50 F. Supp. 3d 213
E.D.N.Y2014Background
- Debra M. Cabibi filed for DIB/SSD alleging disability from January 8, 2004 due to lupus, fibromyalgia, degenerative joint disease and prior breast cancer; SSA initially denied benefits and the case underwent hearings and two Appeals Council remands.
- ALJ Weiss found disability beginning July 5, 2007 (not earlier); Appeals Council remanded twice, directing further consideration of treating rheumatologist Dr. Peter Rumore’s opinions, RFC, and VE evidence.
- On remand ALJ Jay L. Cohen held a hearing (Sept. 22, 2011) focused on the period Jan. 8, 2004–July 4, 2007; a VE testified about transferable skills and light/sedentary jobs requiring good hand use.
- ALJ Cohen found medically determinable fibromyalgia and osteoarthritis but concluded the impairments were not severe through the date last insured and gave little weight to Dr. Rumore’s opinions while crediting a non‑examining reviewer (Dr. Plotz) and a one‑time consultative examiner (Dr. Dutta).
- The district court reviewed the Commissioner’s decision: it denied the Commissioner’s Rule 12(c) motion, granted plaintiff’s cross‑motion in part, and remanded for failure to follow the Appeals Council remand and for other legal errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did ALJ Cohen comply with the Appeals Council’s June 14, 2011 remand order? | Cabibi: ALJ failed to obtain or develop evidence from treating rheumatologist Dr. Rumore as directed. | Colvin: Record complete; relied on medical interrogatory and other evidence. | Court: ALJ failed to follow remand instructions to develop and weigh Dr. Rumore’s longitudinal treating‑source evidence; remand required. |
| Did the ALJ properly apply the treating‑physician rule to Dr. Rumore’s opinions? | Cabibi: ALJ gave no ‘‘good reasons’’ and ignored factors (treatment history, specialty, consistency). | Colvin: ALJ relied on other medical opinions (consultative and non‑examining reviewers). | Court: ALJ did not apply the §404.1527 factors or justify discounting the treating rheumatologist; remand required. |
| Was step‑two severity properly evaluated for fibromyalgia? | Cabibi: ALJ improperly relied on lack of objective findings and failed to account for fibromyalgia’s subjective/variable nature and treating records. | Colvin: Symptoms unsupported by objective tests; consultative opinions support non‑severe finding. | Court: ALJ applied wrong emphasis on objective tests; fibromyalgia requires consideration of longitudinal subjective findings; remand required. |
| Was the credibility/onset‑date analysis adequate? | Cabibi: ALJ used boilerplate ‘‘to the extent inconsistent’’ language, failed to apply the seven regulatory credibility factors, and ignored SSR guidance on waxing/waning conditions and SSR 83‑20 onset analysis. | Colvin: ALJ relied on claimant’s reported daily activities and medical evidence to discount credibility and adopt July 5, 2007 onset. | Court: Credibility findings were conclusory and incomplete; onset date selection unsupported given treating records and remand directives; ALJ must reassess on remand. |
Key Cases Cited
- Clark v. Commissioner of Soc. Sec., 143 F.3d 115 (2d Cir. 1998) (treating‑physician weight and requirement to give good reasons)
- Jasinski v. Barnhart, 341 F.3d 182 (2d Cir. 2003) (standard of review for Commissioner’s factual findings)
- Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999) (substantial evidence review)
- Tejada v. Apfel, 167 F.3d 770 (2d Cir. 1999) (review of administrative record)
- Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008) (definition of substantial evidence)
- Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996) (fibromyalgia lacks objective tests; symptoms are subjective)
- Green‑Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003) (recognizing fibromyalgia as a disabling impairment and lack of conclusive objective tests)
- Richardson v. Perales, 402 U.S. 389 (1971) (substantial evidence is more than a scintilla)