Opinion
14-cv-4424 (GRB), 19-cv-0092 (GRB)
2021-02-12
Andrew G. MACKEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Sullivan & Kehoe, Attorneys for the Plaintiff, 44 Main Street, Kings Park, NY 11754, By: Michael Brangan, Esq., Of Counsel. Law Office of Christopher James Bowes, Attorneys for the Plaintiff, 54 Cobblestone Drive, Shoreham, NY 11786, By: Christopher James Bowes, Esq., Of Counsel. United States Attorney's Office, Eastern District of New York, Attorneys for the Defendant, 610 Federal Plaza, 5 Floor, Central Islip, NY 11722, By: Vincent Lipari and Layaliza K. Soloveichik, Assistant United States Attorneys.
Sullivan & Kehoe, Attorneys for the Plaintiff, 44 Main Street, Kings Park, NY 11754, By: Michael Brangan, Esq., Of Counsel.
Law Office of Christopher James Bowes, Attorneys for the Plaintiff, 54 Cobblestone Drive, Shoreham, NY 11786, By: Christopher James Bowes, Esq., Of Counsel.
United States Attorney's Office, Eastern District of New York, Attorneys for the Defendant, 610 Federal Plaza, 5th Floor, Central Islip, NY 11722, By: Vincent Lipari and Layaliza K. Soloveichik, Assistant United States Attorneys.
MEMORANDUM OF DECISION & ORDER
GARY R. BROWN, United States District Judge: This opinion addresses two appeals brought by Plaintiff Andrew G. Mackey (the "Plaintiff" or the "Claimant") pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the "Act"), challenging final determinations by the Commissioner of the Social Security Administration (the "Defendant" or the "Commissioner"), that he was ineligible to receive Social Security disability insurance benefits. Though relating to separate applications, joint consideration of these appeals helps mitigate the already confused and misguided processes deployed here. Presently before the Court in both cases are the parties’ cross motions, pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings. For the reasons that follow, defendant's motions are denied, while plaintiff's motions are granted in part, and the matters are remanded for further proceedings.
In its review, the Court has applied the frequently reiterated standards for entitlement to social security disability benefits, review of a denial of such benefits, consideration of motions for judgment on the pleadings, examination of the procedures employed, the substantial evidence rule and deference accorded to ALJ decisions, evaluation of vocational evidence and, importantly in this case, the treating physician rule. These standards, along with numerous authorities and citations, are discussed at length, merely by way of example in Zacharopoulos v. Saul , No. 19-5075 (GRB), 2021 WL 235630 (E.D.N.Y. Jan. 25, 2021), which discussion is hereby incorporated by reference.
The plaintiff, who suffers from what appears to be significant work-related back injuries, filed two applications for disability benefits which were denied, and the claims were heard separately by two different ALJs. Remarkably, both ALJs accorded no weight, virtually no weight or undefined weight to the opinions of plaintiff's treating physician, Dr. Timothy Groth, who "indicated that the claimant was 100 % disabled." See Administrative Transcript at 18, Mackey v. Colvin , No. 14-cv-4424 (GRB) (E.D.N.Y. May 22, 2018), DE 21 ("Colvin Admin. Tr."); Mackey v. Berryhill , No. 19-cv-0092 (GRB) (E.D.N.Y. April 23, 2020), DE 25 ("Berryhill Admin. Tr."). Of course, the law provides for instances in which a treating physician's opinion may be rejected by an ALJ, yet several factors in this case render these actions particularly problematic. First, one consultative physician employed by the Commissioner determined – in a well-reasoned and supported medical opinion – that the Plaintiff could not return to work because of lower back pain, adding that the Plaintiff's prognosis for recovery was poor. Colvin Admin. Tr. at 18. That consultative physician's opinion largely corroborated those of plaintiff's treating physician, yet the ALJ confronted with those opinions in the first case opted to disregard the findings of both doctors in favor of a second consultative physician opinion, without providing a rational basis for such cherry-picking.
In the second case, the ALJ opted to reject the opinion of the treating physician, but accorded "great weight" to the opinion of yet another consulting physician, Dr. Syeda Asad, who opined that the plaintiff had no physical limitations. Berryhill Admin. Tr. at 15. The ALJ made the assessment notwithstanding the fact that the consulting physician was aware of, but failed to even look at, MRI results of the plaintiff revealing findings of spinal abnormalities. Id. at 275. That the consulting physician failed to even peruse the test results is undisputed by the Commissioner. The failure of the consulting physician to examine such evidence, standing alone, undermines the ALJ's determination concerning the weight to be accorded that opinion. See Burgess v. Astrue , 537 F.3d 117, 131 (2d Cir. 2008) (ALJ's reliance on the testimony of a non-examining medical expert was flawed because the expert did not look at an MRI); Ingrassia v. Colvin , 239 F. Supp. 3d 605, 625 (E.D.N.Y. 2017) (consulting physician's failure to consider objective medical evidence undermines an ALJ's reliance on that consulting physician).
Notably, the ALJ, armed with only a consulting opinion that did not consider relevant, available medical evidence, adopted a different course. According to the operative decision, "the MRI findings have been mild," and there "was no evidence of nerve root compression." Berryhill Admin. Tr. at 15. From where did this evaluation of the MRI results originate? Apparently, from the ALJ himself – it appears that the ALJ decided to interpret the diagnostic test results without the benefit of a physician or other expert. Such substitution of the ALJ's armchair views of medical evidence is clearly impermissible. See Meadors v. Astrue , 370 F. App'x 179, 183 (2d Cir. 2010) ("[T]he ALJ was not at liberty to substitute his own lay interpretation of that diagnostic test for the uncontradicted testimony of [the treating physician]"); Ingrassia , 239 F. Supp. 3d at 625 (same). Moreover, the ALJ's accord of "great weight" to the opinion of the consulting physician is facially meritless: while the ALJ determined that Dr. Asad's opinion was "consistent with the record," Berryhill Admin. Tr. at 15, this simply cannot be so. Dr. Asad's determination that the plaintiff had "no physical limitations" directly contradicts the ALJ's own finding that the plaintiff has "severe impairments" that "significantly limit" plaintiff's ability to perform work. Id. at 12, 15. Even through the generous lens provided by the "substantial evidence" standard, this opinion simply fails.
Viewed separately, the ALJ decisions cannot withstand review; taken together, these results border on the irrational. This situation requires, at a minimum, a remand to the Commissioner.
On his motion, plaintiff seeks a remand solely for the calculation of benefits. Though tempting, this is simply not the rule; where, as here, the Commissioner's decision is unsupported by the record, the usual remedy is remand for further proceedings. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999). Based on the record before the Court, it is not possible to fully evaluate whether plaintiff is, in fact, entitled to benefits. Thus, a remand for further proceedings is appropriate.
On remand, the Court directs the Commissioner to assign these matters to a single ALJ, who is to reassess the evidence, and the weight accorded thereto, with particular focus on the mandates of the treating physician rule, as well as the other observations set forth in this opinion.