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Kearney v. Astrue

July 11, 2008

TIMOTHY J. KEARNEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Timothy Kearney sues Commissioner of Social Security Michael Astrue under 42 U.S.C. § 405(g), seeking review of Astrue's decision that he is not entitled to a period of disability and disability insurance benefits under the Social Security Act. The parties cross-move for judgment on the pleadings, the Commissioner seeking a remand for a new hearing and Kearney seeking a remand for the calculation of benefits only. For the reasons that follow, Kearney's motion is granted and the Commissioner's is denied. The case is remanded for the calculation of benefits only.

BACKGROUND

The facts underlying this action are largely set forth in my memorandum and order in Kearney v. Barnhart, No. 05-CV-1860 (JG), 2006 WL 1025307 (E.D.N.Y. Apr. 17, 2006), familiarity with which is assumed. In brief, Kearney's nine-year quest for disability insurance benefits began on June 22, 1999, when he applied for benefits due to a back and neck injury sustained on November 16, 1998, when he grabbed a falling metal column while working as a carpenter. Id. at *1. His treating neurologist Dr. Esther Baldinger opined that he was under a total disability, id. at *2, but several consultative examiners found his disability to be less severe, id. at *2-*4.

Kearney's application was denied, and he requested review by an administrative law judge ("ALJ"). On January 25, 2002, ALJ Marilyn P. Hoppenfeld found that although Kearney could no longer perform his past work as a carpenter, he retained sufficient residual functional capacity ("RFC") to perform other work existing in the national economy and accordingly was not disabled. R. at 10-20; Kearney, 2006 WL 1025307, at *6. On February 10, 2005, the Appeals Council denied Kearney's request for review, rendering ALJ Hoppenfeld's decision the final decision of the Commissioner. R. at 2-4.

Kearney sought review of the Commissioner's decision in this court pursuant to § 405(g), and on April 17, 2006, I found that ALJ Hoppenfeld had failed to follow the treating physician rule, under which she was required either to accord controlling weight to Dr. Baldinger's findings or to give "good reasons," 20 C.F.R. § 404.1527(d)(2), based on a consideration of several relevant factors, id., for the degree of weight she accorded it. Kearney, 2006 WL 1025307, at *6-*7. Finding that the record did not provide "'persuasive proof of disability,'" Kearney, 2006 WL 1025307, at *7 n.15 (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)), I remanded for "reconsideration of Kearney's claim in accordance with the treating physician rule," Kearney, 2006 WL 1025307, at *7.

The Appeals Council vacated ALJ Hoppenfeld's decision and remanded the claim to her for further proceedings consistent with my memorandum and order. R. at 278. Kearney supplemented the record with notes from his new treating physicians, Dr. William J. Lackey and Dr. Ludwig Licciardi. R. at 315-21. Dr. Lackey opined that Kearney's disability was total. Id. at 316, 318. ALJ Hoppenfeld held a supplemental hearing on February 7, 2007, at which she elicited testimony from government-designated medical expert Dr. Richard Goodman. Id. at 326-67.

In a decision dated September 12, 2007, ALJ Hoppenfeld again rejected Kearney's claimed disability. Id. at 223-32. Inexplicably, she refused to apply the treating physician rule to the opinions of Dr. Baldinger, Dr. Lackey, or Dr. Licciardi. See R. 228-30 (describing opinions of Dr. Baldinger and Dr. Licciardi, failing to accord these opinions controlling weight or to consider the required factors in determining what weight to give these opinions, and failing to mention Dr. Lackey's opinion); Def.'s Mem. Supp. Mot. Remand 13-14 (conceding that ALJ Hoppenfeld failed to apply the treating physician rule to Dr. Baldinger's opinion). Given that ALJ Hoppenfeld was aware that the purpose of the remand was "reconsideration of Kearney's claim in accordance with the treating physician rule," Kearney, 2006 WL 1025307, at *7; see R. at 278 (Appeals Council remanding for proceedings consistent with my order); id. at 329 (ALJ Hoppenfeld acknowledging, on the record at the supplemental hearing, that the purpose of the remand was to consider the opinion of Kearney's treating doctors), that it was unmistakably clear, based on copious pages of treatment notes, that at least Dr. Baldinger was a treating physician, id. at 287-314, and that ALJ Hoppenfeld has apparently held her current position since at least 1985, see Pascual v. Sullivan, 715 F. Supp. 1268, 1269 (S.D.N.Y. 1989) (describing 1985 Social Security benefit hearing before ALJ Hoppenfeld), I do not see how ALJ Hoppenfeld could have failed to understand my order, and am at a loss as to why she failed to comply with it.

DISCUSSION

A. The Legal Standard

Under 42 U.S.C. § 405(g), I review the Commissioner's decision to determine whether it was "'supported by substantial evidence in the record as a whole or [was] based upon an erroneous legal standard.'" Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997)). In deciding whether the Commissioner's conclusions are supported by substantial evidence, a reviewing court must "first satisfy [itself] that the claimant has had 'a full hearing under the Secretary's regulations and in accordance with the beneficent purpose of the Act.'" Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir 1982) (quoting Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)).

Under the Social Security Act, Kearney is entitled to disability insurance benefits if, "by reason of [a] medically determinable physical or mental impairment 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), he "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy," § ...


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