Blowe v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CECIL B. BLOWE,

Plaintiff,

MEMORANDUM & ORDER

-against- 19-CV-2658 (JS)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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APPEARANCES

For Plaintiff: John W. DeHaan, Esq.

The DeHaan Law Firm P.C.

300 Rabro Drive East, Suite 101

Hauppauge, New York 11788

For Defendant: Dara A. Olds, Esq.

United States Attorney’s Office

Eastern District Of New York

271 Cadman Plaza East

Brooklyn, New York 11201

SEYBERT, District Judge:

Plaintiff Cecil B. Blowe (“Plaintiff”) brings this

action pursuant to Section 205(g) of the Social Security Act (the

“Act”), 42 U.S.C. § 405(g), challenging the Commissioner of Social

Security’s (the “Commissioner”) denial of his application for

Social Security Disability Insurance Benefits. (Compl., D.E. 1.)

Currently pending before the Court are the parties’ cross-motions

for judgment on the pleadings. (Pl. Mot., D.E. 12; Pl. Br., D.E.

12-1; Comm’r Mot., D.E. 16; Comm’r Br., D.E. 16-1; Pl. Reply, D.E.

17.) The only dispute is whether the case should be remanded for

further administrative proceedings or for the calculation of

benefits. For the following reasons, Plaintiff’s motion is DENIED,

the Commissioner’s motion is GRANTED, and this matter is REMANDED

for further proceedings.

BACKGROUND1

I. Procedural History

On February 15, 2011, Plaintiff, a former police

officer, filed a Title II application for a period of disability

and disability insurance benefits alleging disability beginning

June 24, 2010. (R. 94.) That claim was denied. (R. 91-100.) On

October 1, 2013, Plaintiff submitted another application alleging

disability beginning March 1, 2012, and was approved for a closed

period through April 9, 2015. (R. 115-37.)

As for the current appeal, on November 25, 2015,

Plaintiff completed an application for disability insurance

benefits alleging disability since June 6, 2015.2 (R. 294-95.)

Plaintiff’s claim was denied (R. 188-99) and he requested a hearing

before an Administrative Law Judge (“ALJ”) (R. 200-01). On

April 2, 2018, Plaintiff, accompanied by counsel, and a vocational

expert, appeared at a hearing before the ALJ. (R. 60-90.)

1 The background is derived from the administrative record.

(“R.”, D.E. 8.) For purposes of this Memorandum and Order,

familiarity with the administrative record is presumed. The

Court’s discussion of the evidence is limited to the challenges

and responses raised in the parties’ briefs.

2 In a January 14, 2016 application, Plaintiff alleged disability

as of July 1, 2015. (R. 296-97.)

In a decision dated April 17, 2018, the ALJ found that

Plaintiff was not disabled. (R. 10-18.) On March 18, 2019, the

Social Security Administration’s Appeals Council denied

Plaintiff’s request for review and the ALJ’s decision became the

final decision of the Commissioner. (R. 1-6.) This action

followed. (See Compl.)

II. The Medical and Opinion Evidence

Plaintiff alleges to suffer from injuries to his left

knee status post surgeries, left shoulder status post-surgery,

left hand status post surgeries, and cervical spine status post

discectomy and fusion at C4-C5, C5-C6, and C6-C7. (Compl. ¶ 4.)

Plaintiff submitted treatment records containing raw medical data

and/or bare medical findings such as medication notes, diagnosis,

examination findings, electronic imaging, operation reports,

Plaintiff’s reports of pain, and documents submitted in connection

with a workers’ compensation claim from: (1) Dr. Phillippe

Vaillancourt, a neurology and pain management physician (R. 405-

411); (2) Dr. Paul M. Brisson, an orthopedic surgeon, who

performed Plaintiff’s March 11, 2016 spinal surgery (anterior

cervical discectomy and fusion, C4-C5, C5-C6 and C6-C7 with SSEP3)

3 “SSEP” stands for “Somatosensory Evoked Potential,” which is a

test showing the electrical signals of sensation going from the

body to the brain and spinal cord. See

https://www.spine.org/KnowYourBack/Treatments/Assessment-

Tools/Specialized-Nerve-Tests (last visited May 20, 2020).

(R. 42-59, 413-419, 486-88, 604-05, 608-12, 646-62);

(3) Dr. Morgan Chen, an orthopedic surgeon (R. 666-69; 991-92);

(4) Dr. M. Ather Mirza, an orthopedic hand surgeon, who performed

carpal tunnel surgery on Plaintiff’s left thumb and finger on

September 20, 2011, and exploratory surgery of the left little

finger, released the transverse lamina, and realigned the extensor

tendon to prevent subflex of the left little finger on

March 19, 2015 (R. 596-602, 614-41, 842-45, 993-94); and

(5) Dr. Gus Katsigiorgis,4 an orthopedic surgeon, who performed a

left knee arthroscopic surgery, a partial medial meniscectomy,

synovectomy suprapatellar space, and excision of medial

suprapatellar plica on September 17, 2010 and another knee surgery

on September 12, 2014 (R. 423-57, 489-91, 542-44, 549-93, 673-841,

846-959).

Dr. Katsigiorgis is the only treating-physician who

submitted a “Medical Source Statement of [Plaintiff]’s Ability to

Do Work-Related Activities (Physical).”5 (R. 995-1001.) He

indicated that Plaintiff began treatment on January 21, 2010 and

4 Dr. Katsigiorgis’s records include numerous progress notes and

records from physical therapists and a board-certified

physiatrist (Brett Silverman, D.O.) associated with his

practice.

5 Although he did not submit a formal Medical Source Statement,

Dr. Brisson wrote in a November 30, 2016 medical note that

Plaintiff “is totally disabled from his previous occupation and

he won’t be returning to work.” (R. 662.)

that Plaintiff’s limitations began at the earliest on

June 5, 2015. (R. 1000.) He opined that Plaintiff could

occasionally lift up to twenty pounds and occasionally carry five

to ten pounds. (R. 995.) He further opined that Plaintiff can

sit for one-hour and stand/walk for less than one hour without

interruption and in an eight-hour workday. (R. 996.)

Dr. Katsigiorgis opined that Plaintiff can occasionally climb

stairs, ramps, and balance but can never climb ladders or

scaffolds, stoop, kneel crouch, or crawl. (R. 997.) He also

stated that Plaintiff would be absent for five or more days in a

month due to his symptoms and that in an eight-hour workday,

Plaintiff would require unscheduled breaks every hour for 15

minutes. (R. 1000.) Dr. Katsigioris’s submitted a narrative

report to accompany his Medical Source Statement wherein he stated

that Plaintiff takes over-the-counter medication and oxycodone if

needed, that he “expect[s] [Plaintiff’s] disability to persist,”

and noted restricted range of motion with respect to Plaintiff’s

left knee, left shoulder, cervical spine, and left wrist/hand.

(R. 1002-04.)

Plaintiff also submitted records created in connection

with a workers’ compensation claim from: (1) Dr. James Morrissey,

an orthopedic surgeon, who evaluated Plaintiff on “multiple

occasions” and submitted two Independent Medical Examination

(“IME”) records dated March 6, 2014 and December 11, 2014 (R. 458-

60, 539-41); (2) Dr. Ish Kumar, a neurosurgeon, who performed four

IMEs on September 15, 2015, July 12, 2016, April 4, 2017, and

December 12, 2017 (R. 461-73, 961-74, 976-81, 982-87); and

(3) Dr. Raymond A. Shebairo, an orthopedic surgeon, who performed

an IME on December 4, 2015 (R. 494-502).

As relevant here, Dr. Morrissey opined that Plaintiff

“could do light activities such as desk work or reception type of

work.” (R. 460.) On April 4, 2017, Dr. Kumar noted that Plaintiff

takes “heavy doses of narcotic pain medicine” and that “[d]egree

of disability is total in view of the fact that he has multiple

area pain that are persistent despite his undergoing extensive

period of physical therapy and surgeries.” (R. 979-80.) In

another IME dated December 12, 2017, Dr. Kumar noted that

Plaintiff’s “[p]ain is severe” and that the “major problem” was

that Plaintiff “has pain now for a number of years and whether he

will have further surgeries done or it would improve. Several

options were considered including trying a TENS unit and if it

fails and surgery again is not indicated, then attempt at

implanting of a spinal cord stimulator if it works on trial basis,

then a permanent one can be implanted.” (R. 986.)

III. The ALJ’s Decision

The ALJ found that Plaintiff last met the insured-status

requirements on March 31, 2018. (R. 12.) Next, the ALJ applied

the familiar five-step disability analysis and concluded that

Plaintiff was not disabled from July 1, 2015, the alleged

disability-onset date, through March 31, 2018, the date last

insured. (R. 17.) At steps one through three, the ALJ found that

Plaintiff (1) had not engaged in substantial gainful activity

since the alleged onset date through the date of last insured,

(R. 12); (2) had severe impairments consisting of “left knee

impairment, status post left shoulder arthroscopies, degenerative

disc disease status post cervical discectomy and fusion and left

sided carpal tunnel syndrome”6 (R. 12-13); and (3) Plaintiff’s

impairments did not meet or medically equal the severity of any of

the impairments listed in Appendix 1 of the Social Security

regulations (R. 13).

The ALJ then determined that as of the date of last

insured, Plaintiff had the residual functional capacity (“RFC”):

[T]o perform sedentary work . . . except [Plaintiff] can

occasionally climb ramps or stairs but can never climb

ladders, ropes or scaffolds. [Plaintiff] can

occasionally balance, stoop, kneel, crouch and crawl.

He is unlimited in his ability to push and pull, but he

can frequently perform fine and gross movements with the

left arm. He can only occasionally reach overhead on

the left side. [Plaintiff] would need a break of up to

five minutes each hour to stand, stretch and change

positions.

(R. 13-16.) Proceeding to steps four and five, the ALJ found that

while at Step 4 Plaintiff is unable to perform his past relevant

6 The ALJ determined that Plaintiff’s headaches were not severe.

(R. 13.)

work as a police officer and a sergeant (R. 16), and at Step

5 considering his RFC, age,7 education, and work experience,

Plaintiff “had acquired work skills from past relevant work that

were transferrable to other occupations with job existing in

significant numbers in the national economy,” such as a police

aide, a referral information aide, and a radio dispatcher (R. 16-

17). In the alternative, the ALJ found there would “still be work

in significant numbers in the national economy,” such as a referral

information aide and radio dispatcher, when considering that

Plaintiff “cannot use the non-dominant left hand for fingering and

handling, cannot reach overhead and can only occasionally reach in

all directions.” (R. 17.) Thus, the ALJ determined that Plaintiff

was not disabled. (R. 17-18.)

A. The RFC Determination

In determining Plaintiff’s RFC, the ALJ reviewed

Plaintiff’s testimony and found that his “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms; however, [Plaintiff’s] statements concerning the

intensity, persistence and limiting effects of these symptoms are

not entirely consistent with the medical evidence and other

evidence in the record.” (R. 14.)

7 Plaintiff was 54 years old as of the date of last insured,

which is considered an individual closely approaching advanced

age, however, during the proceedings, his age category changed

to advanced age. (R. 16.)

The ALJ reviewed the medical record and concluded that

the “objective medical evidence and the [Plaintiff’s] course of

treatment did not generally support the extent of his allegations.”

(R. 14.) The ALJ repeatedly cited to Plaintiff’s “conservative

course of treatment” before and after the alleged onset date and

concluded that he is capable of a range of sedentary work.

(R. 14.) The ALJ also stated that “[a]lthough the claimant did

eventually require cervical discectomy and fusion, the

conservative treatment before and after that surgery did not

suggest greater limitations that the above range of sedentary

work.” (R. 14.)

The ALJ then assigned little weight to all “opinions

given prior to the alleged onset date,” (July 1, 2015). (R. 15.)

The ALJ then assigned little weight to statements made in treatment

notes by Dr. Mizra, Dr. Brisson, and Dr. Katsigiorgis. (R. 15.)

In each instance, the ALJ stated that “the issue of disability is

a determination reserved to the Commissioner,” their “opinions do

not specify vocational limitations to assess the extent of

[Plaintiff’s] limitations,” and “the course of treatment was not

consistent with” statements of disability. (R. 15.) The ALJ next

assigned little weight to the Medical Source Statement submitted

by Dr. Katsigiorgis because his statements “were not consistent

with the record as a whole.” (R. 15.)

The ALJ also summarized Plaintiff’s medical history and

stated that “after his surgeries, [Plaintiff] had conservative

management with physical therapy that ended in 2017 . . . [and] he

was only taking pain medication as needed, and at the hearing, he

said he takes this pain medication once per week along with over

the counter medication as needed. This conservative management

does not suggest greater limitations are warranted.” (R. 15-16.)

DISCUSSION

I. Standard of Review

In reviewing the ruling of an ALJ, the Court does not

determine de novo whether Plaintiff is entitled to disability

benefits. Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the

ALJ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). If

the Court finds that substantial evidence exists to support the

Commissioner’s decision, the decision will be upheld, even if

evidence to the contrary exists. See Johnson v. Barnhart, 269 F.

Supp. 2d 82, 84 (E.D.N.Y. 2003).

II. Analysis

The parties agree that remand is warranted. Plaintiff

argues that remand is necessary for the calculation of benefits

because the ALJ improperly dismissed his treating physicians’

opinions and instead relied upon her own interpretation of the

medical record.8 (Pl. Br. at 20-31.) The Commissioner concedes

that the ALJ “arbitrarily substitute[d] [her] own judgment for

competent medical opinion” and did not adequately explain the basis

for the RFC. (Comm’r Br. at 14-15.) The Commissioner argues,

however, that remand is warranted for further administrative

proceedings for a new decision “that permits meaningful judicial

review in relation to the evidence in the record” and because “the

record contains evidence that the Commissioner must consider, but

does not compel a conclusion that Plaintiff was disabled.” (Comm’r

Br. at 14-16.)

“The court shall have power to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or

reversing the decision of the Commissioner of Social Security,

with or without remanding the cause for a rehearing.” 42 U.S.C.

§ 405(g). Remand is warranted where “‘there are gaps in the

administrative record or the ALJ has applied an improper legal

standard’” and where “further findings or explanation will clarify

the rationale for the ALJ’s decision.” Coleson v. Comm’r of Soc.

Sec., No. 18-CV-02862, 2020 WL 1989280, at *3 (E.D.N.Y. Apr. 26,

2020) (quoting Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.

1999)). Where the record “provides persuasive proof of disability

and a remand for further evidentiary proceedings would serve no

8 In the alternative, Plaintiff requests a new hearing before a

different ALJ.

purpose, the court may reverse and remand solely for the

calculation and payment of benefits.” Id. (internal quotation

marks and citations omitted).

The Court finds that the appropriate remedy is to remand

for further proceedings because “the ALJ created a gap in the

record that [s]he was obligated to develop when [s]he rejected the

only medical opinion as to Plaintiff’s physical functional

capacity.” Jefferson v. Saul, No. 18-CV-1254, 2020 WL 2183095, at

*3 (W.D.N.Y. May 5, 2020). The ALJ assigned little weight to the

only treating physician, Dr. Katsigiorgis, who provided a Medical

Source Statement of Plaintiff’s “Ability to Do Work-Related

Activities.” (R. 15.) Moreover, the ALJ did not address or even

reference the IME records.9 Thus, the ALJ’s rejection of the only

medical opinion regarding “Plaintiff’s physical functional

capabilities left a significant gap in the record.” Judd v.

Berryhill, No. 17-CV-1188, 2018 WL 6321391, at *7 (W.D.N.Y. Dec. 4,

2018) (collecting cases). As such, the “ALJ should have obtained

a medical opinion from a qualified source, as her RFC could not

9 While some of the opinions and conclusions in the IME opinions

referenced standards relevant to workers’ compensation claims

and are “not binding on the ALJ’s determination, the opinions

still require analysis and weighing in accordance with SSA

regulations.” Chiesa v. Comm’r of Soc. Sec., No. 13-CV-1102,

2016 WL 1048996, at *9 (N.D.N.Y. Mar. 11, 2016) (citing Vincent

v. Shalala, 830 F. Supp. 126, 131 (N.D.N.Y. 1993) (stating that

“it was perfectly appropriate for the ALJ to weigh the reports

as he saw fit” where doctor’s opinions were made in context of

workers’ compensation)).

stand if unsupported by at least one medical opinion.” Arias v.

Saul, No. 18-CV-1296, 2020 WL 1989277, at *7 (E.D.N.Y. Apr. 25,

2020)

Further, the ALJ assigned little weight to a selection

of statements made in treatment notes from Plaintiff’s treating-

physicians. Under the relevant regulations, the Commissioner must

“make every reasonable effort” to assist the claimant in developing

a “complete medical history.” 20 C.F.R. § 404.1512(d). Indeed,

“‘it is the rule in our circuit that the ALJ, unlike a judge in a

trial, must herself affirmatively develop the record in light of

the essentially non-adversarial nature of a benefits proceeding.

This duty . . . exists even when, as here, the claimant is

represented by counsel.’” Arias, 2020 WL 1989277, at *7 (quoting

Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996)) (ellipsis in

original). The ALJ recognized that Dr. Brisson’s and Dr. Mizra’s

treatment notes did not “specify vocational limitations to assess

the extent of [Plaintiff]’s limitations.” (R. 15.) Instead of

using “that as an opportunity to further substantiate the record,

the ALJ simply discounted both opinions.” Rivera-Maysonet v.

Comm’r of Soc. Sec., No. 18-CV-1142, 2020 WL 813306, at *5

(W.D.N.Y. Feb. 19, 2020). Thus, if Plaintiff’s medical record was

inadequate, it was “the ALJ’s duty to seek additional information

from the [treating physician] sua sponte.” Arias, 2020 WL 1989277,

at *7 (internal quotation marks and citations omitted; alteration

in original).

Moreover, there is no doubt that Plaintiff’s lengthy

medical record contained evidence that he suffered from pain in

his knee, back, shoulder, and hand. However, the ALJ’s decision

demonstrates her “reliance upon her own lay opinion to determine

Plaintiff’s RFC, an error requiring remand.” Judd, 2018 WL

6321391, at *7 (“‘[A]n ALJ is not qualified to assess a claimant’s

RFC on the basis of bare medical findings, and as a result an[ ]

ALJ’s determination of RFC without a medical advisor’s assessment

is not supported by substantial evidence.’”) (quoting Wilson v.

Colvin, No. 13-CV-6286, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6,

2015)).

A “determination of Plaintiff’s entitlement to benefits

cannot be made without the Commissioner’s resolving the existing

gaps in the record” and “remand for administrative proceedings as

opposed to reversal for calculation of benefits is the appropriate

remedy in this case.”10 Rivera-Maysonet, 2020 WL 813306, at *6;

see also James C. v. Comm’r of Soc. Sec., No. 19-CV-0038, 2020 WL

103813, at *10 (D. Vt. Jan. 9, 2020). “The Court recognizes that

remanding this case for further proceedings will unfortunately

10 In light of this finding, the Court need not reach the merits

of Plaintiff’s remaining arguments. On remand, the Commissioner

can address the other claims of error not discussed herein.

delay the disposition of this case that has already been pending

for over five years. However, ‘absent a finding that the claimant

was actually disabled, delay alone is an insufficient basis on

which to remand for benefits.’” Rivera-Maysonet, 2020 WL 813306,

at *6 (quoting Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996)).

Finally, Plaintiff requests that the Court order the

Commissioner to assign a new ALJ to hear his case on remand. (Pl.

Br. at 35.) Pursuant to the Social Security Regulations, an ALJ

“shall not conduct a hearing if he or she is prejudiced or partial

with respect to any party or has any interest in the matter pending

for decision.” 20 C.F.R. § 404.940. Generally, it is within the

Commissioner’s discretion to decide whether to assign a different

ALJ on remand. Sutherland v. Barnhart, 322 F. Supp. 2d 282, 292

(E.D.N.Y. 2004) (citations omitted). Courts in this circuit order

the Commissioner to reassign a case to a new ALJ where the ALJ’s

conduct “gives rise to serious concerns about the fundamental

fairness of the disability review process[.]” Id. When making

this determination, courts consider factors such as: “(1) a clear

indication that the ALJ will not apply the appropriate legal

standard on remand; (2) a clearly manifested bias or inappropriate

hostility toward any party; (3) a clearly apparent refusal to

consider portions of the testimony or evidence favorable to a

party, due to apparent hostility to that party; [or] (4) a refusal

to weigh or consider evidence with impartiality, due to apparent

hostility to any party.” Id.

Here, other than requesting a new ALJ on remand,

Plaintiff does not argue, nor does the Court find, that the ALJ

will not comply with her obligations to impartially and completely

develop the record on remand. See id. (collecting cases). As

such, the Court defers to the Commissioner who “‘should consider

in his discretion whether the case warrants a ‘fresh look’ by a

new ALJ.’” Paul B. v. Comm’r of Soc. Sec., No. 18-CV-0498, 2019

WL 4305410, at *7 (N.D.N.Y. Sept. 11, 2019) (quoting Dioguardi v.

Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 300-01 (W.D.N.Y. 2006)).

CONCLUSION

Accordingly, Plaintiff’s motion (D.E. 12) is DENIED and

the Commissioner’s motion (D.E. 16) is GRANTED. This matter is

REMANDED for proceedings consistent with this Memorandum and

Order. The Clerk of the Court is directed to mark this case

CLOSED.

SO ORDERED

_/s/ JOANNA SEYBERT __

Joanna Seybert, U.S.D.J.

Dated: June 12__, 2020

Central Islip, New York