Lugo Rodriguez v. Colvin
Filing
23
ORDER granting 21 Motion to Reverse the Decision of the Commissioner; denying 22 Motion to Affirm the Decision of the Commissioner. The parties are directed to the attached decision. The Clerk is ordered to close this case. Signed by Judge Vanessa L. Bryant on 03/02/2018. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GLADYS M. LUGO RODRIGUEZ,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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No. 3:17-CV-00093 (VLB)
March 2, 2018
MEMORANDUM OF DECISION
Plaintiff Gladys M. Lugo Rodriguez (“Plaintiff” or “Lugo Rodriguez”) brings
this appeal pursuant to 42 U.S.C. § 405(g) and seeks review of the final decision
issued by the Commissioner of Social Security (“Defendant”) denying her
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act.
Plaintiff moves to reverse the decision, [Dkt. 21], and Defendant moves to affirm,
[Dkt. 22].
For the foregoing reasons, Plaintiff’s motion is GRANTED and
Defendant’s motion is DENIED.
Background
The following facts are derived from the record provided by the Social
Security Administration (“SSA”). Plaintiff initially filed an application for SSI on
March 23, 2010 alleging an onset disability date of January 1, 2006. [R. 15]. The
Social Security Administration (“SSA”) initially denied the claim on June 9, 2010,
and on reconsideration on October 14, 2010. [R. 15]. Plaintiff filed a request for a
hearing, which was held by Administrative Law Judge Roy P. Liberman (“ALJ
1
Liberman”) on September 29, 2011. [R. 15, 23]. Plaintiff was not represented by
counsel at the hearing and testified in Spanish through an interpreter. [R. 32].
On December 19, 2011, ALJ Liberman denied Plaintiff’s SSI claim on
December 19, 2011. [R. 23]. ALJ Liberman determined Plaintiff had not engaged
in substantial gainful activity since March 23, 2010. He then determined Plaintiff
to have the following severe impairments: status post bilateral carpal tunnel
release, hypertension, and obesity. [R. 17]. Because ALJ Liberman found the
listed impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1 did not match
with Plaintiff’s severe impairments, ALJ Liberman then evaluated Plaintiff’s
residual functional capacity (“RFC”) as able “to perform light work” with certain
limitations.
[R. 18].
In consideration of jobs in the national economy ALJ
Liberman determined Plaintiff could perform, he concluded Plaintiff was “not
disabled.” [R. 23].
Plaintiff filed a request for review with the Appeals Council, which was
denied on July 22, 2013, [R. 1-6].
district.
[Dkt. 1 (Compl.)].
Thereafter, Plaintiff filed her appeal in this
On August 28, 2014, Magistrate Judge William I.
Garfinkel issued a recommended ruling in which he found remand appropriate for
failure to develop the administrative record. [R. 494-98]. Judge Michael P. Shea
approved and accepted the recommended ruling in the absence of an objection
from either party. See Rodriguez v. Colvin, Case No. 3:13-cv-01414-MPS, Dkt. No.
23. The case returned to the SSA for further administrative proceedings.
On remand, the case was assigned to Administrative Law Judge Ronald J.
Thomas (“ALJ Thomas”). [R. 404-12]. ALJ Thomas held a hearing on December
2
7, 2015, and upon request by counsel he held a supplemental hearing on August
1, 2016. [R. 404]. Plaintiff testified at both hearings and impartial vocational
experts Albert Sabella and Robert T. Paterwic each testified at one of the hearings
(the former at the first hearing, the latter at the supplemental hearing). [R. 404].
Plaintiff’s counsel obtained and submitted the outstanding records and ALJ
Thomas determined the record to be fully developed. [R. 404].
On October 26, 2016, ALJ Thomas issued a decision denying Plaintiff’s SSI
application. [R. 412]. Like ALJ Liberman, ALJ Thomas determined Plaintiff had
not engaged in substantial gainful activity since March 23, 2010.
[R. 407].
However, unlike ALJ Liberman, ALJ Thomas determined Plaintiff did not have a
“severe impairment or combination of severe impairments.”
[R. 407].
ALJ
Thomas instead identified Plaintiff to have certain “medically determinable
impairments”: “status post bilateral carpal tunnel surgeries; tendinitis of the right
hand; bursitis and bone spur of the right shoulder; depressive disorder; obesity;
plantar faciitis.”
[R. 407].
These, he reasoned, did not significantly limit her
“ability to perform basic work-related activities for 12 consecutive months.” [R.
407].
ALJ Thomas compared Plaintiff’s testimony to the medical evidence in
arriving at his opinion.
In evaluating Plaintiff’s testimony regarding her
symptoms and pain, ALJ Thomas determined that her “statements concerning
the intensity, persistence, and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record. . . .” [R.
408].
3
First, he concluded that Plaintiff’s complaints about pain in her hand and
wrist could not be supported despite several diagnoses. With respect to carpal
tunnel syndrome, ALJ Thomas observed two main issues: (a) Plaintiff has been
taking care of her grandchild since 2014, she can cook daily, clean, and shop;
and (b) Dr. Cruz, a consultative examiner, evaluated Plaintiff in May 2010 and
determined she had normal fine and gross manipulation and range of motion,
although she felt tenderness to palpitation of the wrists and could not extend her
third and fourth fingers. [R. 408-09]. ALJ Thomas also acknowledged Plaintiff
obtained a tendinitis diagnosis in November 2012, but he found her pain to be
largely managed with treatment and observed “she has been able to care for a
toddler full time, and has not had consistent ongoing treatment.” [R. 409].
Second, ALJ Thomas discussed Plaintiff’s complaints of pain in her right
shoulder. [R. 409]. She obtained an MRI of her left shoulder in November 2010
and was diagnosed with subacrominal-subdeltoid bursitis, supraspinatous
tendinopathy without a rotator cuff tear, and a subacromonial spur; she was
referred to orthopedics. [R. 409]. ALJ Thomas noted in November 2012, Plaintiff
reported doing well with her right should pain, but she was again referred to
orthopedics for a bone spur in her shoulder.
[R. 409].
ALJ Thomas also
documented that Plaintiff testified she could lift her 23 month old grandchild with
difficulty. [R. 409].
Third, ALJ Thomas addressed Plaintiff’s diagnosis of plantar fasciitis in
September 2015. [R. 409]. He referred to treatment notes written by Dr. Liza
Goldman Huertas in March 2016, which indicated Plaintiff was caring for her 2
4
year old and accordingly stopped exercise classes. [R. 409-10, 1018]. In addition,
ALJ Thomas commented Plaintiff did not receive ongoing treatment for her left
leg or heel pain. [R. 409-10].
Fourth, ALJ Thomas discussed Plaintiff’s depression diagnosis1 from
January 2010.
[R. 410, 256].
He observed Plaintiff refused mental health
treatment in March 2010 but did not articulate that the medical note containing
this information also stated Plaintiff’s depression was “poorly controlled.” [R.
250, 410]. Subsequently, in May 2010 consultative examiner Dr. Lago evaluated
Plaintiff and did not observe vegetative signs of depression, finding no mental
health diagnosis appropriate.
[R. 410].
ALJ Thomas reflected on behavioral
health treatment sessions from May and June 2011 and concluded her mental
health issues caused no more than “minimal limitations,” she responded well to
medication, and she no longer had depression. [R. 410].
ALJ Thomas concluded that “the claimant’s physical and mental
impairments, considered singly and in combination, do not significantly limit the
claimant’s ability to perform basic work activities.”
[R. 411].
However, ALJ
Thomas did not reference Plaintiff’s obesity diagnosis.
In addition to making findings about each “medically determinable
impairment,” ALJ Thomas also explained the weight he gave to certain medical
experts’ medical opinions.
Specifically, ALJ Thomas afforded consultative
examiner Luis R. Cruz, M.D. (“Dr. Cruz”), “great weight” regarding his “findings of
no limitations with fine or gross manipulation and normal range of motion.” [R.
1
The medical note states, “Depression/Anxiety – New diagnosis.” [R. 256].
5
409].
With respect to Plaintiff’s mental health impairments, ALJ Thomas
determined the medical opinion of internist and treating physician Kevin Baran,
M.D. (“Dr. Baran”), should be given less weight than consultative examiner Jesus
A. Lago, M.D. (“Dr. Lago”), because Dr. Baran did not specialize in mental health,
unlike Dr. Lago who was a psychiatrist. [R. 411]. ALJ Thomas also gave “little
weight” to the medical opinion of J. Grant Thomson, M.D. (“Dr. Thomson”)—that
Plaintiff could not work on account of her poor prognosis for tendinitis; he made
his determination because Plaintiff began caring for her grandchild nine months
after seeking treatment. [R. 411]. ALJ did not make any subsequent findings
after determining Plaintiff did not have a “severe impairment.”
Discussion
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial
evidence in the record and were based on a correct legal standard.” Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C. § 405(g)).
“Substantial evidence is more than a mere scintilla.
It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation marks and citations omitted). “[A district
court] must consider the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Petrie v. Astrue, 412 F. App’x 401, 403–04 (2d
Cir. 2011) (quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.
1988)) (internal quotation marks omitted). “Even if the Commissioner's decision
6
is supported by substantial evidence, legal error alone can be enough to overturn
the ALJ’s decision.” Ellington v. Astrue, 641 F.Supp.2d 322, 328 (S.D.N.Y. 2009)
(citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
To be “disabled” under the Social Security Act, a claimant must
demonstrate an “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or 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 SSA has promulgated the following five-step procedure to evaluate
disability claims:
1.
First, the [Commissioner] considers whether the claimant is currently
engaged
in
substantial
gainful
activity
(“Step
One”).
2.
If she is not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits her physical or
mental ability to do basic work activities (“Step Two”).
3.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations (“Step Three”).
4.
If the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant’s severe impairment, she has the
Residual Functional Capacity (“RFC”) to perform her past work (“Step
Four”).
5.
Finally, if the claimant is unable to perform her past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform (“Step Five”).
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citing 20 C.F.R. § 404.1520). Ms.
Lugo Rodriguez challenges Step Two.
7
At Step Two, the Court must evaluate the medical opinions and evidence to
determine whether the plaintiff has “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 1520(a),(c). Basic work activities are
defined as “the abilities and aptitudes necessary to do most jobs,” and examples
are as follows:
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding,
instructions;
carrying
out,
and
remembering
simple
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in routine work setting.
20 C.F.R. § 404.1522(b). Severity is based on the individual’s limitations from the
impairment, not solely the diagnosis. See Hawver v. Comm’r of Soc. Sec., No.
6:15-CV-1517, slip op. at 3 (N.D.N.Y. Jan. 13, 2017); Burrows v. Barnhart, No.
3:03cv342, 2007 WL 708627, at *6 (D. Conn. Feb. 20, 2007).
The regulations
prohibit the ALJ from considering the plaintiff’s age, education, and work
experience at this stage. 20 C.F.R. § 404.1520(c). A finding that the impairments
are non-severe stops the analysis and the individual is determined to be not
disabled. Id.;
The purpose of Step Two is to “screen out de minimis claims.” Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,
8
158 (1987)); Griffies v. Astrue, 855 F. Supp. 2d 257, 267 (D. Conn. 2012); Rosario v.
Apfel, No. 97 CV 5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (“According
to the Commissioner’s own policy, the threshold severity test should only be
used as a de minimis screening device to eliminate frivolous claims.”); Hawver,
No. 6:15-CV-1517, slip op. at 3. In other words, any claim in which the medical
evidence establishes more than a “slight abnormality” with “no more than a
minimal effect on an individual’s ability to work” should be determined “severe.”
Yuckert, 482 U.S. at 154 n.12. Step Two should not be utilized to deny benefits
from a claimant who fits within the statutory definition without considering
whether the impairment prevents her from having prior work or substantial
gainful employment available in the national economy, given her age, education,
and work experience. Id. (citing Yuckert, 482 U.S. at 158).
I.
ALJ Thomas Does Not Indicate He Considered Obesity
As an initial matter, reversal is appropriate because ALJ Thomas did not
reference obesity at all in his Step Two analysis despite determining it was a
“medically determinable impairment.”
[R. 407].
“[T]he ALJ is required to
consider the effects of obesity in combination with other impairments throughout
the five-step evaluation process.” Crossman v. Astrue, 783 F. Supp. 2d 300, 309
(D. Conn. 2010). This is in part because it can have the effect of “increase[ing]
the severity of coexisting impairments, particularly those affecting the
musculoskeletal, cardiovascular and respiratory systems.” Id. Because there is
no indication that obesity was considered at all, ALJ Thomas must revisit the
9
record and consider whether obesity tips the scale in favor of finding Plaintiff has
a “severe impairment.”
II.
The ALJ Improperly Apportioned Weight to Medical Opinions
In making the determination, ALJ Thomas gave “little weight” to treating
physician, Dr. Thomson’s medical opinion; “more weight” to the consultative
examiner, Dr. Lago, than the treating physician, Dr. Baran; and “great weight” to
the consultative examiner, Dr. Cruz.
[R. 408-11].
Plaintiff challenges each
determination.
There is a tiered system for which weight is apportioned to the medical
opinions of the medical experts in a given case.
“Medical opinions are
statements from acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including [the claimant’s]
symptoms,
diagnosis
and
prognosis,
what
[she]
can
still
impairment(s), and [her] physical or mental restrictions.
do
despite
20 C.F.R. §
404.1527(a)(1). An ALJ must evaluate and weigh each medical opinion. 20 C.F.R.
§ 404.1527(c).
Typically, a treating physician’s opinion on the severity of an
impairment is to be given “controlling weight” if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.”
20
C.F.R. § 404.1527(c)(2).
In all other circumstances—i.e. when a treating physician is not given
“controlling weight” or when the medical opinion comes from any other medical
source—an ALJ must consider enumerated factors under 20 C.F.R. §
10
404.1527(c)(1)-(6). First, the ALJ generally must give more weight to a medical
expert who examines the claimant than one who has not examined the claimant.
20 C.F.R. § 1527(c)(1). Second, a medical opinion from a treating physical is
generally given more weight “since sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” 20 C.F.R. 404-1527(c)(2). Third, there
should be a correlation between the weight a medical opinion is given and the
amount of relevant evidence presented to support those opinions, “particularly
medical signs and laboratory findings.”
20 C.F.R. § 404.1527(c)(3).
Fourth,
medical opinions are given more weight when they are consistent with the record
as a whole. 20 C.F.R. § 404.1527(c)(4). Fifth, medical opinions from a specialist in
the field is typically given more weight than those from non-specialist sources.
20 C.F.R. § 404.1527(c)(5). An ALJ may also address any other relevant factor
brought to his attention. 20 C.F.R. § 404.1527(c)(6).
A. Treating Physicians
ALJ Thomas evaluated the medical opinions of two treating physicians: Dr.
Thomson and Dr. Baran.
He determined the medical opinion from treating
physician, Dr. Thomson, should be given “little weight” and the medical opinion
relating to mental health from treating physician, Dr. Baran, should be given less
11
weight than the mental health evaluation administered by the consultative
examiner, Dr. Lago.
Where an ALJ does not assign “controlling weight” to a treating
physician’s opinion, he must “consider certain factors to determine how much
weight to give it, and should articulate ‘good reasons’ for the weight given.” See
Camille v. Colvin, 652 F. App’x 25, 27 (2d Cir. 2016) (citing Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004)); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1998)
(requiring an ALJ to “provide a claimant reasons when rejecting a treating
source’s opinion”); Schrack v. Astrue, 608 F. Supp. 2d 297, 301 (D. Conn. 2009)
(“The regulations further provide that even if controlling weight is not given to
the opinions of the treating physician, the ALJ may still assign some weight to
those views, and must specifically explain the weight that is actually given to
the opinion.”).
With
respect
to
Dr.
Thomson,
the
Court
finds
ALJ
Thomson’s
determination is not supported by substantial evidence. See Halloran, 362 F.3d at
32. ALJ Thomas referred to Dr. Thomson’s January 2014 evaluation of Plaintiff’s
tendinitis in a Connecticut Department of Social Services (“DSS”) Medical Report
for Incapacity wherein Dr. Thomson stated Plaintiff’s tendinitis in her right wrist
had a prognosis of “poor—she will always have pain.” [R. 787]. Dr. Thomson also
opined Plaintiff will never be able to work. [R. 787]. ALJ Thomas concluded that
this opinion should be given “little weight” because Plaintiff (1) “resumed use of
her right hand shortly after” in the sense that she began caring for her grandchild
12
nine months later and lifted with difficulty; and (2) did not seek ongoing or
consistent treatment. [R. 411].
The first problem with this conclusion is that it appears ALJ Thomas did
not adequately consider whether Dr. Thomson’s medical opinion should be given
“controlling weight” as it presumptively should. He did not evaluate whether the
opinion was supported by medically acceptable clinical or laboratory techniques
or that it was otherwise supported by substantial evidence.
See 20 C.F.R. §
404.1527(c)(2). It is well-established that “[t]he opinion of a treating physician on
the nature or severity of a claimant’s impairments is binding if it is supported by
medical evidence and not contradicted by substantial evidence in the record.”
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). In failing to address the medical
evidence or substantial evidence in the record, there is no basis to conclude it
appropriate to stray from the otherwise binding rule.
The second problem is ALJ Thomas inserted his opinion into the fold
without providing a “good reason” as to why Dr. Thomson’s evaluation was not
entitled to “controlling weight.” The Second Circuit has made clear that “[t]he
ALJ is not permitted to substitute his own expertise or view of the medical proof
for the treating physician’s opinion or for any competent medical opinion.” Greek
v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015); see Selian, 708 F.3d at 419 (finding
error when the ALJ’s conclusion “constituted an improper substitution by the
ALJ of [his] own lay opinion in place of medical testimony”); see also Griffies, 855
F. Supp. 2d at 271 (“The ALJ offered no meaningful explanation in assigning Dr.
Romano’s opinion ‘little weight.’”).
Moreover, an ALJ must affirmatively present
13
“specific contradictory evidence” when disregarding a treating physician’s
opinion. Griffies, 855 F. Supp. 2d at 272. Plaintiff’s ability to use her hand in
some capacity does not negate the pain she feels or a medical expert’s
assessment of her pain.
Nor does her inability to have regular treatment
necessarily mean she did not suffer from a severe impairment.
The third problem is ALJ Thomas did not appear to have considered
subsections (1) through (6) of 20 C.F.R. § 404.1527(c), which an ALJ is required to
consider when electing not to give a treating physician’s medical opinion
“controlling weight.” See 20 C.F.R. § 404.1527(c)(1)-(6). The record indicates
Plaintiff was a patient of Dr. Thomson’s for approximately nine years from April
2006 until March 2015, [R. 222, 968-69], which suggests he would be “most able to
provide a detailed, longitudinal picture” of Plaintiff’s impairment and could “bring
a unique perspective to the medical evidence” not apparent in the objective
medical findings of other experts, 20 C.F.R. § 404.1527(c)(2). The Court finds ALJ
Thomas’s assessment of Dr. Thomson’s medical opinion is not supported by
substantial evidence.
The Court now turns to ALJ Thomas’s evaluation of Dr. Baran’s medical
opinion. While Plaintiff has not provided a legal analysis as to why Dr. Baran’s
medical opinion is entitled to greater weight than it was given, the Court
nonetheless identifies similar issues with ALJ Thomas’s assessment of Dr.
Baran’s medical opinion as those of Dr. Thomson.
The Court instructs ALJ
Thomas to reassess whether Dr. Baran’s medical opinion of Plaintiff’s mental
health should be given “controlling weight” as he appears to be the physician
14
who treated her for depression, hypertension, and difficulty with sleeping. See,
e.g., [R. 333]. An ALJ may not make an arbitrary decision to credit a consultative
examiner’s opinion over that of a treating physician. See Wilson v. Colvin, No.
2016 WL 5462838, at *12 (Sept. 28, 2016) (“the ALJ’s decision to credit the opinion
of the consultative examiner over plaintiff’s treating physicians is, as best the
Court can tell from the record, an arbitrary one.”). If Dr. Baran’s medical opinion
should not be given “controlling weight,” ALJ Thomas must then consider the
requisite factors under 20 C.F.R. § 404.1527(c)(1)-(6).
B. Consultative Examiner
ALJ Thomas gave “great weight” to the medical opinion of consultative
examiner Dr. Cruz, who evaluated Plaintiff on April 27, 2010. [R. 312]. Dr. Cruz
observed Plaintiff “appeared in no acute distress although she was wearing
braces [o]n both wrists,” but that she otherwise had a normal gait, did not use an
assistive device, and “had no difficulty getting on and off the examine [sic] table.”
[R. 312]. Dr. Cruz also stated with respect to Plaintiff’s osteomuscular system:
Tenderness to palpitation of both wrists. She complains of pain and
tingling sensation radiating from the wrist to the elbows mostly in
the right upper extremity. No evidence of muscle wasting. She was
unable to fully extend the third and fourth right digits. The range of
motion of all other extremities were normal as well as fine and gross
manipulation abilities with her hands.
[R. 313]. Dr. Cruz also noted a “[d]ecreased pinprick below the right elbow.” [R.
313]. Her final impressions included four issues: “(1) Status post bilateral carpal
tunnel release; (2) Residual numbness and tingling sensation on the right side;
(3) History of hypertension; [and] (4) History of depression.” [R. 313].
15
ALJ Thomas concluded he “has given great weight to these findings of no
limitations with fine or gross manipulation and normal range of motion.” [R. 409].
But Dr. Cruz’s notations reflect range of motion limitation in her third and fourth
fingers. [R. 313]. The Court agrees with Plaintiff that ALJ Thomas appears to
have selected only certain findings favorable to his conclusion that Plaintiff did
not have a “severe impairment” and disregarded all other findings that could
suggest “severe impairment.”
Moreover, the Second Circuit cautions ALJs
against “rely[ing] heavily on the findings of consultative physicians after a single
examination.” Selian, 708 F.3d at 419; see Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir.
1990) (justifying giving a consultative physician limited weight “because
‘consultative exams are often brief, are generally performed without benefit or
review of claimant's medical history and, at best, only give a glimpse of the
claimant on a single day. Often, consultative reports ignore or give only passing
consideration to subjective symptoms without stated reasons’”) (quoting Torres
v. Bowen, 700 F. Supp. 1306, 1312 (S.D.N.Y. 1988)).
This general principle
compounds risk of error in putting too much weight on this particular fractured
medical opinion. Thus, the Court finds ALJ Thomas erred in determining “great
weight” should be afforded to only a portion of the medical expert’s opinion.
Selian, 708 F.3d at 418-19 (criticizing the ALJ’s characterization of medical
experts’ “conflicting” evidence when the record instead demonstrated the
medical opinions appeared to concur).
16
III.
Plaintiff’s Complaints of Pain and Other Limitations
Plaintiff argues ALJ Thomas gave short shrift to Plaintiff’s consistent
complaints of pain. This argument contemplates Plaintiff’s complaints of other
symptoms and limitations.
Although ALJ Thomas did not make an explicit
finding about Plaintiff’s credibility, he appears to base his Step Two
determination largely upon the fact that she is able to care for her grandchild and
do other household activities during the week. See [R. 408-11].
There are numerous instances in which ALJ Thomas’s analysis is
incomplete or inaccurate with respect to Plaintiff’s symptoms, expression of pain,
and the impact on her life. For example, in determining Dr. Thomson’s medical
opinion about Plaintiff’s tendinitis should be afforded “little weight,” ALJ Thomas
indicated the following:
He stated that the claimant was unable to use her right hand and
would “never” be able to return to work. However, 9 months later,
the claimant was caring for her grandchild full time. She testified
she feeds and changes diapers. She lifts with difficulty. The
undersigned gives little weight to this opinion, as the claimant
resumed use of her right hand shortly after. Moreover, she did not
seek ongoing or consistent treatment for her right hand.
[R. 411]. While this testimony is true, ALJ Thomas did not acknowledge Plaintiff’s
testimony that she cannot lift a gallon of milk with one hand, [R. 433], that she
drops dishes, [R. 433-34], that she has pain running up her left leg, [R. 434], that
she cannot sleep at night because of the pain in her shoulder and is tired during
the day as a result, [R. 436], and that she picks up her granddaughter by putting
her arms under her granddaughter’s armpits because she is afraid if she uses her
hands she will drop her granddaughter, [R. 444].
17
In general, an ALJ is required to consider “all [a claimant’s] statements about
[her] symptoms, including pain, and any description [her] medical sources or
nonmedical sources may provide about how the symptoms affect [her] activities
of daily living and [her] ability to work.” 20 C.F.R. § 404.1529(a). At Step Two, a
claimant’s “symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, are considered in making a determination as to whether [the]
impairment or combination of impairment(s) is severe.”
20 C.F.R. §
404.1529(d)(1). In reviewing the record at Step Two and beyond, the ALJ must
take care to consider all of Plaintiff’s descriptions of her symptoms in
conjunction with the objective medical evidence. See Rosario v. Apfel, No. 97 CV
5759, 1999 WL 294727, at *6 (E.D.N.Y. Mar. 19, 1999) (stating a plaintiff’s
subjective statements must be considered along with objective medical
evidence).
Here, Plaintiff did not just testify about her ability to care for her
grandchild, but rather she drops dishes and cannot pick up a gallon of milk
without using two hands. [R. 433]. She testified that her daughter assists her
when she grocery shops, [R. 435], and that her son is always with her to help care
for her grandchild, [R. 442]. Ms. Lugo Rodriguez testified that she cannot pick
her grandchild up with her hands because she is afraid she will drop her. [R.
444].
Moreover, there is objective medical evidence establishing Plaintiff’s
limitations and pain, such as Dr. Thomson’s opinion that Ms. Lugo Rodriguez will
always have pain, R. 787], and consultative examiner Dr. Cruz’s notes that she
was “unable to fully extend the third and fourth right digits.”
[R. 313].
In
conclusion, all of Plaintiff’s complaints of pain, other symptoms, and her
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limitations in conjunction with objective medical evidence warrant remand for
further consideration.
Conclusion
For the aforementioned reasons, the Court REVERSES the administrative
decision and REMANDS the case for further proceedings. The Clerk is directed to
close this case.
IT IS SO ORDERED
__________/s/____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 2, 2018
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