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Ogirri v. Berryhill

United States District Court, S.D. New York

February 28, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, [1] Defendant.



         Plaintiff 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).

         I. BACKGROUND

         A. Procedural History

         Ogirri 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.

         Represented 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. 1.[2] 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.

         B. The Administrative Record

         1. Ogirri's Background

         Ogirri 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, [3] 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 atrophy.

         Ogirri 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.

         2. Relevant Medical Evidence on Record

         As 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 Court's remand.

         a. Treatment at Mount Sinai Hospital

         Ogirri 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.[4]

         On July 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.[5] Id. at 295. Dr. Osmonovic diagnosed Ogirri with cerebellar atrophy, and referred Ogirri for neurology, physiatry, orthopedic, podiatry, and cardiology consultations. Id. at. 295.

         On 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.

         On 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.

         Ogirri 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. Id.

         Ogirri 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 536.

         Dr. 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. at 549.

         i. Treatment by Dr. Winona Tse

         On 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.

         On 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.[6] 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.

         On 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.

         That 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.

         The 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.

         Dr. Tse 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.

         Dr. Tse 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 400-01.

         In 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.

         Ogirri 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 2, 40.

         b. SSA Consultative Examiners

         i. Dr. David Finkelstein

         On 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.

         ii. Dr. Joyce Graber

         On 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.

         iii. Dr. T. Harding

         On 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.

         3. ALJ Hearing

         At the 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.

         a. ...

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