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finding that the ALJ erred when he relied on the treating physician's recommendation for conservative treatment as substantial evidence that the plaintiff was not disabled
Summary of this case from Pagano v. Comm'r of Soc. Sec.Opinion
No. 15-CV-5600 (JFB)
12-14-2016
KEVIN J. MORRIS, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION Defendant.
Plaintiff is represented by Christopher James Bowes, 54 Cobblestone Drive, Shoreham, New York 11786. The Commissioner is represented by Robert L. Capers, United States Attorney, Eastern District of New York, 271 Cadman Plaza East, 7th Floor, Brooklyn, New York, 11201.
MEMORANDUM AND ORDER
:
Plaintiff, Kevin J. Morris ("plaintiff"), commenced this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("SSA"), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for disability insurance benefits. An Administrative Law Judge ("ALJ") found that plaintiff had the residual functional capacity to perform the full range of light work, of which there were a significant number of jobs in the national economy, and, therefore, that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review.
The Commissioner now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings.
For the reasons set forth below, the Court denies the Commissioner's motion for judgment on the pleadings, denies plaintiff's motion for judgment on the pleadings, and remands the case to the ALJ for further proceedings consistent with this Memorandum and order.
I. BACKGROUND
A. Facts
The following summary of the relevant facts is based on the Administrative Record ("AR") developed by the ALJ. (ECF No. 8.)
1. Personal and Work History
Born in 1971, plaintiff completed high school in 1989 and worked as a yardman for ABF Freight systems loading and unloading trucks from 1989 until March 3, 2009, the alleged onset date of his disability. (AR at 204, 214-15, 229.) On that day, he slipped at work, fell to the ground, and landed on his back. (AR at 61.) He was awarded worker's compensation benefits as a result of this injury effective March 2009. (AR at 198-99.)
After his fall, plaintiff reported constant pain in his back and legs. (AR at 65, 246.) He indicated that he could walk or stand for about 15 to 20 minutes and sit for 20 to 30 minutes before needing to reposition himself to alleviate discomfort. (AR at 39-40, 244.) He stated that he avoided stairs and could not kneel, squat, reach, or lift much weight due to the pain. (AR at 38-39, 244.) Plaintiff did not wear a back brace or walk with a cane. (AR at 47.) The pain interfered with his sleep. (AR at 49-50, 240.)
Plaintiff further reported that, each day, he could shower, eat meals, visit his doctors and therapists, watch limited television, and take short walks. (AR at 239.) Although he could independently perform a number of tasks—such as dressing, bathing, caring for his hair, shaving, feeding himself, and using the toilet—these tasks took longer and caused more discomfort than before. (AR at 41-46, 49-50, 240-41.) Plaintiff reported that his wife prepared most meals and that he could not perform indoor or outdoor chores because he was "unable to bend, lift, reach or carry." (AR at 241.) He indicated that he could drive, but limited his driving to short distances and emergencies. (AR at 50.)
2. Medical History
An April 28, 2009 magnetic resonance image ("MRI") of the lumbar spine revealed a paracentral herniated disc at L5-S1 on the right side—which was unchanged from a September 1, 2007 MRI—a bulging disc at L4-L5, and degenerative disc disease at L5-S1. (AR at 367.) On July 20, 2009, plaintiff visited Laurence E. Mermelstein, M.D., an orthopedic surgeon who had consistently treated plaintiff for back and right-knee pain since 2005 (AR at 293-310, 314-15, 337-53), and Dr. Mermelstein observed a paraspinal spasm, gluteal tenderness on the right side, and spinuous process tenderness at L5-S1 (AR at 335). There was no coccygeal tenderness. (Id.) Axial flexion was painful and referred to the right lower extremity. (Id.) Range of lateral flexion motion was 25 degrees on the right and 25 degrees on the left; flexion was 45 degrees; and extension was 20 degrees. (Id.) Plaintiff's motor strength was within normal limits, and his gait was normal. (Id.) Dr. Mermelstein prescribed Ultracet, and his prognosis was "guarded." (Id.)
Plaintiff saw Dr. Mermelstein again on August 17, 2009, September 9, 2009, December 10, 2009, March 4, 2010, April 21, 2010, June 17, 2010, and August 16, 2010, and the doctor's observations and treatment were substantially the same. (AR at 311-12, 316-20, 323, 326, 329, 332, 334.) Throughout this time—from March 2009 through September 2010—plaintiff also received chiropractic care twice a month from William Palmer, M.D. (AR at 359.) During plaintiff's August 17, 2009 visit with Dr. Mermelstein, the doctor requested a discogram, and on December 9, 2010, the two discussed surgery. (AR at 332, 329.)
Plaintiff visited Steven Rosen, M.D., a neurologist, for a second opinion on December 17, 2009. (AR at 369-71.) Dr. Rosen noted the April 28, 2009 MRI results and Dr. Mermelstein's recommendations for a discogram and possible spine effusion with instrumentation. (AR at 369.) Dr. Rosen's musculoskeletal examination revealed diffuse sacroiliac tenderness with moderate spasm and flattening of the lumbar lordosis. (AR at 370.) He reported a positive straight leg raise test on the right; plaintiff was alert and oriented; plaintiff's cranial nerves were intact; his motor strength testing was normal in the upper and lower extremities; deep tendon reflexes were 2+ and symmetric at the biceps, knees, and ankles; sensory examination was normal except for mild relative decreased light touch on the right lateral shin; and his gait was slightly stiffened but otherwise normal. (Id.) Dr. Rosen concluded that "it [was] reasonable for [plaintiff] to consider discography" as a result of his examination. (Id.)
Following plaintiff's consultation with Dr. Rosen, Dr. Mermelstein noted that plaintiff's gait was antalgic on three occasions. (AR at 317, 320, 323.) On August 16, 2010, he requested authorization for an electromyogram ("EMG") of the lower extremities to evaluate progression of the lumbar spine disorder and prescribed Norco and Neurontin. (AR at 316-18.) A September 24, 2010 EMG revealed mild chronic L5-S1 radiculopathy on the right without evidence of either active denervation or reinnervation potentials on the needle EMG and that these findings were essentially unchanged when compared to a February 2007 study. (AR at 430.)
Erlinda Austria, M.D., performed a consultative orthopedic examination of plaintiff at the Commissioner's request on October 18, 2010. (AR at 378.) Dr. Austria noted plaintiff's March 3, 2009 injury, the follow-up MRI on April 28, 2009, and plaintiff's complaints of low back pain radiating to both legs with numbness of the feet greater on the right. (Id.) Plaintiff indicated to Dr. Austria that he could sit for 25 to 30 minutes, stand for 30 minutes, and walk for 30 minutes before needing to change positions, start moving, or rest. (Id.)
On examination, Dr. Austria reported that plaintiff showed no acute distress, had a normal gait, could walk on his heels and toes without difficulty, could squat three-fourths of the way, used no assistive device, needed no help changing for the exam or getting on and off the exam table, and could rise from his chair without difficulty. (AR at 379.) Examination of the thoracic and lumbar spine showed full flexion, extension, lateral flexion bilaterally, and rotary movements bilaterally, with no spinal, paraspinal, or S1 joint or sciatic notch tenderness. (Id.) He had no spasm, scoliosis, or kyphosis. (Id.) Straight leg raises were negative, bilaterally. (Id.) He had no trigger points. (Id.) Examination of the lower extremities showed hip flexion and extension to 80 degrees bilaterally, interior rotation to 20 degrees bilaterally, and exterior rotation to 40 degrees bilaterally; he declined backward extension, abduction, and adduction bilaterally. (Id.) Knee flexion and extension were to 125 degrees bilaterally. (Id.) He had full strength in the proximal and distal muscles of his lower extremities, with no atrophy, sensory abnormality, joint effusion, inflammation, or instability. (Id.) His reflexes were physiologic and equal. (Id.)
After Dr. Austria's assessment, plaintiff underwent a second MRI on April 4, 2011, which revealed disc desiccation at L5-S1 with an associated right paramedian posterior protruded disc herniation compressing the right S1 nerve roots in the lateral recess. (AR at 434-35.) The herniated disc also came into contact with the left S1 nerve root in the lateral recess. (AR at 434.) Moderate spinal canal stenosis was present. (Id.) There was minimal retrolisthesis at L5-S1. (Id.) There were mild disc bulges at L3-4 and L4-5 without evidence for significant spinal canal stenosis. (Id.)
Plaintiff underwent a final MRI on July 25, 2012. (AR at 432-33.) The MRI showed a small right paracentral disc protrusion, which flattened the ventral thecal sac and contacted the descending right S1 nerve root in the lateral recess. (AR at 432.) The disc height at L5-S1 was mildly diminished, consistent with mild spondylosis. (Id.)
On July 8, 2013, at the request of the Commissioner, consulting physician Samir Dutta, M.D., performed another consultative orthopedic examination on plaintiff. (AR at 408-17.) Dr. Dutta noted plaintiff's diagnosis of a herniated disc and a bulging disc with degenerative disc disease, his complaints of pain, and past history of injury and treatment. (AR at 408.) He also reported that plaintiff told him that plaintiff was laid off after his March 3, 2009 injury. (Id.)
On examination, Dr. Dutta reported that plaintiff was not in acute distress, had a normal gait, could walk on his heels and toes without difficulty, could squat halfway, used no assistive device, needed no help changing for the exam or getting on and off the exam table, and could rise from his chair without difficulty. (AR at 409.) Examination of his thoracic and lumbar spine showed flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and rotary movements to 20 degrees bilaterally. (Id.) He had slight tenderness and spasm in the lower lumbar spine, with no spasm, scoliosis, kyphosis, or S1 joint or sciatic notch tenderness. (AR at 409-10.) Straight leg raises were negative bilaterally, and there were no trigger points. (AR at 410.) Examination of his lower extremities showed bilateral hip flexion of 80 degrees, interior rotation of 30 degrees, exterior rotation of 40 degrees, backward extension of 20 degrees, adduction and abduction full bilaterally, and knee flexion bilaterally at 125 degrees. (Id.) Dr. Dutta noted paresthesia on the right leg. (Id.) He also reported that plaintiff had full strength on the proximal and distal muscles bilaterally, with no muscle atrophy, as well as physiological and equal reflexes, with no joint effusion, inflammation, or instability. (Id.)
Plaintiff visited Dr. Mermelstein on July 30, 2013. (AR at 429-31.) Dr. Mermelstein observed paraspinal tenderness bilaterally, no muscle spasm, and a normal gait. (AR at 430.) Plaintiff exhibited pain with range of motion of the lumbar spine. (Id.) Straight leg raising was mildly positive on the right and left side. (Id.) Dr. Mermelstein again prescribed medication. (AR at 431.)
3. Opinions of Physicians
Plaintiff's treating physician, Dr. Mermelstein, offered his opinion in a medical narrative issued April 29, 2011 (AR at 389-94), a letter to plaintiff's attorney dated May 1, 2011 (AR at 402), medical opinions of ability to do work issued May 11, 2011 (AR at 395-401), May 1, 2012 (AR at 403-06), and July 2, 2013 (AR at 422-27), and an updated narrative dated July 3, 2013 (AR at 420-21). In his April 27, 2011 narrative, Dr. Mermelstein concluded that plaintiff was "totally and permanently disabled from work. His pain is persistent and unrelenting. He has failed all measures of management to this point." (AR at 394.) He also stated, "It is unlikely that [plaintiff] will return to gainful employment without the proposed surgical procedure." (Id.) His prognosis was guarded, and he noted that, "even with a perfectly performed surgery, [plaintiff] may not return to a normal active lifestyle and/or gainful employment." (Id.)
Furthermore, Dr. Mermelstein consistently determined that plaintiff could lift and carry 20 pounds on an occasional basis and 10 pounds on a frequent basis (AR at 395, 404, 422), could stand and walk for a total of 3 hours during an 8-hour work day and sit for less than 2 hours (AR at 395, 404, 423), needed the opportunity to shift at will from sitting, standing, or walking (AR at 397, 405), would need to lie down at unpredictable intervals during a work shift on a daily basis (AR at 397, 405), was unable to twist, stoop, crouch, or climb ladders (AR at 400, 405, 425), and should avoid hazards like machinery and heights (AR at 398, 406, 426). Dr. Mermelstein expected that plaintiff would be absent from a sedentary job at least three times per month. (AR at 398, 406.) On July 3, 2013, the doctor opined:
At the present time, [plaintiff] continues to be disabled from work due to a severe discogenic back pain syndrome and herniated nucleus pulposus.(AR at 421.)
His definitive treatment remains surgical intervention. The patient has not committed to surgical intervention at this juncture.
I do not expect [plaintiff] to improve substantially without surgical intervention, but that being said, surgery is unlikely to restore this gentleman to a 100 percent full active lifestyle in any case.
Dr. Palmer, plaintiff's chiropractic care physician, offered his opinion in a September 2010 assessment, where he indicated that plaintiff could lift up to 10 pounds frequently and 20 pounds occasionally, stand or walk less than two hours at a time, and sit less than two hours at a time due to his back and leg pain. (AR at 359, 363-64.)
Plaintiff's first consulting physician, Dr. Austria, diagnosed him with an "[i]njury to lower back secondary to trauma in 2009" and a "[h]erniated and bulging lumbar disk by history." (Id.) Her prognosis was "[s]table on conservative therapy." (Id.) She opined:
In my opinion, the claimant has no restriction to activities of head, neck, and upper extremities, including fine motor movement. The claimant has minimal to mild restriction to squatting, bending, and prolonged sitting, standing, and walking. The claimant has minimal to mild restriction with limited range of motion to activities involving both knees.(AR at 380.)
The second consulting physician, Dr. Dutta, diagnosed plaintiff with a "[b]ulging disc of lumbar spine with herniated disc, with radiculitis mostly on the right side" as well as a "[h]istory of arthroscopy of the right knee for a torn meniscus." (AR at 410.) His prognosis was "stable." (Id.) He opined that there was "mild limitation for sitting and standing . . . [and] mild to moderate limitation for walking, bending, lifting, and carrying heavy weight on a continued basis." (Id.)
Dr. Dutta also completed a medical source statement of plaintiff's ability to do work-related activities. (AR at 411-17.) Dr. Dutta indicated that plaintiff could lift up to 10 pounds frequently and 20 pounds occasionally (AR at 411), could occasionally climb stairs or ladders, stoop, kneel, or crouch (AR at 414), could perform various daily activities like shopping, traveling without a companion, ambulating without a wheelchair, walker, or multiple canes, and using public transportation (AR at 416). The doctor gave no opinion on how long plaintiff could sit, stand, or walk without interruption or in total in an 8-hour work day. (AR at 412.)
B. Procedural History
On June 27, 2010, plaintiff sought disability insurance benefits, claiming disability beginning on March 3, 2009. (AR at 204-07.) On October 25, 2010, the claim was denied (AR at 117-28), and plaintiff filed a request for a hearing on November 24, 2010 (AR at 129-30). Plaintiff testified at the hearing, which took place on August 3, 2011. (AR at 57-95.) The ALJ issued an unfavorable decision denying the claim on November 10, 2011. (AR at 97-109.)
The Appeals Council vacated the hearing decision and remanded for further proceedings on April 23, 2013. (AR at 110-14, 161-64.) Plaintiff testified at another hearing on September 3, 2013, as did a vocational expert. (AR at 31-56.) On December 5, 2013, the ALJ issued the unfavorable decision that plaintiff now contests. (AR at 7-24.) The Appeals Council denied plaintiff's request for review of the ALJ's decision on January 17, 2014, making the ALJ's December 5 decision the final decision of the Commissioner. (AR 1-6.)
Plaintiff filed this action seeking reversal of the ALJ's decision on September 28, 2015. (ECF No. 1.) The Court received the administrative transcripts on December 30, 2015. (ECF No. 8.) The Commissioner filed a motion for judgment on the pleadings on March 4, 2016. (ECF No. 9.) Plaintiff filed a cross-motion for judgment on the pleadings on April 14, 2016. (ECF No. 14.)
II. STANDARD OF REVIEW
A district court may set aside a determination by an ALJ "only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole." Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015) (citing Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); 42 U.S.C. § 405(g)). The Supreme Court has defined "substantial evidence" in Social Security cases to mean "more than a mere scintilla" and that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation omitted); see Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). Furthermore, "it is up to the agency, and not [the] court, to weigh the conflicting evidence in the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If the court finds that there is substantial evidence to support the Commissioner's determination, the decision must be upheld, "even if [the court] might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (internal citation omitted); see also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("Where an administrative decision rests on adequate findings sustained by evidence having rational probative force, the court should not substitute its judgment for that of the Commissioner.").
III. DISCUSSION
A. The Disability Determination
A claimant is entitled to disability benefits if the claimant 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 not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). An individual's physical or mental impairment is not disabling under the SSA unless it is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations establishing a five-step procedure for evaluating disability claims. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has summarized this procedure as follows:
The first step of this process requires the [Commissioner] to determine whether the claimant is presently employed. If the claimant is not employed, the [Commissioner] then determines whether the claimant has a "severe impairment" that limits her capacity to work. If the claimant has such an impairment, the [Commissioner] next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the [Commissioner] will find the claimant disabled. However, if the claimant does not have a listed impairment, the [Commissioner] must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the [Commissioner] determines whether the claimant is capable of performing any other work.Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). The claimant bears the burden of proof with respect to the first four steps; the Commissioner bears the burden of proving the last step. Id.
The Commissioner "must consider" the following in determining a claimant's entitlements to benefits: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Id. (quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam)).
B. The ALJ's Ruling
The ALJ here determined that plaintiff met his burden in proving that he was not presently employed at the time of the hearing and suffered from a "severe impairment," namely "lumbar spine disorder and a right knee disorder status post arthroscopy." (AR at 12.) This impairment did not, however, fall under the list of impairments outlined in Appendix 1 of the regulations. (Id.) He also found that plaintiff could not perform his past work. (AR at 17.)
At the fifth step, the ALJ concluded that plaintiff had "the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b)." (Id. at 13.) In support of this conclusion, the ALJ found that, although plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id.) The ALJ first discussed the results of the three MRIs and the EMG, emphasizing results that suggested the injury was not particularly severe. (See id.) He then summarized the examination results of the various doctors. For instance, he noted that Dr. Rosen's examination revealed "normal motor strength testing in the upper and lower extremities, deep tendon reflexes that were 2+ symmetric at the biceps, knees, and ankles," and a "slightly stiffened but otherwise normal" gait. (Id. at 15.)
Dr. Mermelstein's examinations, meanwhile, also showed "no lumbar muscle spasm, normal motor strength, antalgic to normal gait, painless and normal range of motion in the hips." (Id.) Despite Dr. Mermelstein's July 30, 2013 observation that "there had been significant progression of [plaintiff's] herniated disc to the point where he has moderate to marked stenosis and nerve impingement," the ALJ emphasized that, in his final examination, Dr. Mermelstein still found "no muscle spasm, 5-/5 to 5/5 motor power in all extremities, normal hip motion, normal knee exam, normal gait, and only mildly positive straight leg raising test bilaterally." (Id.)
In addition, the ALJ determined that the findings of the consultative physicians did not support plaintiff's alleged symptoms. Dr. Austria noted that plaintiff was not in "acute distress" and "had a normal gait and station." (Id. at 16.) He could "walk on his heels and toes without difficulty, squat three fourths of the way, use[d] no assistive device, need[ed] no help changing for the exam or getting on and off the exam table." (Id.) The ALJ also highlighted Dr. Austria's findings that plaintiff "had full range of motion in the lumbar spine with spinal or paraspinal tenderness, no SI joint or sciatic notch tenderness, no spasm, a negative straight leg raising test bilaterally, and no trigger points." (Id.) The ALJ later summarized the "similar conclusions" reached by Dr. Dutta. (Id.)
The ALJ then discounted plaintiff's subjective complaints of pain, finding that his "activities of daily living [were] inconsistent with his allegations of disability." (Id.) Specifically, the ALJ emphasized plaintiff's abilities to bathe, dress, and shower independently and to occasionally cook, clean, do laundry, shop, and provide childcare. (Id.) The ALJ also noted that plaintiff only received conservative treatment and had reported to Dr. Dutta that he was laid off from his previous job, rather than losing it for medical reasons. (Id.)
Finally, with respect to the doctors' opinions, the ALJ gave "significant weight" to the opinions of Drs. Dutta and Austria because they were "consistent with [the consultative doctors'] clinical findings, the [plaintiff's] conservative course of treatment, and treatment notes showing normal gait and normal motor and sensory exams." (Id. at 17.) The ALJ only gave "some weight" to the opinions of Drs. Mermelstein and Palmer. (Id.) He credited their findings that were consistent with the findings of the consultative physicians and plaintiff's conservative treatment, normal gait, and normal motor and sensory examinations. (Id.) He accorded "less weight," however, to their opinions about plaintiff's limited ability to sit, stand, and walk, need to lie down at unpredictable intervals on a daily basis, inability to twist, stoop, or climb, need to avoid all hazards, and potential to frequently miss work. (Id.) The ALJ found that these opinions were "inconsistent with the opinions of Drs. Dutta and Austria, [plaintiff's] conservative course of treatment, and treatment notes showing normal gait and normal motor and sensory exams." (Id.) For the same reason, he gave "little weight" to "Dr. Mermelstein's opinion that [plaintiff] has a 'total permanent' impairment, is 'disabled from work,' and 'totally and permanently disabled from work.'" (Id.) The ALJ further observed that this opinion went "beyond the purview of Dr. Mermelstein's medical expertise" because "whether an individual is disabled under the Social Security Act . . . is an issue reserved to the Commissioner." (Id.)
Having concluded that plaintiff retained the residual functional capacity to perform light work, the ALJ found that plaintiff qualified as a "younger individual," as he was 37 on the alleged onset date, and had attained a high school education. (Id.) The ALJ then concluded that, based on plaintiff's "age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." (Id. at 17, 18.) Consequently, the ALJ determined that plaintiff did not qualify for disability benefits. (Id.)
C. Analysis
Plaintiff only challenges the ALJ's conclusion that he has the residual functional capacity to perform light work. Specifically, plaintiff asserts that the ALJ (1) did not afford Dr. Mermelstein's opinion the weight it was entitled to receive; (2) afforded the opinions of Drs. Austria and Dutta too much weight; and (3) improperly rejected plaintiff's subjective complaints of pain. As set forth below, the ALJ failed to provide good reasons for not crediting the claimant's treating physicians and, thus, remand is warranted.
In any event, the Court concludes that substantial evidence supports the ALJ's determinations with respect to the other steps.
1. Opinion of the Treating Physician
The Commissioner must give special evidentiary weight to the opinion of a treating physician. See Clark, 143 F.3d at 118. The "treating physician rule," as it is known, "mandates that the medical opinion of a claimant's treating physician [be] given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record evidence." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); see also, e.g., Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark, 143 F.3d at 118. The rule as set forth in the regulations, provides:
Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may 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 or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(c)(2). Although treating physicians may share their opinions concerning a patient's inability to work and the severity of the disability, the ultimate decision of whether an individual is disabled is "reserved to the Commissioner." Id. § 404.1527(d)(1); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("[T]he Social Security Administration considers the data that physicians provide but draws its own conclusions as to whether those data indicate disability.").
When an ALJ decides that the opinion of a treating physician should not be given controlling weight, she must "give good reasons in [the] notice of determination or decision for the weight [she] gives [the claimant's] treating source's opinion." 20 C.F.R. § 404.1527(c)(2); see also Perez v. Astrue, No. 07-CV-958 (DLJ), 2009 WL 2496585, at *8 (E.D.N.Y. Aug. 14, 2009) ("Even if [the treating physician's] opinions do not merit controlling weight, the ALJ must explain what weight she gave those opinions and must articulate good reasons for not crediting the opinions of a claimant's treating physician."); Santiago v. Barnhart, 441 F. Supp. 2d 620, 627 (S.D.N.Y. 2006) ("Even if the treating physician's opinion is contradicted by substantial evidence and is thus not controlling, it is still entitled to significant weight because the treating source is inherently more familiar with a claimant's medical condition than are other sources." (internal citation omitted)). Specifically, "[a]n ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various 'factors' to determine how much weight to give the opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)). Those 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 [ALJ's] attention that tend to support or contradict the opinion." Id. (citing 20 C.F.R. § 404.1527(d)(2)). If an ALJ fails "to provide 'good reasons' for not crediting the opinion of a claimant's treating physician," remand is appropriate. Snell, 177 F.3d at 133.
The ALJ here violated the treating physician rule. Dr. Mermelstein, who had consistently treated plaintiff for back injuries since 2005, opined that plaintiff could stand and walk for a maximum of 3 hours during an 8-hour work day and sit for less than 2 hours (AR at 395, 404, 423), needed the opportunity to shift at will from sitting, standing, or walking (AR at 397, 405), would need to lie down at unpredictable intervals during a work shift on a daily basis (AR at 397, 405), was unable to twist, stoop, crouch, or climb ladders (AR at 400, 405, 425), and should avoid hazards like machinery and heights (AR at 398, 406, 426). Dr. Palmer, who provided chiropractic treatment twice monthly from March 2009 to September 2010, concurred with these conclusions. (AR at 359, 363-64.)
Dr. Mermelstein also opined that plaintiff is "totally and permanently disabled from work." (AR at 394.) The Court finds, however, that the ALJ did not err in rejecting this opinion because the final decision of whether an individual is disabled is "reserved to the Commissioner" under 20 C.F.R. § 404.1527(d)(1).
The ALJ declined to credit these opinions because they were "inconsistent with the opinions of Drs. Dutta and Austria, [plaintiff's] conservative course of treatment, and treatment notes showing normal gait and normal motor and sensory exams." (AR at 17.) Instead, he gave "significant weight" to the opinions of Drs. Dutta and Austria—who each only saw plaintiff once—in rejecting plaintiff's claims of disability.
The Court concludes that the ALJ failed to provide "good reasons" for rejecting the opinions of the treating physicians. Snell, 177 F.3d at 133. The first ground on which the ALJ relied in refusing to credit the opinions of Drs. Mermelstein and Palmer was the inconsistency between those opinions and the opinions of Drs. Austria and Dutta. (AR at 17.) The Second Circuit has made clear, however, that "ALJs should not rely heavily on the findings of consultative physicians after a single examination." Selian, 708 F.3d at 419. In Selian, the ALJ rejected the treating physician's diagnosis based in part on the opinion of another physician who "performed only one consultative examination." Id. The Court held that, in doing so, the ALJ failed "to provide 'good reasons' for not crediting [the treating physician's] diagnosis," and that failure "by itself warrant[ed] remand." Id.; see also Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) ("[A] consulting physician's opinions or report should be given limited weight . . . because consultative exams are often brief, are generally performed without benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day."); Santiago, 441 F. Supp. 2d at 628 (holding that ALJ erred in giving consulting physicians' opinions controlling weight over those of the treating physicians). By crediting the opinions of the consulting physicians over those of the treating physicians, the ALJ here committed the same error as the ALJ in Selian, given the absence of other substantial evidence to corroborate those opinions, as discussed below. 708 F.3d at 419; see also Cruz, 912 F.2d at 13; Santiago, 441 F. Supp. 2d at 628.
The next ground the ALJ invoked—the plaintiff's "conservative course of treatment" (AR at 17)—also does not provide a "good reason" for rejecting the treating physicians' opinions. In Shaw, 221 F.3d at 134, the Second Circuit declared that it was improper for an ALJ to "characterize[] the fact that [the treating physician] recommended only conservative physical therapy, hot packs, EMG testing—not surgery or prescription drugs—as substantial evidence that plaintiff was not physically disabled." Id. The Court held that, in doing so, the ALJ "substitute[d] his own expertise or view of the medical proof for the treating physician's opinion." The ALJ committed the same error here by "characterize[ing] the fact that [Dr. Mermelstein] recommended only conservative [treatment] . . . as substantial evidence that plaintiff was not physically disabled." Id. Indeed, the ALJ's error here was arguably even worse, as Dr. Mermelstein recommended surgery and prescribed drugs, making his course of treatment less conservative than the treatment in Shaw.
Finally, the ALJ's reliance on Dr. Mermelstein's medical notes indicating that plaintiff had a normal gait and normal motor and sensory exams does not justify his rejection of the treating physicians' opinions. (AR at 17.) In Rosa, the ALJ rejected the treating physician's opinion based in part on the physician's underlying notes, which did not indicate that the claimant suffered muscle spasms. 168 F.3d at 76. The Second Circuit held that the ALJ violated the treating physician rule. Id. at 79. "As a lay person," the Court observed, "the ALJ simply was not in a position to know whether the absence of muscle spasms would in fact preclude the disabling loss of motion described by [the treating physician] in his assessment." Id. (brackets omitted). It, therefore, concluded that, in highlighting the absence of muscle spasms as grounds for disregarding the physician's opinion, the ALJ "improperly set her own expertise against that of the treating physician." Id. (brackets omitted). This constituted "legal error." Id. at 80; see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (holding that ALJ erred in concluding that an absence of "atrophy of any muscle groups" was inconsistent with a finding of disability); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 861 (2d Cir. 1990) (holding that it was error for an ALJ to reject a treating physician's diagnosis of hemiplegic migraine on the grounds that the physician failed to report headaches). The ALJ here committed the same error. He also "was not in a position to know whether the absence of [an antalgic gate and abnormal motor and sensory functioning] would in fact preclude the disabling loss of motion described by [Dr. Mermelstein] in his assessment." Rosa, 168 F.3d at 79. By highlighting his normal gait and normal motor and sensory exams as grounds for rejecting Dr. Mermelstein's opinion, the ALJ "improperly set [his] own expertise against that of the treating physician[s]" in violation of the treating physician rule. Id. at 80 (brackets omitted); see also Balsamo, 142 F.3d at 81; Wagner, 906 F.2d at 861.
It should be noted that, in some of his examination notes, Dr. Mermelstein reported an "antalgic gait." (See, e.g., AR at 317, 320, 323.) The ALJ does not address this repeated finding, which further undermines his rejection of Dr. Mermelstein's opinion. --------
In short, the ALJ failed to provide "good reasons" for rejecting the treating physicians' opinions. Snell, 177 F.3d at 133. That failure "by itself warrants remand." Selian, 708 F.3d at 419.
2. Plaintiff's Subjective Complaints of Pain
In concluding that plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible," the ALJ cited the MRI and EMG results, the examination notes of the various physicians, and plaintiff's subjective complaints. (AR at 13.) Plaintiff argues that the ALJ erred in relying on plaintiff's daily activities and statements made to Dr. Dutta to reject his subjective complaints of pain. Plaintiff further argues that the ALJ erred in failing to consider plaintiff's extensive work history.
In light of this Court's ruling that the ALJ committed legal error by failing to give "good reasons" for rejecting the opinions of Drs. Mermelstein and Palmer, however, the Court need not address these arguments. The Court, therefore, declines to do so but directs the ALJ on remand to reconsider plaintiff's subjective complaints after properly applying the treat-ing physician rule. See McAllister v. Colvin, No. 15-CV-2673 (JFB), 2016 WL 4717988, at *14 n.3 (E.D.N.Y. Sept. 9, 2016).
IV. CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's motion for judgment on the pleadings is denied. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order.
SO ORDERED.
/s/_________
JOSEPH F. BIANCO
United States District Judge Dated: December 14, 2016
Central Islip, NY
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Plaintiff is represented by Christopher James Bowes, 54 Cobblestone Drive, Shoreham, New York 11786. The Commissioner is represented by Robert L. Capers, United States Attorney, Eastern District of New York, 271 Cadman Plaza East, 7th Floor, Brooklyn, New York, 11201.