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Bailey v. Berryhill

United States District Court, S.D. New York

March 24, 2017

GARY A. BAILEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.


          LAURA TAYLOR SWAIN United States District Judge

         Plaintiff Gary A. Bailey brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of a final determination of the Commissioner of Social Security (the “Commissioner”) denying Plaintiff's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”). The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (See docket entry nos. 16 & 20.)

         Before the Court is Magistrate Judge Ronald L. Ellis's December 13, 2016, Report and Recommendation (the “Report”), recommending that the Plaintiff's motion for judgment on the pleadings be granted and Defendant's motion be denied. (See docket entry no. 22.) On December 27, 2016, the Commissioner filed objections to the Report in the form of a motion for reconsideration. (See docket entry no. 24.) The Court has reviewed thoroughly the Report, the parties' submissions, and the administrative record (docket entry no. 13 (“Tr.”)). For the reasons stated below, the Report is adopted in part and modified in part.

         The Report contains a comprehensive summary of the record below, and familiarity with that summary is assumed. As relevant to the Commissioner's objections, the Report characterizes the records of Drs. William Colman, Surinder Jindal, and Samuel Koszer as opinion evidence and recommends directing the Administrative Law Judge (“ALJ”) on remand to state and explain the weight assigned to that evidence in accordance with the “treating physician rule.” (Report at 30-33.) The Report further concludes that the ALJ's holding that Plaintiff's residual functional capacity (“RFC”) reflected “moderate” limitations with respect to maintaining concentration, persistence, and pace is inconsistent with the ALJ's discussion of the evidence and “amounts to an arbitrary substitution of [the ALJ's] own judgment of the medical facts.” (Report at 38.)


         The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.S. § 636(b)(1) (LexisNexis 2001). The Court makes a de novo determination of those issues as to which objections are made. See id.; Borrero v. Colvin, No. 14-CV-5304-LTS-SN, 2015 WL 1262276, at *1 (S.D.N.Y. Mar. 19, 2015). A properly raised objection “may not be conclusory or general and may not simply rehash or reiterate the original briefs to the magistrate judge.” Rodriguez v. Colvin, No. 12-CV-3931-RJS-RLE, 2014 WL 5038410, at *3 (S.D.N.Y. Sept. 29, 2014) (internal quotation marks omitted). Absent properly raised objections, the Court reviews the magistrate judge's report for clear error. See Borrero, 2015 WL 1262276, at *1.

         The Commissioner raises two objections to the Report. First, the Commissioner argues that the records of Drs. Colman, Jindal, and Koszer do not contain medical opinions to which the treating physician rule applies. (See docket entry no. 25, Def.'s Mem. in Supp. of Mot. for Recons. (“Def. Mem.”), at 2-6.) Second, the Commissioner argues that the Report improperly holds that the ALJ's residual functional capacity (“RFC”) determination was an “arbitrary substitution of his own judgment of the medical facts.” (Id. at 6 (quoting Report at 38).) Because these objections are not “conclusory or general, ” the Court reviews these issues de novo. Rodriguez, 2014 WL 5038410, at *3.

         The Court will “set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); see also 42 U.S.C. § 405(g). Substantial evidence “is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (internal quotation marks omitted). Remand is warranted where “there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (internal quotation marks omitted).

         Weighing Medical Evidence

         The Commissioner asserts that the records of Drs. Colman, Jindal, and Koszer do not constitute “medical opinions.” (Def. Mem. at 4.) Accordingly, the Commissioner argues, the ALJ did not commit error by omitting to assign and state reasons for giving a particular weight to that evidence. (Id. at 2-6.)

         The Report contains a thorough summary of the rules regarding the treatment of medical opinions in connection with Social Security disability evaluations. (See Report at 26-28.) “Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2); 416.927(a)(2). The results of objective tests, including “any clinical or diagnostic techniques, ” are not medical opinions. Peach v. Astrue, No. 08-CV-0741-FJS, 2009 WL 7113220, at *5 (N.D.N.Y. Dec. 3, 2009), report and recommendation adopted, No. 6:08-CV-741-FJS-VEB, 2010 WL 4609325 (N.D.N.Y. Nov. 4, 2010). Further, a medical opinion must reflect a judgment “with regard to the nature and severity of plaintiff's limitations beyond a mere diagnosis and description of symptoms.” Merriman v. Comm'r of Soc. Sec., No. 14-CV-3510-PGG-HBP, 2015 WL 5472934, at *20 (S.D.N.Y. Sept. 17, 2015).

         Upon de novo review, the Court concludes that the records of Drs. Colman (Tr. at 452-55, 470-92), Jindal (id. at 297-99, 456-69), and Koszer (id. at 432-33, 447-51, 493-503) do not contain medical opinions for which the ALJ was required to assign specific weight. The records of Dr. Colman, an orthopedic surgeon who saw Plaintiff for pain in both knees, are limited to treatment notes documenting Plaintiff's medical history, describing the results of examinations and medical tests, and describing treatments and treatment plans (see id. at 453-54, 471-82); a referral (see id. at 455); operative reports (see id. at 483-86); and test results (see id. at 487-92). Notations in the “history” portion of the treatment notes, such as, “He has a lot of pain in the medial joint line. It hurts with activity, ” are best understood to reflect Plaintiff's self-reported symptoms, and not medical judgments. (Id. at 479.) Cf. Moulding v. Astrue, No. 08-CV-9824-HB, 2009 WL 3241397, at *9 (S.D.N.Y. Oct. 8, 2009) (letters do not contain medical opinions where “[a] plausible reading . . . is that these two physicians simply accepted Plaintiff's statements without scrutiny”). The records state diagnoses and describe symptoms, but do not state any conclusions regarding Plaintiff's resultant limitations. (See, e.g., Tr. at 453 (tests “show worsening of his osteoarthritis”).)

         Similarly, the records of Dr. Jindal, a neurologist, describe Plaintiff's reports of pain, the results of physical and neurological examinations, diagnoses, and treatment plans, but do not contain medical opinions. (See id. at 297-99, 456-69.) Although Dr. Jindal's records indicate that Plaintiff “cannot sit for longtime or stand for longtime [sic]” (id. at 463) and that “[p]rolonged sitting and standing aggravates the symptoms” (id. at 461), these notations are in the “history” section of the records, and accordingly do not reflect the physician's judgments. Similarly, notations in the history portion of the records that Plaintiff's “problem is unchanged” (id. at 475) or “is getting worse” (id. at 476) reflect neither Dr. Jindal's judgment nor an assessment of the extent to which Plaintiff's impairments restrict functioning.

         Finally, the records of Dr. Koszer, a neurologist, are limited to visit summaries stating treatment plans and diagnoses (see id. at 433, 451); progress notes stating Plaintiff's medical history and reported symptoms, the results of examinations, diagnoses, and treatment plans (see id. at 448-49, 494-97); and the results of medical tests (see id. at 498-503). These records do not provide an assessment of the limiting ...

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