. (R. at 552.) McGinley visited Dr. Murray again on September 4, 2012, and Dr. Murray again noted that McGinley was doing well but that his shoulder was sore. (R. at 544.) Dr. Murray also noted that McGinley had back and joint pain. (R. at 544.)
On September 11, 2012, McGinley presented to Dr. Jerome Moga for a Workers' Compensation evaluation. (R. at 872-73.) Dr. Moga opined that McGinley was limited to sedentary work with no lifting over ten pounds and with limited overhead use of the left arm. (R. at 874.) Dr. Moga found that McGinley had a marked partial degree of casual related disability. (R. at 865.)
McGinley saw Dr. Murray on October 18, 2012, and Dr. Murray noted that McGinley was doing "well" although he continued to experience "some pain" in the shoulder with some residual stiffness. (R at 547.) McGinley had 5/5 muscle strength in external and internal rotators but only 4/5 strength in the supraspinatus muscle. (R. at 548.) Dr. Murray noted that McGinley was temporarily totally disabled. (R. at 549.) Dr. Murray's assessments remained the same after a November 19, 2012, and December 20, 2012, visit with McGinley. (R. at 538-43.)
Muscle strength is usually graded according to the following 0 through 5 scale:
0: No visible muscle contractionThe MERK Manual of Diagnosis and Therapy at 1838 (Robert S. Porter, MD, et al. eds., 20th ed. 2018); see also Lorne Label and Laura Obiso, 11 Attorneys Textbook of Medicine (Third Edition), ¶ 85.42 (2018).
1: Visible muscle contraction with no or trace movement
2: Limb movement, but not against gravity
3: Movement against gravity but not resistance
4: Movement against at least some resistance supplied by the examiner
5: Full strength
On November 27, 2012, Dr. Moga again examined McGinley. (R. at 325.) McGinley reported "some increasing mobility of his left shoulder with his therapy program." (R. at 325.) McGinley noted some weakness of his left shoulder and arm and pain with left shoulder motion. (R. at 325.) He reported experiencing no pain at rest. (R. at 325.) Dr. Moga noted that McGinley had pain with forward flexion of the left arm to 135 degrees and abduction to 90 degrees. (R. at 326.) McGinley had numbness to pinprick testing of the left arm. (R. at 326.) Dr. Moga found that McGinley had a marked partial degree of casual related disability. (R. at 326.)
On January 22, 2013, McGinley presented to Dr. Moga again. (R. at 867.) McGinley reported left shoulder pain with range of motion, but also improvement in his left shoulder condition. (R. at 867.) Upon examination, there was discomfort with forward flexion motion of the left arm to 150 degrees and with abduction to 90 degrees. (R. at 868.) Dr. Moga noted that work restrictions included light duty work only, with no lifting over thirty pounds. (R. at 867-68.) Dr. Moga found that McGinley had a moderate partial degree of casual related disability. (R. at 868.)
At a February 14, 2013, appointment, Dr. Murray noted that McGinley continued to have weakness while lifting and was taking Naproxen as needed. (R. at 535.) Dr. Murray stated that McGinley was unable to perform his work as a carpenter, "including persistent heavy lifting." (R. at 537.) Dr. Murray found that McGinley was still temporarily totally disabled and unable to work. (R. at 537.) At a March 25, 2013 visit, Dr. Murray noted that McGinley had a full range of motion but that McGinley was still concerned about his weakness. (R. at 532.) McGinley's left supraspinatus muscle strength was still only 4/5. (R. at 533.)
At an April 9, 2013 examination by Dr. Moga, McGinley reported left shoulder pain with certain shoulder motions as well as a "snapping sound" with elevation of the arm. (R. at 864.) He was still taking "Naprosyn" occasionally. (R. at 864.) McGinley reported that he could not lift in an upwards direction with his left arm but that he was "getting a little bit better." (R. at 864.) Upon examination, forward flexion of the left arm was possible to 160 and abduction to 135 with crepitus noted. (R. at 865.) Dr. Moga again reported that McGinley had a marked partial degree of causal related disability and could perform light duty work only with no lifting over thirty pounds. (R. at 865.)
At a May 9, 2013 visit, Dr. Murray ordered an MRI to rule out a re-tear. (R. at 531.) McGinley also stated he had stopped physical therapy due to insurance denial and had a decrease in his range of motion. (R. at 529.) Dr. Murray also assessed back and joint pain. (R. at 529.) There was trace pain with flexion in the glenohumeral joint. (R. at 530.) Dr. Murray noted that the muscle strength in the supraspinatus was 4/5. (R. at 530.) Dr. Murray again assessed temporary total disability. (R. at 531.) On May 23, 2013, Dr. Murray recorded similar findings to the prior visit and noted that an MRI showed a recurrent rotator cuff tear. (R. at 526.)
On July 1, 2013, Dr. Murray performed a combined arthroscopic and open left rotator cuff repair surgery with a tendon graft. (R. at 415-16, 523.) At a follow-up on July 3, 2013, Dr. Murray instructed McGinley to wear a sling and not to do physical therapy for six weeks. (R. at 525.) McGinley presented on July 18, 2013, and had mild tenderness in his left arm. (R. at 521.) Dr. Murray instructed McGinley to continue with the sling and not to do physical therapy for an additional four weeks. (R. at 522.) At an August 20, 2013 visit, McGinley was instructed to begin physical therapy and attempt to stop using the sling. (R. at 517-19.)
McGinley presented to Dr. Murray on October 4, 2013, complaining of entire left arm tingling for one month. (R. at 514.) An x-ray revealed diffuse degenerative changes. (R. at 516.) Dr. Murray assessed cervical degenerative disc disease and ordered an MRI, noting that McGinley could not work. (R. at 516.) At an appointment on November 4, 2013, McGinley complained of left arm tinging, back and joint pain, and stiffness. (R. at 511.) Flexion was restricted in the cervical spine. (R. at 512.) McGinley's arm was tender and his muscle strength in his external rotator muscles was 4/5. (R. at 513.) McGinley's light touch perception was diminished topographically over the arm medial aspect distal half only. (R. at 513.) Dr. Murray recommended an MRI for the cervical spine. (R. at 513.)
On referral, McGinley presented to neurologist Dr. Lyle Dennis on January 10, 2014. (R. at 591-93.) McGinley complained of left hand numbness and tingling. (R. at 591.) Dr. Dennis noted that an electromyography study's results were normal. (R. at 593, 717.) Dr. Dennis opined that McGinley had intermittent paresthesia of the left arm and ordered a cervical spine MRI. (R. at 593.)
On January 27, 2014, McGinley presented to Dr. Murray. (R. at 702.) McGinley stated that his left arm was tingling and that he had intermittent left shoulder pain and soreness. (R. at 702.) Dr. Murray noted that McGinley had mild pain with flexion arc and that his present lateral arm had mild tenderness. (R. at 703-04.) McGinley's muscle strength in his left external rotators and supraspinatus was 4/5. (R. at 704.) Dr. Murray noted trouble authorizing the MRI due to the Worker's Compensation carrier. (R. at 704.)
On March 8, 2014, an MRI revealed that McGinley's supraspinatus tendon had again developed a full thickness tear. (R. at 708.) On March 12, 2014, McGinley visited with Dr. Murray for an orthopedic evaluation, at which they discussed the MRI findings. (R. at 705-07.) Dr. Murray recommended that McGinley see another doctor for a second opinion, and that he would have at least a partial permanent disability because of the nature of the injury. (R. at 707.)
Dr. Paul Jones examined McGinley on March 13, 2014, for an examination in connection with his Worker's Compensation. (R. at 860.) Dr. Jones noted that he had previously seen McGinley on October 22, 2013, and that he had not "really improved." (R. at 860.) Dr. Jones found that McGinley's forward flexion was to 135 degrees on the left side and abduction to 120 degrees, and that McGinley had a slight loss of internal rotation and adduction. (R. at 861.) His anterior humeral head was somewhat tender to palpation. (R. at 861.) McGinley had a slight atrophy of his infra and supraspinatus muscles. (R. at 861.) Dr. Jones diagnosed McGinley with a recurrent tear of the left rotator cuff, bursitis of the left hip, and resolved contusion of the left knee. (R. at 861.) Dr. Jones opined that McGinley was "probably" a candidate for further operative procedures for his shoulder. (R. at 861.) Dr. Jones opined that McGinley had a moderate casually related disability but could work with restrictions against working above shoulder level and lifting limit of about ten to fifteen pounds on a non-repetitive basis. (R. at 861.)
Dr. Bradford Parsons, an orthopedic surgeon, examined McGinley on March 18, 2014, assessed a recurrent tear in the left shoulder rotator cuff, and discussed a possible third surgery. (R. at 594-95.) Among other things, Dr. Parsons noted that there was fairly good strength in rotation of the left arm but there was a weakness in elevation with pain inhibiting function. (R. at 594.) Impingement signs were positive and cuff strength was weak in elevation and mild in external rotation, but fairly preserved in belly press tests. (R. at 594-95.) Dr. Parsons did not recommend surgery until possibly a later date. (R. at 595.) Dr. Parsons also informed McGinley that the third, possible surgery was a "gamble." (R. at 395.)
On May 22, 2014, McGinley presented to Dr. Murray, who noted that McGinley's abduction strength in the left shoulder was 4/5 and that there was weakness in the left shoulder. (R. at 727.) His cervical spine motion was normal but his trapezius muscle was tender on palpation. (R. at 727.) Dr. Murray noted that McGinley was "not fit for work." (R. at 728.) Dr. Murray made similar assessments during appointments on July 10, 2014, and October 1, 2014, finding that McGinley was not fit for work and had a "permanent partial disability." (R. at 729-32.)
On July 14, 2014, a cervical spine MRI showed degenerative disc disease at C4-5 through C6-7. (R. at 737-38.)
On referral from Dr. Murray, McGinley presented to Dr. Timothy Mims on October 7, 2014. (R. at 829-32.) Dr. Mims stated that McGinley's pain scored average 5/10, but would increase to 9/10 at worst and 4/10 at best. (R. at 829.) McGinley characterized the pain as sharp, shooting, throbbing, achy, stabbing, and associated with pins and needles, numbness, and spasms. (R. at 829.) Physical activity would aggravate the pain. (R. at 829.) McGinley's cervical spine was normal to palpation without muscle spasms or tenderness. (R. at 830.) McGinley had a normal range of motion in his left shoulder, but his muscle strength was 3/5 in his left deltoid. (R. at 830.) The left supraspinatus and infraspinatus were atrophic. (R. at 830.) A Spurlings Maneuver was positive with pain into the left upper extremity. (R. at 830.) Dr. Mims assessed chronic pain syndrome, cervical disc herniation, and rotator cuff syndrome. (R. at 831.) McGinley was scheduled to receive a steroid injection at C6-7. (R. at 831-32.)
On November 12, 2014, McGinley presented to Dr. Leon Harris. (R. at 606-08.) Among other things, Dr. Harris noted a history of hypocholesteremia, chronic obstructive pulmonary disease, chronic left hip pain, neck pain, obesity, cervical radiculopathy, herniated nucleus puposus, thrombocytopenia, insomnia, and early awakening. (R. at 608.) A physical exam presented normal findings, including normal muscle strength bilaterally and normal gate. (R. at 607-08.)
At a November 18, 2014 follow-up with Dr. Mims, McGinley stated that the injection did not provide relief and that he had severe pain in his left shoulder and lower back. (R. at 835-37.) Dr. Mims' findings were similar to those during the October visit. (R. at 836-37.) Dr. Mims noted that McGinley was totally temporarily impaired. (R. at 837.)
On December 3, 2014, McGinley presented to Dr. Murray, complaining of pain and limited range of motion in his left shoulder. (R. at 733.) Dr. Murray noted that McGinley's left shoulder was weak, but motor strength, gait, stance, and reflexes were otherwise normal. (R. at 733.) Dr. Murray opined that McGinley could not work and that he had a permanent partial disability. (R. at 733-34.)
McGinley presented to Dr. Jacques Parisien on December 17, 2014, for an orthopedic examination in connection with Worker's Compensation. (R. at 851-58.) McGinley reported that he could walk for one quarter of a mile secondary without pain and that he could stand for ten to thirty minutes before needing to sit. (R. at 853.) He could sit ten minutes before needing to change positions. (R. at 853.) McGinley stated that he could not garden or participate in sports but could drive, do volunteer activities, wash clothes, cook, and take care of his children. (R. at 853.) McGinley noted that his symptoms had worsened since the date of injury. (R. at 853.) Dr. Parisien noted that McGinley could sit comfortably, move his head, neck, and body freely, get on and off the examining table without assistance, and turn from side to side and back to front freely. (R. at 855.) His muscle strength was 5/5 in all categories, but his range of motion in the left shoulder was lower than normal. (R. at 855-56.) Dr. Parisien assessed moderate partial disability and that McGinley could work with restrictions of no repetitive use of the upper extremities with pushing, pulling, and heavy lifting over twenty pounds. (R. at 857.)
On referral from Dr. Murray, McGinley presented to Dr. Dilip Subhedar on December 17, 2014. (R. at 907.) Dr. Subhedar's found generally normal range of motion and muscle strength, except that McGinley's muscle strength in his left deltoid was 3/5. (R. at 908.) McGinley's muscle size in his left supraspinatus and infraspinatus were atrophic. (R. at 908.) McGinley's deep tendon reflexes were also normal except for his left triceps reflex. (R. at 908.) A Spurlings Maneuver was positive with pain into the left upper extremity. (R. at 908.) Dr. Subhedar assessed rotator cuff syndrome, chronic pain, spondylosis without myelopathy, and cervicalgia. (R. at 909.) Dr. Subhedar found total temporary impairment and that McGinley's complaints were consistent with history of injury and objective findings. (R. at 909.)
On February 24, 2015, McGinley presented to Dr. Harris, complaining of wheezing. (R. at 600.) Dr. Harris assessed moderate chronic obstructive pulmonary disease. (R. at 603.) Dr. Harris prescribed Symbicort and albuterol. (R. at 604.)
Dr. William Levine, a shoulder specialist, examined McGinley on March 20, 2015. (R. at 923-25.) Dr. Levine assessed a "left shoulder massive irreparable rotator cuff tear." (R. at 924.) A physical exam showed that McGinley's left shoulder had positive Neer, Hawkins, Jobe, and external rotation lag signs. (R. at 924.) McGinley decided to proceed with surgery on his shoulder. (R. at 924.)
On March 24, 2015, McGinley met with Dr. Subhedar. (R. at 903.) Dr. Subhedar told McGinley to "increase activity" and "[e]at a low fat, high fiber diet." (R. at 904.) He assessed total temporary impairment in connection with Worker's Compensation. (R. at 904.)
On May 14, 2015, McGinley followed-up with Dr. Harris for his chronic obstructive pulmonary disease. (R. at 887.) His findings remained unchanged from the previous visit except that McGinley denied wheezing. (R. at 887-90.)
On May 19, 2015, McGinley told Dr. Subhedar that "medication helps" and that his pain minimally interfered with activities of daily living and most other activities. (R. at 900.) Dr. Subhedar initially noted complex regional pain syndrome ("CRPS"). (R. at 900 (diagnosing McGinley with "left hand CRPS").) Dr. Subhedar reported tenderness in the lumbar spine and restricting range of motion at the waist due to pain. (R. at 901.) Dr. Subhedar noted that McGinley's left extremity had normal range of motion and muscle strength. (R. at 901.) Dr. Subhedar assessed rotator cuff syndrome, chronic pain due to trauma, and spondylosis without myelopathy at the cervical spine. (R. at 901.)
On June 5, 2015, McGinley presented to Patricia Underwood, a nurse practitioner, complaining of severe lower back pain after bending and lifting the day before. (R. at 884.) On examination, McGinley had equal strength bilaterally, with generalized lower back discomfort. (R. at 886.) Naprosyn, Skelaxin, and Oxycodone were prescribed. (R. at 886.)
McGinley met with Dr. Subhedar on June 23, 2015, for left shoulder and back pain. (R. at 897.) Dr. Subhedar again noted the presence of CRPS in McGinley's left hand. (R. at 897.) Dr. Subhedar assessed that the range of motion in the cervical and lumbar spine was decreased due to pain and that there was tenderness in the lumbar spine. (R. at 898.) Dr. Subhedar also found that a hyperextension test for pain was positive. (R. at 898.) Dr. Subhedar noted that McGinley's muscle strength tone, range of motion, and stability were normal in his left extremity. (R. at 898.) McGinley reported that with medication, the pain only minimally interfered with his activities of daily living and most other activities. (R. at 897.) Dr. Subhedar assessed rotator cuff syndrome, chronic pain due to trauma, spondyloses without myelopathy: cervical, and cervicalgia. (R. at 898.)
McGinley presented to Dr. Murray on June 24, 2015. (R. at 947.) McGinley complained of neck and left shoulder pain that increased with range of motion. (R. at 947.) Dr. Murray noted that a home exercise program and stimulation treatment were helping some symptoms but that McGinley felt "no relief of shoulder pain." (R. at 947.) Dr. Murray noted left shoulder weakness among other things. (R. at 947.)
On September 9, 2015, Dr. Levine performed left shoulder arthroscopic surgery on McGinley. (R. at 949.) Among other things, Dr. Levine noted that the supraspinatus and the infraspinatus were torn and that the "anterior supraspinatus was irreparable (virtually no tissue)." (R. at 950.)
On September 9, 2016, McGinley had multi-level cervical discectomy and fusion. (R. at 94-96.) D. Opinion Evidence
1. Dr. Murray
On July 8, 2013, Dr. Murray completed a Physical Functional Capacity Assessment in connection with McGinley's social security claim. (R. at 407-413.) Dr. Murray noted that McGinley's symptoms included constant, severe pain in the left shoulder, especially with motion, and that McGinley had heaviness in his shoulder. (R. at 407-08.) McGinley was taking Oxycodone at the time and consequently was experiencing dizziness and fatigue. (R. at 408.) McGinley also had a sling on his left arm. (R. at 408.) Dr. Murray stated that the impairments would last at least twelve months and that he was temporarily totally disabled. (R. at 409.) McGinley's symptoms would frequently affect attention and concentration. (R. at 409.) McGinley was able to sit for one to two hours at a time, stand for two hours, and walk for up to one half hour at a time. (R. at 410.) McGinley could only sit, stand and walk for a total of four hours in an eight hour work day. (R. at 410.) Dr. Murray stated that McGinley could rarely or never lift even zero to five pounds in a work situation and that he could never use his left hand, fingers, or arm for repetitive activities. (R. at 411.) Finally, Dr. Murray opined that McGinley could never twist his body down and forward at the waist. (R. at 412.)
2. Consultative Examiner
On December 19, 2013, McGinley was examined by Dr. Richard Goccia, a pediatrician, in connection with his DIB claim. (R. at 584-587.) McGinley reported his prior surgeries as well as his cervical degenerative disc disease, lower back pain, contusions in his left hip and knee, and shortness of breath. (R. at 584.) He also noted hypercholesterolemia. (R. at 584.) McGinley reported that he cooked, cleaned, did laundry, shopped, and took care of his children. (R. at 585.) Dr. Goccia found that McGinley's gait and station were normal. (R. at 586.) McGinley had "some difficulty" walking on his toes but could walk on his heels. (R. at 586.) His hand and finger dexterity was intact and his grip strength was 5/5 bilaterally. (R. at 586.) He had full flexion, extension, and rotary movements in his cervical spine. (R. at 586.) McGinley had a full range of motion in his shoulders, elbows, forearms, wrists, and fingers in both arms. (R. at 586.) His muscle strength was 5/5 in proximal and distal muscles. (R. at 586.) There was no muscle atrophy or sensory abnormality. (R. at 586.) Dr. Goccia noted no abnormalities in McGinley's thoracic and lumbar spines or lower extremities. (R. at 586.) Dr. Goccia diagnosed cervical degenerative disc disease, lower back pain, status post left hip and left knee contusions, status post left rotator cuff repair, subjective dyspnea, and hypercholesterolemia. (R. at 586-87.) Dr. Goccia noted his prognosis as fair and that McGinley was mildly limited in activities that required bending. (R. at 587.) E. Hearing Evidence
1. McGinley's Testimony
On September 17, 2015, McGinley testified before the ALJ by means of videoconference. (R. at 34.) McGinley testified that he is right-hand dominant. (R. at 46.) His childcare activities included helping his children prepare for school and brought them home from school, and occasionally driving them to school, which was a half-mile from his home. (R. at 42, 53.) He also drove them to swimming and music lessons and occasionally assisted with homework. (R. at 42, 53.) McGinley made simple meals such as frozen food. (R. at 43, 53-54.) He performed household chores that were "in front of [him]," such as if there was a small spill. (R. at 43, 54.) He shopped, played cards, and went on vacation. (R. at 43-44, 54-55.) When he shopped, he had to "hold onto the wagon when [he was] going around" and would not pick up things with his left hand. (R. at 55.) He volunteered at his church once per week by teaching a class and attended church on Sundays. (R. at 44-45, 55.) He testified that he would not wash dishes or vacuum his house. (R. at 54.)
McGinley testified that his pain medications helped with his left shoulder pain. (R. at 47.) He stated that he could not pick anything up with his left arm without pain and could not reach over his head. (R. at 47-48.) He had no issues with his right arm. (R. at 48.) He testified that he had left hip and knee pain and pain when looking around quickly. (R. at 48-49.) Because of his chronic obstructive pulmonary disease, he became winded if he took a flight of stairs or walked one and one-half blocks. (R. at 50-51.) His medications' side effects included lack of sleep, nausea, moodiness, dizziness, and inability to concentrate for long periods of time. (R. at 52.) He took his pain medication every three hours. (R. at 56.) He testified that he would drop items with his left hand, stating that he dropped "[p]lenty of dishes." (R. at 56.) He also stated that he could not "really extend" his left arm or reach for something, and that he holds his left arm "like a chicken wing," keeping his arm close to his body. (R. at 56.) He stated that he could not sit through a television sitcom without pain in his lower back and leg. (R. at 56-57.)
2. Vocational Expert Testimony
Robert Baker testified by telephone at the hearing before the ALJ as a vocational expert. (R. at 34, 59.) The ALJ posed the following hypothetical question to Baker:
Now I am going to ask you to assume a hypothetical individual who can do the full range of light work, except that he'd be limited to occasional ramps and stairs, but without climbing ladders, ropes, or scaffolds. And occasional balancing, stooping, kneeling, and crouching, but, but no crawling. He can
do up to frequent rotation, flection, and extension of the neck with frequent left reaching with the non-dominant hand, but without overhead reaching with the left dominant hand, and frequent left handling and fingering. He should avoid concentrated exposure to atmospheric conditions, as well as exposure to unprotected heights, and hazardous machinery. With that hypothetical, he cannot do his past work, I assume. Is there other work that can be performed in the national economy?(R. at 61.) Mr. Baker opined that such an individual could work, including as marker, photocopier machine operator, and routing clerk. (R. at 62.) The ALJ posed a second hypothetical question about an individual with different restrictions:
Now, for the next hypothetical, you're going to have the same limitations and I'll repeat them. It's full range of light, occasional ramps and stairs, no ladders, ropes, or scaffolds, occasional balance, stoop, kneel, crouch, but no crawl. Up to frequent rotation, flection, extension of the neck, but now, no limitations on the right upper extremity. For the non-dominant hand, it would be occasional reaching for the left upper extremity without overhead reaching with the left upper extremity, and occasionally handling and fingering with the left upper extremity. Is there jobs - and you'd also still have [to] avoid concentrated exposure to atmospheric conditions, as well as avoiding hazardous machinery and unprotected heights. Is there jobs that he could perform in the national economy?(R. at 62-63.) Mr. Baker opined that an individual could still perform the same three jobs. (R. at 63.) The ALJ then posed the following third hypothetical:
Now, for the next hypothetical it's going to be the full range of, full range of sedentary. And now, that's going to be the non-exertional limitations that were in hypo one. So, it's sedentary, occasional ramps and stairs, no ladders, ropes, or scaffolds, occasional balance, stoop, kneel, crouch, crawl - I mean no crawl, I'm sorry. Frequent rotation, flection, and extension of neck. No left overhead reaching, but with frequent left reaching, occasional handling and fingering with the left upper - I mean, frequent handling and fingering with the left upper extremity. So it's, no limitations on right, frequent left reaching, no overhead left reaching, frequent left handling, frequent left fingering, and avoiding concentrated exposure to atmospheric conditions, as well as unprotected heights and hazardous machinery. Is there jobs that can be performed in the national economy?(R. at 64.) The expert opined that such an individual could perform work as a charge account clerk, order clerk, and telephone quotation clerk. (R. at 65.) McGinley's hearing counsel also asked whether an individual who could not use their left extremity at all could perform any of those jobs, and the expert opined that all of the jobs listed would be precluded except call out operator. (R. at 68-69.)
According to DOT 209.587-034, a marker is someone who marks prices on merchandise.
Analytical Framework
A. Determination of Disability
A claimant is disabled under the Social Security Act and therefore entitled to DIB if he can demonstrate, through medical evidence, that he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months." 42 U.S.C. § 423(d)(1)(A) (DIB); see also Arzu v. Colvin, No. 14 Civ. 2260, 2015 WL 1475136, at *7 (S.D.N.Y. April 1, 2015). The disability must be of "such severity that [the claimant] 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).
Entitlement to DIB is determined according to 42 U.S.C. §§ 401-34.
To determine whether a claimant is entitled to disability benefits, the Commissioner employs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4) (DIB). First, the claimant must demonstrate that he is not currently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i), (b). Second, the claimant must prove that he has a severe impairment that significantly limits his physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c). Third, if the impairment is listed in what are known as the "Listings," see 20 C.F.R. § 404, subpt. P, app. 1, or is the substantial equivalent of a listed impairment, the claimant is automatically considered disabled. 20 C.F.R. § 404.1520(a)(4)(iii), (d). Fourth, if the claimant is unable to make the requisite showing under step three, he must prove that he does not have the residual functional capacity ("RFC") to perform his past work. 20 C.F.R. § 404.1520(a)(4)(iv), (e). Fifth, if the claimant satisfies his burden of proof on the first four steps, the burden shifts to the Commissioner to demonstrate that there is alternative substantial gainful employment in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(a)(4)(v), (g); Longbardi v. Astrue, No. 07 Civ. 5952, 2009 WL 50140, at *23 (S.D.N.Y. Jan. 7, 2009) (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), and Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)). In order to determine whether the claimant can perform other substantial gainful employment, the Commissioner must consider objective medical facts, diagnoses, or medical opinions based on the facts, subjective evidence of pain or disability, and the claimant's educational background, age, and work experience. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). B. Judicial Review
20 C.F.R. §§ 404.1 et seq. is the implementing regulation for 42 U.S.C. §§ 401-34.
The Social Security Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A court reviewing the Commissioner's decision may set aside a decision of the Commissioner only if it is based on legal error or if it is not supported by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Judicial review, therefore, involves two levels of inquiry. First, the court must decide whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL 4452359, at *8 (S.D.N.Y. April 29, 2008). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8. "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown, 174 F.3d at 62, and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). Substantial evidence in this context is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hahn v. Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment on the pleadings if he establishes that no material facts are in dispute and that he is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743, 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003). Both parties here have moved for judgment on the pleadings.
The ALJ's Decision
The ALJ, in an opinion issued on October 28, 2015, analyzed McGinley's DIB claim pursuant to the five-step sequential evaluation process and concluded that he was not disabled on or after the date he filed for benefits. (R. at 17-26.) At step one, the ALJ determined that McGinley met the insured requirements of the Social Security Act through December 31, 2017, and that McGinley had not had any substantial gainful employment since May 14, 2012. (R. at 19.)
At step two, the ALJ found that McGinley had the following severe impairments that more than minimally impacted McGinley's ability to work: left shoulder rotator cuff tear, degenerative disc disease in the cervical spine, lumbar strain, chronic obstructive pulmonary disease, obesity, chronic pain syndrome, and left knee strain. (R. at 19.) The ALJ also noted that McGinley had hypercholesterolemia, which the ALJ found was a non-severe impairment because it was well controlled with mediation. (R. at 20.)
The ALJ also found that "bicep tenodesis" was a severe impairment, but a bicep tenodesis is a procedure, not an impairment and suggests that "the impairment should be something akin to status post biceps tenodesis." (Pl. Mem. at 11 (internal quotation marks omitted).)
At step three, the ALJ found that McGinley did not have any impairments or combination of impairments that met or medically equaled the severity of the one of the impairments in the listings. (R. at 20.) The ALJ specifically considered Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), and 3.02 (chronic pulmonary insufficiency) but found that there was no objective evidence that met the requirements of those Listings. (R. at 20.)
The ALJ then considered McGinley's RFC, finding that McGinley could perform light work, except that he would be limited to occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; occasionally balancing, stooping, kneeling, and crouching; never crawling; up to frequent rotation, flexion, and extension of neck; occasionally reaching with the left upper extremity, except no overhead reaching with the left upper extremity; occasionally handling and fingering with the left upper extremity; no unprotected heights and hazardous machinery; and limited concentrated exposure to atmospheric conditions. (R. at 20-21.) In doing so, the ALJ assigned weight to each of the medical opinions in the record. He assigned only some weight to the opinion of the consultative examiner, Dr. Goccia. (R. at 22.) The ALJ assigned some weight to the 2015 Worker's Compensation source statement by Dr. Parisien but great weight to his 2014 statement. (R. at 23.) Some weight was given to Dr. Jones' opinion. (R. at 23.) Great weight was provided to Dr. Moga's 2013 opinion. (R. at 23.)
The ALJ also assessed Dr. Murray's medical source statements. (R. at 23-24.) The ALJ gave Dr. Murray's May 2014 one-paragraph assessment only some weight. (R. at 23-24.) The ALJ gave Dr. Murray's lengthier 2013 medical source statement only little weight. (R. at 24.) Among other things, the ALJ found that the 2013 opinion was "inconsistent with the improvements noted in the claimant's condition after surgery and treatment." (R. at 24.) The ALJ also found that McGinley's stated activities of daily living were inconsistent with McGinley's stated symptoms. (R. at 24.)
At step four, the ALJ found that McGinley could not perform his past relevant work. (R. at 24-25.) At step five, relying on the vocational expert, the ALJ found that there were jobs in significant numbers in the national economy that McGinley could perform. (R. at 25-26.)
Discussion
McGinley contends that the ALJ erred in the following respects: (1) the ALJ erred by assigning only little and some weight to the opinions of Dr. Murray, McGinley's treating physician, (2) the ALJ erred by assigning great weight to certain of Dr. Moga's and Dr. Parisien's opinions, (3) the ALJ erred because he failed to evaluate the impact of McGinley's CRPS on his RFC, (4) the ALJ failed to consider whether McGinley was disabled at any date after the alleged onset date and the ALJ should have sought the advice of a medical advisor, and (5) the testimony of the vocational witness was flawed. As discussed below, I find that the ALJ erred with respect to (1), (2), and (3) but not as to (4) and (5). A. Medical Opinion Evidence
The ALJ's assessments of the opinions of Drs. Murray, Moga, and Parisien were flawed. The treating physician rule generally requires deference to the medical opinion of a claimant's treating physician. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). "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.'" Cautillo v. Berryhill, No. 17 Civ. 1356, 2018 WL 1305717, at *15 (S.D.N.Y. March 12, 2018) (quoting 20 C.F.R. § 404.1527(c)(2)). An ALJ may refuse to accord controlling weight to the opinion where the treating physician's opinion is not consistent with other substantial evidence in the record, such as opinions of other physicians or medical experts. Id. But "[w]hile a physician's opinion might contain inconsistencies and be subject to attack, a circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion." Flynn v. Commissioner of Social Security Administration, 729 F. App'x 119, 121 (2d Cir. 2018) (quoting Shaw v. Chater, 221 F.3d 134, 135 (2d Cir. 2000)).
When ALJs decline to give controlling weight to the medical opinion of a treating physician, they must consider various factors in deciding how much weight to give the opinion. See 20 C.F.R. § 404.1527(c). These factors include: "(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion." Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
The same factors also must be considered with respect to what weight to give non-treating doctors, "with the consideration of whether the source examined the claimant or not replacing the consideration of the treatment relationship between the source and the claimant." Butts v. Commissioner of Social Security, No. 16 CV 874, 2018 WL 387893, at *6 (N.D.N.Y. Jan. 11, 2018) (citing 20 C.F.R. § 404.1527(c)(1)-(6)). And while it is not legal error per se to assign greater weight to a non-treating physician than to a treating physician, see Rosier v. Colvin, 586 F. App'x 756, 758 (2d Cir. 2014); SSR No. 96-6p, 1996 WL 374180, at *3 (S.S.A. July 2, 1996), such a decision must be based upon proper consideration of relevant factors and sufficiently explained, see 20 C.F.R. § 404.1527(c) (1)-(6), (e)(2)(ii) (requiring explanation of weight determination); Peryea v. Commissioner of Social Security, No. 13-CV-173, 2014 WL 4105296, at *8 (N.D.N.Y. Aug. 20, 2014) ("[Consulting] opinions must be evaluated according to the criteria governing all medical opinions."); see also Cortright v. Colvin, No. 13 Civ. 5422, 2014 WL 4384110, at *13 (S.D.N.Y. Aug. 29, 2014) (emphasizing importance of justifying reliance on consulting physicians' opinions that "conflict with the claimant's own reported level of functioning and the opinions of the treating physicians").
The ALJ is not required to "expressly discuss" every factor "as long as it is clear from the record as a whole that the ALJ properly considered each of the factors included in the regulations. Petrie v. Astrue, 412 F. App'x 401, 406-08 (2d Cir. 2011). However, after considering the factors, ALJs must "comprehensively set forth [their] reasons for the weight assigned to a treating physician's opinion." Halloran, 362 F.3d at 33; see 20 C.F.R. § 404.1527(c)(2) (stating that the agency "will always give good reasons in our notice of determination or decision for the weight we give [the claimant's] treating source's medical opinion"). Failure to provide such "'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("Commissioner's failure to provide 'good reasons' for apparently affording no weight to the opinion of plaintiff's treating physician constituted legal error.").
1. Application to Dr. Murray's Opinions
The record contains two opinions from McGinley's treating physician, Dr. Murray. One is a terse, one-paragraph opinion made in 2014 in the context of a Worker's Compensation claim. (R. at 596.) The ALJ noted that Dr. Murray's 2014 opinion was noted in both Dr. Murray's and Dr. Mims' treatment notes. Upon analysis of these opinions, the ALJ stated:
While these opinions are provided by treating sources, they are only given some weight for various reasons. First, they are vague and conclusory opinions that do not provide a function-by-function analysis. Second, the opinion indicates that the claimant cannot return to his prior line of work, but does not indicate whether the claimant retains the capacity to complete other work or similar work at a lower level of exertion. To the extent that
this opinion could be interpreted to preclude all work activity, this opinion is inconsistent with the medical opinions provided by other doctors who reviewed the record and examined the claimant from 2012 through 2015, noting improvement in the claimant's condition and his ability to perform work at a light level with noted restrictions.(R. at 24.)
Dr. Murray's second, more substantial opinion was given in 2013 in the context of McGinley's application to the Social Security Administration. (R. at 407-13.) After summarizing the opinion, the ALJ analyzed the opinion, stating only the following:
[T]his opinion is given less weight than the opinions noted above by other the examining sources. Most significantly, Dr. Murray's opinion is inconsistent with the improvements noted in the claimant's condition after surgery and treatment, and the extreme limitations on his ability to sit, stand, carry/lift, and walk are not supported by the treatment records. Furthermore, the record does not support the level of limitations noted in relation to the claimant's ability to reach, handle, finger and manipulate nor is it consistent with other evidence in the records such as the claimant's activities of daily living noted below.(R. at 24.)
The ALJ's decision does not provide sufficient exposition and analysis to enable the Court to assess whether and to what extent the ALJ considered the requisite factors when weighing Dr. Murray's opinions. In particular, there is no indicia in the ALJ's opinion that he considered factors one, two, and four. As to factor three, the ALJ's opinion is simply too terse to assess, and the Court cannot determine whether the ALJ properly weighed that factor.
As to the first factor, there is no evidence in the ALJ's opinion that he considered McGinley's and Dr. Murray's lengthy treatment relationship. Dr. Murray treated McGinley from May 16, 2012 to at least June 24, 2015. (R. at 560, 947.) And, McGinley visited with Dr. Murray many times before Dr. Murray completed the 2013 medical source opinion, from May 16, 2012 to July 8, 2013. (R. at 276, 415-16, 523-26, 531-35, 541-47, 550-59, 560-65.) During each appointment, Dr. Murray noted McGinley's pain, symptoms, progress, and regression. Additionally, Dr. Murray twice performed surgery on McGinley. (R. at 276, 415-16.) The ALJ's decision does not address this lengthy relationship, instead relying on the opinions of non-treating sources who had little interaction with McGinley. The ALJ's failure to discuss McGinley's and Dr. Murray's lengthy and substantial relationship is an error requiring remand. See, e.g., Mercado v. Colvin, No. 15 Civ. 2283, 2016 WL 3866587, at *16-17 (S.D.N.Y. July 13, 2016) (ALJ's failure to reconcile lengthy treatment history when affording less weight to opinion was erroneous); Lopez v. Commissioner of Social Security, No. 08 CV 4787, 2009 WL 2922311, at *12 (E.D.N.Y. Sept. 8, 2009) (finding failure to discuss treatment relationship "particularly significant" with regard to physician who had "most substantial treatment relationship with plaintiff").
As to the second factor, the ALJ's decision does not reflect consideration of the record evidence supporting Dr. Murray's opinions. The ALJ did not consider McGinley's multiple tendon tears, nor the fact that despite having two surgeries, McGinley's rotator cuff tore again. Multiple doctors noted the severity and permanency of the condition, including that it was a "left shoulder irreparable massive rotator cuff tear." (R. at 923.) Dr. Levine noted after the third surgery that the "anterior supraspinatus was irreparable." (R. at 950.) Additionally, the record is replete with doctors noting McGinley's limited muscle strength, movement, and pain in his shoulder even after his surgeries. (E.g. R. at 326, 511-14, 529, 533, 535, 541-43, 548-49, 594, 703-04, 727, 729, 731, 733, 829-31, 855-57, 861, 897-98, 900-01, 908-09, 924, 947-48.) The ALJ's decision fails to account for findings of degenerative disc disease, disc protrusions, severe lower back pain, and decreased range of motion in McGinley's spine, which should have been considered in conjunction with Dr. Murray's assessment of inability to sit, stand, or walk for extended periods. (E.g. R. at 94, 512-13, 516, 737-38, 831, 898.) The ALJ's failure to address any of the objective evidence in favor of Dr. Murray's opinions is perplexing, and the Court cannot be assured that the correct legal standards were applied. See, e.g., Burgess v. Astrue, 537 F.3d 117, 130-31 (2d Cir. 2008) (ALJ's failure to consider MRI Report as support for treating physician's opinion was error requiring remand); Jurman v. Berryhill, No. 16 Civ. 6874, 2018 WL 3300712, at *12 (S.D.N.Y. March 14, 2018) (failure to consider objective clinical findings that support treating physician's opinion was erroneous).
As to the third factor, the ALJ summarily stated that he considered the entire record. But his decision lacks sufficient discussion of the record for the Court to determine that the ALJ considered the record as a whole. The ALJ's findings on Dr. Murray's opinions are simply too conclusory. The ALJ simply asserted that "Dr. Murray's opinion is inconsistent with the improvements noted in the claimant's condition after surgery and treatment." (R. at 24.) But the ALJ's broad, conclusory assertion that McGinley's condition had "improved" is impossible to assess without further exposition. As many other courts have held, such conclusory statements are not sufficiently good reasons for discounting a treating physician's opinion. See Mercado, 2016 WL 3866587, at *16 ("[The] ALJ['s] conclusory assertion that 'scant evidence' supported a four-hour workday restriction does not countenance discrediting this limitation. The ALJ did not explain why the record evidence was insufficient to support such a restriction." (citations omitted)); Ashley v. Commissioner of Social Security, No. 5:14-CV-40, 2014 WL 7409594, at *2 (N.D.N.Y. Dec. 30, 2014) (ALJ's "conclusory statement" that treating records did not support source's conclusion "fail[ed] to fulfill the heightened duty of explanation" required by treating physician rule); Duncan v. Astrue, No. 09 CV 4462, 2011 WL 1748549, at *19 (E.D.N.Y. May 6, 2011) (explaining that statements such as "not supported by the preponderance of the objective evidence of record" and "not consistent with the evidence on record" are not sufficiently good reasons for reducing weight assigned to treating physician's opinion).
Additionally, the ALJ's finding that limitations on ability to "sit, stand, carry/lift, [] walk, reach, handle, finger, and manipulate" were not supported by the treatment record is similarly flawed. The ALJ failed to set forth "good reasons" for discounting these findings, and the "conclusory rejection of the limitations assessed by [the treating physician] does not satisfy the treating physician rule." Jurman v. Berryhill, No. 16 Civ. 6874, 2018 WL 3300712, at *12 (S.D.N.Y. March 14, 2018).
Finally, there is considerable evidence in the record that McGinley's condition "was not without difficulty." Flynn, 729 F. App'x at 121. To be sure, Dr. Murray noted at times that McGinley was "doing well" and progressing after the first surgery (R. at 547, 549, 550, 554.) However, Dr. Murray found that a second surgery was required. (R. at 526.) And, after the second surgery, Dr. Murray did not note that McGinley was doing well, and eventually found that McGinley had again tore the rotator cuff. (R. at 705, 708.) At that point, Dr. Murray noted that the injury was irreparable. (R. at 707.) Dr. Murray considered the first two surgeries a "fail[ure]." (R. at 707.) And, at the third surgery, Dr. Levine noted that a tear in the supraspinatus was irreparable. (R. at 950.) Dr. Jones noted that McGinley's condition had not "really improved" from between October 2013 and March 2014. (R. at 860.) The ALJ also failed to acknowledge McGinley's continued pain and conditions, noted above in conjunction with the second factor, that continued throughout the treatment period. "The ALJ's failure to discuss these objective medical findings makes it difficult to follow his reasoning when he stated that the medical records did not support the treating physicians' opinions." Mercado, 2016 WL 3866587, at *16; see also Shaw, 221 F.3d at 134 (the ALJ is not "permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion"); Barrett v. Berryhill, 286 F. Supp. 3d 402, 427-28 (E.D.N.Y. 2018) (remanding where ALJ impermissibly found that findings were normal, but the record was replete with findings of various serious medical conditions); Mercado, 2016 WL 3866587, at *17 (selective reading of the record for "normal" findings was error requiring remand). On remand, the ALJ shall consider the record as a whole, and if the ALJ determines that Dr. Murray's opinions are inconsistent with the record, he shall set forth "good reasons" in his opinion for that finding. See Mercado, 2016 WL 3866587, at *17 (directing the ALJ to provide "good reasons" on remand should the ALJ consider treating physician's opinion entitled to less weight).
The Second Circuit recently considered an analogous case, finding errors in the ALJ's application of the treating physician rule:
The ALJ also found that Flynn's return to work during the 2011-2012 period substantially undermined the treating physician's opinion, because (i) in the view of the ALJ, it demonstrated that Flynn could work, and (ii) in 2011, the treating physician issued an opinion saying that Flynn could go back to work, but no more than four days a week. As to the first point, though some of the medical records regarding Flynn's condition during this period were quite positive, Flynn's treating physician did note that he continued to have concerns about Flynn being overworked during this time. Such concerns demonstrate that this period was not without difficulty, contrary to the ALJ's characterization. Further, Flynn's work came to an end when Flynn was twice hospitalized, attempted suicide, and underwent a course of electroshock therapy. Thus it does not appear to us that Flynn's period of relative wellness should be invoked to conclusively establish that he is capable of work, and override the treating physician's evaluation to the contrary.
Regarding the fourth factor, it is not evident from the ALJ's decision that he considered Dr. Murray's specialization. Dr. Murray appears to be an orthopedic specialist and surgeon. (See, e.g., R. at 152, 936 (Dr. Murray's practice was entitled "Northeast Orthopedics and Sports Medicine" and "Clarkstown Orthopedics").) The ALJ should consider Dr. Murray's credentials on remand. See, e.g., Barrett, 286 F. Supp. 3d at 428-29 (failure to consider specialty of orthopedic surgeon was error requiring remand).
The ALJ's opinion is simply too perfunctory to assess, and this Court cannot conclude whether the ALJ properly considered the statutory factors in weighing Dr. Murray's opinions. This case must therefore be remanded to the ALJ to make that assessment. See Mercado, 2016 WL 3866587, at *18 ("Even if the characterization of [the treating physician's] opinions as unsupported and inconsistent indicates the ALJ considered the consistency of [the treating physician's] opinions when weighing them, it is not clear how any other factors impacted the determination."); Ramos v. Commissioner of Social Security, No. 13 Civ. 3421, 2015 WL 7288658, at *6-7 (S.D.N.Y. Nov. 16, 2015) (finding ALJ's analysis that only considered medical opinion's consistency "inadequate" because it did not acknowledge treatment relationship, supportive evidence, or specialization); Clark v. Astrue, No. 08 Civ. 10389, 2010 WL 3036489, at *4 (S.D.N.Y. Aug. 4, 2010) (same).
2. Application to Non-Treating Source Opinions
McGinley contends that the ALJ erred in assigning great weight to Dr. Parisien's 2014 opinion and Dr. Moga's 2013 opinion.
The ALJ employed a selective and terse discussion of the relevant factors in assessing Dr. Parisien's opinion. Instead of considering evidence inconsistent with Dr. Parisien's - as the ALJ did with Dr. Murray's opinion - the ALJ considered only the evidence in favor of the opinion. For instance, the ALJ failed to note that Dr. Parisien's opinion is inconsistent with Dr. Murray's opinion. See Harris v. Astrue, No. 07 CV 4554, 2009 WL 2386039, at *14 (E.D.N.Y. July 31, 2009) ("The Second Circuit has repeatedly stated that when there are conflicting opinions between the treating and consulting sources, the 'consulting physician's opinions or report should be given limited weight.'" (quoting Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990))). Furthermore, Dr. Parisien's opinion was given in the context of Worker's Compensation and whether McGinley could perform his previous work as a carpenter. Dr. Murray's 2013 opinion, however, was specifically given in the Social Security Context and provides a function-by-function analysis. Additionally, there is an abundance evidence that suggests that McGinley's condition was not necessarily improving, as explained above. And, the discussion of the favorable evidence is too brusque for this Court to evaluate. The ALJ notes only that Dr. Parisien was an examining doctor and that the opinion was "consistent with the longitudinal evidence and other opinion evidence." (R. at 23.) This statement is conclusory and insufficient to assess whether the ALJ properly considered the record as a whole. On remand, the ALJ should properly consider the record, and give good reasons for the weight assigned to the opinion.
The ALJ's analysis of Dr. Moga's opinion was similarly flawed. The ALJ failed to take Dr. Murray's opinion into account when assessing Dr. Moga's opinion. As with Dr. Parisien's opinion, the ALJ's decision does not address any inconsistent evidence or evidence in consideration of the record as a whole. The ALJ noted that McGinley's condition was steadily improving, but as explained already, there is a good deal of evidence suggesting otherwise. The ALJ should address that evidence.
Finally, the ALJ applied a double standard to the opinions. The ALJ faulted Dr. Murray's 2014 opinion for vagueness and failure to provide a function-by-function analysis, but the ALJ failed to note that Dr. Moga's and Dr. Parisien's opinions also failed to include such an analysis. The ALJ should properly and fairly apply the requisite factors on remand. See Mercado, 2016 WL 3866587, at *20 ("Th[e] incongruous, selective, and outcome-determinative discussion of relevant factors frustrates any side-by-side assessment of the medical opinions."). B. Assessment of CRPS
Plaintiff contends that the ALJ failed to properly consider his complex regional pain syndrome ("CRPS"). At the outset, the parties dispute whether McGinley was ever diagnosed or assessed with CRPS, which is a subset of chronic pain. As Plaintiff correctly notes, McGinley was perfunctorily assessed with "CRPS" in two notes by Dr. Subhedar. (Pl. Mem. at 14; R. at 9, 897, 900.) However, Dr. Subhedar's CRPS comments are not entirely clear. First, the CRPS assessment only appears very briefly in two of Dr. Subhedar's notes. Second, later in the notes in which CRPS does appear, Dr. Subhedar does not list CRPS under "Current Problems," he lists only "chronic pain due to trauma." (R. at 898, 901.)
Irregularity, however, does not excuse the ALJ's failure to consider CRPS. If the ALJ determined that it was unclear whether McGinley was diagnosed with CRPS or there was an inconsistency requiring further explanation, he had a duty to further develop the record and seek an explanation from the doctor. See, e.g., Newsome v. Astrue, 817 F. Supp. 2d 111, 140 (E.D.N.Y. 2011) (ALJ committed legal error in failing to develop the record or seek clarification of the physicians' assessments before arbitrarily reaching a conclusion). And, if CRPS is indeed a diagnosable impairment, then the ALJ must consider it in his findings. Therefore, on remand, the Commissioner shall address the CRPS findings by Dr. Subhedar. See, e.g., Burgin v. Astrue, 348 F. App'x 646, 647-48 (2d Cir. 2009) ("[Second Circuit] case law is plain that" ALJ must consider the combined effect of all claimant's impairments). C. Disability Onset Date
McGinley contends that because his disability onset date could be ambiguous, the ALJ should have employed a medical expert pursuant to SSR 83-20 to determine the day on which McGinley actually became disabled.
"SSR" is an acronym for Social Security Ruling. The Supreme Court has ruled that Social Security Rulings are binding upon the Commissioner. Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984); Sherman v. Berryhill, No. 16 Civ. 9303, 2018 WL 1399210, at *9 (S.D.N.Y. March 20, 2018).
As the Commissioner correctly points out, SSR 83-20 is not applicable to this case. SSR 83-20 provides that, for disabilities of non-traumatic origin, "the determination of onset involves consideration of the applicant's allegations, work history, if any, and the medical and other evidence concerning impairment severity." Sherman, 2018 WL 1399210, at *9 (quoting SSR 83-20, 1983 WL 31249, at *2 (S.S.A. Jan. 1, 1983)). SSR 83-20 further explains:
With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process.1983 WL 31249, at *2.
As explained by the Second Circuit in Baladi v. Barnhart, SSR 83-20 is inapplicable where the ALJ has determined that a plaintiff is not disabled, because there is no need to ascertain an onset date. 33 F. App'x 562, 564 (2d Cir. 2002) ("SSR 83-20 is inapplicable to the decision under review, because the ALJ's determination that plaintiff was not disabled obviated the duty under SSR 83-20 to determine an onset date."). As some district courts have recognized, Baladi is not applicable in situations where the ALJ "did not address whether Plaintiff was disabled as of the decision date, but rather relied on the record's ambiguity about the onset date to find that Plaintiff was not disabled as of Plaintiff's date last insured." Sherman, 2018 WL 1399210, at *9 n.7.
In this case, the ALJ determined that Plaintiff was not disabled at any point up to the date of decision, and therefore reliance on SSR 83-20 is foreclosed. See, e.g., Staples v. Astrue, No. 11-cv-183, 2012 WL 1355544, at *4 (N.D.N.Y. April 18, 2012); Loren v. Astrue, 553 F. Supp. 2d 281, 288 (W.D.N.Y. 2008). Even if SSR 83-20 were applicable to this case, the Court would not find that the ALJ erred in not using a medical expert. The record contains ample direct evidence of McGinley's conditions, as well as multiple opinions opining on whether he can work. There is no need for a medical expert specially to address the date of onset.
To the extent that McGinley suggests that the ALJ failed to consider other onset dates besides the alleged onset date, it is clear that the ALJ did consider other dates. The ALJ's opinion considers the evidence after the onset date, and he finds that McGinley is not disabled "through the date of []his decision." (R. at 26.) However, on remand and on reconsideration of the medical opinions in this case, the ALJ is reminded to consider the possibility of a later onset date than the one alleged by McGinley if the ALJ does not agree with Plaintiff's alleged onset date. Of course, if, on remand, the ALJ finds McGinley not disabled through the date of his decision, then there is no need to determine an onset date. D. Vocational Expert
McGinley contends that the case should be remanded because the vocational expert's testimony as to the number of jobs that a hypothetical claimant could perform was flawed.
At step five, the Commissioner must determine whether there are significant numbers of jobs in the national economy that the claimant can perform. McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing 20 C.F.R. §§ 404.1520(a)(4)(v)). An ALJ makes this determination by applying the Medical Vocational Guidelines or by using the testimony of a vocational expert. Id. "An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as 'there is substantial record evidence to support the assumption[s] upon which the vocational expert based his opinion,' and accurately reflect the limitations and capabilities of the claimant involved." Id. (alteration in original) (citation omitted) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983)). Furthermore, SSR 00-4p requires that:
Occupational evidence provided by a VE or VS [vocational expert or vocational specialist] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled . . . . The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000); see Salmini v. Commissioner of Social Security, 371 F. App'x 109, 114 (2d Cir. 2010) (applying SSR 00-4p). A vocational expert's testimony, however, is not subject to the Daubert standard for admissibility of expert evidence in federal court. See, e.g., Palmer v. Astrue, No. 10-cv-151, 2011 WL 3881024, at *6 (D. Vt. Sept. 2, 2011). Rather, all that is required when a vocational expert's testimony deviates from the DOT is that the expert sufficiently explain the discrepancy. Jasinski v. Barnhart, 341 F.3d 182, 185-86 (2d Cir. 2003)
The ALJ did not err in his reliance on the vocational expert. Plaintiff points primarily to the discussion of the ALJ's second hypothetical at the hearing. This hypothetical is of particular importance because the ALJ's RFC finding aligns with that hypothetical. In explaining his second hypothetical, the ALJ asked the expert whether there were any jobs in the national economy for an individual who could, among other things, only occasionally reach, handle, and finger with his upper left extremity but never reach overhead. (R. at 62-63.) The expert responded with several specific jobs that an individual could perform with those limitations, including marker, photocopier machine operator, and routing clerk. (R. at 63.) The ALJ asked if that was a deviation from the DOT. The expert responded with the following:
Of course, on remand and on reconsideration of the medical source opinions, a new opinion from a vocational expert may be required. --------
No. Well what happens is, because his left hand is nondominantly utilized the dominant hand to determine, you know, what the frequency is for each handle and fingering. [INAUDIBLE] does that mean that he knows he took the left, I would reduce that down to occasional with the upper dominant hand.(R. at 63.) As McGinley correctly points out, this passage is rather incomprehensible. The ALJ inquired further however and noted that there was actually an apparent conflict with the DOT, stating, "[T]he DOT, itself, doesn't address differentiate . . . between, you know, one hand or two hands, it just says, 'Frequent,' for, your [sic] know, for reaching, for example. But these jobs are, in fact, frequent for reaching, you're saying that based on your training and experience, these jobs are performed with occasional on the non-dominant hand, is that correct?" (R. at 63-64.) The expert responded, "That is correct." (R. at 64.)
This exchange, though not ideal, was adequate. First, the apparent inconsistency within the expert's own testimony - that there was and was not a deviation from the DOT - is not material. As the Second Circuit has held, "a vocational expert's deviations from the DOT are not necessarily erroneous or in conflict with the DOT." Abar v. Colvin, No. 15-CV-95, 2016 WL 1298135, at *11 (N.D.N.Y. March 31, 2016) (citing Jasinski, 341 F.3d at 185). That is because "[m]any specific jobs differ from those jobs as they are generally performed, and the expert may identify those unique aspects without contradicting the Dictionary." Jasinski, 341 F.3d at 185. Additionally, a vocational expert may have information about a job's requirements not listed in the DOT and based on the vocational expert's understanding. Abar, 2016 WL 1298135, at *11.
The vocational expert's explanation for the deviation is sufficient. The ALJ noted that the DOT did not differentiate between the dominant and non-dominant hand when requiring "frequent" reaching, and the expert affirmed that the claimant could perform those jobs with only occasional reaching on the non-dominant hand. (R. at 63-64.) The expert affirmed that the determination was based on his training and experience. (R. at 64.); see Abar, 2016 WL 1298135, at *11 (deviation from DOT acceptable where expert relying on experience); Sanfilippo v. Astrue, No. 10-CV-0987, 2011 WL 2635732, at *4 (E.D.N.Y. July 5, 2011) (same).
Furthermore, the vocational expert's internally inconsistent testimony would not be a basis for remand. The ALJ properly noted that there was tension and resolved it on the record. The standard for reviewing an ALJ's determination is substantial evidence, and the ALJ's explicit inquiry into the tension and the expert's subsequent affirmation qualifies as substantial evidence. Finally, it is the ALJ's role, not the reviewing court's, "to resolve evidentiary conflicts and to appraise the credibility of witnesses." Cichocki v. Astrue, 534 F. App'x 71, 75 (2d Cir. 2013) (quoting Carroll v. Secretary of Health & Human Services, 705 F.2d 638, 642 (2d Cir. 1983)). Given the ALJ's and the expert's explanation of the tension between the expert's own testimony and the DOT, the Court sees no basis to disturb the ALJ's findings.
Plaintiff further takes issue with the expert's testimony regarding whether there would be any jobs for an individual who could never use their non-dominant hand. On cross-examination, Plaintiff's hearing counsel asked the expert whether any of the jobs listed by the expert would be precluded if there was no use of the non-dominant hand. (R. at 67.) After a brief back and forth on the record where the claimant's attorney, the expert, and the ALJ were talking over each other, the ALJ clarified the attorney's question, stating, "If for the hypotheticals that I posed to you, if rather than occasional left handling, fingering, and reaching, you had no reaching, handling, and fingering, would that preclude any of the jobs that you testified to?" (R. at 68.) The expert responded in the affirmative. (R. at 68.) The following colloquy took place ("Q" are questions from the ALJ and "A" are responses from the expert):
Q Which ones would be precluded?(R. at 68-69.) Plaintiff contends that this testimony renders the expert not credible because he does not set forth what the other positions are "out there" and does not explain his conclusions. However, the expert was not asked to set forth new jobs. He was only asked to set forth whether jobs named previously would be ruled out. And, as set forth above, it is generally the ALJ's role, not this Court's, to make credibility decisions. This Court sees no basis to disturb the ALJ's finding on that point. Finally, the ALJ did not employ this testimony to support his finding that McGinley could perform jobs that are in the national economy. Rather, the ALJ relied on the testimony stemming from the second hypothetical. Plaintiff's objections as to this issue are of no merit.
A Hold on one second and I'll let you know. The only job that would still be available in the sedentary range would be call out operator. That only requires occasional reaching and finger.
Q And the light jobs would still stand, correct?
A Let me double check. Now, in the light jobs --
Q So, so for the hypothetical for the light jobs would then be --
A No use of the non-dominant hand.
Q No use of the non-dominant, but without limitations to the dominant.
A Right, yeah. Again, that would rule out all those light positions that I gave you examples for.
Q Originally you testified that it would reduce the numbers, but not preclude them.
A Yeah, but again, when we talk about not using that non-dominant hand at all, from a vocational stand point you have to move the dominant hand to occasional reach, handle, finger.
Q Okay.
A So, there are positions that are out there, there are jobs, not the ones that I gave you.
Conclusion
For the reasons stated above, I recommend remanding this action for further proceedings to properly consider the medical opinions and to assess McGinley's CRPS. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable John G. Koeltl, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
/s/_________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE Dated: New York, New York
July 30, 2018 Copies transmitted to all counsel of record.
Flynn, 729 F. App'x at 121-22.