United States District Court, S.D. New York
GARY A. BAILEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART
TAYLOR SWAIN United States District Judge
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 &
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.
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.)
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.
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,
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).
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.)
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).
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”).)
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.
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 ...