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E Lizabeth C. S Tokes v. Commissioner of Social Security


March 29, 2012


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:


Judge: requisite "good cause" for rejecting a treating physician's opinion, (3) the ALJ Plaintiff Elizabeth C. Stokes ("plaintiff" failed to properly discuss 20 C.F.R. or "Stokes") commenced this action § 404.1529 factors, and (4) the ALJ did not pursuant to 42 U.S.C. § 405(g) of the Social meet the burden of showing that there was Security Act ("SSA"), challenging the final other work in the national economy that decision of the defendant, Commissioner of plaintiff could perform. In the alternative, the Social Security Administration plaintiff asks this Court to remand pursuant (hereinafter "Commissioner"), denying to 42 U.S.C. § 405(g). For the reasons that plaintiff's application for Disability follow, the cross-motions for judgment on Insurance Benefits. The Commissioner has the pleadings are denied, plaintiff's request moved for judgment on the pleadings for remand is granted, and the case is pursuant to Federal Rule of Civil Procedure remanded to the ALJ for further proceedings 12(c). Plaintiff opposes defendant's motion consistent with this Memorandum and and cross-moves for judgment on the Order. pleadings, alleging that (1) the

Administrative Law Judge ("ALJ") committed reversible error in failing to obtain the advice of a medical expert to assist in determining plaintiff's disability onset date, (2) the ALJ failed to set forth the police department until April 2, 1992. (Id. 19.)


A. Facts

Plaintiff did not work from April 2, 1992

Plaintiff alleges that she was disabled to February 22, 1999. From February 22, from April 2, 1992 through December 31, 1999 to August 18, 1999, plaintiff worked as 1997 as a result of medical conditions an Assistant Equipment Manager at C.W. including a right knee injury, right knee Post for four hours a day, five days a week. pain, right knee surgery failures and (Id. 72, 375.) complications, and Multiple Sclerosis ("MS"). (Administrative Record ("AR") 2. Medical Evidence 107-08, 118.) The following summary of facts is based upon the administrative record a. Dr. Varriale as developed by the ALJ to assess plaintiff's physical state. A more exhaustive recitation Plaintiff's treating physician, Dr. P. Leo of the facts is contained in the parties' Varriale, M.D., F.A.A.O.S., A.B.O.S., is an submissions to the Court and is not repeated orthopedic surgeon. (Id. 148.) Dr. Varriale herein. performed arthroscopic surgery on plaintiff's right knee on July 22, 1991 during

1. Vocational and Other Evidence which he reported chondromalacia of plaintiff's medial patella, hypertrophic

Plaintiff was born on October 14, 1962. synovium, chondral defect of the lateral (AR 43.) Plaintiff graduated high school and femoral condyle, and a loose body in completed three years of college. (Id. 77, plaintiff's right knee. (Id.) Dr. Varriale 374-75.) She then went to the New York reported no complications from the surgery. Police Department Academy. (Id. 78, 375.) (Id.)

Plaintiff worked as a police officer on patrol for the New York City Transit Authority On February 9, 1994, Plaintiff was from 1986 through April 2, 1992. (Id. 375.) admitted to Mercy Medical Center, and Dr. Her job duties entailed patrolling trains and Varriale noted that she had a fever, sinus train stations in New York City. (Id. 72, pressure, was coughing, was feeling 375.) Plaintiff listed in her Social Security lightheaded, and had issues with urination. Disability Report Form that this position (Id. 145.) On February 15, 1994, plaintiff, required her to walk for eight hours, stand after experiencing pain and weakness in her for eight hours, sit for one hour, climb for right knee, underwent elective tibial tubercle six hours, stoop for one hour, kneel for one transfer for her right knee. (Id. 143-44) A hour, crouch for four hours, reach for eight cortical screw was attached to plaintiff's hours, and write, type or handle small tibia during the surgery, after which Dr. objects for six hours per day. (Id. 73.) She Varriale reported no complications. (Id.) also carried her equipment (night stick, gun, and flashlight), and lifted ten pounds. (Id.) On May 20, 2003, plaintiff visited Dr. Plaintiff testified she was injured after a Varriale regarding pain in her right knee at work-related injury where she slipped and the request of another doctor who treated fell on an oil spot on December 15, 1989 plaintiff, Dr. Jackie Orfanos. (Id. 305.) On and injured her knee. (Id. 375-76.) After her examination, Dr. Varriale revealed crepitus injury, plaintiff engaged in desk work for the with range of motion of the knee and x-rays revealed osteoarthritis of the patella. (Id.)

Dr. Varriale's impression was of 350.) Plaintiff also reported she was "unable patellofemoral arthritis and he prescribed to perform activities like before and does not physical therapy, strengthening exercises, feel she has the same strength as before." and Advil as needed. (Id.) Dr. Varriale (Id.) Dr. Patcha found no weakness, rating explained that plaintiff should return to him 5/5 motor power, and found no sensory loss. as needed. (Id.) (Id.) Dr. Patcha noted that heal, toe and tandem walking were difficult due to On September 19, 2006, Dr. Varriale plaintiff's right knee injury, but deep wrote a letter opining that plaintiff has had tendon reflexes except for plaintiff's right problems with her right knee since 1989 and knee which was 0 as well as slight dysmetria opined that significant arthritis of her knee on the finger to nose. (Id.) Dr. Patcha's disabled her from working. (Id. 142.) Dr. initial impression was to rule out Varriale's letter stated: demyelinating disease, but she advised plaintiff to have an MRI done. (Id.)

Elizabeth Stokes is a 43-year-old woman who has had problems with On May 24, 1995, after evaluating the her right knee since 1989. Her MRI scan, Dr. Patcha noted acute and problems necessitated arthroscopic chronic lesions and found signals consistent surgery in 1991 and reconstructive with the demyelinating process. (Id. 351) patella surgery in 1994. Dr. Patcha explained that "the patient has, besides the paresthesia, no definite objective Since the time of her surgery, she has problems." (Id.) Dr. Patcha could not rule continued to have significant out demyelinating disease and noted she problems with her knee. She has would re-evaluate plaintiff again in two to crepitus with range of motion and three months. (Id.) weakness of the quad muscles with frequent giving way. On June 8, 1995, Dr. Patcha saw plaintiff again and while patient indicated X-rays of the knee reveal severe she is "feeling slightly more tired during the osteoarthritis of the patellofemoral summer months and has slight difficulty joint. using her hands," Dr. Patcha found no definite weakness and brisk reflexes. (Id. It is my opinion that Ms. Stokes has 352) Dr. Patcha ordered visual evoked/brain significant arthritis of the knee and is stem auditory response testing, and disabled from working. discussed the possibility of a spinal tap, but plaintiff was reluctant to undergo the spinal (Id.) tap. (Id.)

b. Dr. Shalini Patcha On July 27, 1995, Dr. Patcha saw

On May 10, 1995, Dr. Shalini Patcha, a plaintiff again and once again reported an neurologist with the Queens Long Island impression of possible demyelinating Medical Group, examined plaintiff to disease. (Id. 353.) Plaintiff showed delayed evaluate a one-month long period of response in the brain stem and medication paresthesias, numbness in her upper and was prescribed. (Id.) Dr. Patcha noted that lower extremities, as well as dizziness which plaintiff had "occasional paresthesia of both was "on and off" for one or two months. (Id. upper extremities but no other problems."


On November 1, 1995, Dr. Patcha saw unchanged with slight increase in symptoms. plaintiff for "possible acute exacerbation of (Id. 358.) Plaintiff had no clear weakness MS." (Id. 354.) A repeat MRI showed except for lower extremities which were "small demyelinating lesions but not as large difficult to assess because of right knee as the first ones that she did in April." (Id.) problems. (Id.) Plaintiff exhibited "[m]arked Plaintiff did not want to start Prednisone and dysmetria" and had difficulty with heel, toe, was "slightly feeling better since last visit and tandem walking. (Id.) Plaintiff was with physical therapy." (Id.) Dr. Patcha's unwilling to start medication and Dr. Patcha impression was possible MS with acute recommended a re-evaluation in six months. exacerbation, and she advised continued (Id.) physical therapy. (Id.) On April 30, 1997, plaintiff visited Dr.

On December 21, 1995, Dr. Patcha Patcha who diagnosed her with "multiple explained that plaintiff's MRI tested positive sclerosis, stable, chronic/progressive type" for MS. (Id. 355.) Plaintiff was doing "fairly and stated that plaintiff's MS was clinically well except for recently when she went to stable. (Id. 359.) Plaintiff's gait had Florida, [when] she developed increasing significantly improved and she had been weakness and loss of balance." (Id.) Dr. doing well aside from a cold. (Id.) Dr. Patcha noted that plaintiff "worked out with Patcha instructed plaintiff to follow-up physical therapy and swimming. She did every six months. (Id.) fairly well." (Id.) Plaintiff was continuing to improve and was "[e]ssentially unchanged On September 12, 2003, Dr. Patcha from last examination." (Id.) performed a neurological examination of plaintiff. (Id. 96-97, 301-302.) Dr. Patcha On January 31, 1996, Dr. Patcha explained that plaintiff had not sought a explained that plaintiff was essentially follow-up until recently. (Id.) Plaintiff unchanged and did not want to try reported problems with her bladder, as well medications. (Id. 356.) Dr. Patcha noted as occasional blurred vision. (Id. 96.) On that plaintiff's symptoms had improved, but examination, plaintiff's power was 5/5 she still has the same paresthesias. (Id.) except for the right lower extremity, which exhibited spasticity and mild weakness. (Id. On June 5, 1996, plaintiff visited Dr. 97.) Dr. Patcha also reported that plaintiff Patcha and stated she was symptomatic with had a spastic hemiparetic gait on the right increasing weakness and loss of balance. (Id. side. (Id.) Dr. Patcha's impression was of 357.) Dr. Patcha noted that plaintiff had chronic MS with urinary incontinence. (Id.) tried physical therapy and swimming and Dr. Patch ordered a follow-up MRI as well felt "much better." (Id.) Dr. Patcha wrote as Detrol XL for urinary incontinence. (Id.) that plaintiff's symptoms were essentially Plaintiff was to return for re-evaluation in unchanged. (Id.) Dr. Patcha explained that one month. (Id.) The MRI was performed on plaintiff had asked about medications, but November 24, 2003 at the Nassau was unwilling to start on medication at that Radiologic Group, P.C. (Id. 95.) William J. time. (Id.) Wortman, M.D., explained that the MRI was consistent with demyelination, but that there On November 13, 1996, plaintiff visited was "no abnormal enhancement to indicate Dr. Patcha and it was Dr. Patcha's active disease at this time." (Id.) impression that the MS was clinically

On December 12, 2003, Dr. Patcha saw d. Dr. S. Grauer plaintiff for the follow-up evaluation. (Id. 93.) Plaintiff reported falling and a minor On September 29, 1998, plaintiff was injury to her shoulder, and that gait cleared for gall bladder surgery by Dr. S. difficulties and weakness persisted. (Id.) Dr. Grauer, M.D. with the North Shore Patcha noted no significant changes from the University Hospital. (Id. 330, 335.) This previous visit, and also noted that the MRI surgery was the result of several months of showed an increase in white matter disease, right upper quadrant pain and fatty food but showed no enhancement suggestive of intolerance. (Id. 334-36.) Plaintiff was acute active disease. (Id.) Dr. Patcha discharged from the hospital on October 7, recommended steroid therapy, but plaintiff 1998. (Id. 334.) In a post-operative visit on was not willing to undergo such therapy. September 17, 1999, Dr. Greenberg noted (Id.) Plaintiff was recommended to have a that plaintiff's joints were swollen and follow-up evaluation in one month and have painful. (Id. 338.) another MRI in six months. (Id.)

e. Dr. Jackie Orfanos

c. Dr. Fawzy W. Salama

On June 24, 2004, plaintiff had a

On February 25, 1998, Dr. Fawzy W. physical examination at the Mercy Medical Salama, M.D., a neurologist with the Queens center for a volunteer position. (Id. 317-22.) Long Island Medical Group, performed a Plaintiff listed that she was taking no neurological examination of plaintiff. (Id. medications, was in good health, and did not 323-28.) Plaintiff relayed to Dr. Salama that have any physical or mental conditions she had her first attack in 1993 when she which would limit her ability to perform the was diagnosed with having optic neuritis, position for which she was applying. (Id. but had a negative MRI at that time. (Id. 321-22) On examination, Dr. Orfanos 323.) Dr. Salama explained that, from reported normal findings in all categories physical examination, plaintiff appeared in and found plaintiff physically and medically no apparent distress. (Id.) Plaintiff's right able to perform the duties for which she was leg numbness and weakness had resolved. applying. (Id.) (Id.) Dr. Salama noted that plaintiff was stable and complained of difficulty "starting On August 13, 2007, Dr. Joseph Carfi violin." (Id.) On motor examination, Dr. examined plaintiff on referral from Dr. Salama found mild functional weakness of Orfanos. (Id. 221.) Dr. Carfi observed that right ankle dorsi flexor and mild Ms. Stokes walked on two canes and was incoordination of finger-to-finger and having difficulty with her left foot, which finger-to-nose testing, with right worse than scuffed along the floor and inverted slightly left. (Id. 324.) Plaintiff's strength rated 5/5 in the swing phase. (Id. 222.) in both her upper and lower extremities. (Id.) Dr. Salama's impression was of clinical On January 31, 2007, Dr. Orfanos evidence diagnostic of MS of stable course explained that plaintiff had "gained a lot of representing remitting/relapsing MS. Dr. weight over the past two years. Her knees Salama prescribed intravenous Solumedrol are still hurting her. She has severe and advised plaintiff to return for a follow- arthritis." (Id. 230.) The starting and ending up in four months. (Id. 325.) dates of treatment by Dr. Orfanos are unclear. (See id. 217-360.) During these visits and through multiple tests, Dr. Orfanos and specialists documented urinary found no abnormal enhancement within the incontinence, chronic knee pain, and spinal cord. (Id.) abnormal blood diagnostics. (Id. 189-90, 194, 202-03, 235, 238, 240, 251-54, 259.) Dr. Gottesman summarized plaintiff's medical evidence regarding her MS f. Dr. Malcolm H. Gottesman diagnosis in a letter on September 8, 2004. (Id. 126.) Dr. Gottesman's reading of

On July 27, 2004, on referral from Dr. plaintiff's 1993 MRIs were negative for MS, Orfanos, plaintiff had a neurological but that she had optic neuritis at that time. evaluation with Dr. Malcolm H. Gottesman, (Id.) Dr. Gottesman wrote "I believe she has M.D. at the Multiple Sclerosis Treatment MS possibly secondary progressive." Dr. Center. (Id. 132-33.) Plaintiff reported that Gottesman discussed treatment of Copaxone she had not had an exacerbation in a long and Avonex with plaintiff and instructed her period of time and that she felt that she was to call after bloodwork was completed. (Id.) essentially stable. (Id.) Plaintiff's main complaints stemmed from her right knee, On January 5, 2005, plaintiff returned which would give out after prolonged for a follow-up with Dr. Gottesman. (Id. exertion. (Id. 132.) Dr. Gottesman explained 173.) Dr. Gottesman noted that plaintiff that plaintiff's left eye had atrophy and denied bowel or bladder problems, but pupillary defect. Dr. Gottesman rated continued to have problems with her gait. plaintiff's muscle strength at 4/5, and (Id.) Dr. Gottesman's impression was explained that sensory examination was "[p]robably progressive MS." (Id.) Dr. normal. (Id. 133.) Plaintiff also had Gottesman noted that plaintiff "report[ed] difficulty walking. (Id.) Dr. Gottesman that she has not had a discrete relapse diagnosed plaintiff with MS and opined that probably since the onset of MS in 1993, a 1995 MRI signified ongoing disease with left optic neuritis." (Id.) activity. (Id.) Dr. Gottesman ordered additional MRIs. (Id. 33.) Dr. Gottesman Dr. Gottesman treated plaintiff from also opined that "[s]everal other reports April 5, 2006 (id. 111-13) until at least from 1995 of intermediate quality were November 2007. (Id. 121-125, 156.) On reviewed and seemed abnormal, but they August 29, 2006, Dr. Gottesman explained could not be directly compared." (Id. 132.) that plaintiff had been under his care for multiple sclerosis since July 27, 2004, and On August 16, 2004, on referral from that she had "increased weakness in her Dr. Gottesman, plaintiff had an MRI. (Id. lower extremities and at times has difficulty 130-31.) Dr. Joseph L. Zito, M.D. compared lifting her right leg to walk. She ambulates this MRI with the December 24, 2003 MRI, with a cane and walks with a wide-based found no interval change, and saw no ataxic gait." (Id. 110.) evidence to suggest active demyelination. (Id.) On May 7, 2007, Dr. Gottesman reviewed an MRI which showed no interval On August 18, 2004, on referral from change regarding the appearance of the Dr. Gottesman, plaintiff had an MRI done cervical spine. (Id. 177.) Dr. Gottesman also on her cervical spine. (Id. 128-29.) Dr. noted diffuse disc bulges and osseous William J. Wortman, M.D., found areas vertebral ridges at C4-5, C5-6, and C6-7. suspicious for demyelinating disease, but (Id.)

On August 28, 2007 and February 28, lift ten pounds or less, twist, stoop, crouch, 2008, Dr. Gottesman diagnosed plaintiff climb ladders, or climb stairs. (Id. 154.) Dr. with "Secondary-progressive MS with Gottesman also wrote that plaintiff fatigues relapses." (Id. 268, 271.) easily with repetitive activities. (Id.) Dr. Gottesman also estimated that plaintiff On September 22, 2008, Dr. Gottesman would miss more than four days of work per filled out a residual functional capacity month as a result of impairments or questionnaire for plaintiff. (Id. 150-55.) Dr. treatment. (Id. 155.)

Gottesman wrote that he saw plaintiff four times per year for four years and more if g. Dr. Frank R. DiMaio needed. (Id. 150.) Dr. Gottesman's descriptions apply from when he first saw On September 8, 2004, on referral from plaintiff in 2004. (Id. 152.) Dr. Gottesman Dr. Orfanos, plaintiff saw Dr. Frank R. identified fatigue, balance problems, poor DiMaio, M.D. at Winthrop Orthopaedic coordination, weakness, unstable walking, Associates, PC for a second opinion. (Id. bladder problems, bowel problems, 100-02.) Plaintiff stated she had been in pain sensitivity to heat, and pain as plaintiff's since her knee surgery completed by Dr. symptoms. (Id. 150.) Dr. Gottesman Varriale and that she recently fell and identified that plaintiff had braces on both sprained her right wrist. (Id. 100.) Plaintiff legs and ambulates using a walker because relayed that her MS was in "remission now." of weakness, spasticity and dissymmetry of (Id.) On examination, Dr. DiMaio saw full her lower extremities. (Id. 151.) Dr. active extension without pain. (Id. 101.) Dr. Gottesman wrote that plaintiff was able to DiMaio reviewed x-rays from 2003 and walk very limited distances without using noted severe arthritis. (Id.) Dr. DiMaio also bilateral assistive devices. (Id.) Dr. suggested painful hardware as an Gottesman wrote that plaintiff had impression. (Id. 102.) Dr. DiMaio suggested experienced no exacerbations during the a reevaluation with previous x-rays and an past year. (Id. 152.) Dr. Gottesman wrote injection test of plaintiff's right knee, and that plaintiff was incapable of even "low that plaintiff should consider elective stress" jobs because "even minimal stress hardware removal if tenderness persisted. will increase level of disability." (Id.) Dr. (Id.)

Gottesman explained that plaintiff could walk zero to twenty feet before resting and On November 18, 2004, Dr. DiMaio that she could only sit for one hour before performed surgery to remove the hardware needing to get up and could only stand for 5 from plaintiff's knee. (Id. 99.) minutes before needing to sit down or move. (Id. 152-53.) Dr. Gottesman wrote that On November 24, 2004, Dr. DiMaio plaintiff could sit and stand/walk less than filled out a New York State Disability form two hours per day and would require a job explaining that he expected plaintiff to be which permits shifting positions at will. (Id. disabled for approximately three months 153.) Dr. Gottesman wrote that plaintiff after the surgery. (Id. 104-05.) would need to take breaks every thirty minutes which could last between one and h. Dr. David Zaret two hours and that she should raise her legs above her heart as often as possible. (Id.) Dr. On May 13, 2006, plaintiff visited Dr. Gottesman wrote that plaintiff could never David Zaret, M.D. at Orlin & Cohen

Orthopedic Associates, LLP regarding a left elbow injury. (Id. 278.) Dr. Zaret explained decision that she was not disabled from that plaintiff had a fracture, was significant April 2, 1992 through December 31, 1997. for multiple sclerosis, but denied numbness The Commissioner answered and also or tingling. (Id. 278.) Dr. Zaret served the administrative record on July 26, recommended range of motion exercises, ice 2010. The Commissioner filed the pending packs, and anti-inflammatories as needed. motion for judgment on the pleadings on (Id. 279.) Dr. Zaret also ordered a follow up November 1, 2010. The plaintiff's response in two weeks for a repeat x-ray. (Id. 279.) and cross-motion for judgment on the pleadings is dated January 23, 2011, though

i. Dr. Joseph Carfi it was not filed with the Court until April 20, 2011. The Commissioner replied on March

On August 13, 2007, Dr. Joseph Carfi, 14, 2011. The motions are fully submitted M.D., examined plaintiff. (Id. 221-22.) and the Court has carefully considered the Plaintiff had been ambulatory using one parties' arguments. cane, but had been using two canes in the weeks prior to seeing Dr. Carfi. (Id. 221.) II. STANDARD OF REVIEW

Dr. Carfi's impression was of weakness of the left lower limb and agreed that plaintiff A district court may only set aside a needed a posterior leaf-spring ankle foot determination by an ALJ that is "based upon orthosis as well as to make physical changes legal error" or "not supported by substantial to her house to make it easier to use the evidence." Balsamo v. Chater, 142 F.3d 75, bathroom. (Id. 222.) 79 (2d Cir. 1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). The

3. Administrative Proceedings Supreme Court has defined "substantial evidence" in Social Security cases as "more Plaintiff filed her application for than a mere scintilla" and that which "a disability benefits on March 24, 2006, reasonable mind might accept as adequate to claiming disability as of April 2, 1992. (Id. support a conclusion." Richardson v.

15.) Plaintiff's application was denied on Perales, 402 U.S. 389, 401 (1971) (quoting August 9, 2006. (Id.) On October 16, 2006, Consol. Edison Co. v. NLRB, 305 U.S. 197, plaintiff requested a hearing before an ALJ. 229 (1938)); Quinones v. Chater, 117 F.3d (Id.)A hearing was held before ALJ Jay L. 29, 33 (2d Cir. 1997) (defining substantial Cohen ("the ALJ" or "ALJ Cohen") on evidence as "such relevant evidence as a February 24, 2009, where plaintiff appeared reasonable mind might accept as adequate to with her attorney Louis Burko. (Id. 15, 21.) support a conclusion" (internal quotations On May 21, 2009, the ALJ issued a decision and citations omitted)). Furthermore, "it is found that plaintiff was not disabled from up to the agency, and not th[e] court, to April 2, 1992 through December 31, 1997. weigh the conflicting evidence in the (Id. 21.) Plaintiff appealed the decision to record." Clark v. Comm'r of Soc. Sec., 143 the Appeals Council on May 24, 2009 (id. F.3d 115, 118 (2d Cir. 1998). If the court

10), which was denied on November 10, finds that there is substantial evidence to 2009. (Id. 4-7.) support the Commissioner's determination, the decision must be upheld, even if there is

B. Procedural History substantial evidence for the plaintiff's

Plaintiff commenced this action on position. Yancey v. Apfel, 145 F.3d 106, 111 January 22, 2010, appealing the ALJ's (2d Cir. 1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). "Where an administrative decision rests on adequate The Commissioner has promulgated findings sustained by evidence having regulations establishing a five-step rational probative force, the court should not procedure for evaluating disability claims. substitute its judgment for that of the See 20 C.F.R §§ 404.1520, 416.920. The Commissioner." Yancey, 145 F.3d at 111; Second Circuit has summarized this see also Jones, 949 F.2d at 59 (quoting procedure as follows: Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). The first step of this process requires the [Commissioner] to determine In order to obtain a remand based on whether the claimant is presently additional evidence, a plaintiff must present employed. If the claimant is not new evidence that: "(1) is new and not employed, the [Commissioner] then merely cumulative of what is already in the determines whether the claimant has record[;]" (2) is material, in that it is a "severe impairment" that limits her "relevant to the claimant's condition during capacity to work. If the claimant has the time period for which benefits were such an impairment, the denied," probative, and presents a [Commissioner] next considers reasonable possibility that the additional whether the claimant has an evidence would have resulted in a different impairment that is listed in Appendix determination by the Commissioner; and (3) 1 of the regulations. When the was not presented earlier due to good cause. claimant has such an impairment, the Lisa v. Sec'y of the Dep't of Health & [Commissioner] will find the Human Servs., 940 F.2d 40, 43 (2d Cir. claimant disabled. However, if the 1991). claimant does not have a listed impairment, the [Commissioner]must determine, under the fourth step, whether the claimant possesses


A. The Disability Determination the residual functional capacity to perform her past relevant work.

A claimant is entitled to disability Finally, if the claimant is unable to benefits under the SSA if the claimant is perform her past relevant work, the unable "to engage in any substantial gainful [Commissioner] determines whether activity by reason of any medically the claimant is capable of performing determinable physical or mental impairment any other work. which can be expected to result in death or which has lasted or can be expected to last Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. for a continuous period of not less than 1999) (quoting Perez v. Chater, 77 F.3d 41, twelve months." 42 U.S.C. 46 (2d Cir. 1996)). The claimant bears the § 1382c(a)(3)(A). An individual's physical burden of proof with regard to the first four or mental impairment is not disabling under steps; the Commissioner bears the burden of the SSA unless it is "of such severity that he proving the last step. Brown, 174 F.3d at 62. is not only unable to do his previous work but cannot, considering his age, education, The Commissioner "must consider" the and work experience, engage in any other following in determining a claimant's kind of substantial gainful work which exists entitlement to benefits: "(1) objective in the national economy." 42 U.S.C. medical facts; (2) diagnoses or medical § 1382c(a)(3)(B). opinions based on such facts; (3) subjective evidence of pain or disability testified to by B. Plaintiff's Cross-Motion the claimant or others; and (4) the claimant's educational background, age, and work Plaintiff opposes defendant's motion and experience." Id. (citing Mongeur v. Heckler, cross-moves for judgment on the pleadings, 722 F.2d 1033, 1037 (2d Cir. 1983) (per alleging that (1) the Administrative Law curiam)). Judge ("ALJ") committed reversible error in failing to obtain the advice of a medical Here, in reaching his conclusions that expert to assist in determining plaintiff's plaintiff was not disabled under the SSA, the disability onset date, (2) the ALJ failed to ALJ adhered to the five-step sequential set forth the requisite "good cause" for analysis for evaluating applications for rejecting a treating physician's opinion, (3) disability benefits. (AR 15-21.) First, the the ALJ failed to properly discuss 20 C.F.R. ALJ determined that plaintiff was not § 404.1529 factors, and (4) the ALJ did not engaged in substantial gainful activity from meet the burden of showing that there was April 2, 1992, the alleged onset date, and other work in the national economy that December 31, 1997, when plaintiff was no plaintiff could perform. Plaintiff, in the longer insured. (Id. 17.) Second, the ALJ alternative, seeks a remand on these issues. determined plaintiff suffered from a severe For the reasons that follow, the case is impairment, specifically chondromalacia remanded to the ALJ for further proceedings patella of the right knee. (Id. 17-18.) The consistent with this Memorandum and ALJ also determined that, although "[i]t is Order. In particular, the Court concludes that probable that the claimant's multiple additional development of the record is sclerosis is currently disabling.there is no necessary, including clarification from the evidence whatsoever of limitations due to treating physician regarding his opinion of this condition while the claimant was the disability onset date and the basis for insured." (Id. 18.) The ALJ also indicated that determination. that plaintiff was unwilling to take, and did not take, any medications for the MS 1. "Good Cause" to Disregard Treating through at least December 31, 1997. (Id.) Physician's Opinion Third, the ALJ determined that plaintiff did not have an impairment or combination of The Court first addresses plaintiff's impairments that "met or medically equaled argument regarding the ALJ's disregard of one of the listed impairments in 20 CFR Part Dr. Varriale's opinion. Plaintiff argues that 404, Subpart P, Appendix 1 (20 CFR the ALJ failed to apply the "treating 404.1525 and 404.1526)." (Id.) The ALJ physician rule" to the medical opinion of Dr. noted that, although plaintiff had joint Varriale by not giving his retrospective dysfunction, she "failed to meet the burden opinion "controlling weight." (Pl.'s Br. at of proof in establishing that the criteria of a 14-19.) Plaintiff also argues that, to the listed impairment are met or equaled." (Id.) extent the record was unclear or incomplete Fourth, the ALJ determined that plaintiff with respect to Dr. Varriale's opinion, the was "'disabled' from her job as a police ALJ had a duty to contact Dr. Varriale to officer." (Id. 19-20.) Fifth, the ALJ clarify his opinion. For the reasons set forth determined, after undergoing a two-step below, the Court remands this case with analysis, that plaintiff "was able to perform instructions that the ALJ seek clarification alternative substantial gainful activity at a from Dr. Varriale regarding his opinion that lesser exertional level." (Id.) plaintiff is disabled due to her knee impairment.

a. Treating Physician Rule determinative." Roma v. Astrue, No. 10-4351-cv, 2012 WL 147899, at *1 (2d Cir.

The Commissioner must give special Jan. 19, 2012) (quoting Snell v. Apfel, 177 evidentiary weight to the opinion of the F.3d 128, 133 (2d Cir. 1999)). "It is the treating physician. See Clark, 143 F.3d at Commissioner who is 'responsible for 118. The "treating physician rule," as it is making the determination or decision about known, "mandates that the medical opinion whether [the claimant] meet[s] the statutory of the claimant's treating physician [be] definition of disability.'" Id. (quoting 20 given controlling weight if it is well C.F.R. § 404.1527(e)(1)). supported by the medical findings and not inconsistent with other substantial record If the opinion of the treating physician as evidence." Shaw v. Chater, 221 F.3d 126, to the nature and severity of the impairment 134 (2d Cir. 2000); see Rosa v. Callahan, is not given controlling weight, the 168 F.3d 72, 78-79 (2d Cir. 1999); Clark, Commissioner must apply various factors to 143 F.3d at 118; Schisler v. Sullivan, 3 F.3d decide how much weight to give the 563, 567 (2d Cir. 1993). The rule, as set opinion. See Shaw, 221 F.3d at 134; Clark, forth in the regulations, provides: 143 F.3d at 118. These factors include: (i) the frequency of examination and the length, Generally, we give more weight to nature, and extent of the treatment opinions from your treating sources, relationship; (ii) the evidence in support of since these sources are likely to be the opinion; (iii) the opinion's consistency the medical professionals most able with the record as a whole; (iv) whether the to provide a detailed, longitudinal opinion is from a specialist; and (v) other picture of your medical relevant factors. 20 C.F.R. impairment(s) and may bring a § 404.1527(d)(2), 416.927(d)(2); see Clark, unique perspective to the medical 143 F.3d at 118. When the Commissioner evidence that cannot be obtained chooses not to give the treating physician's from the objective medical findings opinion controlling weight, he must "give alone or from reports of individual good reasons in his notice of determination examinations, such as consultative or decision for the weight [he] gives [the examinations or brief claimant's] treating source's opinion." hospitalizations. If we find that a Clark, 143 F.3d at 118 (quoting 20 C.F.R. treating source's opinion on the §§ 404.1527(d)(2), 416.927(d)(2)); see also issue(s) of the nature and severity of Perez v. Astrue, No. 07-cv-958(DLI), 2009 your impairment(s) is well-supported WL 2496585, at *8 (E.D.N.Y. Aug. 14, by medically acceptable clinical and 2009) ("Even if [the treating physician's] laboratory diagnostic techniques and opinions do not merit controlling weight, the is not inconsistent with the other ALJ must explain what weight she gave substantial evidence in your case those opinions and must articulate good record, we will give it controlling reasons for not crediting the opinions of a weight. claimant's treating physician."); Santiago v.

Barnhart, 441 F. Supp. 2d 620, 627 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). (S.D.N.Y. 2006) ("Even if the treating physician's opinion is contradicted by

The Second Circuit has explained, "[a] substantial evidence and is thus not treating physician's statement that the controlling, it is still entitled to significant claimant is disabled cannot be itself weight because the treating source is inherently more familiar with a claimant's Dr. Varriale treated plaintiff for her knee medical condition than are other sources." impairment during the relevant time period, (internal quotation marks omitted)). A clarification would assist the ALJ in making failure by the Commissioner to provide the disability determination with respect to "good reasons" for not crediting the opinion plaintiff's knee impairment. See of a treating physician is a ground for Papadopoulos v. Astrue, No. 10 Civ. remand. See Snell v. Apfel, 177 F.3d 128, 7980(RWS), 2011 WL 5244942, at *8 133 (2d Cir. 1999). (S.D.N.Y. Nov. 2, 2011) ("Because 'further findings' would so plainly help to assure the "Furthermore, the ALJ has the duty to proper disposition of [plaintiff's] claim, 'recontact' a treating physician for remand is appropriate in this case." (quoting clarification if the treating physician's Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. opinion is unclear." Ellett v. Comm. of Soc. 1996)). No other doctor treated plaintiff Sec., No. 1:06-CV-1079 (FJS), 2011 WL exclusively for her knee impairment during 1204921, at *7 (N.D.N.Y. Mar. 29, 2011); the relevant time period. In light of the see also Mitchell v. Astrue, No. 07 Civ. ALJ's affirmative duty to develop the 285(JSR), 2009 WL 3096717, (S.D.N.Y. record, the limited medical evidence Sept. 28, 2009) ("If the opinion of a treating regarding plaintiff's knee impairment, and physician is not adequate, the ALJ must the unclear nature of Dr. Varriale's opinion 'recontact' the treating physician for regarding the onset date of the knee clarification." (citing 20 C.F.R. disability, the ALJ had a duty to recontact §§ 404.1512(e), 416.912(e)). Such an Dr. Varriale for clarification. After remand, obligation is linked to the ALJ's affirmative the ALJ is directed to contact Dr. Varriale duty to develop the record. *fn1 See Perez v. for clarification of his 2006 opinion, and to Chater, 77 F.3d 41, 47 (2d Cir. 1996). the extent necessary, obtain additional information regarding plaintiff's knee

b. Application impairment.

The Court finds that Dr. Varriale's 2006 2. Advice of a Medical Expert opinion that plaintiff was disabled is unclear. It is evident that the ALJ also found Plaintiff also argues that the ALJ erred Dr. Varriale's opinion to be unclear, as the by failing to obtain the advice of a medical ALJ noted that "[n]o specific functional expert to assist in determining plaintiff's limitations were set forth by Dr. Varriale, disability onset date. With respect to this nor did he state the timeframe of the alleged argument, plaintiff requests remand with disability." (AR 19.) The record evidence instructions to obtain medical expert regarding plaintiff's knee injury was, by the testimony. (Pl.'s Br. at 14.) As the Court has ALJ's own analysis, "very limited." (Id.) As determined that the case must be remanded

a. Duty to Obtain a Medical Expert SSR 83-20 "imposes what might fairly Pursuant to SSR 83-20 be called heightened record-development duties." Plumley v. Astrue, No. 2:09-CV-42, SSR 83-20: Titles II and XVI: Onset of 2010 WL 520271, at *8 (D. Vt. Feb. 9, Disability "state[s] the policy and 2010) (quoting Godsey v. Astrue, No. 08-describe[s] the relevant evidence to be 410-P-S, 2009 WL 1873528, at *3 (D. Me. considered when establishing the onset date June 29, 2009); see also Caputo v. Astrue, of disability under the provisions of titles II No. 07-CV-3992 (DLI)(JO), 2010 WL and XVI of the Social Security Act . . . and 3924676, at *3 (E.D.N.Y. Sept. 29, 2010). implementing regulations." SSR 83-20, It "provides that when a claimant's medical found at 1983 WL 31249, at *1 (S.S.A. or work evidence is not consistent with the 1983). "SSR 83-20, which is binding on the claimant's alleged disability onset date, the Commissioner, applies to cases that require ALJ may need to further develop the record the ALJ to determine when the claimant first to reconcile the discrepancy." Plumley, became disabled." Caputo v. Astrue, No. 2010 WL 520271, at *8. SSR 83-20 "does 07-CV-3995 (DLI)(JO), 2010 WL 3924676, not mandate that a medical advisor be called at *3 (E.D.N.Y. Sept. 29, 2010). in every case, [but] courts have construed this step to be 'essential' when the record is SR 83-20 states, ambiguous regarding onset date." Id. (citing Kelly v. Astrue, No. 06-168-P-S, 2007 WL In some cases, it may be possible, 2021923, at *7 (D. Me. Jul. 11, 2007)). based on the medical evidence to reasonably infer that the onset of a b. Application disabling impairment(s) occurred some time prior to the date of the There is substantial evidence, in the first recorded medical examination, record and in the ALJ's decision, indicating e.g., the date the claimant stopped that plaintiff was disabled at the time of the working. How long the disease may ALJ's decision. In his decision, the ALJ be determined to have existed at a stated "[i]t is probable that the claimant's disabling level of severity depends multiple sclerosis is currently disabling, but on an informed judgment of the facts this is not relevant in the present matter in the particular case. The judgment, because there is no evidence whatsoever of however, must have a legitimate limitations due to this condition while the medical basis. At the hearing, the claimant was insured." (AR 18.) The Court administrative law judge (ALJ) reads the ALJ's decision to state that should call on the services of a plaintiff's knee impairment did not render medical advisor when onset must be her unable to perform sedentary work inferred. If there is information in through 1997, but at some point after 1997, the file indicating that additional plaintiff's MS rendered her unable to medical evidence concerning onset is perform any work in the national economy. available, such evidence should be secured before inferences are made. On remand, to the extent the ALJ finds that the plaintiff is currently disabled, at SSR 83-20, found at 1983 WL 31249, at *3 least in part because of her knee impairment, (S.S.A. 1983). the ALJ should utilize an expert to determine the onset date of her disability.*fn2 plaintiff's knee impairment. In addition, to Given the "limited" medical evidence the extent the ALJ finds that the plaintiff is regarding plaintiff's knee impairment, a currently disabled, at least in part because of medical expert will allow the ALJ to fully her knee impairment, the ALJ should utilize develop the record in order to arrive at an an expert to determine the onset date of her accurate determination of plaintiff's status disability. The ALJ should then evaluate this between 1992 and 1997. new evidence in light of the entire record, including consideration of the factors set

3. Plaintiff's Additional Arguments forth in 20 C.F.R. § 404.1529 and the significance of plaintiff's non-exertional

Plaintiff also argues that the ALJ impairments. committed reversible error in failing to discuss the factors set forth in 20 C.F.R. SO ORDERED. § 404.1529 and focusing solely on the objective medical evidence, and in failing to __________________ consider additional non-exertional JOSEPH F. BIANCO impairments when he determined that United States District Judge plaintiff could perform sedentary work in the national economy. In light of the Dated: March 29, 2012 Court's decision to remand the case with the Central Islip, New York instructions to clarify Dr. Varriale's opinion, and utilize a medical expert to the extent * * * necessary, the Court does not address these arguments because the ALJ shall re-assess The attorney for plaintiff is Louis R. Burko, the evidence in the record in light of the new Severance, Burko, Spalter & Masone P.C., evidence. The ALJ will obviously evaluate Montague Center, 189 Montague Street, plaintiff's symptoms in accordance with 20 Brooklyn, NY 11201. The attorney for C.F.R. § 404.1529 and the significance of defendant is: Loretta E. Lynch, United plaintiff's non-exertional impairments. States Attorney, by Robert W. Schumacher,

II, Assistant United States Attorney, United


States Attorney's Office, 610 Federal Plaza, Central Islip, NY 11722.

For the reasons set forth above, the cross-motions for judgment on the pleadings are denied, but the plaintiff's motion for remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. Specifically, on remand, the ALJ must contact Dr. Varriale for clarification of his 2006 opinion, and to the extent necessary, obtain additional information regarding

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