Shappy v. Commissioner of Social Security
5:16-cv-00108
D. Vt.Aug 30, 2017Background
- Plaintiff James J. Shappy, III applied for disability insurance benefits alleging disability from March 14, 2013, after an electrical shock and subsequent spine injury and fusion; claim denied and ALJ found not disabled; Appeals Council denied review.
- Medical record shows early post-op notes with normal gait, later progressive problems: EMG/nerve conduction studies showing axonal polyneuropathy, multiple 2015 treating/consulting exams noting antalgic/guarded gait, balance problems, and use of a walker.
- Treating physician Dr. Timothy Lishnak completed a March 2015 medical source statement citing objective studies (EMG, CT, MRI) and recommended a functional capacity evaluation but did not provide a detailed function-by-function RFC.
- ALJ found plaintiff had severe impairments but did not meet Listings 1.04 (spine) or 11.14 (peripheral neuropathy), concluding the record showed effective ambulation and giving no weight to Dr. Lishnak’s statement as largely subjective and non-specific.
- Plaintiff challenged (1) the ALJ’s failure to develop the record regarding the need for a walker and ambulation ability and (2) the Appeals Council’s not considering a supplemental letter from Dr. Lishnak; he asserted due process error.
- District court granted plaintiff’s motion to reverse and remanded, holding the ALJ should have further developed the record (seek clarification from treating physician or order consultative functional capacity exam) before concluding effective ambulation and rejecting the treating opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ erred by relying on an evidentiary gap to conclude plaintiff could ambulate effectively and thus not meet Listings 1.04 or 11.14 | ALJ failed to fill a clear gap about whether treating sources believed Shappy could ambulate without a walker and should have obtained clarification or ordered a consultative FCE | ALJ reasonably relied on record notes showing normal gait at times and lack of consistent treating-source findings documenting inability to ambulate | Court: ALJ erred — record showed worsening gait and treating/consulting notes plus EMG supported need to develop the record before finding effective ambulation; remand required to obtain clarification or FCE |
| Whether ALJ properly discounted treating physician Dr. Lishnak’s opinion for lack of function-by-function RFC | Lishnak’s opinion cited objective studies and recommended FCE; ALJ should have sought clarification rather than dismiss it as parroting subjective complaints | ALJ characterized the opinion as non-specific and largely subjective, justifying limited weight | Court: ALJ mischaracterized Lishnak’s opinion; because it referenced objective tests and recommended further testing, ALJ had duty to seek clarification or order consultative exam |
| Whether Appeals Council erred / violated due process by not considering a post-decision letter from Dr. Lishnak | Plaintiff argued Appeals Council should have considered the additional treating-source letter and its failure denied due process | Commissioner relied on procedural rules for consideration of new evidence and administrative finality | Court: Did not reach full merits; because remand ordered to further develop record, supplemental evidence can be submitted and considered on remand |
| Whether remand or benefits-ordered is appropriate remedy | Plaintiff sought remand for further development and consideration including the new letter | Commissioner opposed reversal | Court: Remand for further proceedings and development of the record (clarify treating opn or order consultative FCE) |
Key Cases Cited
- Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008) (ALJ must seek to fill clear gaps before rejecting treating physician opinion)
- Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999) (ALJ cannot reject treating physician diagnosis without attempting to fill record gaps)
- Machadio v. Apfel, 276 F.3d 103 (2d Cir. 2002) (standard of review and ALJ duties in disability determinations)
- Tankisi v. Commissioner of Social Security, [citation="521 F. App'x 29"] (2d Cir. 2013) (failure to order consultative exam when necessary can be reversible error)
- Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984) (ALJ obligation to order consultative examination when needed for informed decision)
- Poupore v. Astrue, 566 F.3d 303 (2d Cir. 2009) (burden shifting at step five and substantial evidence standard)
- Richardson v. Perales, 402 U.S. 389 (U.S. 1971) (definition of substantial evidence)