United States District Court, S.D. New York
VALERIE CAPRONI United States District Judge.
Robin Nanette Scott, appearing pro se, brings this
action appealing the denial of her application for disability
insurance benefits (“DIB”) and Supplemental
Security Income (“SSI”) by the Social Security
Administration (“SSA”). The Commissioner of
Social Security (the “Commissioner”) has moved
for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). (Dkt. 10). On March 16, 2017, the Honorable
Sarah Netburn, U.S. Magistrate Judge, issued a Report and
Recommendation (the “Report”) recommending that
the Commissioner's motion be denied and the case be
remanded to the SSA for further proceedings. Report (Dkt.
16). On March 30, 2017, the Commissioner objected to the
portion of the Report that found that the determination by
the administrative law judge (“ALJ”) of
Scott's residual functional capacity (“RFC”)
was not based on substantial evidence. Comm'r Obj. (Dkt.
17). On due consideration, after review of the record, the
Report is adopted.
filed applications for DIB and SSI in March 2013, alleging
disability as of December 24, 2012. Administrative R. 12
(Dkt. 9). On October 8, 2014, the SSA denied Scott's
claims. Id. at 9. The ALJ found that Scott had four
severe impairments, including degenerative disc disease and
herniations of the lumbar and cervical spines, but that she
had the RFC to perform sedentary work without excessive
pulmonary irritants and that Scott could perform jobs that
existed in the national economy. Id. at 14, 16,
19-20. In reaching that conclusion, the ALJ relied in large
part on the report of Dr. Ted Woods, a consulting physician
who examined Scott in May 2013 at the request of the
Commissioner. Id. at 17, 18. Dr. Woods was not
provided with a February 2013 CT scan of Scott's spine
that showed spinal and bilateral foraminal stenoses and disc
herniation. Id. at 213-14, 377-80. His report
related that Scott had an MRI, not a CT scan, of her lower
back and Scott “is unsure of the results.”
Id. at 213. He diagnosed Scott with, inter
alia, low back and neck pain, and found her prognosis to
be “[f]air.” Id. at 216. The ALJ's
decision became final when the Appeals Council denied
Scott's request to review the ALJ's decision.
Id. at 1-3. Scott filed this appeal on May 2, 2016.
reviewing final decisions of the SSA, courts “conduct a
plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a
whole, to support the Commissioner's decision and if the
correct legal standards have been applied.”
McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d
Cir. 2008)). 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)
(per curiam) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
district court reviewing a magistrate judge's report and
recommendation ‘may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.'” Bradley v. Comm'r of
Soc. Sec., No. 12 Civ. 7300, 2015 WL 1069307, at *1
(S.D.N.Y. Mar. 11, 2015) (quoting 28 U.S.C. §
636(b)(1)); see also Fed. R. Civ. P. 72(b)(3).
Courts review “those parts of the Report to which
objections are made de novo, and the remaining parts
for ‘clear error on the face of the record.'”
Cruz v. Colvin, No. 13 Civ. 1267, 2014 WL 5089580,
at *1 (S.D.N.Y. Sept. 25, 2014) (quoting 28 U.S.C. §
636(b)(1)); see also Fed. R. Civ. P. 72(b)(3).
Report recommends that the case be remanded to the SSA
because the ALJ's determination of Scott's RFC was
not based on substantial evidence. Report at 22-23. Judge
Netburn concluded that the ALJ did not err in according
significant weight to Dr. Woods's opinion, given that
Scott had no consistent treating physicians. Id. at
21. Because, however, Dr. Woods was not provided with
Scott's CT scan that showed marked spinal and foraminal
stenoses and disc herniation, the Report found that Dr.
Woods's opinion was based on “an obviously
incomplete evidentiary record missing test results crucial to
a proper diagnosis.” Id. at 23. Judge Netburn
reasoned that, because Dr. Woods's opinion was the only
one in the record to assess Scott's limitations, the ALJ
either should have ordered an additional consultative
examination that took into consideration Scott's spinal
imaging or sought additional information from a treating
physician about the extent of Scott's limitations.
Id. In the objection, the Commissioner argues that
the relevant regulations do not mandate that a consulting
physician be furnished with particular evidence and that,
when the administrative record contains no gaps, the ALJ is
not required to seek additional information. Comm'r Obj.
ALJ assesses a claimant's alleged disability, he must
“affirmatively develop the record in light of the
essentially non-adversarial nature of a benefits
proceeding.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir. 2009) (quoting Lamay v. Comm'r of Soc.
Sec., 562 F.3d 503, 508-09 (2d Cir. 2009)). With respect
to consultative examinations, the relevant regulations
require the SSA to “give the examiner any necessary
background information about [a claimant's]
condition.” 20 C.F.R. § 404.1517. Although Dr.
Woods was not required to view all of the medical evidence,
Scott's abnormal CT scan was “necessary background
information” that Dr. Woods should have considered.
See Mills v. Berryhill, No. 15 Civ. 5502, 2017 WL
1155782, at *10 (E.D.N.Y. Mar. 27, 2017) (“[T]he
Commissioner should have provided [the consulting physician]
with Plaintiff's records [including his MRIs, EMG, or
surgical reports] that documented the history of his chief
complaints. Without any of this information, [the consulting
physician's] opinion alone cannot support the ALJ's
Second Circuit's opinion in Burgess v. Astrue,
on which the Commissioner relies, is not to the contrary. 537
F.3d 117 (2d Cir. 2008). In that case, the court remanded to
the Commissioner because, inter alia, the ALJ relied
on the report of a consulting physician who had not
considered an MRI that supported the claimant's alleged
disability. Id. at 130-31. It is true, as the
Commissioner points out, that the consulting physician in
that case never examined the claimant, whereas Dr. Woods
examined Scott. Comm'r Obj. at 5. That distinction is not
all that significant, however, because the Second Circuit
also found that the report of Dr. Mancheno, who had
examined Burgess, was not supported by substantial evidence;
like Dr. Woods with the CT scan in this case, Dr. Mancheno
did not review an MRI that the claimant represented was
abnormal. Burgess, 537 F.3d at 121, 124, 132.
Consistent with Burgess, several courts in this
circuit have found remand was necessary when a consulting
physician was not provided with important diagnostic tests.
See Mills, 2017 WL 1155782, at *10; Adesina v.
Astrue, 12 Civ. 3184, 2014 WL 5380938, at *10 (E.D.N.Y.
Oct. 22, 2014); Payne v. Astrue, 10 Civ. 1565, 2011
WL 2471288, at *7-8 (D. Conn. June 21, 2011). In a
particularly analogous case, in which the ALJ assigned weight
to a consulting physician's assessment of a
claimant's limitations, the court concluded that a remand
was necessary because there was an obvious gap in the record:
there was no medical opinion interpreting the results from
the claimant's MRIs and imaging report and the
Commissioner failed to provide the consulting physician with
those diagnostic tests. Riddick v. Comm'r Soc.
Sec., 15 Civ. 8453, 2016 WL 816795, at *10 (S.D.N.Y.
Feb. 29, 2016).
“‘the record contains sufficient evidence from
which an ALJ can assess the [claimant's RFC], ' a
medical source statement or formal medical opinion is not
necessarily required.” Monroe v. Comm'r of Soc.
Sec., No. 16-1042, 2017 WL 213363, at *3 (2d Cir. Jan.
18, 2017) (citation omitted) (quoting Tankisi v.
Comm'r of Soc. Sec., 521 F.App'x 29, 34 (2d Cir.
2013) (summary order)). But Monroe-and the other
Second Circuit cases on which it relies-still requires that
the administrative record before the ALJ be sufficiently
comprehensive to permit an informed finding by the ALJ.
Id. Here, the Commissioner does not dispute that
neither a treating physician nor Dr. Woods assessed
Scott's limitations in light of the CT scan. This gap in
the record precluded a sufficiently supported assessment by
the ALJ of Scott's RFC. See Smith v. Comm'r of
Soc. Sec., No. 15 Civ. 1473, 2016 WL 1388063, at *11
(S.D.N.Y. Mar. 23, 2016) (“[B]ecause the CT scan report
simply documents objective findings without interpreting
their practical implications, the ALJ's conclusion rests
improperly on his lay assessment of the medical
evidence.”); Alessi v. Colvin, No. 14 Civ.
7220, 2015 WL 8481883, at *5-6 (E.D.N.Y. Dec. 9, 2015)
(“[T]here is insufficient basis in the record to
determine . . . [Plaintiff's RFC] especially because . .
. the sole medical source whose functional assessment the ALJ
gave ‘great weight' to did not review the lumbar
and cervical MRIs, which showed some abnormalities. . . .
While the ALJ himself considered the MRIs, the ALJ is not a
medical professional who can interpret the MRIs to assess
be, as the Report notes, that Dr. Woods would have reached
the same conclusion had Scott's CT scan been available to
him. See Report at 22. Nevertheless, the ALJ should
have further developed the record given that (1) Scott did
not have a consistent treating physician, and none of the
treating physicians' notes includes an opinion on the
extent of her limitations, (2) the CT scan was abnormal and
therefore could have affected Dr. Woods's opinion, and
(3) the ALJ relied in large part on Dr. Woods's report.
Accordingly, upon de novo review of the record, the
Court agrees with the Report that the ALJ's determination
of Scott's RFC was not based on substantial evidence. On
remand, the ALJ should either order an additional
consultative examination that takes into consideration
Scott's spinal imaging or seek additional information
from a treating physician about the extent of Scott's
Court has reviewed the rest of the Report and found no clear
error. Se ...