Emerick v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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-B-R---A NDON EMERICK, :

MEMORANDUM

Plaintiff, :

DECISION AND ORDER

:

-against -

: 19-CV-2826

ANDREW M. SAUL, Commissioner of Social

:

Security,

:

Defendant.

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ANN M. DONNELLY, United States District Judge:

The plaintiff appeals the Commissioner of Social Security’s decision that he is not

disabled for purposes of receiving Social Security Income (“SSI”) payments under Title XVI of

the Social Security Act. For the reasons set forth below, I grant the plaintiff’s motion for

judgment on the pleadings, deny the Commissioner’s cross-motion, and remand the case for

further proceedings.

BACKGROUND

On July 31, 2015, the plaintiff filed an application for SSI with an onset date of June 1,

2002, alleging disability due to patellofemoral femur dysfunction, arthritis and post-traumatic

stress disorder (“PTSD”). (Tr. 15, 52.)

The 49-year-old plaintiff says he began experiencing knee pain at the age of eleven, and

underwent arthroscopic surgery in both knees as a teenager. (Tr. 214.)1 He says he has constant

dull pain in both knees that at times becomes “hot, burning, sore, sharp.” (Tr. 40, 214.) His knee

pain keeps him from working or using public transportation, and limits his ability to stand, sit or

walk for more than ten or twenty minutes at a time. (Tr. 37, 41-42, 160.) The plaintiff also says

1 The plaintiff has a graduate degree in English and media studies. (Tr. 37-38.)

he has a history of anxiety and depression, and that he developed PTSD after he “almost

drown[ed]” in his apartment during Hurricane Sandy. (Tr. 259.) Because of these conditions,

the plaintiff has not worked since 2001.

The plaintiff’s SSI request was denied on November 19, 2015. (Tr. 61-64.)

Administrative Law Judge (“ALJ”) James Kearns held a hearing on April 8, 2017, at which the

pro se plaintiff testified. (Tr. 28.) The plaintiff brought a friend who also spoke about the

plaintiff’s condition. (Tr. 40-41, 43-47.) Finally, a vocational expert testified about jobs

available for someone with the plaintiff’s limitations. (Tr. 48-52.)2 The plaintiff told the ALJ

that he “noticed that there were a lot of records missing,” and the ALJ confirmed that he was

“going to make sure” he got “any medical records that [he] need[s] . . .” (Tr. 31.) After the

hearing, the ALJ issued a subpoena to the plaintiff’s treating orthopedist, Dr. Ronald Chase,

requesting “all records from January 2017 to the present” and “a medical source statement.” (Tr.

101-112.)

ALJ Kearns denied the plaintiff’s claim in a September 11, 2017 decision. (Tr. 15-24.)

The ALJ found that while the plaintiff had severe impairments, including degenerative joint

disease of the knees and PTSD, he was not eligible for SSI. (Tr. 17.) ALJ Kearns described the

plaintiff’s treatment history as “weak,” and concluded that the consulting physicians’

assessments were not supported by objective evidence in the record. (Tr. 23-24.) ALJ Kearns

also determined that the plaintiff had the residual functional capacity (“RFC”) to perform

sedentary work with certain limitations, including standing and shifting position for up to five

minutes each hour, avoiding extreme temperatures, doing only simple tasks, and having only

occasional interactions with coworkers and the public. (Tr. 19.)

2 The plaintiff also posed a series of questions to the vocational expert about the nature of the available

jobs and what they entailed. (Tr. 48-50.)

On March 6, 2019, the Appeals Council denied the plaintiff’s request for review. (Tr. 1-

5.) The plaintiff, represented by counsel, filed this action on May 8, 2019, and both parties

moved for judgment on the pleadings. (ECF Nos. 1, 13, 18.)

STANDARD OF REVIEW

A district court reviewing a final decision of the Commissioner “must determine whether

the correct legal standards were applied and whether substantial evidence supports the decision.”

Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), as amended on reh’g in part, 416 F.3d 101

(2d Cir. 2005). If there is substantial evidence in the record to support the Commissioner’s

factual findings, they are conclusive and must be upheld. 42 U.S.C. § 405(g). “Substantial

evidence” means “more than a mere scintilla. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (quotation marks

omitted).

The court must defer to the Commissioner’s factual findings when they are “supported by

substantial evidence,” but not “[w]here an error of law has been made that might have affected

the disposition of the case.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting

Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)) (citations omitted). “Even if the

Commissioner’s decision is supported by substantial evidence, legal error alone can be enough to

overturn the ALJ’s decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009)

(citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). Moreover, the district court should

remand if “the Commissioner has failed to provide a full and fair hearing, to make explicit

findings, or to have correctly applied the . . . regulations.” Manago v. Barnhart, 321 F. Supp. 2d

559, 568 (E.D.N.Y. 2004). “Where there are gaps in the administrative record or the ALJ has

applied an improper standard, or when the ALJ’s rationale is unclear in light of the record

evidence, remand to the Commissioner for further development of the evidence or for an

explanation of reasoning is warranted.” Gonzales v. Comm’r of Soc. Sec., No. 17-CV-1976,

2017 WL 7310391, at *8 (S.D.N.Y Aug. 24, 2018) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d

Cir. 1996)).

DISCUSSION

The plaintiff argues that the ALJ should have gotten records from the plaintiff’s treating

physician, Dr. Ronald Chase, and objects to the weight the ALJ assigned to the consultative

physicians’ opinions. He also says that the ALJ did not properly evaluate his statements about

his physical condition. Finally, the plaintiff challenges the ALJ’s appointment. I agree that the

record must be supplemented to include Dr. Chase’s evaluation, which may have an impact on

the ALJ’s view of the plaintiff’s credibility. I reject the plaintiff’s claim about the ALJ’s

appointment.

I. Duty to Develop the Record

Orthopedic surgeon Dr. Ronald Chase began treating the plaintiff in July of 2015 for

bilateral knee pain and stiffness. (Tr. 155, 244.) Although Dr. Chase appears to be one of the

few doctors who had a consistent treatment relationship with the plaintiff, the record includes

only imaging results and one treatment note dated January 4, 2016. (Tr. 221-22.) Imaging

showed “mild bilateral medial and patellofemoral compartment degenerative joint disease with

marginal bony productive change[,]” and “moderate bilateral lateral compartment degenerative

joint disease with marginal bony productive change.” (Tr. 224.) After the plaintiff’s first visit,

Dr. Chase diagnosed him with degenerative joint disease and spur formation in both knees. Dr.

Chase continued to treat the plaintiff in 2015 and 2016, and prescribed Meloxicam and Celebrex

to treat his knee pain. (Tr. 189.) Describing the plaintiff’s prognosis as “guarded,” Dr. Chase

commented that he was treating the plaintiff for bilateral patellofemoral arthrosis and bilateral

maltracking patella, “chronic conditions which severely limit[] the patient’s ability to walk and

do similar activities;” the plaintiff’s condition was “expected to worsen with time,” and he might

“need surgery for total knee replacement.” (Tr. 222.)3 In 2017, Dr. Chase took X-rays of the

plaintiff’s knees and, according to the plaintiff, told him that he would need full knee

replacements within two years. (Tr. 188-89, 223.) The record does not include Dr. Chase’s

opinion about the effect of the plaintiff’s knee problems or his ability to sit or stand.

“[T]he ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the

essentially nonadversarial nature of a benefits proceeding.” Brown v. Astrue, No. 07-CV-3416,

2009 WL 301942, at *3 (E.D.N.Y. Feb. 6, 2009) (quoting Batista v. Chater, 972 F. Supp. 211,

217 (S.D.N.Y. 1997) (quotations omitted). The ALJ “is under a heightened duty to develop the

record where . . . the claimant proceeds pro se.” Id. (citations omitted). “In such pro se

proceedings, the ALJ’s affirmative duty requires not only requesting reports from treating

physicians, but mak[ing] every reasonable effort to obtain . . . a report that sets forth the opinion

of that treating physician as to the existence, the nature and the severity of the claimed

disability.” Villarreal v. Colvin, No. 13-CV-6253, 2015 WL 6759503, at *21 (S.D.N.Y. Nov. 5,

2015) (citations omitted). “Reasonable effort” includes not only seeking medical records from

treating physicians, but also issuing and enforcing subpoenas and “advising the plaintiff of the

importance of the evidence.” Jones v. Apfel, 66 F. Supp. 2d 518, 524 (S.D.N.Y. 1999); see also

42 U.S.C. § 405(d); see also Connor v. Barnhart, No. 02-CV-2156, 2003 WL 21976404, at *5

(S.D.N.Y. Aug. 18, 2003) (“[R]aw data or even complete medical records are insufficient by

3 “Guarded prognosis refers to a prognosis given by a physician [expressing that] the outcome of a

patient’s illness is in doubt.” Coleman v. Comm’r of Soc. Sec., No. 15-CV-6624, 2017 WL 1155785, at

*4 n.5 (E.D.N.Y. Mar. 27, 2017) (quoting Taber’s Cyclopedic Medical Dictionary, 914 (21st ed. 2009)).

themselves to fulfill the ALJ’s duty.”) (quotations and citation omitted). “Until he satisfies this

threshold requirement, the ALJ cannot even begin to discharge his duties to the pro se claimant

under the treating physician rule.” Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991).

The Commissioner does not dispute that Dr. Chase’s records are important, but maintains

that the ALJ fulfilled his duty to develop the record by issuing a subpoena to Dr. Chase for the

plaintiff’s medical records and an assessment of the plaintiff’s physical condition. (ECF No. 20

at 1-2.) While the subpoena was important, it was also necessary to follow up, either by taking

steps to enforce the subpoena or by letting the plaintiff know that the record was still incomplete.

Nor did the ALJ “advise the claimant that ‘he considered his case unpersuasive, and . . . suggest

that he produce additional medical evidence or call [his treating physician] as a witness.’”

Carroll v. Sec. of Dept. of Health & Human Servs. of U.S., 872 F. Supp. 1200, 1204 (E.D.N.Y.

1995) (quoting Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1982)) (remanding

where ALJ issued subpoena to treating physician, but did not enforce the subpoena or tell the

plaintiff to attempt and obtain the records or call the physician as a witness); Suriel v. Comm’r of

Soc. Sec., No. 05-CV-1218, 2006 WL 2516429, at *6 (E.D.N.Y. Aug. 29, 2006) (finding

reasonable efforts to “entail[] more than merely twice requesting medical reports from treating

physicians”).

Of course, the ALJ may very well decide after he reviews the additional records that Dr.

Chase’s opinion does not merit controlling weight under the treating physician rule.4 That

decision is for the Commissioner.5 Should the ALJ determine on remand not to give Dr. Chase’s

4 The treating physician rule applies because the plaintiff filed his claim before March 27, 2017. See 20

C.F.R. § 404.1527.

5 ALJ Kearns assigned little weight to Dr. Chase’s opinion because there was no objective evidence to

support Dr. Chase’s finding, and because of a discrepancy between Dr. Chase’s findings and the

conclusions of the consultative examiner. Without all of Dr. Chase’s records, however, there is no way to

determine whether there is a discrepancy, and if there is, which opinion deserves greater weight.

opinion controlling weight, he should explain why. See Halloran v. Barnhart, 362 F.3d 28, 33

(2d Cir. 2004) (“We do not hesitate to remand when the Commissioner has not provided ‘good

reasons’ for the weight given . . . and we will continue remanding when we encounter opinions

from ALJ[s] that do not comprehensively set forth reasons for the weight assigned to a treating

physician’s opinion.”).

The plaintiff also challenges the ALJ’s decision to assign partial weight to the medical

opinions of the two physicians who examined the plaintiff—the consultative examiner, Dr.

Shannon Gearheart, and the consultative psychologist, Dr. Johanina McCormick. (ECF No. 19

at 12-14.) While neither physician treated the plaintiff, both evaluated him before the hearing.

The plaintiff argues that in assessing his residual functional capacity, the ALJ did not account for

Dr. Gearheart’s opinion that the plaintiff had “marked limitations for squatting, kneeling,

climbing, repetitive stair climbing, prolonged walking, and standing” and “moderate limitations

for heavy lifting, carrying, and prolonged sitting.” (Tr. 218.)6 He also argues that Dr.

McCormick’s opinion merited more than partial weight because she opined that the plaintiff’s

mild to marked cognitive impairment “could interfere with [his] ability to function on daily

basis.” (Tr. 211.)

The ALJ gave both opinions the appropriate weight. Neither physician treated the

plaintiff, and their opinions were not entitled to controlling weight. The ALJ cited the evidence

6 According to the plaintiff, Dr. Gearheart’s findings about the plaintiff’s moderate limitations “for heavy

lifting, carrying, and prolonged sitting” are inconsistent with the ALJ’s conclusion that the plaintiff can

perform sedentary work. (ECF No. 19 at 12.) However, courts in this circuit have held that a claimant

can perform sedentary work even with a moderate limitation. See Carroll v. Colvin, No. 13-CV-456S,

2014 WL 2945797, at *4 (W.D.N.Y. June 30, 2014) (“[C]ourts have upheld an ALJ’s decision that the

claimant could perform light or sedentary work even where there is evidence that the claimant has

moderate difficulties in prolonged sitting or standing.”) (citations omitted); see also Cottrell v. Comm’r of

Soc. Sec., 17-CV-6893, 2019 WL 201508, at *4-5 (upholding ALJ’s finding that claimant could walk or

stand for 6 hours during an 8 hour workday even though the ALJ did not discuss claimant’s moderate

limitation for walking and standing).

that supported his conclusions about the weight he assigned to each opinion, and accounted for

each doctor’s observations about the plaintiff’s limitations in his RFC determination.7

“[W]hether there is substantial evidence supporting the appellant’s view is not the question here;

rather, we must decide whether substantial evidence supports the ALJ’s decision.” Bonet ex rel.

T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013); see also Rutherford v. Schweiker, 685 F.2d

60, 62 (2d Cir. 1982) (“On an appeal such as this, we are faced with a simple reality which

appellants often overlook, namely, that factual issues need not have been resolved by the

[Commissioner] in accordance with what we conceive to be the preponderance of the evidence”).

The ALJ cited evidence in the record that supported his decision to assign limited weight to both

opinions, and those findings were not contrary to the objective evidence in the record.

II. Credibility Determination

“Evidence of pain is an important element in the adjudication of DIB and SSI claims, and

must be thoroughly considered in calculating the RFC of a claimant.” Meadors v. Astrue, 370 F.

App’x 179, 183 (2d Cir. 2010) (unpublished). If the “claimant’s pain contentions are not

substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry.”

Id. When determining credibility, the ALJ considers the following factors:

(1) the claimant’s daily activities; (2) the location, duration,

frequency, and intensity of claimant’s pain; (3) precipitating and

aggravating factors; (4) the type, dosage, effectiveness, and side

effects of any medication claimant takes to relieve symptoms; (5)

treatment, other than medication, received by claimant for relief of

pain; (6) any other measures claimant takes to relieve pain or other

symptoms; and (7) other factors concerning claimant’s functional

limitations and restrictions due to pain.

20 C.F.R. § 404.1529(c)(3)(i)-(vii).

7 For example, ALJ Kearns accounted for Dr. Gearheart’s opinions about the plaintiff’s limitations by

specifying that when performing sedentary work, the “claimant must have the option to stand and shift

positions for up to five minutes per hour.” (Tr. 19.)

The plaintiff testified that his pain and other symptoms kept him from sitting or standing,

and that he could only walk two blocks at a time and had trouble going up and down stairs. (Tr.

36-44.)8 Apart from daily at-home physical therapy exercises, the plaintiff “[did not] do much”

aside from basic errands around the house. (Tr. 43.) He did not believe that he could work in a

job that required him to sit for eight hours because the pain in his knees would keep him from

concentrating. (Tr. 50.) The plaintiff also said that PTSD kept him from sleeping well and that

concentration would “definitely [be] an issue that [he] would have with pretty [much] any

position.” (Tr. 50.) The plaintiff argues that the ALJ gave insufficient consideration to his

subjective complaints about his pain, his limited range of motion, his restricted daily activities

and his cognitive difficulties. (ECF No. 19 at 15-19.)

The ALJ concluded that the plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms,” but that the “[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 . . . .” (Tr. 20.) The ALJ

noted the plaintiff’s subjective claims of pain, but did not discuss or refer to the other relevant

credibility factors, such as the plaintiff’s account of his day-to-day activities. Nor did ALJ

Kearns specify the extent to which he credited the plaintiff’s testimony. See Kane v. Astrue, 942

F. Supp. 2d 301, 314 (E.D.N.Y. 2013) (finding the ALJ committed legal error by not referring to

any of the credibility factors listed in 20 C.F.R. § 404.1529(c)(3)); Grosse v. Comm’r of Soc.

Sec., No. 08-CV-4137, 2011 WL 128565, at *5 (E.D.N.Y. Jan. 14, 2011) (finding the ALJ

committed legal error when he failed to consider factors 2 through 7 of the credibility factors).

8 The plaintiff also claimed that he could not use public transportation and had to rely on a friend to drive

him to appointments because he “can’t sit for . . . long periods of time,” (Tr. 36), but his friend seemed to

attribute this in part to the lack of suitable public transportation in his neighborhood. (Tr. 37.)

On remand, “after the ALJ reassesses the opinion[] of the . . . treating physician[] and obtains

additional information as needed to resolve any inconsistencies or ambiguities, the ALJ must

likewise reassess the credibility of [the claimant’s] subjective complaints.” Demera v. Astrue,

No. 12-CV-432, 2013 WL 391006, at *4 (E.D.N.Y. Jan. 24, 2013). If the ALJ still finds that the

plaintiff’s statements are inconsistent with the medical evidence, including Dr. Chase’s detailed

opinion, he should explain why he reached that conclusion and include a specific credibility

determination.

III. Challenge to ALJ’s Appointment

Citing Lucia v. Securities Exchange Commission, in which the Supreme Court held that

ALJ officers employed by the Securities and Exchange Commission must be properly appointed,

138 S. Ct. 2044, 2053 (2018), the plaintiff argues that the appointment of the ALJ was

unconstitutional. (ECF No. 19 at 19-24.) The plaintiff acknowledges that he did not raise this

issue before the ALJ or Appeals Council, and is raising it for the first time in this appeal. (Id.)9

I agree with the majority of courts that “have concluded that exhaustion before the ALJ

is required.” Bonilla-Bukhari v. Berryhill, 357 F. Supp. 3d 341, 351 (S.D.N.Y. 2019) (collecting

cases); see, e.g., Nestor v. Comm’r of Soc. Sec., No. 19-CV-580, 2019 WL 4888649, at *3

(E.D.N.Y. Oct. 3, 2019) (plaintiff waived his challenge when he failed to bring his Appointments

Clause challenge at the administrative level); McMorris v. Comm’r of Soc. Sec., No. 6:18-CV-

6118, 2019 WL 2897123, at *11 (W.D.N.Y. June 26, 2019) (“If plaintiff wanted to contest the

ALJ’s appointment, the matter should have first been brought up in administrative proceeding,

not in federal court.”); Kevin F. v. Comm’r of Soc. Sec., No. 5:18-CV-1454, 2019 WL 247323, at

*7 (N.D.N.Y. Jan. 16, 2019) (“[B]y failing to raise this issue in the agency, this court agrees that

9 He adds that the Court “need not consider his appointments clause challenge should it find remand

necessary for other reasons.” (ECF No. 21 at 3.)

plaintiff in this case has waived consideration of the constitutionality of the ALJ’s

appointment.”). Consistent with the majority view, I find that the plaintiff waived this claim

because he did not raise it below.

CONCLUSION

The plaintiff’s motion for judgment on the pleadings is granted. The Commissioner’s

motion for judgment on the pleadings is denied. The case is remanded for further proceedings

consistent with this opinion.

SO ORDERED.

s/Ann M. Donnelly

___________________________

Ann M. Donnelly

United States District Judge

Dated: Brooklyn, New York

August 5, 2020