Burgess v. Astrue

• Decision Date: 08 August 2008
• Docket Number: Docket No. 05-4327-cv.
• Citation: 537 F.3d 117
• Parties: Doleen BURGESS, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

537 F.3d 117

Doleen BURGESS, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

Docket No. 05-4327-cv.

United States Court of Appeals, Second Circuit.

Argued: April 23, 2008.

Decided: August 8, 2008.

Robert Farley and Jean Troast, law students appearing pursuant to Interim Local Rule 46(e), Seton Hall University School of Law, Center for Social Justice, Newark, NJ (Jon Romberg, Supervising Attorney, on the brief), for Plaintiff-Appellant.

John M. Kelly, Special Assistant United States Attorney, Brooklyn, N.Y. (Benton J. Campbell, United States Attorney for the Eastern District of New York, Varuni Nelson, Kathleen A. Mahoney, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Defendant-Appellee.

Before: JACOBS, Chief Judge, KEARSE and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Doleen Burgess appeals from a judgment of the United States District Court for the Eastern District of New York, Nina Gershon, Judge, dismissing her complaint seeking disability insurance benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq. The district court granted the motion of defendant Commissioner of Social Security ("Commissioner") for judgment on the pleadings, finding that there was substantial evidence to support the Commissioner's denial of benefits on the ground that Burgess was not disabled within the meaning of the Act because she retained the residual functional capacity to perform the requirements of her past relevant work. On appeal, Burgess contends that the Administrative Law Judge ("ALJ") who reviewed her claim, and whose decision became that of the Commissioner, erred by failing to (a) give controlling weight to the opinion of her treating physician, (b) explain the reasons for giving that opinion minimal weight, and (c) fully and adequately develop the record. For the reasons that follow, we vacate the judgment of the district court and remand to the Commissioner for further proceedings.

I. BACKGROUND

The event leading to Burgess's claim for disability insurance benefits is not in dispute. On October 7, 1997, Burgess, then 32 years of age, was employed by a photography laboratory to perform accounting work. While at work, she fell over a box in a storage room, hitting her knees and elbows on the concrete floor. She was treated at a hospital emergency room; three days later she began treatment by Dr. Milton M. Smith, a specialist in the field of orthopedics; and she began physical therapy. Burgess returned to work at the photography laboratory some two weeks after the accident. She continued to work until February 1998, when she stopped because of the pain caused by injuries from the accident. In April 1999 Burgess applied to the Social Security Administration ("SSA") for disability insurance benefits under the Act, stating that she was unable to work because of pain in her leg and back.

Under the Act, "disability" means an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C § 423(d)(1)(A). "The impairment must be of `such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.'" Shaw v. Chater, 221 F.3d 126, 131-32 (2d Cir.2000) ("Shaw") (quoting 42 U.S.C. § 423(d)(2)(A)).

Pursuant to regulations promulgated by the Commissioner, a five-step sequential evaluation process is used to determine whether the claimant's condition meets the Act's definition of disability. See 20 C.F.R. § 404.1520. Essentially,

"if the Commissioner determines (1) that the claimant is not working, (2) that he has a `severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do."

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) ("Green-Younger") (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)) (bracketed phrase in Green-Younger).

Burgess's application was denied initially and on reconsideration. She then requested and received a hearing before an ALJ.

A. The Evidence Before the ALJ

At the hearing before the ALJ, held in May 2002, Burgess described her accident and testified that she and her three daughters had moved to live with her mother following the accident. Burgess testified that she did not do any household chores such as cleaning, cooking, and shopping, and that her mother and daughters performed those tasks. Aside from visiting her doctors, attending hearings on her claim for worker's compensation, and occasionally having her mother take her for a walk to the street corner, Burgess spent her days propped up in bed.

Burgess testified that her daily work as an accountant at the photography laboratory had involved two-to-three hours sitting at her desk and five-to-six hours standing and walking. As to her prior jobs, Burgess had worked for the photo laboratory as a receptionist; for other employers, she had worked as a cashier, a caretaker for children at a day care center, a cook and helper at a senior citizen home, and a salesperson in a department store. Her job as a salesperson had required her to be on her feet for virtually the entire workday. Burgess testified that she had not worked since February 1998 because she constantly had pain radiating down to her legs and feet—although some days were better than others. She testified she could not walk continuously for more than two blocks, stand continuously for more than 25 minutes, or sit for more than 15-20 minutes, without pain. Her pain was treated with Tylenol and Motrin.

As discussed below, the medical evidence in the record before the ALJ included reports and findings by

—Dr. Smith, the orthopedic surgeon who was Burgess's primary treating physician starting three days after her accident and continuing through the time of the hearing before the ALJ, and who performed arthroscopic surgery on Burgess's left knee in May 1998;

—Dr. Choong Kim, who treated Burgess at least once a month for more than a year after the accident and prescribed physical therapy — Dr. Franklin Turetz, who performed an MRI on Burgess's knee in March 1998;

— Dr. Javier Beltran, who performed an MRI on Burgess's back in January 1999;

— Dr. Mario Mancheno, who examined Burgess once in June 1999; and

— Dr. Robert Zaretsky, who examined Burgess a dozen times for the Workers' Compensation Board.

The record before the ALJ also included the testimony given by Dr. Smith in Burgess's case before the Workers' Compensation Board (or "Board") in May 2000. And Dr. Ernest Abeles, an orthopedic surgeon who had not examined Burgess, testified before the ALJ as an expert.

1. The Evidence from Dr. Smith and the MRIs

Burgess, on her initial visit to Dr. Smith three days after her accident, complained of swelling and buckling of her left knee, which upon examination revealed "diffuse swelling and tenderness" and a limited range of motion. (Report of Dr. Milton Smith dated October 10, 1997.) X-rays on Burgess's knees were negative, and Dr. Smith diagnosed "[i]nternal derangement of the left knee." (Id.) At that time, Dr. Smith noted that Burgess had started a course of physical therapy, and he opined that she could work in a sedentary position. In December 1997, Burgess complained of left knee pain and "continued back pain." (Report of Dr. Milton Smith dated December 12, 1997.) She had limited ranges of motion in her back and knee, was then working in a sedentary position, and was receiving physical therapy. (See id.) Dr. Smith's reports for January and February 1998 stated that Burgess continued to report pain and buckling in her left knee, and on March 17, 1998, an MRI was taken of that knee.

That MRI showed that there was a "SMALL AMOUNT OF FLUID IN KNEE JOINT WITH GREATER AMOUNT OF FLUID IN LATERAL ASPECT OF SUPRAPATELLAR RECESS. SUGGEST POSSIBLE TRUNCATION, NOTCH ASPECT OF POSTERIOR HORN OF MEDIAL MENISCUS." (Report of Dr. Franklin Turetz dated March 19, 1998.) Dr. Smith examined Burgess on March 20 and reported that she continued to have pain in her left knee. His report noted that the MRI showed evidence of a torn medial meniscus and that the Workers' Compensation Board had authorized arthroscopic surgery.

Dr. Smith performed the arthroscopic surgery on Burgess's left knee in May 1998. His operative report stated that no tear of the meniscus was found, but that there was hypotrophic synovium throughout the knee. At the Workers' Compensation Board hearing (two years later) Dr. Smith explained that hypotrophic synovium was an inflammatory process that was not reparable through surgery and that Burgess likely would eventually need knee replacement. (Workers' Compensation Board Hearing Transcript May 8, 2000 ("WCB Tr."), at 17.) He stated that although the arthroscopy showed no large tears, "the meniscus was fragmented" and that "a lot of small pieces ... had to be irrigated out." (Id. at 16.)

On May 29, 1998, some three weeks after the knee surgery, Dr. Smith's examination report stated that Burgess still had pain in her knee and in her lower back, but with improving range of motion. In June, Dr. Smith reported that Burgess was experiencing less pain in her knee, and had an improved, albeit still limited, range of motion; he opined that she could perform sedentary work. In July, he reported that Burgess had continued pain in the knee, with an improved but still limited range of motion. From August through December 1998, Dr. Smith's...