United States District Court, S.D. New York
OPINION AND ORDER
L. COTT UNITED STATES MAGISTRATE JUDGE.
Frederick Ogirri brings this action seeking judicial review
of a final decision by defendant Nancy A. Berryhill, the
Acting Commissioner of the Social Security Administration
(the “Commissioner”), denying Ogirri's claim
for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Ogirri has
moved and the Commissioner has cross-moved for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons set forth below, the case is
remanded to the Commissioner for further proceedings pursuant
to sentence four of 42 U.S.C. § 405(g).
filed an application for DIB on December 17, 2012, and an
application for SSI on March 24, 2014, alleging in both a
disability onset date of August 1, 2012. Administrative
Record (“AR”), dated Apr. 12, 2017, Dkt. No. 7,
at 12. The Social Security Administration (“SSA”)
denied Ogirri's application on April 3, 2013.
Id. at 106-08. On May 15, 2013, Ogirri requested an
administrative hearing, Id. at 109, and on May 14,
2014, represented by counsel, Ogirri appeared before
Administrative Law Judge (“ALJ”) Gal Lahat.
Id. at 41-93. In a written decision dated July 25,
2014, the ALJ found that Ogirri was not disabled.
Id. at 12-24. Ogirri requested review by the SSA
Appeals Council on August 12, 2014, Id. at 8, and
submitted additional medical evidence generated after the
ALJ's decision, Id. at 40. On November 19, 2015
the Appeals Council denied Ogirri's request for a review
of the decision, thus rendering the ALJ's decision final.
Id. at 1-4.
by counsel, Ogirri timely commenced this action on November
23, 2016, seeking judicial review of the Commissioner's
decision under 42 U.S.C. § 405(g). Complaint, Dkt. No.
On June 12, 2017, Ogirri moved for judgment on the pleadings,
Dkt. No. 8, and filed a memorandum in support of his motion
(“Pl. Mem.”), Dkt. No. 9. On July 28, 2017, the
Commissioner cross-moved for judgment, Dkt. No. 14, and filed
her own supporting memorandum of law (“Def.
Mem.”), Dkt. No. 15. No. reply papers were submitted.
On June 21, 2017, the parties consented to my jurisdiction
for all purposes under 28 U.S.C. § 636(c). Dkt. No. 13.
The Administrative Record
was born on April 9, 1983 and was 29 years old on the alleged
disability onset date. AR at 23. Ogirri worked off and on as
a security guard from 2008 to 2012, prior to which he had
worked in a mailroom and in a warehouse. Id. at
58-59, 102. Ogirri alleges a No. of impairments that limit
his ability to work. In his DIB application he claimed he
became unable to work on August 1, 2012 due to cerebellar
atrophy,  balance and coordination loss, and
arthritis. Id. at 190. He believes that an assault
in 2008, which resulted in a head injury, caused his
disabilities. Id. at 48, 252, 294. Ogirri has been
treated by a No. of doctors for his conditions. Id.
at 17-20. As discussed in the next section of this opinion,
multiple doctors have diagnosed Ogirri with cerebellar
testified at the May 14, 2014 hearing that he lives with his
brother and two other roommates and that he is engaged.
Id. at 52. He reported that he graduated from
Queensborough Community College in December 2013, but that he
had “a lot of trouble” obtaining his degree
because his impairments caused him difficulty traveling to
and accessing the classrooms. Id. at 52, 76-77. At
his hearing, Ogirri testified that he has trouble sitting,
standing, and walking. Id. at 62-63. He said he
could stand without his cane for 20 minutes at most, and
could walk with his cane for two blocks at most. Id.
He reported that he could lift a gallon of milk with both
hands, but could not do so while standing up. Id. at
63-64. His fiancée helps him with household chores
like doing the laundry, making his bed, and preparing food.
Id. at 64. He also testified that he has problems
with writing and typing. Id. at 65-66.
Relevant Medical Evidence on Record
Ogirri does not dispute the ALJ's findings regarding his
mental impairments, Pl. Mem. at 2 n.5, the Court's
discussion of the medical evidence primarily focuses on the
evidence concerning his physical impairments, and
specifically, on evidence regarding Ogirri's treatment
with neurologist Dr. Winona Tse since the ALJ's failure
to properly weigh Dr. Tse's opinion is the basis for the
Treatment at Mount Sinai Hospital
received primary care treatment as well as specialized
treatment from multiple doctors at Mount Sinai Hospital in
2013 and 2014. See, e.g., AR. 244-47; 291-336; 352-403;
406-09; 446-564; 575-88.
30, 2013, Ogirri began treatment with Dr. Ferid Osmanovic, a
primary care physician at Mount Sinai Hospital. Id.
at 293-97. Dr. Osmanovic conducted an examination and noted
atrophied muscles, an unsteady gait, and positive cerebellar
signs. Id. at 295. Dr. Osmonovic
diagnosed Ogirri with cerebellar atrophy, and referred Ogirri
for neurology, physiatry, orthopedic, podiatry, and
cardiology consultations. Id. at. 295.
August 28, 2013, Ogirri met with Dr. Aaron Tansy, a
neurologist at Mount Sinai Hospital. Id. at 304-16.
Dr. Tansy noted Ogirri's reported history of progressive
difficulty with walking and accomplishing activities of daily
living, as well as increased falls and difficulty with
speech. Id. at 309. Dr. Tansy conducted a
neurological examination that revealed dysarthric and
hypophonic speech as well as absent pathological reflexes,
and he ordered an MRI of Ogirri's brain. Id. at
306, 313, 321. Dr. Tansy discussed treatment options and
expectations with Ogirri, and referred him to Mount
Sinai's Movement Disorders Clinic and to physical
therapy. Id. at 313-14.
September 18, 2013, Dr. Tansy met with Ogirri again.
Id. at 320-25. He noted no change in Ogirri's
symptoms and further noted bilateral dysmetria that was worse
in the left hand as well as an ataxic abnormal gait and the
use of a cane. Id. at 321. Dr. Tansy reviewed the
MRI, which showed generalized cerebellar atrophy that was
marked and disproportionate to age. Id. at 322. Dr.
Tansy diagnosed Ogirri with cerebellar degenerative disorder.
Id. at 323. Dr. Tansy noted that Ogirri had not yet
been to the Movement Disorder Clinic, and recommended he go
for treatment. Id. at 320, 323.
followed up with Dr. Osmonovic on November 19, 2013 and
December 2, 2013. Id. at 509-16, 519-25. Dr.
Osmonovic took X-rays, referred Plaintiff to physical therapy
and occupational therapy, and prescribed Voltaren gel.
returned to Dr. Tansy on January 15, 2014. Id. at
536-41. He conducted another neurological exam and again
noted dysarthric and hypophonic speech, absent pathological
reflexes, and an abnormal finger-to-nose and heel-to-shin
testing. Id. at 538. He further noted a
short-stepped gait, and an inability to perform tandem gait
or heel and toe walk. Id. He noted that Ogirri had
been seen by the Movement Disorders Clinic. Id. at
Tansy met again with Ogirri on March 12, 2014. Id.
at 549-53. He continued to note absent pathologic reflexes,
abnormal bilateral finger-to-nose testing, abnormal bilateral
heel-to-shin testing, abnormal gait requiring short steps
with use of a walker, and an inability to perform tandem gait
or heel and toe walk. Id. He noted that Ogirri had
been seen again by the Movement Disorders Clinic, and that
Dr. Tse had completed a disability evaluation. Id.
Treatment by Dr. Winona Tse
October 28, 2013, Ogirri met for the first time with Dr.
Winona Tse, a neurologist at Mount Sinai Hospital's
Movement Disorders Center. Id. at 364-67. Dr. Tse
noted that Ogirri had a four-year history of progressive
incoordination, problems climbing stairs, had been using a
cane for the past six months, and was using ankle orthotics
for stability. Id. at 364. Based on her examination,
Dr. Tse noted dysarthric scanning speech, and a wide-based
unsteady gait. Id. at 364-65. She diagnosed Ogirri
with cerebellar degeneration with cerebellar dysfunction.
Id. at 365. Dr. Tse recommended physical therapy,
exercise, and a social work consult to get more home
services. Id. at 365.
December 3, 2013, Ogirri met with Dr. Tse for a follow up
visit. Id. at 353. Ogirri reported that he had
fallen and had begun using a walker, feeling that it was
steadier than the cane he had been using. Id. She
conducted an examination and noted that Ogirri's results
for both a bilateral finger-to-nose test and bilateral
heel-to-shin test were ataxic. Id. She continued to
note an unsteady wide-based gait, as well as sway when
standing. Id. She recommended he continue with
physical therapy, follow up with a social worker regarding
home care services, and see an occupational therapist.
Id. at 354.
February 6, 2014, Ogirri met once again with Dr. Tse.
Id. at 408. She noted that he had been attending
physical therapy, that he continued to use a cane and
sometimes used a walker, and that he was applying for
disability benefits. Id. She continued to note
dysarthic speech, ataxic finger-to-nose and heel-to-shin
testing, and a wide-based ataxic gait. Id. at
408-09. Dr. Tse recommended he continue physical therapy.
Id. at 409.
same day, Dr. Tse completed an impairment questionnaire in
conjunction with Ogirri's disability application.
Id. at 396-403. Dr. Tse wrote that she had begun to
treat Ogirri on October 28, 2013, had seen him every three
months since, and had diagnosed him with cerebellar
degeneration. Id. at 396. Asked to identify the
clinical findings that supported her diagnosis, Dr. Tse
listed Ogirri's dysmetria on finger-to-nose and also the
heel-to-shin tests, his slurred scanning speech, and his
wide-based ataxic gait. Id. Asked to identify the
diagnostic tests that supported her diagnosis, Dr. Tse noted
that the August 28, 2013 MRI was consistent with marked
cerebellar atrophy. Id. at 397. She described
Ogirri's primary symptoms as “walking and
balance/coordination problem[s]” and “slurred
speech.” Id. at 397.
form asked Dr. Tse to estimate Ogirri's residual
functional capacity if he were to be placed in a normal,
competitive, five day a week work environment on a sustained
basis. Id. at 398. Dr. Tse opined that in an
eight-hour day Ogirri could sit for four hours and stand/walk
for one hour. Id. at 398. She found Ogirri could sit
for 30 minutes before needing to get up and move around for
30 minutes. Id. at 398-399. She also wrote that it
was medically recommended or necessary for Ogirri not to
stand or walk continuously in a work setting. Id. at
399. Dr. Tse further opined that Ogirri could occasionally
lift and carry five to 10 pounds and frequently lift and
carry up to five pounds. Id.
opined that Ogirri had had marked limitations using his left
upper extremities for manipulation, and moderate limitations
using his right upper extremities for manipulation.
Id. at 399-400. Dr. Tse opined that Ogirri would
periodically experience pain, fatigue or other symptoms
severe enough to interfere with attention and concentration.
Id. at 401. Dr. Tse estimated Ogirri's level of
pain to be a seven on a scale of one to ten, and his level of
fatigue to be an eight. Id. at 398.
considered Ogirri capable of only low stress work.
Id. at 401. He would need unscheduled 30-minute
breaks three times per workday and would be absent from work
more than three times a month. Id. at 401-02. Ogirri
would need to avoid wetness, heights, pushing, pulling,
kneeling, bending, and stooping. Id. at 402. Dr. Tse
also opined that Ogirri could not work a job requiring him to
keep his neck in a constant position, although his condition
did not interfere with his ability to do so. Id. at
response to the question, “In your best medical
opinion, what is the earliest date that the description of
symptoms and limitations in this questionnaire
applies?” Dr. Tse wrote “Now 2/6/14, ” the
day of the examination. Id. at 402.
saw Dr. Tse again on July 15, 2014, for more than 40 minutes.
Id. at 576-77. Dr. Tse noted that Ogirri reported
his walking had become more unsteady, and that he had
recently lost his balance and fallen, causing him to sprain
his ankle. Id. at 576. Dr. Tse noted that Ogirri had
stopped going to physical therapy in January due to bad
weather and depressed feelings. Id. at 576-77. Dr.
Tse continued to note ataxic finger-to-nose, and heel-to-shin
testing, and a wide-based, unsteady gait, and she planned a
follow up visit in three months' time. Id. at
577. On November 5, 2014 (following the ALJ's decision),
Dr. Tse wrote a letter in which she stated that Ogirri was
under her neurologic care and was “very disabled”
and “unable to work, ” although the Appeals
Council determined that this letter contained new information
about a later date in time, and “[t]herefore, it does
not affect the decision about whether [Ogirri was] disabled
beginning on or before July 25, 2014.” Id. at
SSA Consultative Examiners
October 18, 2012, Ogirri met with Dr. David Finkelstein for a
consultative examination. Id. at 248-50. Dr.
Finkelstein observed dysarthric speech, wide-based and ataxic
gait, that Ogirri could walk on his toes but not his heels,
did not use an assistive device, sway but no falling, some
dysmetria bilaterally in the extremities, and abnormal
finger-to-nose testing. Id. at 249. He diagnosed
cerebellar atrophy, and opined “[t]he client has
limitations in speech and moderate limitations in ambulation.
Also limitations in targeting the upper extremities.”
Id. at 250.
Dr. Joyce Graber
February 7, 2013, Ogirri met with Dr. Joyce Graber for a
consultative examination. Id. at 256-59. Dr. Graber
noted slow and unsteady gait, poor balance, inability to walk
on heels and toes, ability to squat fully with difficulty
getting up, some difficulty transferring on and off the exam
table, no use of an assistive device, and intact hand and
finger dexterity. Id. at 257-58. Dr. Graber opined
that “the claimant has a mild limitation for walking,
climbing and other such activities due to his balance
problems.” Id. at 258.
Dr. T. Harding
April 2, 2013, state agency psychological consultant Dr. T.
Harding reviewed the record and found that Ogirri had no
medically determinable mental impairment. Id. at 98.
hearing before ALJ Lahat on May 14, 2014, Ogirri appeared
with counsel, and both Ogirri and vocational expert Don
Schader testified. Id. at 42-93.