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11-CV-424 (JG) (E.D.N.Y. Sep. 1, 2011)

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11-CV-424 (JG)



APPEARANCES: LAW OFFICES OF HARRY J. BINDER AND CHARLES E. BINDER, P.C. 60 East 42nd Street Suite 520 New York, New York 10165 By: Eddy Pierre Pierre Attorney for Plaintiff LORETTA E. LYNCH United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 By: Candace Scott Appleton Attorney for Defendant




60 East 42nd Street

Suite 520

New York, New York 10165
By: Eddy Pierre Pierre

Attorney for Plaintiff

United States Attorney

Eastern District of New York

271 Cadman Plaza East

Brooklyn, New York 11201
By: Candace Scott Appleton

Attorney for Defendant
JOHN GLEESON, United States District Judge:

Eileen Smollins brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security that she is not disabled under the Social Security Act and therefore not entitled to disability insurance benefits. Based on the administrative record, the Commissioner now moves, and Smollins cross-moves, for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Commissioner seeks a judgment upholding his decision; Smollins seeks a reversal of the Commissioner's decision and a remand pursuant to the fourth sentence of 42 U.S.C. § 405(g) for a new hearing and decision. Oral argument was heard on August 24, 2011. For the reasons stated below, I grant Smollins's motion, deny the Commissioner's motion, reverse the Commissioner's decision and remand for further proceedings.


A. Procedural History

Smollins first applied for Social Security disability insurance benefits on October 8, 2004, claiming disability as of October 4, 2004. See R. at 96-98. The claim was denied on March 3, 2005, id. at 119, though the record does not indicate at what stage this denial occurred. Smollins then filed a second application for disability insurance benefits on September 29, 2006 with the assistance of counsel, this time identifying October 10, 2004 as her disability onset date. Id. at 101-03. She alleged that her disability consisted of a heart condition, which prevented her from sitting, standing and walking for any length of time. Id. at 121. Smollins's September 2006 claim was initially denied on June 18, 2007, id. at 38-40, and was denied on reconsideration on October 5, 2007, id. at 47-48. Smollins thereafter requested a hearing before an administrative law judge ("ALJ"), which she was granted. She appeared in person with her counsel and testified at the hearing, which was held before ALJ David R. Wurm in San Antonio, Texas on February 26, 2009. Id. at 19.

Citations to the administrative record are preceded by "R."

Howard Marnan, a vocational expert, was also present at the hearing, but he did not testify. R. at 21.

On April 29, 2009, ALJ Wurm denied Smollins's application for disability insurance benefits, holding that Smollins did not have a disability as defined in sections 216(i) and 223(d) of the Social Security Act, 42 U.S.C. §§ 416(i) & 423(d), from October 10, 2004 through the date of the decision. Id. at 17. ALJ Wurm found, in pertinent part, that (1) Smollins's coronary artery disease ("CAD"), obesity and hypertension were severe impairments, id. at 15; (2) those impairments, separately or in combination, did not meet the listings in the Social Security regulations, id.; (3) Smollins had the residual functional capacity to perform "the full range of sedentary work . . . , lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools," id.; (4) her statements concerning the intensity, persistence and limiting effects of her symptoms were not credible "to the extent they are inconsistent with the above residual functional capacity assessment," id. at 17; and (5) she was capable of performing her past relevant work as a receptionist, id. at 17.

Coronary artery disease, also known as coronary heart disease, involves the narrowing of the small blood vessels that supply blood and oxygen to the heart. PubMed Health, Coronary Heart Disease (2011), Angina is the most common symptom of CAD. Angina is chest pain or discomfort that occurs if an area of one's heart muscle does not get sufficient oxygen-rich blood. It can feel like pressure or squeezing in one's chest, or indigestion. National Heart Lung and Blood Institute, Angina (2011), Other common symptoms of CAD include fatigue, shortness of breath and weakness are also common symptoms, especially among women and elderly people. PubMed Health, Coronary Heart Disease.

Hypertension is the medical term used to describe high blood pressure. PubMed Health, Hypertension (2011), http://

Smollins sought review of the ALJ's decision on May 19, 2009 and submitted comments in support of that application on September 2, 2009. Id. at 8, 182-89. On December 2, 2010, the Appeals Council denied Smollins's request for review. Id. at 1-6. Accordingly, ALJ Wurm's decision constitutes the final decision of the Commissioner. See id. at 1. Smollins filed the instant action on January 28, 2011.

B. Smollins's History

1. Age, Education and Work History

Smollins was born in 1953 and is a high school graduate. She has worked in various positions as an adult, including that of assistant to a facilities director, which required her to type, file, operate a switchboard and perform the tasks of a radio dispatcher. R. at 123. Most recently, Smollins worked as a receptionist in an education office for ten years. Her responsibilities in that position included greeting clients, operating a switchboard, photocopying, typing, and occasionally lifting objects weighing less than ten pounds. Id.

Smollins stopped working on October 10, 2004 because of an increase in symptoms of her various ongoing conditions. Id. at 24.

2. Medical History

a. Smollins's Description of Her Medical Condition

In an undated disability report, Smollins stated that her heart condition limited her ability to work and that she could not sit, stand or walk for any length of time. R. at 121. She explained that she had stopped working because her doctor "feels I can not [sic] work any type of job." Id. at 122. In an October 18, 2004 function report, Smollins listed the following as her daily activities: eating breakfast, lunch and dinner, showering or bathing, very light housework (dishes, laundry, making the bed, cooking and dusting), walking short periods, resting upon exertion and sleeping. Id. at 130. She explained that she devoted less than 15 minutes to each of the above tasks, tried not to exert herself when preparing meals, and could not entertain. Id. at 132. Her stated hobbies included reading, watching movies, watching television and listening to music, and she noted that she occasionally went grocery shopping with her partner but for no more than a half hour at a time. Id. at 134. She further stated that her condition made it impossible for her to "work full time" and made it "painful [to] accomplish tasks." Id. at 131. In subsequent disability reports, Smollins denied having any new illnesses or conditions but supplemented her prior reports with the statement that, due to her condition, "I can take care of my personal needs, but at a slower rate of time." E.g., id. at 144.

At the hearing before ALJ Wurm, Smollins testified that as of October 2004, she had "exhausted all efforts as far as the [heart] surgeries and received the treatments," and was "starting to feel ill again in getting angina attacks and swelling in my legs and my feet." Id. at 24. She elaborated that, as a result of the fact that her "body seemed to be rejecting" the two bypass surgeries and two attempted angioplasties she had undergone in 2001 and 2002, she experienced angina pain, which felt like "a tightening of the chest. . . . Sometimes it feels flu like. Sometimes it's more severe." Id. at 25. She took Nitroglycerin pills and tried to relax in order to alleviate the angina pain, and although she occasionally had good days on which she had no need for the Nitroglycerin, at other times, "I could take it three times a day and . . . sometimes I wake up out of a sleep with angina pain." Id. According to Smollins, a side effect of the Nitroglycerin was 30-minute-long headaches, which she treated with conservative doses of aspirin and rest. Id. at 26. Her heart condition caused her to have pain in her right leg in the location where a vein had been removed during one of her bypass surgeries. Her leg would "swell[] up so it really, really hurts and this pain it's heat, hot pain." Id. She testified that she experienced such pain three or four days per week, and that whenever it came on, she had to put her feet up. Id. at 27. Heat and sitting in one position triggered her leg pain, id., and she suffered from other symptoms, including fatigue, which often was brought on by her medication, and shortness of breath, which stress (e.g., related to family or finances) or eating a large amount too quickly tended to cause. Id. at 28. Eating quickly or eating too much also brought on Smollins's angina pain. Id.

Smollins further testified regarding her limitations in daily activities. Although she showers, dresses, cooks and does light housework including laundry, she "can't stand, . . . can't vacuum," and "won't lift" even a laundry basket. Her hobbies as of the hearing included listening to music and talking to her daughter, and her days basically consisted of staying "indoors" and being "in the house all the time." Id. at 29. She also stated that, depending on the day, she could sit for only two or three hours at a time before her leg would begin to swell up and she would have to stand, elevate her leg or take a nap to relieve the pain. Id. at 29-30. She could stand for only 15 to 20 minutes at a time, and never could lift anything heavier than ten pounds. Id. at 30. Finally, Smollins told ALJ Wurm that, as of the hearing date, she was taking Hydrochlorothiazide ("HCTZ"), a thiazide diuretic (i.e., a "water pill") that helps prevent the body from absorbing too much salt and thereby reduces fluid retention; Metoprolol (a beta blocker) for her heart and high blood pressure; Exforge for her high blood pressure; coated aspirin for pain; and medication for her stomach problems. Id. at 31.

b. The Medical Evidence

i. Treatment by Dr. Yambo

Smollins saw Dr. Edwardo Marth Yambo, an internist, on February 23, 2004, for chest pain secondary to costochondritis. Her blood pressure was 120/70. Dr. Yambo noted that an EKG showed left ventricle hypertrophy. He also checked boxes on a form indicating that Smollins's physical examination was unremarkable. R. at 246-47. Smollins's heart had regular rhythm, and there was no murmur or gallop. Id. at 246. There was no edema in her extremities. Id. at 247. Dr. Yambo's impression was CAD, hypertension, and pedal edema. Id.

Smollins first visited Dr. Yambo in 1990, and he was one of her treating physicians through 2006. See R. at 124.

Costochondritis is an inflammation of the cartilage that connects a rib to the breastbone (i.e., the sternum). Mayo Clinic, Costochondritis (2010),

Edema is swelling caused by fluid in one's body tissues. It most frequently occurs in the feet, ankles and legs. MedLine Plus, Edema (2011),

Pedal edema is swelling in the feet. Medical News Today, What is Edema? What Causes Edema? (2009),

Dr. Yambo saw Smollins on March 22, 2004, for a follow-up visit, during which he noted that Smollins had pedal edema and that medication (Dyazide) was working well to reduce it. Smollins was five feet three inches tall and weighed 200 pounds, and her blood pressure was 125/78. Dr. Yambo's examination revealed that Smollins's heart had regular rhythm, and there was no murmur or gallop. His impression was CAD, hypertension and peptic ulcer disease ("PUD"). He advised Smollins to consider applying for disability insurance benefits. Id. at 244-45. Smollins saw Dr. Yambo again on August 3, 2004, and asked for medication for anxiety because she was about to take a flight. Smollins's blood pressure was 124/72. Dr. Yambo diagnosed her with CAD and anxiety. Id. at 242-43.

Smollins next visited Dr. Yambo on October 4, 2004, complaining of a lump on the side of her neck and pain in the same location. Dr. Yambo noted that Smollins looked good but had a nodule on her neck. Examination revealed otherwise normal findings, and Dr. Yambo's impression was lymphadenitis. He requested that Smollins obtain a CT-scan of her neck. Id. at 238-40. On October 6, 2004, Smollins asked Dr. Yambo to complete disability forms. Her blood pressure was 120/80. Id. at 240. An October 12, 2004 CT-scan of Smollins's neck revealed "shotty" lymph nodes, none of which was pathologically enlarged. Id. at 248. When Dr. Yambo saw Smollins on October 28, 2004, her PUD was "no worse" and he diagnosed her with CAD with stent. Id. at 200. On November 5, 2004, Smollins complained to Dr. Yambo of swollen feet and legs. Dr. Yambo noted that Smollins had no shortness of breath or chest pain, and her blood pressure was 130/70. Examination revealed 2+ non-pitting edema of the extremities. Dr. Yambo's impression was edema, CAD and hypertension. Id. at 234-35. On December 31, 2004, Smollins asked Dr. Yambo to complete disability forms. He noted that she had re-started Diazide, after self-discontinuing it. Id. at 198.

Lymphadenitis is an infection of the lymph nodes. Medline Plus, Lymphadenitis (last visited August 22, 2011),

"Shotty" is commonly used to describe the feel of lymph nodes when they are palpated. "'Shotty' lymph nodes are ones that are not only hard and round but also small and surely of no consequence.", Definition of Shotty (1999),

A stent is a small mesh tube used (via insertion) to treat narrowed or weakened arteries. National Heart Lung and Blood Institute, What Is a Stent? (2009),

Edema is "non-pitting" when pressure applied to the skin does not result in a persistent indentation, and such edema usually occurs in the legs or arms., Edema (last visited August 22, 2011), at 1, Pitting edema, by contrast, is characterized by indentation upon pressure, which persists for some time after the pressure is released. Id.

A visit to Dr. Yambo on February 3, 2005, revealed that Smollins's heart had regular rhythm, and there was no murmur or gallop. There was no edema in Smollins's extremities. Id. at 231-32.

Smollins visited Dr. Yambo on July 7, 2005 for a refill of her medication. She reported that her ankles were swollen. Her blood pressure was 130/80, and the rest of the physical examination, including that of the heart, revealed normal findings. There was no edema in Smollins's extremities. Dr. Yambo diagnosed congestive heart failure-stable, and CAD. Id. at 229-30.

In an August 5, 2005 letter apparently written in support of Smollins's disability insurance benefits application, Dr. Yambo stated that Smollins had had open heart surgery in the past as well as several unsuccessful procedures to correct a cardiac condition. Dr. Yambo stated that Smollins could not tolerate stress or abrupt temperature changes, and had extreme circulatory problems. He also opined that Smollins was 100% disabled. Id. at 190.

ii. Treatment by Dr. Strovskaia

Smollins first visited Dr. Galina Strovskaia, a family physician with a practice in British Columbia, Canada, on February 24, 2006, during Smollins's trip to British Columbia. Smollins sought prescriptions, and Dr. Strovskaia noted that Smollins reported having had open heart surgery in the past and that she was not feeling 100%. Smollins requested a pap smear. Her blood pressure was 110/70, her heart sounds were regular and there was no peripheral edema. Dr. Strovskaia gave Smollins a prescription for Metoprolol, a beta blocker used to treat angina and hypertension and to prevent heart attacks. R. at 207.

Dr. Strovskaia saw Smollins again on June 20, 2006, and Smollins reported that she was doing well. Smollins's blood pressure was 147/107, and Dr. Strovskaia renewed her prescription for Metoprolol. When Dr. Strovskaia saw Smollins on October 26, 2006, Smollins asked for a refill of her prescription. At that time, Smollins's only new complaint was of back pain from a recent fall. Her blood pressure was 160/100. Dr. Strovskaia diagnosed hypertension and prescribed Metoprolol and Ramipril, an Angiotensin-converting enzyme ("ACE") inhibitor used to treat high blood pressure and heart failure and to prevent kidney failure from high blood pressure or diabetes. Id. at 207-08.

Smollins saw Dr. Strovskaia again on January 18, February 9 and March 20, 2007 for follow-up on her hypertension. In February, Smollins was not taking Ramipril due to financial constraints, but she had no new complaints. Dr. Strovskaia diagnosed hypertension on February 9 and CAD on March 20. She prescribed Ramipril, Metoprolol and HCTZ. On April 27, Smollins's blood pressure was 120/80. Id. at 209, 266-67.

Smollins visited Dr. Strovskaia on June 12, 2007 and underwent an extensive examination. A range of joint motion evaluation chart was completed. Smollins's back extended to 45 degrees, flexed to 30 degrees, and bilateral lateral bending was to 15 degrees. Her neck extended to 15 degrees, flexed to 30 degrees, and bilateral lateral bending was to 45 degrees and bilateral rotation to 15 degrees. Smollins's hip had backward extension to 30 degrees on the left and 10 degrees on the right, flexion to 60 degrees on the right and 100 degrees on the left, and abduction to 40 degrees on the left and 15 degrees on the right. The knees flexed to 150 on the left and 70 degrees on the right. Ranges of motion in the shoulders, elbows, forearms, ankles, wrists, and thumbs were full. Id. Dr. Strovskaia prescribed Clonazepam, a drug used to treat seizures or panic disorder. Id. at 216-17, 267.

On June 13, 2007, Dr. Strovskaia wrote to Smollins's attorney summarizing her treatment and findings. She had seen Smollins on four occasions when Smollins visited for refills of her prescriptions. Dr. Strovskaia stated that Smollins had complained of pain in the retrosternal area radiating to her neck and causing a heavy feeling in her left arm. These symptoms were aggravated by activity and relieved by rest. The need for rest disrupted Smollins's daily living activities. According to Dr. Strovskaia, Smollins also complained of retrosternal pain while at rest, for which she used Nitroglycerin spray almost daily. Smollins reported that she experienced shortness of breath on minimum effort and was not able to walk one block due to labored breathing and coughing. She complained of fatigue and severe chest pain after eating a full meal. She also reported needing frequent naps during the day, but that she slept poorly due to palpitations and nightmares. She further complained of joint pain and stiffness. Dr. Strovskaia indicated that she had not seen any of Smollins's previous medical records, and outlined the medical history as reported by Smollins: in December 2001, Smollins underwent coronary bypass surgery; in March 2002, she had an open, bleeding ulcer; in May 2002, she had an angioplasty that was unsuccessful; in July 2002, an angioplasty was again attempted; and in August 2002, she had double bypass surgery. Dr. Strovskaia also stated that Smollins had enhanced external counterpulsation ("EECP") treatment in 2003, followed by cardiac rehabilitation. Dr. Strovskaia opined that previous treatment failed to improve the arteriosclerotic condition of Smollins's heart, and her heart disease appeared to be progressive and continuous. Id. at 213-14.

The "retrosternal" area is behind the sternum (the breastbone)., Definition of Retrosternal (2011), at

EECP is a non-invasive treatment that gently but firmly compresses the blood vessels in the lower limbs to increase blood flow to the heart. Cleveland Clinic, Services: Enhanced External Counterpulsation (2010),

Dr. Strovskaia's diagnosis in her June 13, 2007 letter was extensive CAD, perhaps exercise-induced hypotension, and features of congestive heart failure. She assessed that Smollins was at high risk for myocardial infarction and progressive heart failure. She also diagnosed Smollins with advanced osteoarthritis, Crohn's disease in remission, sleep apnea and morbid obesity. Dr. Strovskaia stated that she based her diagnoses on the history of Smollins's complaints and her history of medical intervention. Dr. Strovskaia concluded by stating that Smollins's symptoms suggested she was quite sick, and that she was disabled from performing full-time competitive work. She added that symptomatic angina (in spite of medical therapy), signs of heart failure with shortness of breath, and peripheral edema extremely limited Smollins's daily activities. Id. at 214-15.

Myocardial infarction is another term for heart attack. A heart attack occurs when the blood flow to the heart is blocked for a sufficiently long period of time to damage or kill heart muscle. PubMed Health, Heart Attack (2011),

iii. Reports by Medical Consultants

Two state agency medical consultants reviewed Smollins's record and reported on her medical condition. Dr. Howard Platter completed a physical residual functional capacity report on June 18, 2007 after having reviewed and summarized Dr. Yambo's reports of October 4 and November 5, 2004 and July 7, 2005, Dr. Strovskaia's reports, and Smollins's history of attempted angioplasty and bypass surgeries. Dr. Platter also acknowledged that Smollins, whom he deemed "mostly credible," complained of joint pain and stiffness, but he noted that Smollins admitted to considerable daily activity. Dr. Platter assessed that Smollins was capable of occasionally lifting and/or carrying up to twenty pounds and of frequent lifting and/or carrying of up to ten pounds. Smollins could stand and/or walk for a total of about six hours in an eight-hour workday, and could sit for about six hours in an eight-hour workday. Her capacity to push and/or pull was unlimited, except for her limitation in lifting and carrying weight. Dr. Platter stated that Dr. Strovskaia's opinion that Smollins was unable to work was not supported by objective evidence, but rather was based solely on Smollins's self-reported medical history and complaints. Dr. Platter further noted that Dr. Strovskaia's notes revealed no significant medical event, and that Dr. Yambo consistently had reported normal physical examination findings. Id. at 220, 224-26.

On October 5, 2007, Dr. Morris Fuller, another state agency medical consultant, stated in a report that he agreed with Dr. Platter's assessment of Smollins's residual functional capacity. Id. at 227-28.

iv. Treatment in Texas

Smollins sought a refill of her medications at the Good Samaritan Hospital Medical Center ("Good Samaritan Center") in Fredericksburg, Texas on October 6, 2008. At that visit, her medical history was noted for high blood pressure, two bypass surgeries and CAD. She was found to be morbidly obese, weighing 238 pounds with a body mass index ("BMI") of 41. Her blood pressure was 190/114, and x-rays of her chest proved unremarkable. An EKG, with "poor data quality," was taken. At that time, Smollins was taking Metoprolol, HCTZ and Exforge. One week later, Smollins returned to get a follow-up blood pressure reading. Her blood pressure was 124/82. She complained of a scratchy throat, and her pharynx was red and swollen. The doctor diagnosed possible silent gastroesophageal reflux disease, CAD and obesity. R. at 257-59.

BMI refers to the ratio of an individual's weight in kilograms to the square of her height in meters. For both male and female adults, the Social Security clinical guidelines describe a BMI of 40 or above as level III or extreme obesity. See Social Security Ruling 02-1P, 2002 WL 34686281, at *8 (Sept. 12, 2002) ("Generally, physicians recommend surgery when obesity has reached level III (BMI 40 or greater).").

Plaintiff was seen at the Good Samaritan Center again on November 3, 2008. She complained of a persistent scratchy throat, which she attributed to allergies. Her blood pressure was 117/78. The doctor noted that Smollins had Crohn's disease, which was in remission. Id. The doctor's impression was possible allergic upper respiratory infection. On December 1, Smollins's right foot and lower leg were swollen. The doctor suspected gout or pseudo-gout. Id. at 256-59.

Crohn's disease is a form of inflammatory bowel disease that usually affects the intestines, but may occur anywhere along the digestive tract. PubMed Health, Crohn's Disease (2010),

Gout is a kind of arthritis that occurs when uric acid builds up in the joints. PubMed Health, Gout (2011),

On January 6, 2009, Smollins saw Dr. Waldo Gonzalez at the Good Samaritan Center for possible gout in her feet that was not responding to Indocin (an anti-inflammatory). Smollins also complained of fatigue and difficulty breathing. Dr. Gonzalez noted that Smollins had been told she had gout without laboratory confirmation. Smollins's high blood pressure was controlled with medication. She also had possible arthritis in her knee and hands. On examination, Smollins had pitting edema in the ankles; otherwise, the examination produced normal findings. Dr. Gonzalez diagnosed chronic edema of the lower extremities, CAD and obesity, and stated the need to rule out gout.

Dr. Gonzalez saw Smollins again on February 17, 2009 to check her blood pressure and renew her prescriptions. Smollins requested that he complete Social Security forms. Smollins's blood pressure was 110/78. Id. at 278.

v. Post-Hearing Evidence Submitted to the Appeals Council

Smollins saw Dr. Yambo on July 3, 2009, and reported that her left foot was swollen. She also reported that three days earlier her mouth had filled up with blood twice, and she felt pressure in her head. Smollins's blood pressure was 150/90. Her physical examination was unremarkable. Dr. Yambo's impression was hypertension and gout. Id. at 315-16. On September 28, 2009, Smollins reported swollen feet and difficulty standing for long periods of time. She also reported that for years she had suffered from coughing upon lying down. She further reported joint pain. Dr. Yambo examined Smollins and reported normal findings, including clear lungs. Id. at 313-14. Lung function testing was normal. An EKG was abnormal. Id. at 301-02, 304-05. Also on September 28, 2009, Dr. Yambo completed a questionnaire. He stated that he first treated Smollins on January 3, 2005. He reported clinical findings that included chest pain, angina, shortness of breath, fatigue, weakness, edema, palpitations, dizziness/syncope (i.e., fainting) and sweatiness. He also indicated that during an eight-hour workday, Smollins could sit for three hours, stand/walk for zero to one hour, could occasionally lift up to five pounds and could never carry any weight. Dr. Yambo assessed that Smollins could not perform low-stress work, and he checked boxes indicating that Smollins was limited in working due to psychological limitations and needed to avoid noise, extreme temperature and heights. She could not push, pull, kneel, bend or stoop. Id. at 319-24.

On October 12, 2009, Smollins complained to Dr. Yambo of leg pain, swollen legs and feet, and elevated cholesterol. Her blood pressure was 140/100. She saw Dr. Yambo again on November 27, 2009, complaining of a burning sensation, pain and numbness in her right leg. Dr. Yambo indicated that Smollins's present illness included pain in her knees, joints and back, as well as CAD. Dr. Yambo examined Smollins and checked boxes indicating that he found no abnormalities. Id. at 309-12.

Between the latter two visits, on November 11, 2009, Dr. Paul Lee of the Good Samaritan Center wrote to Dr. Yambo with the results of a cardiac catheterization he had performed on Smollins. Dr. Lee reported that Smollins had "a 100% occlusion of the LAD and the RCA with non-obstructive disease of the circumflex," her LAD proper was "receiving blood supply from a bypass graft which was widely patent," and the "bypass to the RCA appeared to be occluded but the distal RCA was being supplied by collaterals from the left coronary system." He further stated that Smollins had "preserved left ventricular function" and "is stable from a cardiac point of view," but he "recommend[ed] aggressive medical therapy." Id. at 287. In the report attached to his November 11, 2009 letter, Dr. Lee further recommended "risk factor modification" and stated that Smollins had "significant two-vessel disease involving the lad and RCA." Id. at 289.

Occlusion, in the vascular context, refers to blockage of a blood vessel. See Medline Plus, Retinal Artery Occlusion (2010), The circumflex is a coronary artery; more specifically, it is a branch of the left main coronary artery., Circumflex Coronary Artery (2010),

A "patent" bypass graft is an unobstructed one, through which blood can flow. See Merriam-Webster Dictionary, Patent (last visited Aug. 25, 2011),

The Left Anterior Descending artery ("LAD") and the Right Coronary Artery ("RCA") are two of the three major coronary arteries that supply blood to the heart., Coronary Artery Disease (2010),

Dr. Yambo wrote a letter dated May 10, 2010, apparently in connection with Smollins's disability insurance application, stating that he had been treating Smollins for more than 20 years and that she had CAD, hypertension, circulatory problems, Crohn's disease, kidney disease and arthritis. He noted that in 2003, Smollins underwent EECP treatment to increase her collateral circulation, but the procedure provided her with only temporary relief. Dr. Yambo also observed that Smollins had been diagnosed with Crohn's disease many years earlier, but that it went into remission in 2005. Recently, Dr. Yambo stated, Smollins had been experiencing episodes of colitis, was feeling depressed and stressed, and was having two to three attacks of angina daily. Dr. Yambo further noted that Smollins had been "spilling blood and protein" in her urine, and that he had referred her to a kidney specialist. He also stated that Smollins had arthritis in her fingers, knees and toes, and had been experiencing attacks of gout that made it difficult for her to stand. Due to her arthritis, Smollins walked with a cane or walker. Her medications - aspirin, Exforge, Isosorgide ER, Metoprolol, Allopurinol, Triamterene HCTZ, and Nitroglycerin - caused side effects such as fatigue and severe headaches. He further related that Smollins was morbidly obese and that her attacks of colitis would make it impossible for her to remain at a desk. He opined that Smollins was disabled and unable to work full time, and that based on his recommendation, Smollins had retired in 2004. Id. at 326-27.


A. Standard of Review

To be found eligible for disability benefits, Smollins must show that, "by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months," 42 U.S.C. § 423(d)(1)(A), she "is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy," id. § 423(d)(2)(A). In reviewing the Commissioner's decision pursuant to 42 U.S.C. § 405(g), I assess whether his conclusions were supported by substantial evidence in the record and were based on the correct legal standards. Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation marks omitted). In determining whether the Commissioner's findings are supported by substantial evidence, "the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam).

Work may be substantial even if it is not full-time or if it generates less income or carries less responsibility than previous employment. See 20 C.F.R. § 404.1572(a). Work is gainful "if it is the kind of work usually done for pay or profit, whether or not a profit is realized." Id. § 404.1572(b). Activities such as household tasks, hobbies, therapy, school attendance, club activities or social programs generally are not considered to be substantial gainful activity. Id. § 404.1572(c).

In evaluating disability claims, the Commissioner follows a five-step process mandated by the Social Security regulations: (1) he considers whether the claimant is currently engaged in substantial gainful activity; (2) if not, he next considers whether the claimant has a "severe" impairment or combination of impairments, i.e., that significantly limits her physical or mental ability to do basic work activities; (3) if she does suffer from such an impairment, the Commissioner then inquires as to whether, based solely on medical evidence, she has an impairment listed in Appendix 1 of the regulations; if she does, the Commissioner will find her to be disabled without considering vocational factors such as age, education and work experience, applying a presumption that a claimant afflicted with a "listed" impairment is unable to perform substantial activity; (4) if the claimant does not have a listed impairment, the Commissioner assesses whether, despite the claimant's severe impairment(s), she has the residual functional capacity ("RFC") to perform her past work; and (5) if she is unable to perform her past work, the Commissioner then determines whether there is other work which she could perform. See DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); see also 20 C.F.R. § 404.1520(a)(4). The Social Security regulations define RFC as "the most you can still do despite your limitations" in a work setting, and in assessing RFC for claimants with multiple impairments, the Commissioner considers all of their "medically determinable impairments of which [he is] aware, including [their] medically determinable impairments that are not 'severe.'" 20 C.F.R. § 404.1545(a)(1), (2). The claimant bears the burden of proof in the first four steps of the sequential inquiry, while the Commissioner bears the burden in the last. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).

B. Analysis

1. The ALJ's Decision

ALJ Wurm performed the sequential analysis and reached the decision that Smollins was not disabled at step four. He found that Smollins had not engaged in substantial gainful activity since the October 10, 2004 onset date, despite her having earned $2,550 in income in 2005. R. at 15. He therefore proceeded with the evaluation process and found that Smollins had three severe impairments: CAD, obesity and hypertension. Id. At step three, ALJ Wurm determined that those impairments did not, either alone or in combination, meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. He then found at step four that Smollins "has the residual functional capacity to perform the full range of sedentary work," in that she can "lift[] no more than 10 pounds at a time and occasionally lift[] or carry[] articles like docket files, ledgers, and small tools." Id. Although ALJ Wurm referred to and briefly summarized the reports and observations of Drs. Yambo and Strovskaia, he "assign[ed] significant weight to the opinions of the State agency medical examiners" in reaching the conclusion that Smollins was not disabled; specifically, ALJ Wurm stated that he relied on such opinions "insofar as they agree with a decision of 'not disabled.'" Id. at 17. ALJ Wurm discounted Smollins's "statements concerning the intensity, persistence and limiting effects of [her] symptoms [as] not credible to the extent they are inconsistent with the above residual functional capacity assessment." Id. Finally, he found that Smollins could perform her past relevant work as a receptionist/office clerk, reasoning from the medical evidence that the impairments stemming from Smollins's heart disease, obesity and hypertension "are reasonably well controlled with medical management." Id. He further stated that the record lacked "sufficient documentation of subjective complaints or objective findings that would reduce claimant's residual functional capacity below that of sedentary work activity." Id. After comparing Smollins's RFC with "the physical and mental demands" of sedentary work as described in the Social Security regulations, he concluded that Smollins was able to perform her past relevant work. Id.

2. The Treating Physician Rule

Under the treating physician rule set out in the Social Security regulations, a treating physician's opinion about the nature and severity of a claimant's impairments is entitled to "controlling weight" if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993) (upholding the regulations setting forth the Social Security Administration's treating physician rule). When the Commissioner does not give controlling weight to a treating physician's opinion, he must reach his determination as to how much weight to give it by applying various factors listed in the regulations, including the length of the treatment relationship and the frequency of examination, 20 C.F.R. § 404.1527(d)(2)(i), the nature and extent of the treatment relationship, id. § 404.1527(d)(2)(ii), the opinion's evidentiary supportability and its consistency with the record as a whole, id. § 404.1527(d)(3), (4), and whether the treating physician is a specialist in the medical field(s) relevant to the claimant's impairments, id. § 404.1527(d)(5). See also id. § 404.1527(d)(6) (identifying other factors to be taken into consideration). The Commissioner must also provide "good reasons" in his decision for the weight he ultimately accords the opinion of the treating source. Id. § 404.1527(d)(2); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). This requirement "greatly assists [my] review of the Commissioner's decision and 'let[s] claimants understand the disposition of their cases.'" Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). Remand is appropriate when "the Commissioner has not provided 'good reasons' for the weight given to a treating [physician's] opinion." Id.

Here, ALJ Wurm quoted portions of the reports and progress notes of treating physicians Drs. Yambo and Strovskaia in his decision, but he did not provide any reasons for disregarding their opinions on the extent of the limitations caused by Smollins's heart disease and other impairments and on her inability to work. He justified his rejection of Dr. Strovskaia's opinion that Smollins "cannot do competitive work or be employed [because] she is disabled" with the conclusory statement, "this opinion is not well supported by a preponderance of the medical evidence of record." R. at 17. By contrast, ALJ Wurm quite clearly gave controlling weight to the opinions of the two non-examining consultants, explaining that he relied on those opinions "insofar as they agree with a decision of 'not disabled.'" Id. Even putting aside the fact that these consultative opinions were far from illuminating on Smollins's capacity to work - in particular, Dr. Fuller's report consisted of one sentence affirming Dr. Platter's assessment, see 20 C.F.R. § 404.1527(d)(3) ("[B]ecause nonexamining sources have no examining or treating relationship with [the claimant], the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions.") - ALJ Wurm's perfunctory explanation for his reliance on such opinions and his rejection of the treating physicians' evaluations cannot withstand judicial scrutiny. For this reason alone, I would remand. See Halloran, 362 F.3d at 33 ("[W]e will continue remanding when we encounter opinions from [ALJs] that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion.").

On remand, the ALJ should explain how the restrictions noted by Drs. Yambo and Strovskaia in their reports, letters and progress notes - apart from their opinions that Smollins was disabled - factored into his or her determination as to whether Smollins is entitled to disability insurance benefits. If those treating physicians' opinions are not accorded controlling weight, the ALJ must explain what weight, if any, they were given, and must set forth the reasons for his or her determination.

3. The Credibility Assessment

Although ALJ Wurm found that Smollins's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," he rejected her "statements concerning the intensity, persistence and limiting effects of these symptoms . . . to the extent they are inconsistent with the above residual functional capacity assessment." R. at 17. In determining whether a claimant is disabled, the Commissioner must consider subjective evidence of pain or disability to which the claimant testifies, but "may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citations omitted). The Social Security regulations set forth a two-step process for evaluating a claimant's assertions of pain and other limitations:

At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce

the symptoms alleged. . . . If the claimant does suffer from such an impairment, at the second step, the ALJ must consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record. The ALJ must consider statements the claimant or others make about his impairments, his restrictions, his daily activities, his efforts to work, or any other relevant statements he makes to medical sources during the course of examination or treatment, or to the agency during interviews, on applications, in letters, and in testimony in its administrative proceedings.

, 606 F.3d at 49 (quotation marks, citations and brackets omitted) (citing 20 C.F.R. §§ 404.1529(a), (b), 404.1512(b)(3) and S.S.R. 96-7p).

ALJ Wurm's analysis of Smollins's credibility is flawed not only in its brevity, but also in its acceptance as a foregone conclusion of Smollins's capacity to perform sedentary work. Instead of comparing Smollins's symptoms, as described by Smollins herself and her doctors, to the objective medical and other evidence of record as required by the Social Security regulations, ALJ Wurm merely compared Smollins's statements regarding her symptoms to his own RFC assessment. He found that her statements on this score were not credible due to their inconsistency with his finding that she could perform the full range of sedentary work, and further observed that the medical record lacked "sufficient documentation of subjective complaints or objective findings that would reduce claimant's residual functional capacity below that of sedentary work activity." R. at 17. ALJ Wurm failed to follow the dictates of the Social Security regulations in performing his credibility assessment.

When her testimony is assessed properly, Smollins's complaints of pain and other symptoms are amply supported by objective, undisputed medical evidence. She complained of frequent angina pain; it is undisputed that her two angioplasties failed. She complained of frequent pain in her right leg, which causes swelling that requires her to elevate the leg; it is undisputed that a vein was removed from that leg during one of her bypass surgeries. Moreover, a claimant with Smollins's extensive work history - she worked for approximately 30 years before Dr. Yambo advised her to retire due to her physical condition in 2004 - "is entitled to substantial credibility when claiming an inability to work because of a disability." Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983). If, on remand, the Commissioner continues to find Smollins's testimony incredible, he must cite to specific record evidence contradicting her statements regarding the nature and extent of her symptoms.

4. The New Evidence

Smollins challenges the Appeals Council's determination that the new evidence she submitted from Dr. Yambo from 2009 and 2010 - namely, Dr. Yambo's September 2009 Cardiac Impairment Questionnaire and his May 2010 narrative report - did not provide a basis for reversing or modifying ALJ Wurm's decision. She argues that this evidence was material to the determination of her disability claim because, unlike prior evidence from Dr. Yambo, this evidence contained his opinion that Smollins's functional limitations would preclude her from performing even sedentary work. The Commissioner argues persuasively that this evidence falls short of the stringent standard set by the Social Security Act for remanding based on new evidence alone, see 42 U.S.C. § 405(g) ("The court . . . may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . ."); Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (new evidence is "material" if (1) it is "relevant to the claimant's condition during the time period for which benefits were denied," (2) it is "probative," and (3) there is "a reasonable possibility that the new evidence would have influenced the Commissioner to decide claimant's application differently" (quotation marks and brackets omitted)). However, because I have decided to remand for other reasons, I find it appropriate to direct the Commissioner to consider the new evidence at issue as part of the record on remand.

5. Further Development of the Record

The Commissioner should also undertake to develop the administrative record further on remand. An ALJ deciding a claim for disability benefits is required to "affirmatively develop the record," Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quotation marks omitted), and "[t]his duty arises from the Commissioner's regulatory obligations to develop a complete medical record before making a disability determination," id. Here, both the parties and various doctors whose reports appear in the record acknowledge that Smollins's pre-2004 medical record was lost at some point in the proceedings below. I direct the Commissioner to locate and consider the pre-2004 medical evidence that is relevant to Smollins's current claim.

Smollins also argues that ALJ Wurm failed to take into account her obesity in making his disability determination. Although I do not find ALJ Wurm's relative reticence on Smollins's obesity to be a compelling ground for remand on its own, I do direct the Commissioner on remand to provide an express analysis of how Smollins's obesity - along with each of her other impairments - factors into his determination as to whether she is entitled to disability insurance benefits. --------


For the foregoing reasons, Smollins's motion is granted and the Commissioner's motion is denied. The Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion.

So ordered.

John Gleeson, U.S.D.J. Date: September 1, 2011

Brooklyn, New York